Moderate versus Strong Intentionalism: Knapp and Michaels Revisited

In a series of articles published from 1980 to 1992, literary theorists Steven Knapp and Walter Benn Michaels advocated what the Author calls strong intentionalism, the thesis that the meaning of a text is identical to the meaning that its author intended it to communicate. At the recent Conference on Legal Interpretation in San Diego, they vigorously defended their thesis. In this Article, the Author argues that their defense of stong intentionalism fails, and that the thesis is false

Multimember Legislative Bodies and Intended Meaning

Intentionalists agree that the meaning of an ordinary communication is either identical to or depends heavily on what the speaker or author intended it to be. But the “or” marks a disagreement between “subjective” intentionalists, such as Larry Alexander and Richard Kay, and “objective” intentionalists such as me. Subjective intentionalists claim that the meaning of any communication is whatever its speaker intended it to mean. Objective intentionalists find this dubious because it seems possible for the meaning that people intend to communicate to differ from the meaning they do communicate. It surely cannot be the case that, whenever we speak or write with the intention of expressing or implying something, we are guaranteed to successfully express or imply that thing simply by virtue of having that intention. People can intend to say or imply something but fail to do so, and conversely, they can say or imply something they did not intend. When we are told that we have misunderstood what someone meant, we often defend ourselves by replying: “I now realize what she meant to say, but that’s not what she did say,” or “He may not have intended to imply that, but he did.” Subjective intentionalists must deny that such replies can be strictly correct: if the meaning of someone’s utterance is identical to the meaning she intends it to have, then she can only appear to, but cannot really, say something other than what she intends to say. Tha

The Limits of Judicial Fidelity to Law

Jeffrey Goldsworthy considers the possibility that judges might sometimes be morally justified in refusing to follow the law

Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism

In Reading Law, the late Justice Antonin Scalia and his co-author Bryan Garner defend “pure textualism,” partly because they deny that legislatures can have any intentions other than to enact statutory texts. This denial would, if adhered to rigorously, make their version of textualism unviable. It is inconsistent with context and purpose being used to (a) dispel ambiguities, (b) correct scrivener’s errors, (c) reveal presumptions or background assumptions that qualify literal textual meanings, (d) reveal most kinds of implicit and implied content, and (e) resolve conflicts between the interpretive canons. It would, in other words, entail hyperliteralism, which Scalia and Garner explicitly reject. This is no doubt why, as I show, they do not rigorously adhere to that denial. To the contrary, in accepting that context and purpose can be used to do all these things, they frequently rely on legislatures having intentions in addition to merely enacting statutory texts. Notwithstanding their theoretical dismissal of substantive legislative intentions as non-existent, their actual interpretive practice confirms the intentionalist thesis that sensible interpretation of enacted laws necessarily presupposes the existence of such intentions, and endeavors to reveal and clarify them