Fairness in statutory interpretation: Text, purpose or intention?

1 Introduction

When judges interpret written statutes, should they, in the name of fairness and justice, adhere strictly to the text, or should they be ready to disregard the text and revert to the intentions and purposes of legislators? A classic case that illustrates this opposition is Church of the Holy Trinity vs. United States. ^[1] The issue in this case was whether the church of the Holy Trinity in New York, by contracting with an Englishman to come over and serve as its rector, had violated a federal statute according to which it is “unlawful for any person, company, partnership, or corporation, […] in any way assist or encourage the importation or migration of any alien […] into the United States, under contract or agreement […] made previous to the importation or migration of such alien […], to perform labor or service of any kind in the United States.” ^[2]

On the face of it, this seems to be a clear case: the statute forbids the assisted importation into United States of any alien to do labor or service of any kind, so the church should be held liable for the punishment that the statute provides. This is how the Circuit Court for the Southern District of New York decided the case. ^[3] The judge of this court was clearly a textualist who thought that statutes should be interpreted according to their literal meanings.

However, the final judgment in the case was that the church did not act unlawfully. The Supreme Court admitted that

the act of the [church] is within the letter of this section [of the statute], for the relation of rector to its church is one of service, and implies labor on the one side with compensation on the other.

[Yet] we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. ^[4]

The judges of this court were clearly purposivists or intentionalists, who think that if one takes into account e. g. the spirit of the statute and the intention of the legislators and the social and economic context of the time of issuing the statute, one may be allowed to disregard the actual words of the statute (or to see them as meaning not what they usually mean). And this is how the Supreme Court argued – it took into account (among other things) the committee reports and the petitions and testimony that were presented before the committees prior to the enactment of the statute. The Court concluded from this material that the purpose of the statute was to prevent the shipment (by some capitalists) of cheap unskilled labor into United States, but, as the Court put it, “it was never suggested [by the Congress] that we had in this country a surplus of brain toilers, and, least of all, that the market for the services of Christian ministers was depressed by foreign competition.” ^[5] So in the end, the Supreme Court reversed the Circuit Court’s decision:

it is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act [of the church of Holy Trinity], although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute. ^[6]

In this paper my aim is not to solve which way of approaching statutes – textualism or purposivism/intentionalism – is morally superior, but rather to look at the dispute from the point of view of philosophy of language. That is, I am interested in the assumptions and presuppositions about the nature of language and meaning that often go unnoticed, or are not problematized, in the debate. I do not try to discover some hitherto unknown facts about language or to formulate a new theory of meaning but, in the spirit of Ludwig Wittgenstein (on whose work I will draw in this paper) only to remind the reader of some obvious features of our linguistic practices (cf. Wittgenstein 1968: 126–129). However, this does have some normative ramifications, too, since I think it is especially the legislators’ duty to be aware of these commonplaces. First, however, I will introduce in some more detail the debate between textualism and purposivism/intentionalism.

2 Textualism

In its simplest form textualism is the doctrine that “the text is the law, and it is the text that must be observed” (Scalia 1997: 22) This means that when judges decide cases on the basis of written statutes, they must not appeal to any text-external purposes or intentions of legislators. ^[7] (It also means, as regards the case of the Holy Trinity, that the final decision was wrong; the Court “killed the statute” in this case (Scalia and Garner 2012: 11).) Intentions should be ignored in statutory interpretation because, first, there is no such a thing as a collective, uniform intention of the whole legislative body; second, even if there were, that intention couldn’t be known with certainty, and third, even if it could be known, it would have no obligating force.

Max Radin puts the first objection (let us call it the ontological objection) in the following way:

The least reflection makes it clear that the law maker [as an individual] does not exist, and only worse confusion follows when in his place there are substituted the members of the legislature as a body. A legislature certainly has no intention whatever in connection with words which some two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, differing ideas and beliefs.

