At some point, law students are likely to encounter a topic where the debate moves away from substantive disagreement and towards what might seem like matters of definition. For example, in debates about constitutional interpretation, some protagonists argue that the word "interpretation" refer to the activity of discovering the linguistic meaning of the text, but others believe that "interpretation" refers to a broader activity that allows normative considerations to determine the legal effect that the text will have.
What kind of dispute is this? One possibility is that it is a dispute about "definitions" that might be resolved by looking to a dictionary, but usually dictionary definitions will fail to address the real grounds of dispute. At this point, one can imagine the disputants simply agreeing to disagree about the meaning of the disputed word or term, but frequently this move fails, because neither side will yield on the question what "interpretation" (or some other legal concept really is.
It is at this point that the concept of metalinguistic negotiation may help us to understand what is really going on. In metalinguistic negotiation, the parties to a dispute attempt to reach agreement on how words should be used and what shape concepts should have. This entry in the Theory Lexicon will provide a brief introduction to this idea. As always, the introduction is aimed at first year law students with an interest in legal theory.
Words and Concepts
Before we explore metalinguistic negotiation itself, we need to get clear on a prior distinction--the distinction between words and concepts. Let use quotation marks to designate words, and italics to designate concepts.
The word "interpretation" represents a concept, interpretation. That the word and the concept are different entities is easy to see from the fact that different words are used in different languages to represent the same concept. Thus, the English word "interpretation" and the German word "Deutung" can be used to represent the same concept.
Metalinguistic negotiation may seem to be focused on words, but at a deeper level the disagreement may well be about the concepts that the words represent. When we debate about the meaning of the word "interpretation" or actual dispute may be about the shape of the concept interpretation that we use the word to represent.
How to Proceed in Metalinguistic Negotiation
Let's take another example of metalinguistic negotiation, the dispute over the word "originalism" and the concept originalism for which the word stands. Imagine the following conversation:
Ben: Originalism is the theory that judges should be bound by the linguistic meaning of the constitutional text.
Alice: That's a dumb theory. That would mean that we would be required to equate the word "arms" in the second amendment with muskets and flintlock pistols.
Ben: No, originalism requires that we follow the original meaning of the text and the word "arms" means weapons that can be carried. Modern pistols and rifles are "arms" given the original meaning.
Alice: That isn't "originalism." Originalism means we are limited to the applications that the framers and ratifiers expected.
Ben: You are wrong. Originalism is about public meanings not expected applications.
At this point, the issue has been joined, but how can the discussion continue. There are at least three options:
Stipulate Definitions: One possibility is that the disputants could stipulate to definitions in order to continue the conversation. For example, conversation between Ben and Alice could continue as follows:
Alice: Okay. Let's stipulate that there are two forms of originalism, "original public meaning originalism" and "original expected applications originalism." You are talking about the first form of originalism, but I am talking about the second.
Appeal to Linguistic Practice: Another possibility is that the disputants can appeal to the way the disputed words and concepts are actually used. For example, the conversation between Ben and Alice might continue as follows:
Alice: I don't think you are right. Originalists like Justice Scalia believe that the original beliefs about applications are binding on us today. Our use of the word "originalism" ought to correspond to the concept that originalists actually employ when they practice originalism.
Appeal to Theoretical Values: Yet a third possibility is that the disputants will shift the conversation to questions about which version of a concept is theoretically more attractive, powerful, simple, and so forth. For example, we can imagine, the conversation between Ben and Alice continuing as follows:
Alice: But originalists do appeal to expected applications.
Ben: That's true, but the most powerful form of originalism relies on public meanings. Expected applications should only play an evidentiary role. We ought to be talking about a coherent and defensible concept of originalism--not a dumb version.
These simple examples illustrate some of the options for metalinguistic negotiation. If you are interested in exploring this idea on a deeper level, you can consult the references provided below.
Related Lexicon Entries
- Legal Theory Lexicon 035: Strict Construction and Judicial Activism
- Legal Theory Lexicon 071: The New Originalism
- Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
- David Plunkett & Timothy Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers' Imprint 23 (2013).
- David Plunkett & Timothy Sundell, Dworkin's Interpretivism and the Pragmatics of Legal Disputes, 19 Legal Theory 3 (2013).
- David Plunkett & Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).