THE LAW'S IMPLICATURE: GRICE AND SCALIA

Speranza

One of the central concerns of philosophy throughout the 20th Century has been the nature of language and in particular the problem of meaning, as Griceians are well aware. 

Language has many remarkable properties.

It can be viewed as a system of rules capable of endless iteration.

The average competent speaker of English with only basic grammatical rules can construct (at least theoretically) an infinite number of sentences in the language.

Language also points out to the world.

It is often said of words or sentences that they refer.

A description I give of Oxford (where Grice lived) is in some relevant way, about Oxford.

This ability to describe, to be about things, and to be true or false, is associated with the meaning of sentences.

It is the theory of meaning that has been the principal concern of philosophy.

Contemporary philosophy of language was given its impetus by the work of Frege who lectured aat Jena from 1874 to 1918.

Frege argued that the meaning of words are objective things capable of being shared by all competent users and not to be identified with the psychological states of speakers.

Frege’s anti-psychologism nevertheless leaves the nature of meaning somewhat mysterious.

In 1967, Davidson sought to develop a theory of meaning in which meanings were objective but without the mystery of Frege’s anti-psychologism.

His theory is referred to as truth-conditional semantics.

On this theory the meaning of a sentence (sentences being the primary bearers of meaning) is represented by a specification of the conditions which would render the sentence true.

There will clearly be difficulties in applying this theory to sentences that do not obviously have truth value (such as imperative sentences “get up and shut the door”).

Truth conditional semantics captures some of the public aspects of meaning and part of the way language may describe or represent the world.

But language is also intentional.

Philosophers use this term in a technical sense.

Intentionality is that quality of being directed towards or referring to something apart from the speaker.

If I utter the sentence, “Oxford is the city of the dreaming spires”, we understand that the sentence uttered by me refers to and is about the capital of Oxfordshire.

This, we also recognise, is in some way associated with actual beliefs and intentions on my part.

So if a computer produced the sentence, “Oxford is the city of the dreaming spires”, through the operation of a random sentence generator, we would not understand that sentence to be about the capital of Oxfordshire.

At least on one philosophical view the signs produced by the computer would lack intentionality and meaning (see Searle’s famous Chinese room thought experiment)(unless we could find that the programmer had intended the computer to possibly say such a thing).

An important alternative theory to truth conditional semantics seeks to explain the nature of meaning by reference to a speaker’s intention.

In 1957 in the article “Meaning” in the Philosophical Review, volume 66, Herbert Paul Grice sought to show that the meaning of a sentence is associated with the intentions of a utterer, and the intentions of speakers will be to induce a belief in the mind of hearers in consequence of the speech.

Grice provides the following formulation as an analysis of meaning.

Jack means that p to Jill by doing X if:

a.         Jack does X

b.         With the intention that Jill believe that P

c.         Jack further intends that Jill recognises Jack’s intention in b. above

d.     Jack further intends that Jill’s belief comes about through her recognition of Jack’s intention in b.

We often distinguish between utterer’s meaning, what the speaker actually intended his or her words to mean, and so called literary or dictionary meaning, namely what those words would mean if uttered by a normal competent speaker of the language on a typical occasion for their use.

Grice sought to explain dictionary meaning in terms of speaker’s meaning.

Does a constitution mean what was intended by the original drafters, or must it be reinterpreted in each age?

Does it have one meaning, or does its meaning shift, or does it have multiple meanings?

In constitutional law the “will” theory of the nature of law and legal validity, that laws are commands of the sovereign political body, appears to fit with the utterer’s intention theory of meaning.

This theory still has some adherents (such as Larry Alexander).

We might read some documents primarily to ascertain the speaker’s intention.

However, if we read a constitutional text as if it is merely a record of the intentions of the drafters and we treat those intentions as binding legal rules, numerous practical problems arise.

Interpretations can never be settled by precedent as new historical evidence may reveal that we had previously misunderstood the drafters’ intentions and we therefore have to read the constitution differently.

Whose intentions are to count in any event? Most constitutions (or statutes) have not one but many authors and their drafting was a complex process.

Legal documents are often expressed in general language but the drafters could never have had in mind all the possible instances to which the words might apply. 

Do the words only mean those things the drafters actually had in mind? 

In which case the meaning of the document will be severely limited.

If we treat the document has having meaning in regard to instances that were never in the minds of the drafters, how do we determine what meaning it had? 

Do we ask what intentions or thoughts they would have had if they had turned their mind to the issue?

If we adopt the last strategy, what other matters must we attribute to the founding fathers to ascertain their counterfactual beliefs? 

What would Sir Samuel Griffith have thought if asked in 1895 whether the Commonwealth government should be allowed to regulate television broadcasting?

Is there even a fact of the matter as to what counterfactual intentions the drafters could be said to have?

Difficulties with the utterer’s intention theory of meaning has led to a return to literal or dictionary meaning by some jurists as the explanation of the meaning of a legal text.

This approach is most frequently referred to as textualism.

Most current high court judges in Australia would describe themselves as textualists.

The leading English language proponent of textualism is Antonin Scalia, a judge of United States Supreme Court (see his A Matter of Interpretation: Federal Courts and the Law, The Tanner Lectures, Princeton, 1997).

Scalia says that the meaning of the constitution is the meaning given to the words by the normal canons of language use that governed the language at the time the constitution was drafted.

One is thus not concerned with the actual subjective states of any of the drafters.

Scalia believes that this theory provides a single invariant meaning of the constitution, its correct and only meaning.

There will still be problems of counterfactual scope.

How do we know whether normal users of English in the United States in the 1780s or Australia in the 1890’s intended their words to mean the same as those words when used today?

It is not customary in constitutional cases to call linguistic historians to give evidence of change of the meaning of words.

The constitution also remains frozen in time and unable to adopt to new social and political circumstances unforeseen by the drafters.

Dworkin contrasts his view with what he calls Scalia's "semantic originalism".

Dworkin argues that the drafters of the constitution must have known that unforeseen circumstances would arise and must have intended that later generations would need to interpret the constitution afresh to meet those unforeseen circumstances.

Dworkin in effect argues that the constitution was written with the intention or expectation of being adapted.

Dworkin argues that the process of adaptation is not unconstrained. Dworkin relies upon his other general theories of “best fit” and “best theory” of the constitution to explain how judges will arrive at a correct answer.

Theories like Dworkin’s have sometimes been described as “living constitution” theories.

Fish argues in a long series of articles and books that there is in effect no such thing as literal meaning, or meaning in the text, if by that is meant something read off the face of the document without any prior process of interpretation (“Doing What Comes Naturally” and “There is No Such Thing as Free Speech”).

In interpreting any document the addressee firstly have to make judgments about the nature and type of document it is.

In a sense this is recognised by the law through the legal rule permitting extraneous evidence in determining whether a document is intended to be contractual or not (see Ayre Great Lakes Pty Ltd v KS Easter [1985] 2 NSWLR 309).

Fish generalises this proposition, arguing that in any reading of any legal text the establishment of the meaning is the result of an interpretative process which relies upon the addressee’s knowledge about the nature and purpose of the document, and also depends upon the interpreter’s values and beliefs.

Fish argues that the establishment of consensus about the meaning of a document is the result of shared interpretative practices amongst what Fish calls “interpretative communities”.