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November 16, 2005

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Roach

A few parting remarks.

First, as to the poster above regarding how originalism would allow slavery and gay marriage bans, of course it would, at least until the 13th Amendment in the case of the former. Originalism does not puprport to be a comprehensive philosophy of right; it purports to be a workable, fair, and predictable philosophy of interpretation that has narrative integrity, shows respect for the constitutional value of precommitment, and reduces judicial discretion.

Steed's nominmalism/subjectivism on the other hand is more comprehensive, relating not just to legal knowledge but also moral right. That's why the question of "how do we bind or persuade the community" becomes so relevant. Out of a surfeit of concern for any limitations on democracy, it abandons the moral foundations of such a liberal democracy, which is supposed to be grounded in certain truths about human nature and the nature of states. Without such a grounding, democracy's defenders are reduced to saying, "I like democracy" and to dismissing as stylized rhetoric any attempt at articulating a rigorous system of moral, legal, or political philosophy.

Steed's remark above, "But I recognize that the "truths" that I believe in cannot be proven in any rational way to be "objective" or "outside" the context in which they exist. I recognize that the attempt to posit them as such is really just a rhetorical ploy," is just another way of saying that philosophy, theology, and the like are not generating any real knowledge or development of understanding in these fields. There complicated treatises and books are simply very stylized ways of saying, "I want this" or, a la Cheap Trick, "I want you to want this too."

The problem is that well organized minorities and run-amuck majorities have often proven capable of violating the rights of others. The only problem is not democracy and protecting it through a comprehensive philosophy of skepticism, with majority rule as a default. There is also the problem of illiberalism, and to argue against and prevent illiberalism one must appeal persuasively to values outside the mere preferences of a majority--whether englightened or otherwise. While potentially undemocratic, a well grounded moral philosophy presents a viable means of resisting both tyrannical majorities and minorities, by persuading such groups that they're wrong.

Such knowledge is necessary (and possible) here for the same reason it is in science. There is an outside world apart from any of our perspectives on it. Human beings have an apprehensible nature without regard to whether one or another individaul or group is mistaken about the details of that nature. Nature is not simply meaningless, in my view. It has built within it certain ends. For anmials these ends are pursued unreflectively, but human beings must pursue these ends through reflection and freely. This fact of a common nature is the foundation of potential moral knowledge and moral consenesus. (I plead guilty to being a through-going Aristotelian in this regard).

Without recognizing a common nature and some important consequences of that, then Steed's "I like democracy" point is not very persuasive to others in the long haul, and numerous historical examples abound of decadent, morally uncertain democracies taken over by motivated illiberal minorities, e.g., Weimar Germany, the Kerrensky regime in Russia, etc. When confronted with the moral certainty of its opponents, such relativistic democrats could only say, effectively, "Well, I don't like it. But maybe this is the right choice for you." The problem with his "community standards" principle is that there are many communities, sometimes overlapping, and sometimes hostile. There are also moral issues with respsect to completely alien groups, such as in the confrontation of alien nations and civilizations. In all of these cases, the only way to bridge the gap is through moral knowledge, and this can only be had through a grounding in philosophy.

Pithlord

There are two claims associated with the Crits:

1. Meaning cannot be defined independent of a community of speakers and audience.

2. Legal texts do not constrain legal decision-makers.

The first claim is really a philosophical one, and basically irrelevant to the originalism debate.

The second claim goes too far. Lawyers know that legal sources (precedent, text, etc.) do not eliminate discretion. On the other hand, a bill of lading is not a decree of divorce. (In a philosophical sense, you could say that a bill of lading is not a decree of divorce only because of the norms of the community of lawyers and English speakers. You might be right, but it doesn't matter.)

A narrower claim -- that the legal sources in Constitutional law (text, history, precedent)don't significantly restrict the discretion of Supreme Court justices -- is basically true. If Ginsburg and Breyer converted to "public meaning originalism", it might change the style of their opinions, but it wouldn't necessarily change their votes. It is pretty hard to make an originalist case that states can't engage in affirmative action, but that doesn't stop Scalia or Thomas.

Jason Steed

Roach,
I've thoroughly enjoyed our debate. Here are my parting thoughts:

You say: "Out of a surfeit of concern for any limitations on democracy, it [community-based notions of truth] abandons the moral foundations of such a liberal democracy, which is supposed to be grounded in certain [objective] truths about human nature and the nature of states."

You’re right to say that democracy is “supposed” to be grounded in certain [objective] truths. We do, indeed, suppose this to be so. But that is all it is -- a supposition. There is in fact no way to prove rationally that these truths are “objective.” You fear this, because to you it appears to be a profound weakening of our claim to these truths. But I don’t see it that way. I see this as an elevation of the community’s role in self-determination. The community is empowered by the recognition that it is not “constrained” by “objective” truths. It was once an “objective” truth that certain races were inferior to others; it was once an “objective” truth that the world was flat; it was once an “objective” truth that women were not fit for positions of authority and responsibility; it was once an “objective” truth that monarchy was preferable to all other forms of government.

Clinging to the notion of “objective” truth subjects the community to the authority of that “truth.” It slows the community's ability to overcome something it disagrees with. I prefer to empower the community to decide its truths through discourse and debate, consideration and collaboration. Doing away with notions of “objectivity” does not in any way threaten the foundations of democracy; it enhances democracy.

Again, you fear this because you fear being in the minority -- you fear the “tyranny” of the majority. Well then, perhaps you do not really value democracy as much as you say you do. (I find this is often the case with conservatives; they value democracy only insomuch as it supports THEIR values. They quickly endorse more hierarchical and authoritative systems the moment their values are threatened.)

