Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and

Legal Studies

1. Introduction: Going Down

the Anti-Formalist Road
I It is one of the theses of this book that many of the issues in inter
pretive theory can be reduced to a few basic questions in the philosophy
of language. Consider, for example, the discussion of "presupposition"
in Ruth Kempson Presupposition and the Delimitation of Semantics
( Cambridge, 1975). Kempson begins by observing that presupposition
can be defined "in one of two ways--either as a relation between state
ments (parallel to entailment, synonymy, etc.) or as a property of the
speaker's belief in uttering a sentence" (p. 2). The difference is be
tween a formal notion of presupposition in which it is a feature of sen
tences as they exist in the abstract apart from any particular occasion of
use, and presupposition as a fact about what is in a speaker's mind--his
understanding of the world and of the situation in which he now finds
himself--at the moment of utterance. As Kempson observes, the possi
bility of deriving meaning from the formal properties of sentences can
not survive the serious assertion of a speaker-based theory of presuppo
sition, for "if presuppositions in terms of speaker-belief are considered
to be a part of the semantic interpretation of sentences, then it seems
that the meaning of sentences must be in terms of speaker-hearer rela
tions and not . . . in terms of the relation between a symbol or set of
symbols and the object or state described" (pp. 2-3). And if that is so,
"one must give up the standard claim that the meaning of a sentence is
a function of the meaning of its constituent parts" (p. 60). This fol
lows because if the presuppositions of an utterance vary with the beliefs
of speakers and hearers--that is, if no sentence has "a unique set of
presuppositions"--then "every sentence can be analyzed with . . . as
many different sets of presuppositions" as there are different possible
contextualizations and there is no regular and predictable way to assign
a meaning, or even a range of possible meanings, to a particular sentence.
Meaning, in short, becomes entirely contextual and "cannot be
determined independent of the speaker of a sentence in a particular situ
ation" (p. 60). Once this conclusion has been reached, others immedi
ately follow:

One is thus faced with an analysis of meaning which claims that

every sentence has an indeterminate number of indeterminable
meaning representations. And if the meanings of sentences are in
determinable, then meaning relations between sentences such as
entailment, contradiction, by definition cannot be predicted. More

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over . . . it would follow that the grammaticality of sentences
cannot be determined either, independent of the situation in which
they are uttered. But this has the immediate consequence that one's
grammar would not be predictive.

By producing this sequence of entailments, Kempson (however in

advertently and even reluctantly) makes a very important point: once
you start down the and-formalist road, there is no place to stop; remove
the connection between observable features and the specification of
meaning, and you also remove everything else that is supposedly in
dependent of context; entailment, contradiction, grammaticality itself,
all become as variable and contingent as presupposition. This, however,
is not the conclusion Kempson reaches; and indeed it is the specter of
reaching it that drives her in the opposite direction:

We are thus faced with the conclusion that a theory which incor
porates a speaker relative concept of presupposition as part of its
semantic representation is in principle unable to fulfill any of the
four conditions I set up initially (1.1) as a prerequisite for any
semantic theory and therefore must be relinquished. (p. 60)

Those conditions include "a systematic relation between the meaning of

lexical items and the syntactic structure of the sentence," a "finite set
of predictive rules," the mechanical separation of non-deviant from
anomalous sentences, and predictability of meaning relations between
sentences. Kempson is quite right to observe that a speaker-relative con
cept of presupposition and therefore of meaning makes the fulfilling of
those conditions impossible since the variability of speakers and the dif
ficulty of determining what is in their minds precludes generality and
makes every speech situation unique. The surprise is in the last phrase:
"and therefore must be relinquished." Her reasoning is that since speaker-

relative presupposition, if taken seriously, would create grave (in

deed, insurmountable) difficulties for a semantic theory, we cannot
take it seriously. The conclusion is not reached because the evidence for
speaker-relative presupposition is weak or because the connection be
tween speaker-relative presupposition and meaning is specious, but be
cause to pursue this line of thought would be to give up the pursuit of
theory. In short, for Kempson this line of thought is unthinkable in the
sense that her deepest assumptions mark it as obviously absurd. Surely
any thesis that is incompatible with the assumed goal of linguistics--
the goal of building a theoretical model of language--must be rejected
out of hand; after all, the "four demands" that speaker-relative presup
position fails to satisfy "are agreed in principle by all linguists" (p. 2).
If Kempson were to give credence to this thesis, she would be denying
her membership in the community of linguists and (in effect) denying
the most significant aspect of her being.

