Bench Memos

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Scalia on Law and Language


Now that things have slowed down substantially on the judicial-confirmations front, I’m catching up on some of the reading that I had set aside over the past several months.

Here’s an essay by Justice Scalia that’s definitely worth reading. It’s his review (in the November 2005 issue of the invaluable journal First Things) of a book, Law’s Quandary, by Steven D. Smith (of the University of San Diego). An excerpt:

Smith claims his assertion that “legal meaning depends on the (semantic) intentions of an author” is “a modest and commonsensical claim.” It strikes me as an extravagant and nonsensical one. That is why Humpty Dumpty’s statement of the claim (“When I use a word it means just what I choose it to mean—neither more nor less”) has always been regarded—by all except Carroll’s game-playing Logicians—as hilarious nonsense. Alice and I believe that words, like other conventional symbols, do convey meaning, an objective meaning, regardless of what their author “intends” them to mean—unless, of course, the text announces that it is departing from conventional meaning (“black shall mean white”).What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts. In the case of legal texts, we do not always know the authors, and when we do the authors are often numerous and may intend to attach various meanings to their composite handiwork. But we know when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty what they meant to those who read or heard them.
Various responses to Scalia and Scalia’s reply are in the current (February 2006) issue of First Things, which is not yet available online.


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