What I fear more than the tyranny of the majority is the tyranny of the minority. At least in the tyranny of the majority, the smaller portion of the population is victimized. Obviously this isn't good, but it is preferable to the tyranny of a minority. With a tyranny of the minority, the tyranny is wider-spread and far more unjust. And a tyranny of the minority is only possible in one of two ways: either through sheer physical force and power, or through a strong rhetorical appeal to “truths” that are “outside” the community. These are the only ways a majority can be controlled by a minority. By eliminating the appeals to “objective” truths “outside” the community, we empower the community to guard against one possible route to the tyranny of the minority.

You also say: "Steed's remark above, "But I recognize that the "truths" that I believe in cannot be proven in any rational way to be "objective" or "outside" the context in which they exist. I recognize that the attempt to posit them as such is really just a rhetorical ploy," is just another way of saying that philosophy, theology, and the like are not generating any real knowledge or development of understanding in these fields."

You are right about this only if you begin with the premise that “real knowledge” must be of “objective” truths that exist “outside” the community. I reject that premise. I can have extensive knowledge of what is meant, in a given community, by “stare decisis,” or “common law,” or by “transubstantiation,” or “atonement.” This requires no appeal to “outside” truths. Are you going to say my knowledge is not “real”?

Or think about it this way: If philosophy and theology really can come to “objective” conclusions -- “truths” that are transcendent of or “outside” communities -- then why in the world haven’t they succeeded yet? We must presume that once an “objective” truth is reached, and known, that it won’t become unknown. After all, it’s “objective” and independent of community influence. Yet our philosophers and theologians continue to argue and debate and proclaim and postulate and critique and revise, etc., etc., etc. Mustn’t we conclude that either (a) no “objective” truth has yet been reached, so even if it is reachable eventually, we cannot appeal to it at the present time, or (b) “objective” truth is, in fact, unattainable?

Either way, your desire to appeal to “objective” truth is awfully shaky. And your claim that I am denying theology and philosophy any claim to knowledge is ridiculous. Knowledge doesn’t have to be strictly “knowledge of ‘objective’ truth.”

Finally, I think your attempt to compare moral philosophy to science is downright laughable. Yes, I agree with you that there is a world that exists outside our subjective perspectives on it. But that’s a PHYSICAL world. Science can try to study the physical world and can try to reach “objective” conclusions about it (though they still must face problems of interpretation and perspective). But how in the world do you suppose that there is a MORAL world that exists outside our perspectives of it? You yourself acknowledge that only humans live reflectively; doesn’t this necessitate that only humans have any conception of morality? Thus, morality exists solely within the human community. There’s no “science” of morality, is there?

As I see it, you’re right to say there is only moral philosophy -- but philosophy is fundamentally about making arguments. It is only about “objective” truth insomuch as some philosophers purport to establish and/or appeal to these “objective” truths, but each of these has her critics who just as competently debunk those “truths.” Even science is not as “objective” as we like to think, though certainly it has a far more persuasive claim to objectivity than philosophy does.

I think you need “grounding” in “objective” truths because it makes you feel more secure. That’s perfectly understandable and reasonable, and I think the conservative streak in all of us finds this appealing. But it’s also limiting. I know, I know, you like this because it “constrains society.” But I don’t mistrust society as much as you do. I have faith in human beings, in the power of reason and discussion and collaboration and cooperation. I’m not afraid of a position that differs from my own.

Most of the great oppressions and persecutions that have occurred in the world have been executed by powerful, tyrannical minorities -- NOT by tyrannical majorities.

And as I said, this is only accomplished in one of two ways. There are measures we can take to prevent a minority from accumulating too much threatening physical power; the other measure we need to take is to prevent the appeal to “objective” truths that cannot be effectively challenged by the majority.

Jason Steed

Pithlord,
I've never even come close to claiming that legal texts do not constrain legal decision makers. I've simply advocated a theory of interpretation that is less constraining than the extremely narrow, extremely constrictive, and politically conservative theory of "originalism."

Roach

Jason, I've enjoyed the discussion too. I did not mean the provocative obiter dicta above personally. I meant them literally, as in, by my understanding of the word "truth" you are incapable of knowing it, understanding it, reaching it, etc. Likewise with the kind of "economic determinism" ad hominems, that I in fact reject and employed to show how they are "conversation killers." I didn't mean to suggest in either case you had bad faith.

If I may be so obnoxious as to recommend a few books and essays, not just to you, but to anyone interested in this subject:

Leo Strauss, "What is Political Philosophy?"

Harry Jaffa's "Original Intent"

Michael Oakeshott's "Rationalism in Politics."

The Hart Fuller Debate on the Nuremberg Trials.

Jason Steed

Strauss is one of those conservative, hierarchical, anti-democratic thinkers who I dislike very much. Of course, I'm not an expert on Straussian thought, but from what I do know of him I dislike him. He seems to believe that the general public is too stupid to govern itself, and should be governed by an elite group. And he also justifies lying to the public, for the public's good.

Bush's boy Wolfowitz is a Straussian disciple, if that tells you anything. It sure tells me something.

Roach

I think Strauss is too often caritcatured, particularly in his influence on the neoconservatives. He is a worthwhile thinker in his own right and should be accepted or rejected on his own terms, not because some of his students have endorsed policies with which one disagrees. I also think his specific arguments in a work like "What is Political Philosophy?" are distinct from his historicist observations--something like your own--in Natural Right and History.

I like Strauss a lot, but I also do not consider myself in any respect a "neoconservative."

If you want a real anti-democrat, go read Joseph de Maistre or Ortega y Gassett.