I would not be misunderstood. I am not criticizing Kempson for

rejecting arguments that are stigmatized in advance by the beliefs she
necessarily holds as a practicing linguist. She has no choice, if by choke
one means a judgment reached independently of any predispositions or

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biases. It is just those predispositions and biases--those assumptions con
cerning what must be the case in the matter of language--that fill her
judgment, and one would be making if not an impossible at least Her
culean demand if one were to ask her to set them aside.

Again, I would not be misunderstood. I am not saying that Kemp

son is beyond criticism simply because the context of which she is an
extension prevents her from seeing certain arguments as respectable or
even makable. In my very strong opinion the arguments she clings to,
the arguments that underwrite the project of formal linguistics, are
wrong. And it is part of my argument that I can say that despite the
sympathetic analysis I make of her "epistemological condition." This
does not mean that I am not in the same condition--embedded in con
viction--but that precisely because I am embedded in conviction, my
sense of the rightness of my arguments is no less strong than hers and
is in no way diminished by my ability to give an account of its source.
That at least is the burden of several of the essays in this volume, espe
cially of those that assert the inconsequentiality (in certain terms) of
theory.

This, however, is to get ahead of my story, and for the time being
I would like to linger a little longer on the issues Kempson raises, for

much of what I want to say builds on the thesis from which she draws
back in horror, the thesis that the meaning of a sentence is not a func
tion of the meaning of its constituent parts; or to put it another way,
that meaning cannot be formally calculated, derived from the shape of
marks on a page; or to put it in the most direct way possible, that there
is no such thing as literal meaning, if by literal meaning one means a
meaning that is perspicuous no matter what the context and no matter
what is in the speaker's or hearer's mind, a meaning that because it is
prior to interpretation can serve as a constraint on interpretation. It
might seem that the thesis that there is no such thing as literal mean
ing is a limited one, of interest largely to linguists and philosophers of
language; but in fact it is a thesis whose implications are almost bound
less, for they extend to the very underpinnings of the universe as it is
understood by persons of a certain cast of mind. It is a cast of mind
Kempson displays when she concludes that if a unit of meaning cannot
be identified independently of the beliefs of speakers and hearers, the
entire enterprise of formal linguistics falls apart, since the first principle
of that enterprise demands what the speaker-relative account of presup
position denies.

The far-reaching effects of the unavailability of literal meaning

are even more evident in the decision of a Minnesota court in a case
argued in 1924. The point at issue is the "parol evidence rule," a rule
that prohibits the introduction of oral evidence in order to alter or vary
the meaning of a contract that is deemed to be complete in itself. Obvi
ously it is a rule designed to hold interpretation in check by insisting
that it respect a self-sufficient and self-declaring (literal) meaning. The
alternative, as the court sees it, is chaos:

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Were it otherwise, written contracts would be enforced not accord
ing to the plain effect of their language, but pursuant to the story
of their negotiation as told by the litigant having at the time being
the greater power of persuading the trier of fact. So far as con
tracts are concerned the rule of law would give way to the mere
notions of men as to who should win law suits. Without that [the
parol evidence] rule there would be no assurance of the enforce-
ability of a written contract. If such assurance were removed today
from our law, general disaster would result . . . ( Cargill Com
mission Co. v. Swartwood, 198 N.W.538 [ 1924]).

