Legal arborism

One of the blawgers at Double Aspect, Leonid Sirota, asks if “living tree” constitutional theories can explain the grounds and consequences of their views in the context of jurisprudence in Canada. (Sirota and his co-bloggers seem to occupy an interesting intellectual space, being McGill educated, working abroad, but whose philosophical jurisprudence seems mainly influenced by the American tradition.) Laid against that background, he asks a bevy of questions, and invites some answers. I’ll give it a shot.

(Style note: because I’m tired of writing “living tree doctrine advocates” and its long-winded cognates, I’ll call this position legal arborism. And, full disclosure: my sense of the views of legal arborism in Canada are deeply influenced by a course I audited with Wil Waluchow at McMaster, and so are tilted in favor of his own living tree constitutionalism. His kindness, patience, and scholarly acumen have influenced me a great deal.)

To give you an idea of my own perspective, allow me to say a few words about my intellectual background. My research focus is on informal promulgation, or the publicity of law (understood as a phenomenon deserving of explanation by collective social epistemology). On the one hand, my views on the written/unwritten distinction, at least at the level of discernment or court interpretation, are something of a mixed bag; I don’t know if I would consider myself a legal arborist, if only because I am wary of having my intellectual life bewitched by the power of a metaphor. So, because I am a philosophical eccentric in this and other ways, I do not think I am a thoroughly disciplined advocate of the “living tree” doctrine, and my answers will likely be inadequate. That said, I see an awful lot of merit in the arborist’s point of view of common-law — so much so that I would be far more sympathetic to the legal arborist’s general conception of law than the depiction of law provided by originalists. So, I’m with the Ents.

“1) Do you think that the linguistic meaning of the constitutional text changes over time after its entrenchment?”

This is a complex question. The question presumes that there is a distinction between linguistic and application meaning, or sentence vs. use meaning — usually captured by the distinction between semantics and pragmatics. But, as a commenter on that thread notes, many of us would dispute the application/linguistic meaning distinction, insofar as it is supposed to help us sort between two piles of content ascriptions that lawyers and judges would care about (i.e., concerning different kinds of legal effects, the constructive and the merely interpretive). And by ‘us’, I do not just mean legal arborists. I mean, ‘us’, as in virtually everyone who works in philosophy of language who was educated in the last half-century. Indeed, in my view, the best originalists don’t even follow through with the pragmatics/semantics distinction in their considered accounts. So, e.g., I’ve noted before that — aspirations to the contrary — Lawrence Solum’s “semantic” originalism is nothing of the kind, since it asks us to enrich communicative content (meaning, strict entailments) with cooperative implicatures when such are required by the method of triangulation. Solum calls it a semantic theory, but he is mis-stating (indeed, understating!) the powers of the actual theory that he advocates.

But this is easily fixed; a better presentation of the originalist argument is possible. Such an argument would either have to admit the pointlessness of appeals to textual purity, and confess that it invites relatively obvious widenings of the scope of the “semantic” theory (to include near-side pragmatics); or, it would have to advocate a Copernican revolution in semantic theory, forcing it to include extra-semantic elements; or, it would have to articulate the aims and motives behind the triangulationist method in extra-semantic terms, e.g., in terms of the political value of publicity. (FWIW, I think that in the long run the third option is the smarter move, though it would take an essay to state why.)

“2) Do you think that governing bodies should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?”

I think, to this question, the answer is an incorrigible ‘yes’, provided that we identify the right linguistic context that is responsible for the change in content. So, notice that there’s a difference between communicative content that changes because of a corresponding change in background conditions which affect the interpretation of statute or caselaw (i.e., related to global changes in perspective and fact), and a change in content that is merely determined by the intentions of the Court with respect to the proper aims of statute or caselaw.

Suppose, for the sake of argument, that the latter is faulty on broadly conservative grounds — because “activist judges”, etc, etc. Fine. It is nevertheless true to say that in the former context, an apparent change in linguistic meaning is both legitimate and hard to deny, even when we go about mere interpretation of what is said in the text. So, e.g., to take Waluchow’s example — in the infamous Persons case, the meaning of “person” is radically different in 1945 as opposed to 1845 because many substantial background assumptions have changed (e.g., about property ownership, theories of sexual psychology, etc.). Our global background conditions make it absurd to read “persons” as meaning “men” alone and pretend to be doing it in good faith. So, it is not just that the Privy Council found the caselaw disagreeable or unjust according to their personal moral convictions. It is that there has been a change in stable meaning, owing a change in the background of interpretation.

The best version of the originalist intuition rests on the idea that true expressions are stable, or built to last. So, there is at least one important difference between “2+2=4” and “The duck-rabbit illusion depicts a rabbit”: you can count on being able to get away with asserting (and assenting to) ‘two and two make four’ tomorrow, but you can’t count on being able to even assert or assent to “The duck-rabbit illusion depicts a rabbit” in the next breath, since a Gestalt shift can take it all away. The presumption of future ‘stickiness’, the idea that legal rules are going to be a going concern, is a truth-maker in law. Which is to say that legal truth implies stability, at both the level of meaning and the level of politics, and this stability across contexts helps to satisfy the need for presumptive guidance to private actors.