Of course, I can't say I think democracies of the mass age have been particularly more respectful of human rights than the monarchies and aristocracies of the past. Consider the mass murders of the age of massive, popular government, e.g., the Vendee, the Holocaust. As Burke noted, "But where popular authority is absolute and unrestrained, the people have an infinitely greater, because a far better founded, confidence in their own power. They are themselves, in a great measure, their own instruments. They are nearer to their objects. Besides, they are less under responsibility to one of the greatest controlling powers on earth, the sense of fame and estimation. The share of infamy, that is likely to fall to the lot of each individual in public acts, is small indeed; the operation of opinion being in the inverse ratio to the number of those who abuse power. Their own approbation of their own acts has to them the appearance of a public judgment in their favour. A perfect democracy is therefore the most shameless thing in the world. As it is the most shameless, it is also the most fearless. No man apprehends in his person that he can be made subject to punishment. Certainly the people at large never ought: for as all punishments are for example towards the conservation of the people at large, the people at large can never become the subject of punishment by any human hand."

Student

Hi Jason,
I hate to beat a dead horse, please feel free to let me know if I don't have much of a point - I'm not familiar with non-analytic philosophy. anyway, I just wanted to pose my question one last time.

My thought, again, is that law is explicitly heirarchical (favoring some interpretations over others), and perhaps even minortarian (e.g. to the extent that fewer people have the most interpretive authority in the heirarchy), and that this is justified in terms of political philosophy that justifies a representative (rather than direct) democracy with a separation of powers.

The claim is that a judicial methodology of interpretation should accord with the political commitments from which it derives its interpretive authority.

In a like manner, it seems as though the set of interpretive constraints that you would prefer to place upon such interpreters are likewise justified in terms of commitments of political philosophy. (e.g. rejection of interpretive heirarchy, a notion of democracy that favors majority interpretations are favored over minority interpretations.)

Early on in this conversation there was a question about how legal interpretation is "radically different" from other sorts of textual interpretation. I'm just making the point that the sorts of normative commitments for each enterprise (e.g. commitments affecting the interpretive authority of minority v. majority interpretations when reading fiction versus creating law to govern people) might differ from each other, thus affecting the type of interpretive methodologies chosen for each enterprise.

My question is simply this: Don't we have to argue about the choice of political philosophy prior to arguing about how, e.g. a notion of or commitment distinterested truth might be valuable? Because it seems that the sub-question that we are really arguing about is where to place interpretive authority and how it should be exercised.

Roach

Student I think your last point is well said and very relevant. As I said above, "law itself has built into itself a kind of preference: for procedure, for regularity, for predictability, for narrative integrity, etc. Likewise, the very process of writing a constitution down exemplifies certain policy goals: regularity, representative government, precommitment."

That's why I find these post-modernist theories kind of tiresome. For starters, law is something. It's an idiomatic means of expressing things and controlling behavior. Law is, on some level, what lawyers and judges do. And, unlike the "maybe yes, maybe no" interpretative luxuries of english professors, it must arrive at definitive answers for which the participants are morally and practically accountable.

I do agree with Sunstein and Steed in this limited respect; interpretation is more than simply "discovering" the actual author's intention. It often involves imposition or creation of a single meaning in a world of competing ones. I simply believe and argue that in light of the meta commitments of law and our political order that those who are oath-bound to protect that order and its Constitution and purport to value cerain ethical and juridical goals, their philosophy should match up more or less with those foundational principles.

New

By any chance can you place the speech in a pdf?

Kimball Corson

Sunstein writes "What seems hard to defend is the idea, apparently widespread, that interpretation just [is] a search for original intention, or original meaning." But why should not this be so? We deal with contracts in this manner and the Constitution may well be thought of as a social contract. The real flaw, I suggest, is instead that we have a dated and static social contract that is not as useful as we would like it to be in a dynamic and fast developing country. It is naive to believe we could codify our views hundreds of years ago and have them provide sufficient guidance today. The flaw is in the system --how we wish to rely on the document and how there is no ready or serviceable means to revise it, in the absence of consensus in regard to the obvious. So we fight over how to read the document rather than how to revise it. Declining educational achievement nation-wide only exacerbates this problem. Perhaps the Constitution should have a sunset provision, with a madated new constitutional convention every so often of a finite term. We need something beyond what we have, in the absence of a consensus on how to construe the document.

Jason Steed

Okay, okay. I’ll pick up the reigns again. Student, you say:

“law is explicitly heirarchical (favoring some interpretations over others), and perhaps even minortarian (e.g. to the extent that fewer people have the most interpretive authority in the heirarchy), and that this is justified in terms of political philosophy that justifies a representative (rather than direct) democracy with a separation of powers.”

First, I agree that law is hierarchical insomuch that it must favor one interpretation over another. It must come to a decision between interpretations. But in effect this is no different from the practice of reading in general. When you encounter a word, or a series of words, you make decisions about how to interpret them. This decision-making is foregrounded in cases where the words encountered present more noticeable amibiguities. And we naturally react by considering the possible meanings and making decisions about which interpretations are preferable.

In other words, the practice of reading the law is really no different from the general practice of reading.

And the world of literary criticism is not so “radically different” from the world of legal interpretation. Student, you seem to suggest that the “minoritarian” nature of law (i.e., the fact that fewer people have the most interpretive authority), and particularly the commitment to this hierarchy, sets law apart from literary criticism. And Roach throws in his two cents to suggest that English professors have the “interpretive luxury” of “maybe yes, maybe no” that lawyers and judges simply do not have.