(Radin 1930: 870)

Similarly, Antonin Scalia thinks that collective intention is “pure fiction” because “dozens if not hundreds of legislators have their own subjective views on the minutiae of bills they are voting for – or perhaps no views at all because they are wholly unaware of the minutiae. […] There is not a single set of intentions shared by all.” (Scalia and Garner 2012: 392)

The second (epistemological) objection against intentionalism rests on the assumption that intentions are something private and hidden in everyone’s individual consciousness. Thus, trying to discover someone’s intentions would involve “mind-reading” (Scalia and Garner 2012: 92); but we “can’t know what’s in the minds” of legislators (Scalia and Manning 2012: 1613). Speculation about the mental states of legislators invites only “fuzzy-mindedness” (Scalia and Garner 2012: 30). The only evidence of intentions is the legislators’ external behavior; but usually it is impossible to gather the exact intention from this because, according to Radin,

in almost every case the only external act is the extremely ambiguous one of acquiescence, which may be motivated in literally hundreds of ways, and which by itself indicates little or nothing of the pictures which the statutory descriptions imply.

(Radin 1930: 871)

In other words, the fact that a member of the legislative body pressed the “yes” button tells us nothing about what really was on his or her mind when voting for the statute.

The third objection is that even if it could be known with certainty what the intention of the legislature and the purpose behind the statute was (e. g. on the basis of the legislative history, as in the Holy Trinity case), it would not bind the judges. As Scalia puts it, “men may intend what they will; but it is only the laws that they enact which bind us” (Scalia 1997: 17) The intention-revealing extra-statutory documents are not what are enacted; the actual item that is subjected to voting is the statute, and the legislators agree only on the final language of the statute that they pass as law, not necessarily on its background purposes (Scalia and Garner 2012: 393). As especially the so-called second-generation textualists, such as John F. Manning, emphasize, it is the duty of law-appliers to respect this delicate democratic compromise. ^[8] So this third objection rests on the principles of democratic government and the Rule of Law ideal. If judges adhere strictly to the text, they do not seize legislative power from the democratically elected legislative body but merely apply the law; in this sense it is claimed to be a fair way of interpreting statutes.

3 Purposivism

According to purposivists, “[t]he first question the interpreter asks is: What is the purpose of the statute as a whole?” (Radin 1942: 422) Of course, purposivists do not completely disregard the text of the statute; as perhaps the most influential purposivists, Henry M. Hart and Albert Sacks, put it, “[t]he words of a statute, taken in their context, serve both as guides in the attribution of general purpose, and as factors limiting the particular meanings that can properly be attributed.” ^[9] But likewise, textualists are willing to go outside the statutory text and consider its background purpose if the text contains a term that is ambiguous, i. e. has more than one meaning, in order to resolve the ambiguity (see Manning 2006: 75–76). The difference between purposivists and textualists comes out in cases where the text is unambiguous, but its literal application would lead to absurd or unreasonable results, or would conflict with the known policy that the statute advances. Textualists should unflinchingly stick to the literal meaning of the statute even in these cases, ^[10] whereas purposivists would not hesitate abandoning the text in favor of policy considerations. In the “most important purposivist precedent of the twentieth century”, ^[11] the United States v. American Trucking Ass’ns., Inc., ^[12] the American Trucking Court declared that

[w]hen [plain] meaning has led to absurd or futile results […] this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this court has followed purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination”. ^[13]

Thus, the court held that although The Motor Carrier Act (1935, § 204) granted the Interstate Commerce Commission the power to determine the “qualification and maximum hours of service of employees of motor carriers”, that power was in fact limited only to those employees whose “duties affect safety of operation”, not all employees that work in the motor carrier industry (e. g. clerical and storage workers). ^[14] The word “employee” by itself of course does not exclude clerks and storage workers, but according to the court, “[t]he committee reports and the debates contain no indication that a regulation of the qualifications and hours of service of all employees was contemplated.” ^[15] And as can be seen from the opinion, the court did not consider this use of committee reports and floor debates (rather than the words of the statute) as opposed to rule of law. On the contrary, purposivists think that they, rather than textualists, are the true faithful agents of legislators; i. e. they think, as Manning puts it, that “legislative supremacy is better served not by the judge who attends to every last clue about the social usage of the chosen words, but rather by someone who is sensitive to the policy concerns underlying the legislative choice – even when they contradict the apparent import of the text” (Manning 2006: 96). So purposivists think that their way of approaching statutes is more just and fair than textualists’ literal approach.