There are two kinds of things you have to say about the originalist’s attempt at assuring stability in this way. First, it must be noted, and emphasized, that cross-contextual meaning is itself deeply and richly dependent upon an array of assumptions or givens which give it content. This is true for both partial expressions and sentences. The very idea of a “quark” is unintelligible in the context of an epistemic community that lacks a rich set of judgments about the behavior of particle physics. The sentence, “I want to cut the sun” (John Searle’s example) is sufficiently strange as to be almost unintelligible, given that there are no feasible means (open to our current imagination) that would make that sentence true. Cross-contextual content depends on a network of beliefs, judgments, and capabilities, and any change in these implicit background conditions can lead to explicit changes in meaning. That just seems to be a fact about how meaning works. Significance wanders.

Second, where they get off track, at the level of politics, is the sense that the only factor which provides that stability is strict fidelity to fixed intentions of original speakers. But what they are actually seeking is equilibrium, and a sufficiently large change in context very well might demand a new equilibrium.

To see why the originalist approach to stability is misguided, let’s consider a parable. Suppose someone were to say: “I must build my home on solid ground.” That seems like a reasonable thing to say. Now suppose they encounter a man who has built a boat, and lives their life at sea. “That’s silly, you get knocked around a lot,” says the man who built their home on solid ground. Then a hurricane comes and washes the house away, while the boat (though battered) survives. Question: whose home was more stable? Answer: it depends on your context and background assumptions. The house on land was stable in one context, but the house on the sea was stable in another. With the predicted rise of the sea, the rule, ‘build your home on solid ground’, is not going to provide anything like the need for presumptive guidance to private actors.

Non-classical conceptual analysis in law and cognition

Some time ago I discovered a distaste for classical conceptual analysis, with its talk of individually-necessary-and-jointly-sufficient conditions for concepts. I can’t quite remember when it began — probably it was first triggered when reading Lakoff’s popular (and, in certain circles of analytic philosophy, despised) Women, Fire, and Dangerous Things; solidified in reading Croft and Cruse’s readable Cognitive Semantics; edified in my conversations with neuroscientist/philosopher Chris Eliasmith at Waterloo; and matured when reading Elijah Millgram’s brilliantly written Hard Truths. In the most interesting parts of the cognitive science literature, concepts do not play an especially crucial role in our mental life (assuming they exist at all).

Does that mean that our classic conception of philosophy (of doing conceptual analysis) is doomed? Putting aside meta-philosophical disagreements over method (e.g., x-phi and the armchair), the upshot is “not necessarily”. The only thing you really need to understand about the cognitive scientist’s enlarged sense of analysis is that it redirects the emphasis we used to place on concepts, and asks us to place renewed weight on the idea of dynamic categorization. With this slight substitution taken on board, most proposition-obsessed philosophers can generally continue as they have.

Here is a quick example. So, classical “concepts” which ostensibly possess strict boundaries — e.g., the concept of number — are treated as special cases which we decide to interpret or construe in a particular sort of way in accordance with the demands of the task. For example, the concept of “1” can be interpreted as a rational number or as a natural one, as its boundaries are determined by the evaluative criteria relevant to the cognitive task. To be sure, determining the relevant criterion for a task is a nigh-trivial exercise in the context of arithmetic, because we usually enter into those contexts knowing perfectly well what kind of task we’re up to, so the point in that context might be too subtle to be appreciable on first glance. But the point can be retained well enough by returning to the question, “What is the boundaries of ‘1’?” The naked concept does not tell us until we categorize it in light of the task, i.e., by establishing that we are considering it as a rational or a natural.

Indeed, the multiple categorizability of concepts is familiar to philosophers, as it captures the fact that we seem to have multiple, plausible interpretations of concepts in the form of definitions, which are resolved through gussied-up Socratic argument. Hence, people argue about the meaning of “knowledge” by motivating their preferred evaluative criteria, like truth, justification, belief, reliability, utility, and so on. The concept of knowledge involves all the criteria (in some amorphous sense to be described in another post), while the categorization of the concept is more definite in its intensional and extensional attributes, i.e., its definition and denotation.

The nice thing about this enlarged picture of concepts and category analysis is that seems to let us do everything we want when we do philosophy. On the one hand, it is descriptively adequate, as it covers a wider range of natural language concepts than the classical model, and hence appeals to our sympathies for the later Wittgenstein. On the other hand, it still accommodates classical categorizations, and so does not throw out the baby with the bathwater, so not really getting in the way of Frege or Russell. And it does all that while still permitting normative conceptual analysis, in the form of ameliorative explications of concepts, where our task is to justify our choices of evaluative criteria, hence doing justice to the long productive journey between Carnap and Kuhn described in Michael Friedman’s Dynamics of Reason.

While that is all nice, I didn’t really start to feel confident about the productivity of this cognitivist perspective on concepts until I started reading philosophy of law. One of the joys of reading work in the common-law tradition is that you find that there is a broad understanding that conceptual analysis is a matter of interpretation under some description. Indeed, the role of interpretation to law is a foundational point in Ronald Dworkin, which he used it to great rhetorical effect in Law’s Empire. But you can find it also at the margins of HLA Hart’s The Concept of Law, as Hart treats outlying cases of legal systems (e.g., international law during the 1950’s) as open to being interpreted as legal systems, and does not dismiss them as definitely being near-miss cases of law. Here, we find writers who know how to do philosophy clearly, usefully, and (for the most part) unpretentiously. The best of them understand the open texture of concepts, but do not see this as reason to abandon logical and scholarly rigor. Instead, it leads them to ask further questions about what counts as rigor in light of the cognitive and jurisprudential tasks set for them. There is a lot to admire about that.