Solum on Speech Act Theory and its Legal Relevance

Larry Solum discusses speech act theory in his Legal Theory Blog today.

One good example that I've seen of using speech act theory to elucidate legal concepts is Peter Tiersma's article on defamation as accusation.

"If"

Speaking of The Simpsons, (which I did a couple of weeks ago on this blog), let's talk about Principal Skinner's definition of if. This comes from the episode The Boy Who Knew Too Much from Season 5.

In response to a question by Homer, Skinner characterizes if as

A conjunction meaning "in the event that"
or "on condition that".

[This is about 4/5 of the way down the page.]

Now, I don't know how legal dictionaries like Black's define if, because it's the kind of word that search engines will refuse to run searches on. I searched a couple of law dictionaries I happened across in the law library, but found no entry for if. I guess it's not what you'd call a term of art.

I think Seymour Skinner is wrong. Not B. F. Skinner wrong, but wrong. My two disagreements are: in terms of syntactic categories, I don't think if is a conjunction; and semantically, I don't think "in the event that" or "on condition that" are adequate paraphrases. To the extent that ordinary dictionaries adopt a Skinnerian approach - and that extent is significant - it illustrates the shortcomings of relying on dictionaries for the meanings of words. Ya heard that, Justice Breyer?

Is "if" a conjunction?

Here's a definition of conjunction from Dictionary.com:

any member of a small class of words distinguished in many languages by their function as connectors between words, phrases, clauses, or sentences, as and, because, but, however.

If is a connector between words and a member of a closed lexical category, so if may well be a conjunction under this definition. But what did I just say about dictionary definitions?

My objection to calling it a conjunction is that it's not really conjoining constituents the way and, or or but conjoins them, as syntactic equals. I'm no expert on the syntax of conditionals, but I'm not aware of any proposal that groups if with conjuncts like and or or. The analysis that I've seen and believe treats if as syntactically a complementizer, the class that includes that, who, and maybe forms of auxiliaries like be or do, italicized in examples like the following.

I believe that judges are entirely too textualist nowadays.
I like any judge who Oliver-Wendell likes.
Is Easterbrook going to be named to the Supreme Court?
Oh my God! Did Easterbrook really write that?

As the examples show, complementizers are used to subordinate clauses, or else they appear at the left periphery of the main clause, which can be seen as subordinating the main clause to the discourse. If seems to behave similarly. The following sentence is close in meaning and structure to the second sentence in the last set of examples.

I like any judge if Oliver-Wendell likes her.

[Difference: the sentence with who has the property of exhaustivity, which the sentence with if doesn't. The exhaustive sentence tells you that in addition to liking every judge that Oliver-Wendell likes, I don't like any judge who Oliver-Wendell doesn't like].

So I would syntactically categorize if a complementizer - whose function is to subordinate one clause to another - rather than a conjunction, which joins two constituents as equals.

Semantics

But my quibble with Skinner is not just about the syntactic category of if, it's about semantics too. To be sure, he is right that the canonical use of if is in conditional contexts, which makes his definition essentially the canonical one. But notice this: a few lines after he defines the term, Skinner uses if in a sentence where it cannot be paraphrased as "in the event that" or "on condition that." He says:

Justice is not a frivolous thing, Simpson. It has little if
anything to do with a disobedient whale.

It should be clear from applying the substitution test that Skinner's definition will not work for this example:

#Justice is not a frivolous thing, Simpson.
It has little in the event that anything to
do with a disobedient whale.

#Justice is not a frivolous thing, Simpson.
It has little on condition that anything to
do with a disobedient whale.

[Per convention, I'm using crosshatches to indicate semantic infelicity. Since I'm focusing on semantics, I am omitting here the asterisk that is conventionally used to indicate syntactic incorrectness.]

It might be objected that this use of if is a non-conditional use. But in fact Skinner's sentence seems to be shorthand for the following, a clear case of a conditional:

If justice has anything to do with a disobedient whale, it has little to do with it.

So how to define the conditional?

The classic definition is in terms of truth tables. According to this approach, conditional sentences like if A, then B are false when A is true and B is false, and is otherwise true. Equivalently, if A, then B is true exactly when A is false or B is true (or both). The following truth table illustrates:


But there is a recent trend among linguists and philosophers to treat conditionals as quantificational statements, just like sentences with some or every. But instead of quantifying over things denoted by nouns, usually objects, the way these quantifiers do, conditionals are quantificational statements over worlds, events, situations, cases and the like.