Perhaps your assessments stem from a basic misunderstanding of how the world of literary criticism operates. In actuality, it isn’t much different from law. There are more authoritative voices and less authoritative voices. Authority is earned over time, by reputation and past accomplishment, and also ascribed via appointments to prestigious positions, etc. (Sound familiar?) The academy, in effect, acts as a body of lawyers and judges; everyone is engaged in proffering arguments for this or that interpretation of this or that text, and judgments are made, and preferences for this or that interpretation are pronounced, etc., etc. And literature professors, just like lawyers and judges, attempt to (to use Roach’s words) “arrive at definitive answers for which the participants are morally and practically [and I must add, politically] accountable.”

You might try to suggest that there is not the same “accountability” for interpretation among literary critics as there is in the law -- but I would have to disagree. Literary texts and their interpretations are at least as socially and culturally influential as the law, and many might argue that they are more so.

The only significant differences I see between the world of literary criticism and the world of law are:
1. the structures of authority in law are more clearly defined (that is, we have a much more amorphous sense of who the “appellate judges” and who the “supreme court judges” are in literary criticism -- we still have these hierarchies, they just are less clearly defined), and
2. the “judiciary body” in literary criticism is (apparently) far more self-conscious about the subjectivity of its position (i.e., interpretation is an act performed by a subject that is necessarily located in and limited by its position).

In other words, the only “radical difference” between the world of law and the world of literary criticism is that in the world of law there are still a bunch of actors who resist the idea that they can only interpret from the position that they occupy. These actors continue to operate under the illusion that they can somehow transcend or escape their subjective position to interpret from a position of “objectivity.”

Student, you seem to suggest that the difference is fundamentally in political philosophy and political commitments. You seem to be saying that law is committed philosophically and politically to a “minoritarian” construct, wherein a minority decides the interpretation, while I am trying to argue for the rule of majority.

This is not exactly the case. I am willing to accept that the community may choose to invest authority in a representative minority, and that that representative minority may then be charged with the task of authoritative interpretation. This is what happens in law (via highly structured elections and appointments and via communally recognized credentialing in the form of proper schooling, etc.), and it is also what happens in literary criticism (via less formally structured “elections” and appointments and via communally recognized credentialing, etc.). In both cases, minorities wield interpretive power over majorities.

I am not committed politically to the overthrowing of this system. Rather, I am committed politically to empowering the majority in such a way as to prevent its undue or unjust subjection to the potential tyranny of the minority. That is, if we are to have a “minoritarian” system, then it must be transparent and changeable, so that the majority has greater control over those who hold authority. (In this way, indirectly, the majority maintains its authority.)

Administratively, we could talk about limiting the terms of service for judges, etc., etc. But philosophically, I am arguing for the dismissal of the illusion of “objective interpretation,” which is merely a rhetorical strategy for promoting certain politically motivated interpretations that might be favored by a minority but rejected by a majority, if that majority was not persuaded by the appeals to “objectivity.”

In other words, I have no substantial problem with the majority choosing a representative minority to make interpretive decisions. My problem is with a faction of that minority (originalists and/or intentionalists) employing a rhetorical strategy (originalism) that is designed to accumulate a disproportionate amount of authority for that faction’s interpretations (by appealing to “objectivity”), so that those interpretations can be more effectively promoted among the majority. By perpetuating the myth of objectivity, the minority holds sway over the majority and the majority’s ability to control its representatives is lessened.

Is my position one of political philosophy? Sure. Is my argument for particular methods of interpretation motivated by my political philosophy? Sure. Could we back up a step and, prior to arguing over interpretive methods, argue over political philosophy and whether or not the majority or the minority should be empowered in a democracy? Sure.

But to me, the two (political philosophy and interpretive methodology) go hand-in-hand. They are easily collapsed, so that an argument about one is an argument about the other, and vice versa. This is another “truth” that has long been acknowledged and accepted in the world of literary criticism: every reading is political; the very act of interpretation itself is a political act. So to point out that interpretive methodology is “preceded” by political philosophy is in some ways to point out the obvious, and in some ways it is to make a false distinction between two things that are indistinguishable.

Student

Thanks Jason, for giving me your thoughts on this. Not to continue this forever, but here are my thoughts:

I. Heirarchy.
JS: "Perhaps your assessments stem from a basic misunderstanding of how the world of literary criticism operates. In actuality, it isn’t much different from law. There are more authoritative voices and less authoritative voices. Authority is earned over time, by reputation and past accomplishment, and also ascribed via appointments to prestigious positions, etc. (Sound familiar?) The academy, in effect, acts as a body of lawyers and judges; everyone is engaged in proffering arguments for this or that interpretation of this or that text, and judgments are made, and preferences for this or that interpretation are pronounced, etc., etc. And literature professors, just like lawyers and judges, attempt to (to use Roach’s words) “arrive at definitive answers for which the participants are morally and practically [and I must add, politically] accountable.”

I agree with you completely, as far as it goes. Where a judge is confronted with various "persuasive" authorities on a subject, this sort conversation occurs regarding what a correct reading of the law is, one may gain or lose persuasive authority vis-à-vis one's peers. The sort of dialogue that you refer to above does, in fact, occur.

However, when I used the term "interpretive authority," it was perhaps an unfortunate choice of words. I am not referring exclusively to the sort of persuasive conversation you refer to above. I am talking about the power of the state, exercised through interpretation; and submission to an interpretation by the state, demanded of those with less political power allocated from the state. I am not talking primarily about the authority that one gains in a community through persuasive power and prestige, but of that which comes with political office.

Because interpretation is a tool for the use of state power, the allocation of interpretive authority follows the allocation of political power. An interpretive heirarchy in the legal sense is much different than the literary sense in this respect. Thus, person filling the role of a lower court judge is bound by the upper court's interpretation - even if they find it less persuasive than an alternative position - because political authority has been placed with the upper court. This conscious aggregation and allocation of vast amounts of political authority is part of what makes government, government.