4 The presupposition of literal meaning

However, as was promised in the introduction, the focus of this article is not in the question which approach better respects rule of law, but rather in the presuppositions about language that underlie the debate between textualists and purposivists/intentionalists.

What are those presuppositions, then? Obviously, the textualist camp has to assume that there are such things as literal meanings of words that are independent of the particular intentions of individual speakers or the background purposes of the statutes. That is, textualists have to assume that language is sufficiently acontextual so that the meanings of words remain constant and do not change on every occasion of their application.

Frederick Schauer, while defending a form of legal formalism, reminds us of some very simple facts which show that linguistic meaning is indeed not completely determined by context. For example, we can understand an Australian newspaper from year 1827, even though we cannot know the specific context in which that paper was written (Schauer 1988: 526). Schauer also reminds us of the compositionality of language, i. e. of the way in which we can comprehend sentences we have never come across before. We couldn’t do this unless the rules of language allowed us “to give meaning to certain marks and certain noises without having to inspect the thought processes of the speaker or the full context in which words appear” (Schauer 1988: 527). Schauer, in short, wants to make the point that “words have sufficient acontextual import so that communication can take place among speakers of English” (Schauer 1988: 528). This is what makes it possible for legal rules to have meanings that are independent of their underlying purposes; i. e. it is what makes textualism a conceptual possibility. ^[16]

How does one discover this acontextual, literal meaning of words which textualists presuppose? Textualists usually equate it with the ordinary meaning of words: according to Scalia and Garner, the “ordinary-meaning canon”, according to which “words are to be understood in their ordinary, everyday meanings”, is “the most fundamental semantic rule of interpretation.” (Scalia and Garner 2012: 69). And if it is unclear what the ordinary meaning of some term – e. g. a vehicle – is, a dictionary is helpful: “we should consult (without apologies) what the lexicographers say. After all, they have studied dozens if not hundreds of instances of actual English usage to arrive at the core meaning of vehicle.” (Scalia and Garner 2012: 36–37) ^[17]

Scalia and Garner are aware of the dangers connected with using dictionaries, ^[18] but a good dictionary at least helps to find the permissible meanings a word may have. A fundamental assumption in textualism is that a word cannot be given any meaning whatsoever:

A fundamental rule of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot bear. Without the concept of permissible meanings, there is no such thing as faithful interpretation of legal texts.

(Scalia and Garner 2012: 31)

But if (as is usual) the dictionary gives several different meanings to some word, how is one to choose from them? Here the legal interpreter should apply what Scalia and Garner call the “fair reading method”, according to which it is necessary to think “how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued” (Scalia and Garner 2012: 33). To determine how a reasonable reader understands a statute requires “aptitude in language, sound judgment, the suppression of personal preferences regarding the outcome, and, with older texts, historical linguistic research” (Scalia and Garner 2012: 33). This method supposedly helps to find the correct meaning among the range of permissible meanings.

Although textualism’s view of meaning was earlier said to require a certain amount of acontextuality, this does not mean that context is completely irrelevant in determining meaning. A crucial part of the aforementioned “aptitude in language” is, namely, being sensitive to linguistic conventions and the context in which a word appears: “Nothing but conventions and context cause a symbol or sound to convey a particular idea” (Scalia and Garner 2012: xxvii). Manning, too, points out that “modern textualists […] assert that language is intelligible only by virtue of a community’s shared conventions for understanding words in context” (Manning 2006: 79). Thus, although textualists are often thought to be context-insensitive dictionary-worshippers, their view seems to be rather that dictionary serves only as the starting-point for interpretation. The final determinant of meaning is “the reasonable reader” who, being fully competent in language, realizes e. g. that “nail in a regulation governing beauty salons has a different meaning from nail in a municipal building code” (Scalia and Garner 2012: 20) – i. e. that context helps to find out the correct meaning in cases where a word has several permissible meanings.