Quantification, in turn, is fundamentally about relating two sets to each other. Every Supreme Court justice is wizened means that the set of Supreme Court justices is a subset of the set of people who are wizened. Similarly, if a plaintiff wishes to raise an issue on appeal, she must raise it at trial means [to oversimplify] that the set of situations in which a plaintiff raises an issue on appeal is a subset of the set of situations in which she raised the issue at trial, if we're restricting our consideration to the situations compatible with how the law operates.

Now consider again Skinner's sentence:

Justice is not a frivolous thing, Simpson. It has
little if anything to do with a disobedient whale.

This seems amenable to a quantificational analysis: the set of situations in which justice has anything to do with a disobedient whale is a subset of the set of situations in which justice has little to do with a disobedient whale. Equivalently, there are no situations in which justice has anything to do with a disobedient whale, in which justice doesn't have little to do with a disobedient whale.

Counterfactuals, or: What's a but-for?

If also appears in counterfactual conditionals, which have a different and more complicated semantics than ordinary conditionals, and will not be discussed here.

Declaration of Intentions

1. It is my intention to post substantively at least once a week, and preferably 2-3 times a week. The next month and a half should be a good test of my ability to meet my expectations, since it's the time of year when a law student wraps up the semester's routines - classes, work, volunteering, extracurriculars - and focuses on exam study.

1a (an aside). My attempts to work on the blog in the past week have been hampered by my inability, on two occasions, to access Blogger, even while I could access the rest of the internet. Strangely, both of these disabilities took place in the law school building, and were resolved once I got home. Is Case Law School blocking Blogger? I don't see why, but because I'm not in a reflective mood, this is my top hypothesis.

2. It is also my intention to try to make the blog more interesting by putting graphics and videos in it. This isn't one of those dull law professor blogs, after all! It's my hope that in combination with my sense of humor, which as been described as "sooooooo weird!", and the interesting subject matter, the result will be a somewhat compelling blog.



The image above is of a page in a Passover Haggadah published in Amsterdam in 1695. I posted it because it is in the public domain, it looks nice, and Passover is coming soon, and not because it appears to have spelling and grammar errors.

Arm-baring and bear-keeping: more linguistics from the DC v. Heller oral arguments

The official transcript from the DC v. Heller case, heard by the Supreme Court on Tuesday morning, is here.

Walter Dellinger, counsel for the District of Columbia, started by arguing that when Madison used the phrase "bear arms," he meant exactly "render military service" (pages 3-4). His argument is from Madison's original draft of what became the second amendment. The draft reads:

"The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Not addressed by Dellinger, or by the linguists' brief, is the role of "keep" in "keep and bear arms." If "bear arms" is just a way of saying "carry weapons" (or "carry arms," if military arms are to be distinguished from non-military weapons), then coordinating "keep" and "bear" makes sense: the amendment says that there's a right to keep the arms and to carry them.

But if "bear arms" is an idiom meaning "render military service," then an explanation of "keep" needs to be more complicated. There could be an idiom "keep and bear arms," which to my knowledge nobody has argued. Or there could be an idiom "keep arms" which is coordinated with an idiom "bear arms." But nobody seems to have claimed that either, and who says you can coordinate idioms like that? Or it could be that "keep" is not part of the idiom, but nevertheless can take "arms," part of the idiom, as an object.

General Paul Clement, supporting DC as amicus curiae, picks up on the "keep" problem:

And, obviously, the term "keep" is a word that I think is something of an embarrassment for an effort to try to imbue every term in the operative text with an exclusively military connotation because that is not one that really has an exclusive military connotation. (p. 29)

A discussion on "keep," "bear" and "arms" follows on pages 34-38.

Related to this is another linguistic debate, concerning whether the right to keep and bear arms is two separate rights - the right to keep arms and the right to bear arms - or a single right, presumably the right to both keep and bear arms. It might seem implausible for the Constitution to be defining a single right, which could be taken to mean (though it doesn't have to mean) that the federal government could ban the keeping of arms, and could ban the bearing of arms, but it could not ban doing both of those things.

But Justice Stevens has a good linguistic argument for this interpretation. He points out (p. 38) that "[i]t's one right to keep and bear, not two rights, to keep and to bear." In other words, the fact that there's no "to" in front of "bear" makes the text support a single right rather than two. It's analogous to the way the following sentences differ.

