Les Green on borderline law

Here’s Les Green on the importance of unwritten constitutions.

The main difficulty I have with his commentary is this. I can imagine a critic — Green’s dialectical opposite, Maur Red — saying, “Look, okay, so the US is a borderline case of law. Who cares? It’s still law.” If asked to clarify, Red could say: “What’s at stake here is not whether US law is a form of law, but whether or not it is an exemplar, an instance of the focal meaning of law. These are different issues.

As I imagine the conversation going, I think Red could then chastize Green for overspeaking when he claims that this entails that US law is not “actually” law, because nothing at all follows from concluding that US law is a borderline case of law. For that is apparently no more defensible than saying, e.g., that penguins are not really birds, given that penguins are a borderline case of birds, or that the half-competent doctor is not really a doctor, given that the doctor qua doctor makes no errors.

What Green should say, instead, is that US law is on the verge of being a near-miss case of law, which is a special kind of borderline case. And Red might concede that that would be worrisome. But then, he might conclude, you cannot infer that something is a near-miss case of law just because you deny that it has the qualities of an exemplar case, any more than you can infer “penguins are not birds” from “penguins are not robins or bluejays (etc.)” Only some borderline cases are near-misses. Others are just odd, ironic, or unexpected.

Solum’s mixed originalism

Since earlier this year Lawrence Solum testified before the Senate, now is a good time to read up on his work on constitutional originalism.

Solum (2008, “Semantic Originalism”, SSRN) argues that semantic originalism depends on the ‘clause meaning thesis’. This view states that the semantic content of the constitution is given by its conventional semantics and its pragmatics (context, division of linguistic labor, implication, and stipulations). The conventional semantics is established by its original public meaning (what he calls the ‘fixation thesis’).

The puzzle, for me, is in justifying the label of “semantic originalism”. Why semantic?

Solum makes it clear at the outset that he distinguishes between the semantic, applicative, and teleological senses of meaning, and stipulates that he’s only doing the semantic thing. (p.2-3) And that is fine and well. But then he cashes out the ostensibly semantic project partly in terms of applicative content: e.g., implicatures and stipulations. (p. 5; 54-58) And then he rejects competitor views (like Ronald Dworkin’s interpretivism) for smuggling teleology, consequences, and applications into an ostensibly semantic theory. (p.83)

Obviously this cannot work. Instead, if Solum were articulating a coherent view, he should not be calling his own originalist view a ‘semantic theory’. Perhaps he should be calling it a mixed theory of literal meaning, perhaps of an austere kind. After all, the semantics/pragmatics boundary is only of significance to a particular kind of analytic philosopher who is more obsessed with compositionality. It isn’t interesting to everyone for all purposes, and maybe isn’t even useful to everyone who cares about literal meaning. But then that would require confronting a central dogma in the philosophy of language.

Probably, the apparent incoherence of the paper is mitigated by the fact that Solum’s “Semantic Originalism” is a draft on SSRN. It’s just a draft, and goodness knows I’ve had my share of bad drafts. But it’s still a shame. I prefer long-form articles, where theorists can spell out the authoritative vision in detail, and that breadth of vision is often sacrificed in published works owing to editorial considerations. And the paper appears to be otherwise considerate, nicely written, and well-informed. It is just hard for me to reserve my disappointment in finding out that the entire programme is a house built on sand.