We can see that this distinction between the power of the state, exercised through interpretation; and the power of the individual, exercised through interpretation, is critical through the constraints which we place on the ability of the Government to interpret in particular arenas.
Ex/Free Exercise Clause: Persons holding political office are free to bring their persuasive authority to bear on the community's interpretation of religion. Persons are not permitted, however, to use the political power bestowed upon their office to give politically authoritative interpretation to a religion. George Bush may start a church, but the US can never start The Church.


II. Differences between law and literature.
JS: "The only significant differences I see between the world of literary criticism and the world of law are:
1. the structures of authority in law are more clearly defined (that is, we have a much more amorphous sense of who the “appellate judges” and who the “supreme court judges” are in literary criticism -- we still have these hierarchies, they just are less clearly defined), and
2. the “judiciary body” in literary criticism is (apparently) far more self-conscious about the subjectivity of its position (i.e., interpretation is an act performed by a subject that is necessarily located in and limited by its position)."

Concerning the structures of authority:
I think I spoke to this above. Although both interpretive communities may be described as a geographic heirarchy; but I there is a fundamental distinction between the use of interpretation as a tool of persuasive authority and as a tool of political authority.

The self-consciousness of the subjectivity of interpretation; literary vis-a-vis legal world:
Here, I think that you may actually misunderstand what is going on in the legal community. It isn't that the legal profession is somehow unaware of the subjectivity inherent in judicial decisionmaking/interpretation; rather, this is THE fundamental fact that every theorist, of all political stripes, must deal with. This isn't a new discovery, it is a (somewhat old) problem.

Again, the lack of embrace of interpretive subjectivity does not have to do with a lack of awareness by the legal profession of its existence; rather, it is due to the fact most people, of most political stripes, tries to restrain its influence on judicial outcomes. We are not ignorant of subjectivity so much as we attempt to cabin it. Persons of (almost) all political stripes tend to agree with this. Bush v. Gore, for one, was a bit of an issue. How do we interpret Equal Protection? Everybody understands the underlying question.

Taking a quick stroll across the political spectrum, various interpretive methodologies constrain decision making to by use of interpretive methodologies which best protect fundamental values, or minorities, or political access, or equal treatment, or electoral responsibility, or social contract. Although the life of the law may be experience rather than logic, our common ideal is still to share a government of laws, not of men. In our political ideal world, Justice Stephens and Justice Thomas should have been able to agree upon the application of Equal Protection to vote counting.

III. Political and Literary theory
JS: Could we back up a step and, prior to arguing over interpretive methods, argue over political philosophy and whether or not the majority or the minority should be empowered in a democracy? Sure.
But to me, the two (political philosophy and interpretive methodology) go hand-in-hand. They are easily collapsed, so that an argument about one is an argument about the other, and vice versa. This is another “truth” that has long been acknowledged and accepted in the world of literary criticism: every reading is political; the very act of interpretation itself is a political act. So to point out that interpretive methodology is “preceded” by political philosophy is in some ways to point out the obvious, and in some ways it is to make a false distinction between two things that are indistinguishable.

Again, I think that the understanding the political commitments affect interpretation, and that interpretation (especially legal!) affects politics, is not a particularly new one for legal academia.
Like "authority", the question here isn't whether exercises if non-state power are "political", but whether there is a (politically) useful distinction to be made with respect to how we wish non-governmental actors to use interpretation in service of politics, and how we wish governmental actors to use interpretation in service of politics. Again, I agree that political and literary theory can be collapsed in most cases. Perhaps even in the other branches of government. But it seems to be that when we talk about how to govern people by use of the collective coercion of the state, by use of judicial interpretation, the question of how we allocate and exercise authority over that state machinery is a very different political question than how we allocate authority within a literary community. Because the goals diverge to such an extent, I think that - in this particular, narrow circumstance - commitments of political theory take primacy, and interpretive methodology works in its service.

IV. Critique of interpretive methodologies.
JS: In other words, I have no substantial problem with the majority choosing a representative minority to make interpretive decisions. My problem is with a faction of that minority (originalists and/or intentionalists) employing a rhetorical strategy (originalism) that is designed to accumulate a disproportionate amount of authority for that faction’s interpretations (by appealing to “objectivity”), so that those interpretations can be more effectively promoted among the majority. By perpetuating the myth of objectivity, the minority holds sway over the majority and the majority’s ability to control its representatives is lessened.

If you don't agree with originalism as an interpretive methodology consonant with your political philosophy, that can be both consistent and understandable. We are, after all, commenting on "Radicals in Robes." But again, I think, that the persuasive power of originalism (or of any methodology of legal interpretation) is in its ability to ground the political actor within the political powers and responsibilities that we have otherwise chosen to set out for them. Appeals to "objectivity" in judicial interpretation (whether by use of originalism or not) are appeals to judicial "disinterestedness" as a political ideal of how the judiciary should operate; they aren't appeals to "disinterestedness" as an epistemological possibility or a coherent metaphysics. Likewise, whether Professor Sunstein's interpretative methodology is persuasive depends not primarily upon whether it best satisfies the purposes of, e.g. a literary community, or whether it makes persuasive epistemic or metaphysical claims, but whether it best accords with our political commitments.