The sense in which textualism’s view of meaning is acontextual is that once a statute is issued, its meaning does not change in the passage of time: its meaning is what it was at the time of its enactment. As Scalia and Garner put it, “[t]he meaning of rules is constant. Only their application to new situations presents a novelty” (Scalia and Garner 2012: 86). Another way to express this is to say that the meaning or sense of a concept can remain the same even though its extension – the class of objects to which it applies – changes. For example, if it is forbidden to kill any animals that belong to an “endangered” species, the actual species that are endangered may change over time: a species that is not threatened by extinction now may become so in the future. Yet the meaning of a rule (the criteria for being “endangered”) will not change. ^[19]

5 Fuller’s theory of meaning

Thus, textualists are committed to the existence of fixed, stable, literal meanings of words, which are formed by the conventions of the linguistic community and which can be found (in unclear cases) in dictionaries and by adopting the viewpoint of the “reasonable reader”. This is of course no great news; but what often goes unnoticed is that those purposivists who are willing to go “beyond” the words of the statute when the words lead to absurd or futile or unreasonable results are also assuming the existence of literal meanings. Otherwise the literal meaning could not lead to absurd or unreasonable results and could not be in conflict with the purpose or intention of the legislature. To use Brian Leiter’s example, suppose that the legislature enacts a statute that forbids the killing of “fish” within 100 miles of the coast. The literal meaning of “fish” does not include whales, but the legislative history reveals that the intention of legislators was to protect whales also – they just didn’t remember that whales do not belong to the extension of the concept “fish”. ^[20] Now if the judges want to follow the intention of the legislature, rather than the literal meaning of the statute, they must first understand what the statute literally means: that it does not prohibit the killing of whales. Only once they have grasped the literal meaning can they see that it leads to a result that the legislature probably didn’t intend, and interpret the statute so that it covers the protection of whales too. So in this sense, there is no fundamental difference between textualism and intentionalism/purposivism: the disagreement is not about whether there is such a thing as the plain meaning of the statute, but about whether the plain meaning can ever be ignored or not.

However, there are legal theorists who have attempted to push the difference at the level of language, i. e. who see the two approaches as committed to completely different theories of meaning (instead of or in addition to different views of what fairness or the rule of law ideal requires). Thus, there are purposivists and intentionalists who doubt, or outright reject, the possibility of literal or plain meanings, and who claim that all understanding of any piece of language necessarily takes purpose into account.

Lon Fuller is an example of a purposivist who questions the possibility of literal meanings. In his “Positivism and Fidelity to Law” ^[21] he famously criticizes H.L.A. Hart’s view that words like “vehicle” have a “core meaning” that remains relatively fixed regardless of the context in which the word appears. ^[22] In applying the word to its standard instance, the judge, according to Hart, need not think about the legal rule or be in any way creative; she simply applies the law as it is. Only in hard cases, where the object in question does not fall within the core but within the “penumbra” of meaning – i. e. when it is not immediately clear whether e. g. something is a vehicle or not – need the judge interpret the rule in light of its purpose or aim. (Fuller 1958: 662)

Fuller thinks instead that reference to purpose is always needed, whether the case is easy or hard:

If the rule excluding vehicles from parks seems easy to apply in some cases, I submit this is because we can see clearly enough what the rule “is aiming at in general” so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, “without thinking”, that a noisy automobile must be excluded.

(Fuller 1958: 663)

To show that reference to purpose is always needed, Fuller invents the story of local patriots who want to mount on a pedestal a truck used in World War II as a memorial, although there is a sign outside the park that forbids vehicles in the park. Other citizens regard the truck as an eye-sore and appeal to the “no vehicle”-rule to stop the patriots. Fuller asks “does this truck, in perfect working order, fall within the core or the penumbra?” (Fuller 1958: 663), and implies that it is useless to approach the problem in this way (if one were a judge deciding this case). The only way to go about solving the dispute is to consider the purpose behind the “no vehicle”-rule.

