[Wittrs] Re: What is "Originalism" [Larry Solum's View]
- From: Lawrence Solum <lsolum@xxxxxxxxx>
- To: Sean Wilson <whoooo26505@xxxxxxxxx>
- Date: Sun, 2 May 2010 14:01:50 -0500
I regret that I cannot reply to Sean Wilson's point in detail. Let me
simply say three things.
First, I agree with Sean that "family resemblance" concepts (or words and
phrases) do pose an interesting challenge to the fixation thesis. There are
no fixed criteria for the determining the application of such concepts;
rather their applications are determined by the practices of the linguistic
community, or by "forms of life." Unlike Sean, I am skeptical of the claim
that most of the language in the constitution has this quality.
Second, I believe that Sean would agree that the meaning of a particular
utterance that employs a word or phrase that is a family resemblance concept
is "fixed" by linguistic facts at the time of utterance. Family resemblance
concepts are not utterly shapeless. To take Wittgenstein's example, of
"games." It might be the case that there are no features that all games
share, although there are a series of resemblances between particular games
that define a "family." But this does not imply that the meaning of the
word "game" on a particular occasion is not constrained by linguistic
practices at the time of utterance. Given linguistic practices today, some
things cannot count as "games"--goldfish, Pluto, and spark plugs. From my
vantage point, Sean's argument, if it were true, would establish that some
words and phrases have a certain amount of "looseness" built into them that
goes beyond vagueness. As I see it, if this claim were true, it would
require a careful restatement of originalism, but it would not alter the
core of the claim represented by the fixation thesis.
Third, it is important to distinguish between the different senses of the
term "meaning." I do not mean to claim that meaning is fixed in the
"applicative sense" of the word "meaning." It is the "linguistic meaning"
or "semantic content" that originalists believe is fixed by linguistic facts
at the time of utterance.
As always, I have profited from Sean's point. They deserve a full and deep
reply--which I hope I might offer on some future occasion.
On Sun, May 2, 2010 at 1:26 PM, Sean Wilson <whoooo26505@xxxxxxxxx> wrote:
> Hi Larry.
>
> Your position is that "originalism" in law reduces to two premises:
> (1) "the fixation thesis (linguistic meaning of the text is fixed at the
> time of utterance);" and (2) "some version of the constrain system (there is
> a[n] ... obligation to conform legal practice (doctrine and application) to
> the linguistic meaning ...". So we have two things: language is fixed, and
> judges must abide that.
>
> The central problem as I see it lies in your first premise. I need an
> example of a sentence that has a "fixed meaning," so I can see what "fixed"
> is doing here. (Clearly, fixed isn't "fixed"). The main of language
> philosophy would hold that only certain kinds of words (rigid designators)
> resist family resemblance. So it seems that a better account of language
> would focus on the kinds of words used, and not start from the rather large
> premise, "every sentence has a fixed meaning."
>
> Indeed, what you really seem to be saying is this: every utterer of a
> sentence has a single meaning in his or her mind when declaring it. Note
> that the unit of analysis has changed from what language means to what the
> speaker thinks when saying it. This, for sure, would be a much better
> account of "originalism" -- for that is what "originalism" has historically
> been. Always, it has been about the search for communion with certain dead
> brains of the past in order to relive their mental lives and lionize
> their world understanding (for whatever enjoyment that pathos brings).
>
> Note also that there may be a false dichotomy lurking here. I hope you are
> not of the belief that IF ordinary language is not "fixed" (as you say),
> that it must therefore be "willy nilly." I don't believe you have ever
> argued this, but I want to be clear. Wittgenstein would see language as
> being something STRUCTURING. Is this "fixed" in your view? Let's say that
> most language comes to us in the form of a family resemblance. Such a thing
> would ultimately be a cognitive phenomenon (I assume), and would therefore
> "loosely bind." One might say: language channels. What is wrong if language
> binds in this way? (There is good reason to believe from cognitive sciences
> that human brains are hardwired to receive messages precisely in this
> format).
>
> So my point is that your fixation thesis seems to be less about language
> and more about what one might call "declarant psychology."
>
> Also, there is another important enthymeme here: when legislatures pass
> law, do they enact their declarant psychology with respect to the language
> being anointed (assuming such a thing can exist in a corporate form)? I
> think it is quite problematic to say that such a thing happens as a matter
> of the way law works. It surely goes against our positivistic understanding
> of law being only its language and not any generation's selected protocol
> for it.
>
> So I would say that once we repair your fixation thesis to make it
> (appropriately) a theory about intention, the meaning of "originalism"
> becomes quite clear. At time X, generations form pictures P concerning the
> ritual of enactments Q, and for all time after X, P is the law, not Q.
> Pretty much, this idea has been dumped in legal history and is only now
> resurfaced among conservative law professors.
>
> Where is my error?
>
> Regards and thanks.
>
> (PS -- sent this to my list Wittrs, too, since it is about language)
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
> SSRN papers: http://ssrn.com/author=596860
> Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
>
>
>
>
> ________________________________
> From: Lawrence Solum <lsolum@xxxxxxxxx>
> To: Miguel Schor <mschor@xxxxxxxxxxx>
> Cc: "conlawprof-bounces@xxxxxxxxxxxxxx" <conlawprof-bounces@xxxxxxxxxxxxxx>;
> "conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>
> Sent: Sun, May 2, 2010 12:17:41 PM
> Subject: Re: Overturning Slaughterhouse: Resistance to incorporating 9th
> Amendment
>
> I am not really sure what Miguel Schor is asserting here. Of course,
> "originalism" as a name for a theory is used primarily in the United
> States--although constitutional theorists and jurists in many other systems
> with national courts have some awareness of our debates on these issues. To
> determine whether Schor's assertion is verified by the evidence we would
> need to have a working definition of originalism and then determine whether
> the practices of other national systems that can be characterized as
> achieving some minimum level of the "rule of law" do or do not conform to
> the requirements of the theory. If we characterize originalism as the
> conjunction of the fixation thesis (linguistic meaning of the text is fixed
> at the time of utterance) and some version of the constrain system (there is
> a defeasible obligation to conform legal practice (doctrine and application)
> to the linguistic meaning, then I think it is actually the case that most
> national legal systems are "originalist."
>
>
>
>
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--
Lawrence Solum
John E. Cribbet Professor of Law, & Professor of Philosophy
Co-Director, Program in Law and Philosophy
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
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