(Finally, as an aside, as a thought provoked from some of your earlier writing, and as a point of political philosophy, I think that constraints upon interpretive methodology which have the effect of creating "experts" have fundamentally different effects upon the power structures of the literary and legal community. In the legal community, power is conceptually concentrated initially in a few legal hands. Appeals to interpretive methodologies upon which people can become "experts" and (persuasively) authoritatively critique the interpretations of others works to decentralize power (if only persuasive) - from the initial concentrate to wider community of experts. In contrast, where power can be conceptually initially diffuse among members of a community, e.g. literary community, an interpretive methodology which creates experts withdraw power from the majority and give it to the minority.)

Student

doh. I meant to talk about free exercise, ended up talking about anti-establishment. always happens. But you can do the switch in your head.

Had another thought. Is the central political problem of literary theory to empower interpreters, while the central political problem in legal theory is to constrain interpreters?

Jason Steed

Student,
You make some very good points, and I have some responses to them (we are, at times, talking past each other due to a disclarity of terms and concepts, I think) -- but I can't possibly devote more time to this discussion (we would go at it for weeks, I think).

Your last question, though, is a very interesting one. It seems, at least on first read, that you're onto something. But I would say that it has been the objective of postmodern literary theory to empower the reader (in a reaction to conservative modernist tendencies toward severe constraint and notions of singular "correct" readings); but there have been numerous backlashes against and modifications of this objective -- so much of literary theory still concerns the proper amount of freedom/constraint for interpretive methodologies (as well as the proper "angle" that ought to be taken, etc.). Which brings us back, I think, in tune with legal theory.

So while as a kind of maxim your question sounds true enough, I think the distinction it draws comes apart with scrutiny.

Jason Steed

Doh. I meant to ask you about "asdf." What in the world is that all about? Looks interesting enough....

Siegfried

Jason Steed: This means that words mean whatever the community decides that they mean.

Okay. Here is the difference between literary theory and legal theory. Legal theorists authentically care about the consequences of the words they use. The above phrase by Jason Steed far too unctuously implies that the existence of convention necessarily generates anarchy.

It is true that change in language occurs, and concepts can be signified by any combination of sounds -- there is no necessary connection between the sound "dog" and the concept "dog". But regardless of what we call them, dogs exist and we can refer to them with language.

That the sounds we use to signify legal concepts or mind-external objects may change does not necessarily mean that the legal concepts and mind-external objects being signified are changing also. To use a metaphor, literary theorists are talking about weight (signifiers); legal theorists are talking about mass (signifieds).

The concepts of separations of powers and federalism are analytically distinct, whether we call them "oogabooga" and "faffalaffa," respectively, or whether we have different conceptions of federalism or believe separation of powers doctrine mandates different outcomes in different cases. Whereas, under reader-response theory, federalism is whatever you think it means, even if you think it means separation of powers, so long as you can point to something in the text that provides a plausible basis for your misunderstanding.

Jason Steed

Siegfried,
You clearly have only a cursory understanding of literary theory, or linguistic theory -- though you have just enough to be able to use some of the terminology ("signifier," "signified," etc.).

The two sentences that give away your ignorance are these: "Here is the difference between literary theory and legal theory. Legal theorists authentically care about the consequences of the words they use."

If you really knew something about linguistic (and literary) theory, you would know that it is chiefly, primarily concerned with the consequences of words -- with how language works and the effect that language has on the world, on ideas, on concepts and conceptualization, on culture, on politics, etc.

Also, you utterly confuse the terms "concept" with "object." True, the thing or "object" that we call "dog" does exist, regardless of what we call it. But the "concept" dog and the "object" dog are not the same thing. While the "object" exists regardless of the signifier we use to signify it, the "concept" is in fact created and shaped by its signifiers and the complex interminglings of their signifieds.

For example, the "concept" of dog has wrapped up in it all the cultural and historical baggage that is attached to the signifier "dog" -- loyalty, "man's best friend," smart & obedient, but also dumb animal, clumsy, despicable as in "you dog," and ugliness as in "she's a dog," etc. Moreover, the abstract concept of "dog" is distinct from the actual object, insomuch that we are able to classify several distinct objects (standing, say, in a lineup) under the label "dog," though each individual object might look radically different from the other (think of a Chihuahua standing next to an English Sheepdog).

The signified "object" exists detached from the signifier, but the signified "concept" is inextricably attached to the signifier and its historical and cultural contexts and meanings.

In other words, concepts are created and shaped by words and language, and change just as much as words and language change. Do you really think the concept of, say, democracy, is the same now as it was 50 years ago, or 100 years ago, or 2,000 years ago? Really, how in the world can you have a concept that is divorced from the language used to talk about it???? An object, yes; but a concept? Ridiculous.

And only the most radical reader-response theory would suggest that something means "whatever you think it means." This idea is generally rejected on the grounds that there cannot be private meaning. Meaning -- for it to have any meaning -- must be communal, shared, agreed upon (if only partially and implicitly). Thus, something cannot mean whatever you think/say it means -- it must mean what a/the community agrees or accepts it to mean.

"Separation of powers" and "federalism," then, are terms that refer to distinctly different concepts (i.e. meanings) in some communities, and to roughly synonymous concepts (i.e. meanings) in other communities. Deny this all you want to, it is simply the state of affairs in the world -- the way that language and communities work, regardless of your protests.

Siegfried

Jason,
I don't lack an understanding of literary theory; you lack an understanding of legal theory. I'd suggest you read some Dworkin.

Jason Steed: Do you really think the concept of, say, democracy, is the same now as it was 50 years ago, or 100 years ago, or 2,000 years ago?

Yes, I really think that 2+2=4.

Jason Steed: ...the "concept" is in fact created and shaped by its signifiers and the complex interminglings of their signifieds.

Not true. You're talking about conceptions.

I agree that people can have different conceptions of democracy, and that conceptions can change over time. I also agree that "democracy" the signifier has historically been applied to social arrangements that differ in degree.