6 Meaning-intentionalism

If we need in every case – no matter how “easy” it seems – to have knowledge of “what the rule is aiming at in general”, this seems to lead to the position that there are no such things as purpose-independent literal meanings of words. In other words, Fuller seems to assume what a group of legal theorists whom I here call “meaning-intentionalists” say straightforwardly: that “intention free textualism is a conceptual impossibility” (Alexander and Prakash 2004: 969), i. e. that “there is no textualist position.” (Fish 2005: 649) ^[23]

Meaning-intentionalists recognize that at the heart of the debate about legal interpretation is the question of what constitutes the meaning of any text. And according to them, texts or utterances have no meaning unless they are “animated” by somebody’s intention:

Words alone, without an animating intention, do not have power, do not have semantic shape, and are not yet language […] A sequence of letters and spaces like “Go through the light” has no inherent or literal or plain meaning; it only has the meanings (and they are innumerable) that emerge within the assumption of different intentions.

(Fish 2005: 632–633)

So meaning-intentionalists do not allow a distinction (which was presupposed in the debate between textualism and purposivism) between what words mean and what some author means by them. Words have no meaning apart from the speaker’s or author’s intention; and the author can make them mean whatever she wants. Thus, Alexander & Prakash claim that “if a speaker says ‘Gleeg, gleeg, gleeg’, it means what the speaker intended it to mean, even if to others it sounds like nonsense” (Alexander and Prakash 2004: 978). And according to Fish, “words cannot refuse the intention assigned them […] Theoretically, nothing stands in the way of any string of words becoming the vehicle of any intention” (Fish 2005: 634).

This means that meaning and communication of meaning are two different things:

The question of meaning and the question of communication are two different questions […]The meaning of my utterance, whatever it is, is the same and would be the same if both of you understood it, or if neither of you did. (Knapp and Michaels 2005: 659)

Wittgenstein famously asked: “Can I say ‘bububu’ and mean ‘If it doesn’t rain I shall go for a walk’?” The answer is yes. Of course you may not communicate that meaning (or any other) by saying “bububu”; but failure to communicate a meaning does not mean that it was not intended.

(Fish 2005: 634)

Thus, meaning-intentionalists have to allow for the possibility that even if somebody uses familiar-looking words, she may intend them in a completely idiosyncratic way. And indeed Fish argues that “language can take on any meaning an intender wishes” (Fish 2008: 1122), and that public language is only an arbitrary convention and the intending agent is “free to ignore it”:

That is, an author who wishes to intend something need not bind herself to the word-meaning correlations found in the public language of the day, although she may choose to do so for political or sociological reasons. She can say “dogs” and mean “dogs, lions, pigs and snakes;” she can say “dogs” and mean Newton’s Third Law; she can say (or write) “dogs” and mean anything she likes.

(Fish 2008: 1123)

Similarly, Alexander and Prakash admit that “[w]e cannot know the language of the text without reference […] to the language (and its meanings) that the authors intended to speak, and without allowing for the possibility – indeed, probability – that the authors intended a nonstandard variant of some standard language” (Alexander and Prakash 2004: 982). ^[24]

What are the implications of this for legal interpretation? If judges become convinced that intention is necessary for any text to be meaningful, should they make some radical changes in their ways of interpreting statutes? According to Fish, intentionalism does not need to answer this question. Intentionalism is not a theory of interpretation, nor a method that can be applied; it is simply a claim about what any text means – it means what its author or authors intend (Fish 2008: 1113–1115). So meaning-intentionalism should not be conceived as the best theory of interpretation that leads to fair and just results, but rather as the starting-point, the necessary presupposition, in all acts of interpretation. It simply tells you what you are doing when you are interpreting a text, but it does not tell you how you should do it; it is just “the right answer to the question, and therefore the right definition of what interpretation necessarily is” (Fish 2008: 1113).

