Wednesday, November 12, 2008

Canards and Petards

On Friday, I'll be one of three commentators on a Cornell Law School panel discussing the new book by Larry Alexander and my colleague Emily Sherwin, Demystifying Legal Reasoning. In addition to the authors, the other commentators will be Heidi Hurd and Fred Schauer. The book is organized around the provocative idea that there is nothing distinctive about legal reasoning as such. In common law cases, the authors say, judges either make discretionary decisions based on all-things-considered normative judgments (sometimes accompanied by the promulgation of a rule) or follow rules. In cases involving the interpretation of an authoritative text (including a precedent that has the force of law), courts simply seek the intent of the lawmakers in the same way that in ordinary discourse, people try to discern what other people intend by the words they use. Thus, say the authors, because laypeople know how to do all-things-considered normative reasoning and also know how to makes sense of the utterances of other people, there is nothing distinctive about legal reasoning. They have therefore "demystified" legal reasoning.

There is much to praise in this book, including the fact that while it tackles some quite deep issues in jurisprudence, it is written in a marvelously engaging and accessible way. (It's especially fun to enjoy the inside jokes: Most of the protagonists in the authors' hypothetical examples bear only first names but are nonetheless recognizable as law professor friends of the authors.) I should also say that I have a great deal of sympathy for the framing of the project, especially on the common law side. Indeed, I'd like to think that I scooped Alexander and Sherwin in a FindLaw column back in 2001, in which I opined: "There is no such thing as thinking like a lawyer. There is only clear thinking and confusion."

Nonetheless, I'm not fully sold.  In the common law portion of their book, Alexander and Sherwin want to deny that there is a middle ground between ordinary moral (I would say "normative" but that's a quibble) reasoning and rule following.  Their real target appears to be reasoning by analogy, which, they think, collapses into one or the other: either a court isn't following a rule laid down in prior cases, and can therefore decide what the appropriate similarities and dissimilarities are, or it is.  While I'm happy to agree with the big point that analogical reasoning isn't distinctly "legal," I do think it occupies a middle ground.  Certainly the felt experience of lawyers and judges is that reasoning by analogy constrains, even when it does not fully determine, outcomes.  That perception could be wrong, but then so could the perception that lawmakers (and other speakers) have  mental states called "intentions" that we attach to language, a key assumption of Alexander and Sherwin in their matierals on interpretation of authoritative texts.

Speaking of interpretation of authoritative texts, I'm also dubious about much of what Alexander and Sherwin have to say about this subject. They defend old-fashioned intentionalism against more current views such as textualism and dynamic interpretation. In this regard, the book can be seen as part of a growing backlash that includes, most notably, Stanley Fish.

Alexander and Sherwin (and Fish and others) don't simply say that the best method of interpreting legal texts is to retrieve the meaning intended by the speaker. They claim that this is simply what it means to interpret a legal text. They acknowledge that there may be occasions in which it would be appropriate for legal actors to seek something other than the meaning intended by the lawmaker at the time of enactment, but if so, they say, that is because some external consideration prevails over interpretation (or perhaps because a strategy of seeking something other than the lawmaker's intended meaning will actually do a better job, over the long run, of retrieving the lawmaker's intended meaning) .

In my oral presentation, I'm going to push Alexander and Sherwin on what I regard as their too-easy dismissal of the problem of finding or constructing an intent from a composite body such as a legislature with hundreds of members. To somewhat oversimplify their answer, they say that the law means whatever points of intention upon which the legislators agreed, and that where there is no agreement, there is no law. Because they give mostly hypothetical and simple examples, they do not give a sense of how frequently this will result in a failure of legislation in the real world of long complex statutes.

I'm also going to push the authors on a related point: that legislative codes and constitutions are produced over long stretches of time, with amenders making changes based on their view of what the text means, which is not necessarily what the text meant to the original authors or intervening amenders. Given this inter-temporal collaboration, there are several plausible answers to whose intent should matter, even for an intentionalist: The authors of particular surviving phrases? The most recent authors of any significant amendment? The ratifiers? Etc. Identifying the author, it seems to me, is very much dependent on one's account of legitimate political authority, not just on one's account of language.

I think Alexander and Sherwin accept this last point. (I can ask them if that's what they intended when they wrote the book!) They would say, I think, that their point is simply that if we're interpreting, we want speaker's meaning, but that this fact doesn't answer the separate question of who the speaker is. Still, there are stray passages in the book that do seem to advert to notions of legitimacy that could be read to smuggle notions of political theory into what purports to be an account of language.

But if I'm right that the better reading of Alexander and Sherwin is simply clarificatory, it's not entirely clear what the book's goal is. The clarificatory point would seem to be this: If you're going to do interpretation, you're going to be aiming at retrieving speaker's meaning; if you're retrieving something else---original public meaning, or evolving meaning, say---then you're either relying on a view that is ultimately parasitic on speaker's meaning or you're doing something other than interpretation.

Well, so what? If Justice Scalia's account of the best way to read authoritative texts (textualism) is not properly called interpretation, call it Scalinterpretation. If Judge Posner's account (pragmatism) is not properly called interpretation, call it Posninterpretation. Etc. And anyway, who are Alexander and Sherwin to say how the word "interpretation" can legitimately be used? Their central argument in the second half of the book is that speakers control how their words are used. They repeatedly use the example of "canard," which can mean either a duck or a lie, depending on what the speaker intends. Well, then, why can't "interpretation" mean what Scalia, Posner, or anyone else thinks it should mean to produce the best account of how to give effect to legal texts? We shall see whether this objection hoists Alexander and Sherwin on their own canard.

Posted by Mike Dorf