But what renders democracy analytically distinct from kakistocracy is not a matter of word usage, but of kind. Though both are kinds of government, democracy and kakistocracy are not the same thing, no matter the words chosen to refer to them. Playing around at the signifier level, even in history, does not change the signified.

The point is, you deny any and all analytic truths. Legal theory does not necessarily -- and most often does not -- do so. I explained to you the analytic distinction; now you are trying to paper-over the distinction with facetious rhetoric and pedantry, including fallacies, e.g., ad hominems. See? That is what I mean when I write: "Here is the difference between literary theory and legal theory. Legal theorists authentically care about the consequences of the words they use." But I know these words mean nothing to you, because, to you, authors do not exist.

Roach

Here's a serious question for Steed. Someday you may be a lawyer, a judge, or a law clerk. You will be called upon to make practical decisions. You will have to figure out "what a statute means," "how long does X have to reply to Y's motion," whether a particular good is "contraband" under the sentencing guidelines, whether government act "Z" is constitutional, what are the limits of the "right of privacy" under the 14th Amendment, and all the rest.

There is no way to avoid making such decisions. The choice will be made definitively one way or the other by virtue of the finality of legal decisions. Is it really possible to make such decisions intelligently and, more important, defensibly under your framework? And, if so, what makes any one approach more defensible than any other?

Jason Steed

Siegfried,
I haven't denied "any and all analytic truths." I have tried to argue that "analytic truths" exist within a given system or context and not outside any system or context. You simply cannot step outside the system.

And it is your attempt to distinguish between "concept" and "conception" that is more the attempt "to paper-over the distinction with facetious rhetoric and pedantry" than anything I was saying. Sure, we can distinguish between "concept" and "conception," but that distinction will break down very quickly under scrutiny.

Here's how: Purportedly, a "concept" would be X, and a "conception" would be a person's or a particular community's version or construal or understanding of X. Right? But if that's the case, then how do we actually know what X is, beyond any community's or individual's version/construal/understanding of it? At best you can have a greater, more widespread agreement on what X is, but this is simply a broader, larger community's construal or understanding.

Really, "concept" and "conception" are just two slightly different forms of the same word, meaning very close to the same thing. Which is why I think you are the one trying to paper over things with rhetoric.

You also do this by trying to dismiss my views by willfully misrepresenting them as ridiculously radical. Never have I suggested there are "no authors," or that words "mean nothing." Not even close. But in an empty rhetorical flourish, you cast these aspersions onto me and my argument so as to avoid dealing with what I'm saying substantively.

Finally, how exactly -- pray tell -- did I use an ad hominem? In what way did I personally attack you? Are you referring to my suggestion that you only have a cursory understanding of literary theory? This is hardly a personal attack.... And dismissing my suggestion as supposedly an ad hominem hardly proves that it isn't true.

Roach,
You say: "There is no way to avoid making such decisions. The choice will be made definitively one way or the other by virtue of the finality of legal decisions. Is it really possible to make such decisions intelligently and, more important, defensibly under your framework? And, if so, what makes any one approach more defensible than any other?"

Thus you reveal the fundamental misunderstanding, on the part of conservatives and "objectivist" and "absolutists" and others, of postmodern thought. NOBODY IS SUGGESTING THAT DECISIONS CANNOT BE MADE. Indeed, Derrida et al recognize fully that decisions MUST be made, that they are unavoidable. What these thinkers are trying to reveal is that this decision-making is (or ought to be) much more problematic and complex than we recognize or allow it to be.

In fact, part of the point is that, in order to make decisions "intelligently," one must RECOGNIZE THAT THEY ARE IN FACT DECISIONS, and understand all that that entails.

If you adhere to notions of objectivity or absolutism, if you think there are "analytic truths" that exist outside the system, then your decisions are made simpler -- they are guided by these notions, and whole swaths of other possible decisions are cast aside as inconsiderable. In extreme cases, decisions are made dogmatically and with severe rigidity, perhaps even without any thought whatsoever, through adherence to these "truths" that are claimed to be absolute and not subject to questioning. (How is this "intelligent" or "defensible"?)

Recognizing that the assignment of meaning is, in fact, an active, constructive DECISION -- and seriously contemplating and weighing all possible interpretations as potentially equally valid -- IS the most intelligent and most defensible way of making those decisions.

The goal of postmodernist thought is not to claim we cannot make decisions, but to reveal just how deep our decision-making goes -- to instill a greater sense of responsibility and self-consciousness in our decision making, so that it is more autonomous and less unwittingly governed by "truths" that are really just historical and cultural constructs.

And the goal is not to completely abandon or do away with historically and/or culturally constructed truths, but simply to become more aware of their constructed nature, so as to have more autonomy in the effect and influence that they have on us. You can still accept and act on the truths you hold dear -- but if you're truly acting responsibly and intelligently, then you'll accept them knowing that you are CHOOSING to do so, and that you might just as easily CHOOSE to accept other truths in their stead.

In this way, postmodernism opens up a door to real faith, in my opinion, because we find ourselves truly ungrounded -- or, rather, we discover that we must have a kind of conscious faith in our grounding, as one of a variety of possibly equally valid groundings, instead of operating with an unconscious reliance upon it as an a priori "truth," when we make the decisions that we make.

So, to answer your question: I will make decisions as ethically as I possibly can, which means I will try to be as self-conscious as I can be about the decision-making I am performing, rather than adhering rigidly or blindly to history or dogma. (And do I really have to preempt your predictable objections by noting that this does NOT mean I will disregard history -- only that I will try to be self-conscious about the influence history has on my decisions?)