The study of law and economics is silly.
The study of law and of economics is silly.

Although both sentences may be true, they mean different things. The first is talking about a single discipline, while the latter is talking about two separate ones.

Linguists on DC v. Heller

Tomorrow, the Supreme Court will hear oral arguments in DC v. Heller, a gun control case that will call on it to interpret the Constitution's controversial Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

A group of linguistics and English professors have submitted a friend of the court brief ("the linguists' brief") on behalf of petitioner, the District of Columbia, in which they analyze the likely original meaning of the amendment. DC is trying to maintain what is in effect a ban on handguns (and in fact, a requirement to register handguns in a District where the means to register them don't exist). I don't know how frequently linguists submit briefs to courts on issues of interpretation, and I don't know whether judges find them influential. I certainly think courts should welcome briefs by linguists on issues of language, to help check bad judicial assumptions and reasoning about meaning and language.

The big issue appears to be how to interpret the amendment in light of the relationship between the absolute clause and the main clause of the sentence. Mark Liberman posted about this issue on the Language Log a couple of months ago. There seems to be widespread agreement about how to analyze the sentence syntactically: the sentence divides into two, with the first part ending in "state" and the second part starting with "the right of the people." The first part of the sentence is what's known as an "absolute clause," and modifies the second part, which is the main clause.

There is one exception to the syntactic consensus, apparently not taken seriously by anybody, based on the unusual punctuation in the amendment. The Language Log post references a group of anti-gun academics who have argued, based on the first comma, that "a well armed militia" is the subject of the sentence. Everyone else seems to think that the first and third commas should be ignored. The linguists' brief suggests that in the eighteenth century, punctuation was more a matter of style than grammar, adding that people were taught to put a comma where there ought to be a pause for breath. [They also point to awkward comma insertions elsewhere in the Constitution, including the 26th Amendment (1971) and the 27th Amendment (1992, but drafted a couple of centuries earlier)].

There also appears to be general agreement on the semantic analysis of the sentence, in which the absolute clause, the first part of the sentence, states a principle that is the cause for the principle stated in the main clause. The discussion in the amicus brief suggests that absolute clauses in which the verb has the -ing suffix usually have a causal relationship when their verb is stative, and a timing relationship when their verb is active. For example, in "the ship having arrived, we all embarked," the absolute clause indicates the time on which the embarking took place, i.e. the time of the ship's arrival. I would add from my recollection of Quirk et al's writings on absolute constructions that sometimes the semantic relationship is conditional. "Standing on the chair, John can reach the ceiling" means that if John stands on the chair, he can reach the ceiling. [EDIT March 28: the more appropriate reference is to Gregory Stump's work. See Barbara H. Partee's comment.]

An exception to the semantic consensus comes from Nelson Lund, who has a forthcoming article in the George Mason University Civil Rights Law Journal. According to the linguists' brief, Lund takes the position that because the absolute clause is grammatically independent of the main clause and especially because the main clause is a command, there is no semantic relationship between the absolute and the main clause. The authors of the brief show this conclusion to be empirically wrong.

As a side note, sentences with syntactic imperative force (as opposed to declaratives with an instruction or command illocutionary force, like the Second Amendment) are at best very awkward when modified by absolute constructions:

??A well regulated militia being necessary to the security of a free state, do not infringe on the right of the people to keep and bear arms.

The awkwardness is not semantic; a different modifier clause used to convey the same meaning is fine:

Since a well regulated militia is necessary to the security of a free state, do not infringe on the right of the people to keep and bear arms.

This shows that there is no rule against a command being semantically modified by a clause stating a reason or cause, though there may be syntactic restrictions involving particular reason/cause arguments. [Having written a masters thesis on the syntax of imperatives, I feel fairly confident saying that the linguistics community does not have a good understanding of the syntax of modifiers in imperative sentences; at least, it did not have a good understanding of it nine years ago when I wrote the thesis, and no facts suggesting that the understanding has improved have come to my attention since then.]

Leaving aside Lund and the anti-gun academics, the main point of disagreement seems not to be a question of linguistics but of rules for interpretation: how should the Court interpret the law in light of the agreed-upon syntax and semantics? Is it, as the DC Circuit Court of Appeals found, a general individual right to own guns, in spite of the narrower purpose articulated in the absolute clause? Or is it not an individual right but one restricted to those belonging to well-regulated militias, as most other federal circuits have held?