7 The absurdity of meaning-intentionalism

The great merit of meaning-intentionalists is that, by putting forth this extreme view, they force legal theorists to reflect upon the nature of language and meaning. But ultimately, as I try to show with some simple Wittgensteinian reminders, this type of intentionalism is an incoherent position.

Let us try to think what it would really mean if intentionalism were true – if anyone could mean whatever they want with their words, if public meanings did not constrain them in any way. It seems that most of our linguistic practices – such as communicating our intentions to others – would lose their point; we could never be sure what other speakers really mean, even if they used familiar-sounding words. But in reality, as Wittgenstein reminds us,

[w]hen I talk about language (words, sentences, etc.) I must speak the language of every day. Is this language somehow too coarse and material for what we want to say? Then how is another one to be constructed?-And how strange that we should be able to do anything at all with the one we have!

In giving explanations I already have to use language full-blown (not some sort of preparatory, provisional one) […]

Yes, but the how can these explanations satisfy us? – Well, your very questions were framed in this language; they had to be expressed in this language, if there was anything to ask!

(Wittgenstein 1968: 120)

This means that the intentionalists, too, need the shared, public “language of every day”, in so far as they want to ask the question about statutory meaning, and answer it by reference to the author’s intention.

Of course, sometimes the meaning of a statute (or some other text) is revealed or clarified once we find out the author’s intention (for example, in cases where some word in a text has more than one ordinary meaning, like the word “bank”). But in these cases, too, we need to rely on the ordinary, public, everyday language. For how can we find out the meaning-revealing intention if not by means of other texts (utterances, committee reports, floor speeches, etc.)? In order to make progress in the process of interpretation, and to avoid an endless regress of texts and intentions, the meaning of some text has to be taken as given – as simply understood without appeal to anything else.

Is it even possible to imagine a situation where “intentions come first, words with meanings second” (Fish 2008: 1137)? Wittgenstein tries to do so in his famous remarks about private language. “Could we”, he asks,

imagine a language in which a person could write down or give vocal expression to his inner experiences [?] The individual words of this language are to refer to what can only be known to the person speaking; to his immediate private sensations. So another person cannot understand this language.

(Wittgenstein 1968: 243)

But how does one set up a connection between a sign and a private sensation? Supposedly by means of some kind of private ostensive definition, i. e. by concentrating one’s attention to the sensation, “intending” it, and at the same time uttering or writing down something (Wittgenstein 1968: 258). But then what? How does the intending subject know how to use this new word correctly after the initial act of meaning-endowment? That is, does she have a clear notion of what meaning she gave to her sign? The criterion for correct use is here supposed to be provided by the private act of intention (that no one else can verify). But isn’t this a case where “whatever is going to seem right to me is right”, i. e. where “we can’t talk about ‘right’ at all” (Wittgenstein 1968: 258)?

The point here is not that in the case of private ostensive definition there are no criteria for correct use because our memory is unreliable, but rather that there isn’t anything there to remember – no language-independent act of intending that gave a meaning to some sign. ^[25] If one thinks that one can imagine cases where someone provides signs with meanings merely by means of private acts of intending, one forgets that “a great deal of stage-setting in the language is presupposed if the mere act of naming is to make sense” (Wittgenstein 1968: 257). If we e. g. imagine a person who thinks he is giving his private sensation the name “S”, he needs the word “sensation” – which belongs to our ordinary, shared language – in order to attempt to name his sensation. And as Wittgenstein points out,

it would not help either to say that it need not be a sensation; that when he writes “S” he has something – and that is all that can be said. “Has” and “something” also belong to our common language. – So in the end when one is doing philosophy one gets to the point where one would like just to emit an inarticulate sound. – But such a sound is an expression only as it occurs in a particular language-game, which should now be described.