Siegfried

Jason Steed: But if that's the case, then how do we actually know what X is, beyond any community's or individual's version/construal/understanding of it?

So: your argument is that if we cannot put a concept into language that no one disagrees with then it does not exist. That makes perfect sense, because objects do not have mass in a weightless environment.

Jason Steed: Really, "concept" and "conception" are just two slightly different forms of the same word, meaning very close to the same thing.

Not according to Ronald Dworkin, who lays this out definitively in his many influential works on legal theory, none of which you have bothered to read.

I mention Ronald Dworkin not because I think he is absolutely correct, but because he is the legal theorist most inclined to accept an argument like yours, and he draws the very concept/conception distinction that you refuse to accept and renders your attempt at fashioning a legal theory incoherent.

Despite your histrionics, e.g., "NOBODY IS SUGGESTING THAT DECISIONS CANNOT BE MADE," to the contrary, I have not "in an empty rhetorical flourish, cast these aspersions onto [you] and [your] 'argument' so as to avoid dealing with what [you think you are] saying substantively." The fact is, you lack a coherent argument. There is no substance to which one can respond, other than to direct you to Dworkin to cure your ignorance.

Frankly, you fail to recognize the difference between a suggestion and an implication ("Are you referring to my suggestion that you [sic]only have a cursory understanding of literary theory? This is hardly a personal attack."). Nor do you recognize that the grammatical phrasing is "Are you referring to my implication that you have *only* a cursory understanding of literary theory?". Not to mention that understanding cannot be cursory. What you meant to imply, but have now asserted, in the form of a rhetorical question, is that my understanding is "incomplete."

Given that the thrust of your rhetoric is that my understanding of literary theory is incomplete, I wonder why you consider yourself to possess the quality of Herculean discernment. After all, you have a doctorate in literary theory and yet appear to have great difficulty crafting a meaningful sentence in Standard English. In any event, implying that someone lacks knowledge of the topic of debate is a fallacy of relevance -- whether Person X is an expert of literary theory or not is irrelevant to the truth value of her claims about it, i.e., even stupid people who are guessing can be correct -- and when made against a person for the class to which they belong, e.g., "Non-Doctorates of Literary Theory," it is specifically a circumstantial ad hominem. "You're a baker, what do you know about physics?" would be a perfect example. Reply: "Well, my name is Albert Einstein, would you like a cookie?"

It is not only that "the difference between literary theory and legal theory [is that] legal theorists authentically care about the consequences of the words they use." It is also that "I don't lack an understanding of literary theory; you lack an understanding of legal theory. I'd suggest you read some Dworkin."

Perhaps you are so addled with theory that you have forgotten about practice. You might try something that legal theorists in practice must do and literary theorists, apparently, in practice, do not:

READ.

Roach

Steed, frankly, in response to my point I would suggest that such decisionmaking would be almost impossible and entirely impractical. We have to make decisions in a timely fashion, and that requires some sense of "decision rules" in how to proceed. Without these we'd have a tough time deciding what the language of a contract, or property deed, or statute legally mean, even if there are numerous defensible readings sub specie aeternitas.

So there is another element to legal decisionmaking that the "unrootedness" advocated by postmodernism makes impossible: such decisions must be made both quickly and in a predictive manner, i.e., I make a ruling, do I care if gets overruled on appeal? If yes, I must proceed on the same or a similar basis as the apparent decisionmakers at the appellate level.

Legal thinking, like other modes of conduct and thinking is idiomatic in nature. You are--quite forgivably--not steeped in those idioms. But it would be nice to see some acknowledgment on your part of your ignorance of these idiomatic ways of thinking, and whether they in fact appropriately limit our sense of responsibility and justify it on the basis of long experience dealing with similar conundrums from people that were similiarly situated with practical problems, such as when and when not to enforce contracts, declare an action legally compensable, etc.

Jason Steed

Siegfried,
Apparently you are incapable of a civilized debate. Awfully hypocritical of you to accuse me of ad hominem when your posts are steeped in them, isn't it? And your criticism of my grammar is downright laughable.

Really. I laughed out loud.

After all, this is a blog's comment page -- hardly a space where formal grammar is expected, let alone required and authoritative. And your insistence on a single meaning for a given word, when even conservative assessments of American English usage would allow for other meanings, and would acknowledge that the general reader would have understood my meaning, only demonstrates the ridiculousness of your position (that meaning is fixed, singular, and objective).

Moreover, it is awfully arrogant (and perhaps, again, hypocritical) of you to claim I know nothing simply because I haven't read Dworkin. Have you read Derrida? Barthes? Foucault? I'd venture the answer is no. It seems clear to me that you know only a few of the buzzwords and catchphrases.

I will read Dworkin. And others. I welcome the opportunity to enter into other discourses and to encounter new ways of understanding things. You, on the other hand, seem to go into convulsions at the sight of an idea you disagree with. (Or should I say "with which you disagree"...? Am I lacking comprehensibility and authority because I ended my sentence with a preposition?)

I have enjoyed my debate with Roach, as well as the comments from others (Student and Dave in particular). And Roach: I have acknowledged from the beginning that I am coming from a background in literary studies and that I am less familiar with the discourse of legal theory, and its terms and idioms. If I haven't acknowledged that enough, or been humble enough in putting forward my views on some of these matters, then I apologize.

I would welcome the opportunity to discuss these questions and issues further with some of you -- I find it all quite fascinating and stimulating.

But Siegfried, I have no interest in continuing a conversation with you. Honestly. You seem too petty and hostile.

Student

I've enjoyed participating as well, but more so reading the debate on the topics I didn't comment on.

What do you all think are the chances of Prof. Sunstein weighing on some/all of this?

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