[Wittrs] Re: Originalism, Wittgenstein and Federal Liberty

From: Sean Wilson <whoooo26505@xxxxxxxxx>
To: wittrs@xxxxxxxxxxxxx
Date: Sat, 10 Oct 2009 15:12:52 -0700 (PDT)
Professor Sisk.

First, let me say -- great post. I see that you have taken some effort to 
digest my views. I wish I could reply sooner (and better), but I have so much 
other work to do. Secondly, let me say that I am working on a paper right now 
called the Wittgensteinian Constitution. I hope to present it at either the 
Midwest or at Law and Society. I think it promises to shed much needed clarity 
on these issues. (I've written to Larry Solum to see if he is interested in 
forming a panel around the ideas of language, Wittgenstein and originalism -- 
but I'm not so sure at the end of the day that originalists  truly want to hear 
about their problems).  With the understanding that more will said later, 
therefore, let me address some of your points:  

POLYSEMY AND FAMILY RESEMBLANCE

This is probably the most misunderstood point. A family resemblance works like 
this. Imagine a grab bag (or an array). Inside are a set of properties, a, b, 
c, d, e. When a person uses a family-resemblance word, they will offer any 
combination of the contents of the grab bag. One use could entail properties a, 
b, e  -- while another might entail c, a, and d. What I mean to say to you is 
this: the word only means "assemble the properties from the array." It doesn't 
mean the specific properties assembled.  

If you want to police in language the exact property sequence you have used -- 
if you want to take it out of the family resemblance, so to speak -- you have 
only one real choice. You must use rigid nomenclature (proper names, certain 
forms of jargon, ostensive uses ["that one"], etc.). If you don't do this, you 
have to rely upon others to give you courtesy to understand what you really 
meant to say.  Courtesy is given all of the time in the language game. Very 
often, speaking with one another is a lot like holding the door for one who is 
behind you. So, for example, if you say, "bring me a chair," and I bring you a 
stool -- I have been compliant with language, but perhaps not your intention. 
If I know you mean a specific kind of chair, I may bring you that without the 
need of language to "pin" it.  

Virtually no words in language "pin" the same thing. In fact, "pinning" is 
something you have to do specially in the language game. It is its own sort of 
behavior. This is not a problem for either language or humans, because brains 
are hardwired to navigate a family resemblance (see Pinker and Chomsky). 

Now, the problem you are having is that you cannot differentiate polysemy from 
family resemblance. Admittedly, this is a tough thing to see (initially). And 
you are right to fear that polysemy may be nothing other than a kind of 
family-relation to distantly-related families. (It would be like being Italian 
as opposed to being, e.g., a Soprano). Because language is quite intricate, one 
assumes that the grab bags (arrays) that I described above THEMSELVES work the 
same way as their contents. That is, grab bags are probably families to 
higher-groupings. Also, it is probably the case in certain poetic uses of 
words, that a "rogue property" could be borrowed from neighboring bags. But all 
of this takes us too far astray theoretically.

Let's do this on the ground. Consider these three words: materialistic, banks, 
and domestic violence. Here is the difference between family resemblance and 
polysemy:

MATERIALISM
Let's imagine I say to my daughter, "don't be materialistic." What I have in 
mind is that she should not be too selfish, greedy, consumer-driven, etc. The 
family resemblance is any protocol that serves to limit greed and possessions 
by some criteria. Notice she has to use judgment to select the protocol. Notice 
that she can select many things. Notice that in a consumer-driven society this 
may be a different protocol than in an agrarian society. Notice that SHE has to 
COMPLETE the message. In order to comply, she must select from the grab bag. 

If she interprets my sentence as saying, however, "believe in dualism" (i.e., 
believe in non-physical entities here on earth), she will be in the wrong grab 
bag. The circuits will have been crossed. The message never received. This is 
polysemy. It's the wrong bag. Culturally, the way we language with one another 
suggests that polysemy is not being obedient with language. We can therefore 
assert to one another in this context, "that's not what I said," and have it 
mean something more than "that's not what I meant." What I want to say is this: 
language charges for polysemy (you owe the bill), it does not charge for family 
resemblance.  So if you turn the word into something polysemous, you have not 
understood it. If you are in the right grab bag and you just pick something 
different (different property sequence), you are free of any linguistic 
encumbrance.   

BANKS
family resemblance -- savings and loan, investment banks, payday loans, atm 
machines, bank-banks.
polysemy -- river banks.

DOMESTIC VIOLENCE
family resemblance -- rioting, civil war, terrorism, mafia? 
polysemy -- beating your girlfriend.

THIS CREATES AN ANYTHING GOES APPROACH
One of the frequent claims about family resemblance is that it creates an 
"anything goes" approach to language. This isn't true. What it does is dispel 
the myth that language is a picture of either an intention or a behavior of the 
body (or something in the world). Like I say, we frequently comply with 
intentions in communication as a courtesy. And when we encounter words in 
bombardment -- like a book or this email! -- the brain can navigate family 
resemblance. It can pick out the properties assembled by the words in their 
context. But that doesn't mean the words mean those things. The words mean what 
they do in cultural anthropology. Language is what it does. It is based upon 
public criteria.