(Wittgenstein 1968: 261)

So again we run into the simple truth that in order to do the thing that the intentionalist wants to do – give whatever meaning she wants to a sign by means of a private intention – we need our ordinary, shared language, with its relatively fixed and stable meanings.

To see how odd the idea that “intentions come first, words with meanings second” is, it is useful to remind ourselves of the ways in which we teach language to children (or to people who don’t speak our language). When we teach the meaning of a word to someone, we do not say that “you can give this word whatever meaning you want; it means nothing unless you intend something by it” (but instead we e. g. give examples of how the word is used, or point to the thing that the word is used to refer to, or illustrate the meaning with a drawing). Neither do we teach children to doubt the meanings of other people’s words and to search for their real intentions whenever they speak to us. We simply teach them our language. Thus, just like the giving of private meanings to words presupposes a language by means of which this can be done, the possibility of doubting the real meaning of someone’s words also presupposes a language in which the doubt can be expressed. That is, it presupposes something that cannot be doubted: “A person can doubt only if he has learnt certain things; as he can miscalculate only if he has learnt to calculate” (Wittgenstein 1970: 410).

In short, meaning-intentionalism is an incoherent position: the very attempt to formulate it already presupposes the thing it tries to deny – i. e. our ordinary, public, shared language.

8 Overcoming the dichotomy between text & purpose

The above criticism of intentionalism applies only to its extreme form (propounded mainly by Fish). However, there are less extreme positions where meaning is not completely detached from speakers’ or authors’ purposes and intentions, but where the (in my view crucial) idea of shareability and publicity of meaning is maintained.

A classic proponent of “moderate” intentionalism is Paul Grice, who starts from the undeniable fact that linguistic communication in general is a type of purposive or rational behavior. But Grice reminds us that in order for linguistic communication to be successful, “cooperative effort” is needed. In other words, participants in a talk exchange are required to follow what Grice calls the “Cooperative Principle”: “make your conversational contribution such as is required, at the stage at which it occurs, by the accepted purpose or the direction of the talk exchange in which you are engaged.” (Grice 1989: 26)

This general principle can be divided into four categories of (1) quantity, which requires us to make our contribution as informative as is required, but not more informative than is required; (2) quality, which requires us to say what we believe is true, and for which we have adequate evidence; (3) relation, which requires us to be relevant; and (4) manner, which requires us to be perspicuous (i. e. we must avoid obscurity of expression and ambiguity, and be brief and orderly) (Grice 1989: 26–27). According to Grice,

anyone who cares about the goals that are central to conversation/communication (such as giving and receiving information, influencing and being influenced by others) must be expected to have an interest […] in participation in talk exchanges that will be profitable only on the assumption that they are conducted in general accordance with the Cooperative Principle and the maxims.

(Grice 1989: 30)

Thus, anyone who deliberately refuses to follow these basic rules of communication defeats her own aim (assuming that aim is to convey information or e. g. to give orders, as it is in legislation). As Grice puts it, “the talker who is irrelevant or obscure has primarily let down not his audience but himself” (Grice 1989: 29).

To put the point more simply: in ordinary communication – when we are not joking, lying, or being ironical, but instead want simply to be understood, or want to make others to do something – the words we use are inseparable from our purposes and intentions. We must mean what we say, and not something else; otherwise we can just blame ourselves if our purposes are frustrated. As regards the debate about statutory interpretation, this means that text is as important as purpose: the two cannot be separated from one another. Thus, following Grice, in the interpretation of statutes the starting-point is that they serve the general purpose of conveying information in a maximally efficient way so as to influence the behavior of those for whom the statute is directed. A further assumption is that the legislators are conveying no more and no less information than is required; and that they are being in earnest, and not being deliberately obscure, ambiguous, prolix or disorderly.