Besides discussing constitutional punctuation and the semantics of the absolute construction, the linguists' brief takes the following positions:

- The "well regulated" modifier was consciously used to distinguish between militias, and in particular between the more ad hoc kind of militia, consisting of ordinary citizens, referenced elsewhere in the Constitution, and the well regulated militia, which was a force trained and disciplined by the state. This addresses the DC Circuit Court of Appeals' critical holding that the Second Amendment applied to all citizens who were subject to being organized by the states into militias, as opposed to actually being in a militia. If the framers had meant the right to extend to all individuals subject to being organized into militias, it would make little sense for them to use the restrictive phrase "well organized."

- "Bear arms" is, and was at the time, an idiom meaning to fight as a soldier. But the idiomatic meaning can be suspended in favor of a more general "carry weapons" meaning if additional language is added. The linguists' brief cites the following language as an example:

“bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game”

They add, citing eighteenth century authority, that "arms" generally meant objects used in war, such as firearms and swords, while "weapons" excluded firearms and included objects used for offensive purposes on other occasions.

The linguists' brief's overall conclusion: the DC Circuit Court of Appeals erred by failing to give the amendment its most natural interpretation, which is that people have the right to serve in a well-regulated militia and to keep arms for that purpose. To reach its conclusion that there is a general right to own weapons, the appeals court ignored the words "well-regulated" and wrongly interpreted "bear arms" as "carry weapons," when in fact it is an idiom meaning "engage in hostilities." Accordingly, the Supreme Court should reverse the appeals court.

"Avoision"

I had always assumed that "avoision" was a cute Simpsons coinage, and meant the same as "evasion." Turns out it has been in use since 1982, and refers to conduct that's somewhere in between, or encompassing both, illegal evasion and legal avoidance.

On Vacation

Until March 17.

Y Kant Jonni Rite?

Declining childhood reading habits? Interference from text messaging argot?

No, the reason we don't write clearly anymore is the feminist language rapists, according to language nudnik David Gelernter.

Geoff Pullum debunks some of Gelernter's claims about the history of English usage on the Language Log.

Here's an irony that Pullum missed: In the third paragraph's opening sentence, while lamenting the loss of our ability to write clearly, Gelernter makes an error of style and writes a garden path sentence - one that the reader has to re-parse midway through because of poor drafting. The sentence reads:

Our ability to write and read good, clear English connects us to one another and to our common past.

As you process the sentence, you stop at "good" and wonder: is the author making fun by using "good" as an adverb, the way less educated speakers of English often do? Then you realize that no, he in fact just wrote the sentence badly.

What is it about illinguistic people that compels them to make perfect asses of themselves in public by combining language ignorance with a militant posture? And why does the phenomenon so often seem to involve political reactionaries trying to draw a connection between some perceived decline in language and some perceived decline in social values?

EDIT: a billion monkeys has a good review of Gelernter's rant.

Mathematical nitpickiness

Part of the usefulness of this blog is that it provides me with an outlet to make nitpicky complaints about the linguistic habits of people around me. It may or may not be useful to readers, but it's cathartic for me.

This time my complaints concern statements about math, not language, that I disagree with. I'll leave the subject matter out to protect the identity of the professor, who is generally brilliant and wonderful. But she recently made two math errors about two weeks apart that I feel compelled to correct.

In one case, she told us the range of grades and the average grade for an assignment, and informed us that the distribution was normal. Then she suggested that based on that information and knowing our individual grade, we can figure out how well we did. But we can't, except those of us whose grades are at one of the given data points, because we weren't given any information to help us figure out how flat the curve is. Knowing that I got an 14 (say) out of 20, that the average was 16 and the range between 12 and 20 doesn't tell me how I did compared to the rest of the class, except that I did below average and above the lowest score. Since in law school, all that matters is your performance compared to your peers, the amount of information given was not too helpful for most students.

In the second case, we were talking about how money in hand now is worth more than the same amount of money to be received in the future, because of inflation. The illustration used as an example the value of $1000 one year from now, assuming 5% inflation. The professor gave $950 as the current value of the money. But this is wrong, since $950 + 5% of $950 is less than $1000.

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Okay - now that that's off my chest, I'll try to post something more language-related in the near future. Maybe regarding the semantics of conditionals like "if", or maybe regarding a note topic that I'm considering - a textual analysis of the controversial United Nations Security Council Resolution 242.