So the question for us is simple. Do we want a theory of jurisprudence based 
upon LANGUAGE (as Larry Solum and others do)? Or do we want one based upon 
INTENTIONS -- i.e., "protocol."  I would argue that law is only ever about 
language. We could not sustain a theory of law built upon original protocol. 
And just as protocol isn't much of an issue when you and I converse, so too it 
isn't much of an issue for any discreet generation. If they want a sandwich to 
be "lunch," they can celebrate their protocol to their heart's desire. That's 
what culture is for. But where you pass these words along intergenerationally, 
the only sound view of "law" is to have generations pick their own protocol the 
same way that language meaning works. That's all the law ever said to 
generations: pick your favorite protocol.

If I get more time, I'll address some of your other comments. I've got to run.

Regards and thanks.
  

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State  University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html


________________________________
From: "Sisk, Gregory C." <GCSISK@xxxxxxxxxxxx>
To: "conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>
Sent: Wed, October 7, 2009 5:02:04 PM
Subject: RE: Originalism, Wittgenstein and Federal Liberty


The real point of disagreement, I think, between Professors Wilson and Green is 
that not everyone agrees (or even that most judges, lawyers, and legal scholars 
agree) that a single controverted anthropological/philosophical approach to 
language should control the interpretive task given to the courts of discerning 
the meaning of and applying a legal text.  One can appreciate and welcome the 
insights of a particular school of thought on language and meaning without 
agreeing that it should be the touchstone in every respect when the distinct 
institution of the judiciary addresses the singular question of legal 
interpretation of a discrete term of art in a peculiar type of document. 
Moreover, even assuming they should be given such primacy in legal 
interpretation, Wittgenstein notions are not as certain and undeviating in 
direction and result as would be suggested by ready classification of terms 
into simple two-dimensional categories of either
 "family-resemblance" terms or parochial scientific grammar.  Even more 
importantly, recitation of Wittgenstein cannot be used to elide the underlying 
and more important value questions of legitimacy of particular approaches to 
judicial interpretation of legal texts in a democratic political system.
 
Even if we were to assume the validity of Wittgenstein notions and their direct 
translation to the context of legal interpretation, the terms of "polysemy" and 
"family-resemblance" introduced by Professor Wilson need not be seen as 
"either/or" concepts.  Instead, they might be appreciated as points on a 
spectrum.  Drawing upon Professor Wilson's own example, I suggest that it is a 
mistake to say that "taketh the noontime eatery" must be read either (1) as a 
peculiar term within a specific type of grammar having nothing to do with 
commonly-recognized discourse, or (2) as generally denoting some ingestion of 
some substance during a broad interval during the chronology of a day, which 
thus easily accommodates every subsequent colloquial understanding of what may 
be consumed at "lunch."  Those opposites are not the only choices available.  
If used in an authoritative legal document designed for a particular purpose 
and understood by an informed public
 audience in a particular way (yes, including so-called “protocols”), then 
"taketh the noontime eatery" may be interpreted to mean something more confined 
than ordinary colloquial usage, while still overlapping with the ordinary use 
of "lunch" in contemporary terms.
 
Thus, to carry Professor Wilson's example further, he could be correct that the 
historical understanding of "noontime eatery" as "lunch" as including eating a 
"sandwich" does not thereby fix the meaning specifically and exclusively to 
that particular example of a “sandwich” (or “protocol” as Professor Wilson 
terms it).  But the alternative need not be to open the window to any and all 
types of food or other substances that may be consumed during the middle of the 
day at some place in the contemporary United States, simply by virtue of 
supposedly being an acceptable “protocol” of a “family-resemblace” term.  
Instead, the example of a “sandwich” from the crucial historical period when 
the term was adopted into a legal text may shed light on the active meaning and 
purpose of the phrase “noontime eatery” as it is adopted for law-making in a 
legal text.  The more discerning and historically-grounded exploration should 
not be neglected
 in analysis by simply tossing the phrase into a "family-resemblance" category, 
as though that were the end of it.  Instead, the "sandwich" example may help 
the interpreting court to flesh out the legal meaning of the phrase by 
considering and comparing the characteristics of the historically important 
example of "sandwich" and then asking whether subsequent possible examples such 
as "meatloaf" or "Fritos and a vitamin shake" share those crucial 
characteristics or are excluded by reference to that example.  In neither 
instance would we simply defer to the contemporary understanding as but a new 
“protocol” of a “family-resemblance” term.  We should not fail to remember that 
this is a term incorporated in to the legal document that was formally 
incorporated into the law for a particular purpose in a particular historical 
context.
 