That those who are subject to regulation read statutes in this way is illustrated e. g. by Babbitt v. Sweet Home. ^[26] The case was about whether a habitat modification of endangered species by private landowners is prohibited by a provision that makes it unlawful for any person to “take” endangered or threatened species. ^[27] “Take” is further defined to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ^[28] The Court decided that the word “harm” can reasonably be understood to include habitat modification that is known to injure endangered animals, although it admitted that “the Congress did not unambiguously manifest its intent.” ^[29] But the private landowners, and Justice Scalia in his dissenting opinion, pointed out that in the original version of the provision, the verb “take” included “the destruction, modification, or curtailment of [the] habitat or range of fish and wildlife”, but it was removed from the final version; and that another provision explicitly prohibits the Federal agencies from engaging in projects that cause habitat modification of endangered species, but the provision that concerns private parties does not do so. As Scalia points out,

Congress’s explicit prohibition of habitat modification in the one section would bar the inference of an implicit prohibition of habitat modification in the other section. “[W]here Congress includes particular language in one section of a statue but omits it in another…, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. United States, 508 U.S: 200, 208 (1993). ^[30]

This illustrates the Gricean point that the natural way of understanding (legislator’s) utterances is to see them as having a specific purpose or intention for which it is significant that just these words (and not others) are used: the ordinary way of understanding utterances is to see them as including no more and no less information than is necessary. In other words, we impute intentions and purposes to others on the basis of what is said, and also on the basis of what is not said: Grice’s rules of communication remind us of the importance of both what is included and what is excluded in the expressions of intentions. Thus, in so far as in the debate between textualism and purposivism the literal (ordinary) meaning is contrasted with a meaning that includes reference to purposes and intentions, Grice’s insight could be used to show that this is a false opposition, and also to highlight the importance of formulating one’s intentions as clearly as possible. If something is left out of the expression of an intention, it is natural to think that there was a reason why it was left out.

9 Conclusion

In this article I have, after briefly outlining the opposition in legal theory between textualists, on the one hand, and purposivists and intentionalists, on the other hand, surveyed the assumptions about the nature of language that are presupposed in the debate. Textualists were seen to rely on the notion of literal or plain meanings of words which are based on the conventions of the linguistic community, whereas (some) purposivists and intentionalists claimed instead that meaning is determined by the speaker’s or author’s intentions and therefore there are no context-independent literal meanings.

The extreme version of meaning-intentionalism was shown to be (with the help of Wittgenstein) an incoherent position: we couldn’t even formulate the doctrine without relying on our shared, public language, with its ordinary or plain meanings. But a rejection of the extreme version does not mean embracing a totally intention- and purpose-free conception of meaning. Instead, one can argue, by drawing on Grice, that the concept of ordinary or plain meaning contains an assumption about purpose or intention: language is not a self-existing entity but used by us for a variety of communicative purposes. But, to put the point the other way round, our more specific purposes and intentions are inseparable from the (ordinary) words with which we express them. That is, the ordinary way of understanding someone’s text or utterance is to see it as having some purpose for which just these words are significant: purpose (or intention) is expressed with words, but meaning is not constituted by an individual speaker’s intention. It is constituted by the mutually upheld conventions of the whole linguistic community.

The insight that in ordinary communication text and purpose are intertwined does not solve the dispute between textualists and purposivists (although it should rule out the extreme versions of intentionalism). But I hope that it is still not a completely futile insight without any practical consequences. At least it enables us to see more clearly what the real points of disagreement are between the different parties in the debate. I tried to show that in the end, both textualists and purposivists have to agree on the language they use. Even in hard cases, where the meaning of some word or phrase is unclear or ambiguous (like the word “harm” in Babbitt. v. Sweet Home), the parties recognize that it is ambiguous; this agreement is presupposed in the disagreement concerning which meaning the word should be given in the specific circumstances of the case. And the choice of meaning for an ambiguous or vague term is ultimately a moral choice, reflecting the judge’s conceptions of fairness and justice; the differences between textualists and purposivists ultimately boil down to this. Another consequence of the insight that text and purpose are intertwined is that it reminds us of our responsibilities as speakers or authors: we cannot control the meanings of words with our private intentions and purposes, but are at the mercy of the shared conventions and the public, ordinary meanings. Everyone – especially the legislators – should choose their words accordingly.