Similarly, let us return to an earlier exchange on the same theme, where I 
raised the meaning of the phrase "domestic violence" in Article IV, § 4 of the 
Constitution (saying that "[t]he United States . . . shall protect each of [the 
States] . . . against domestic Violence").  In that earlier exchange, Professor 
Wilson agreed that history should be consulted so as to confine the term 
“domestic violence” into the category of insurrections and thus as not amenable 
to being re-read by the language conventions of the modern era to include 
episodes of intra-family violence.  This, he would argue, is an example of how 
history should be consulted only for purposes of avoiding "polysemy."  But in 
this and earlier exchanges, Professor Wilson argues that “cruel” and 
"privileges or immunities of citizens of the United States" should not be so 
constrained but should be placed into a category of "family-resemblance" terms 
amenable to evolving changes in
 meaning of application (about what constitutes “cruelty” or what comes within 
the concept of “liberty).  But why make this assumption?  After all, the 
constitutional terms are not “cruel,” but rather “cruel and unusual”; not 
"liberty" but rather "privileges and immunities of citizens of the United 
States."  Shouldn’t these legalistic phrases properly be understood to have 
legal force only when anchored in the understanding (yes, including a reference 
to the kinds of examples, or “protocols” if you will) of the period in which 
that legal force was accomplished?
 
In other words, it not possible that “cruel and unusual” and "privileges and 
immunities of citizens of the United States" are legal terms of art that take 
their meaning from the informed public understanding of the ratifying period, 
in same way as did “domestic violence”?  One certainly can acknowledge that 
these terms partake in the connotations of their colloquial usages and are not 
wholly divorced from them, and thus are distinguishable from such odd terms as 
"corruption of blood" that have a meaning starkly different from the ordinary 
usage of those words in other contexts.  But such an acknowledgement does not 
require us then to say that these phrases are nothing more than general 
"family-resemblance" terms lacking any anchor in the historical foundation and 
defining examples of the period.  The fact that a legal phrase in an 
authoritative legal text includes words also used at the dinner table or in a 
social meeting in a non-legal context
 does not require us to conclude that the legal definition of the phrase is 
never more restrictive than the universe of similar phrases and synonyms in 
other contexts.  In the end, Professor Wilson places certain phrases into 
different categories – and diametrically opposed categories at that – without 
providing a clear justification for the allocation, other than his conclusion 
that they must be “family-resemblance” or not.  As I suggest next, whether to 
confer any significance on such categories and evaluating how to allocate 
phrases among such categories necessarily connects us to underlying debates 
about politics, law, and institutions that cannot be avoided by citing a 
particular philosophy of language.  In fact, rather than playing a language 
philosophy categorization game, we may do better to address the issues 
directly, which I think is where Professor Green was going.
 
Most importantly, while the Wittgenstein approach may be helpful in some stages 
of the legal analysis, if elevated to a dominating role or applied as a 
categorizing dictate these notions could easily become a distraction in 
addressing a problem of legal interpretation by a court.  I do understand that 
Professor Wilson believes strongly and sincerely that what he calls "protocols" 
cannot serve as a basis for constraining the meaning of a word.  In do doing, 
he is attaching himself to that school of legal interpretation that believes a 
legal document should be interpreted as a "living" document, the terms of which 
are subject to evolution in scope as a term comes to be understood as 
encompassing additional or different examples and problems in the future.  But 
that position must be defended in legal, institutional, and political terms, 
not by invocation of a science of language that all must obey.  By contrast, an 
originalist may recognize that a legal
 term is not rigidly fixed to a particular example of how it was understood to 
apply when adopted but still insist that the examples provide a context within 
which to understood the legal force of that term.  In addition, more fully 
appreciating the scope of the phrase as appreciated by the readers of the legal 
text at that time may mean adding constraining terms to the definition that 
were not necessary at the time but that require clarification to avoid mistaken 
expansion of the term today.  Again, a historically-disconnected philosophy of 
language cannot advance that ball forward.
 
In sum, whether “original meaning” is the right or a practically-attainable 
approach to interpretation surely is open to ongoing debate.  But that debate 
cannot be circumvented by arguing that a certain philosophy/anthropology of 
language must govern the analysis and that any resort to historical 
understanding beyond broad categories is not only mistaken in values and 
difficult in application but theoretically impossible.  Originalist and 
non-originalist interpretation approaches, and there is considerable diversity 
among and within these various schools of interpretation, must be addressed on 
their own terms, by practical comparison and by reference to the values 
promoted or denigrated by each.
 
In literature, the language used must be examined, not by uncritical and 
"family-resemblance" references to contemporary use, but by appreciating the 
historical provenance of the work and reading the term in the context of the 
literary work as a whole.  Similarly, in interpretation of legal texts, the 
language must be examined in historical context, context within the text, and 
with a full appreciation that a legal text is particular type of document 
designed for a particular purpose.  But beyond that, and thus separating 
literature from legal interpretation, the role of the institution interpreting 
and applying that legal text must be considered, especially if that institution 
is a court exercising the limited judicial power in a system of separated and 
divided branches of government.
 
As I read Professor Green’s postings, he appropriately is focusing on these 
latter points, which state the primary inquiry for the lawyer and judge, rather 
than on language anthropology/philosophy.  Language anthropology and 
philosophy, including the thinking of Wittgenstein, may have rich insights for 
legal interpretation, but only as one tool among others and should never to 
overshadow the legal context and the judicial role.
 
Greg Sisk
 
 
Gregory Sisk
Orestes A. Brownson Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcsisk@xxxxxxxxxxxx
http://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545



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