What is remarkable about this passage is the short time it takes to move
from the focus on the "plain effect" of language to the conclusion that
if that focus is abandoned, general disaster--not just disaster for those
with a professional interest in notions like "plain meaning"--will re
sult. The reasoning behind this conclusion is not drawn out, but it is
worth drawing out because it is writ large in many of the essays that
follow. It is first and last a question of power in relation to the putting
in place of constraints. What the Cargill court sees is that if there is
no public way of setting down marks that stand firm against interpre
tive manipulation, the rule of law--of perfectly explicit and impersonal
utterances--is replaced by the rule of persuasion, the rule of "the liti
gant having at the time being the greater power of persuading the trier
of fact." As a result, authority becomes structurally unstable, embodied
not in some abiding core (what H. L. A. Hart calls an "authoritative
mark"1) but in the words of whatever person or persons happens to
have sway "at the time being." This last phrase connects the court's fear
with an ancient tension between a notion of truth as something inde
pendent of local, partial perspectives and a notion of truth as whatever
seems perspicuous and obvious to those embedded in some local, partial
perspective. It is the difference between a truth that judges human
achievements and a truth that is a human achievement, inseparable
finally from "the mere notions of men," and it is the court's conten
tion that only the first kind of truth--the truth whose availability
makes plain language at once possible and essential--will assure order
that is principled, based not on the accidents of history and culture, but
on the essence of enduring values.

By making its cases in these terms, the Cargill court illustrates the
intimate relationship between formalism as a thesis in the philosophy
of language and foundationalism as a thesis about the core constituents
of human life. Formalism as a doctrine has been under attack for a long
time now and few will acknowledge subscribing to it, but as Roberto
Unger has observed, "Those who dismiss formalism as a naive illu
sion . . . do not know what they are in for . . . they fail to under
stand what the classic liberal thinkers saw earlier: the destruction of
formalism brings in its wake the ruin of all other liberal doctrines of
adjudication."2 Here and in other places Unger issues a double warn
ing: don't think that formalism is a simple position, easily identified
and easily avoided, and don't think that you avoid formalism by acknowledging
context, or proclaiming the inescapability of politics, or
any other of the gestures by which the anti-foundationalist insight

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is embraced at a general level without any strong awareness of the
implications of that insight for assumptions and practices that remain
unexamined. Formalism, as Unger correctly sees, is not merely a lin
guistic doctrine, but a doctrine that implies, in addition to a theory of
language, a theory of the self, of community, of rationality, of practice,
of politics. A formalist believes that words have clear meanings, and
in order to believe that (or because he believes that) he must also be
lieve (1) that minds see those clear meanings clearly; (2) that clarity
is a condition that persists through changes in context; (3) that noth
ing in the self interferes with the perception of clarity, or, that if it
does, it can be controlled by something else in the mind; (4) that
meanings are a property of language; (5) that language is an abstract
system that is prior to any occasion of use; (6) that occasions of use
are underwritten by that system; (7) that the meanings words have in
that system (as opposed to the meanings they acquire in situations) are
of should be the basis of "general" discourses like the law; (8) that
because they are general rather than local, such discourses can serve
(in the form of rules or statutes) as constraints on interpretive desires;
(9) that interpretive desires must (and can) be set aside when there
is serious public business afoot; (10) that the fashioning of a just
political system requires such a setting aside, the submission of the
individual will to impersonal and public norms (encoded in an im
personal and public language); (11) that this submission would be a
rational act, chosen by the very will that is to be held in check; (12)
that rationality, like meaning, is an abstract system that stands apart
from the contexts in which its standard is to be consulted; (13) that
the standard of rationality is available for the settling of disputes be
tween agents situated in different contexts; (14) that the mark of a
civilized (lawful) community is the acknowledgment of that standard
as a referee or judge; (15) that communities whose members fail to
acknowledge that standard are, by definition, irrational; and (16) that
irrationality is the state of being ruled by desire and force--that is, by
persuasion--rather than by a norm that reflects the desires of no one,
but protects the desires of everyone. All of these beliefs and more
follow from and give support to the belief that words have clear mean
ings, and many of the essays in this book begin by challenging the
linguistic thesis and end by challenging everything else.

Often the challenge is made in the name of intention, a much debated

topic in literary studies since the late 1940s and one that has been in
creasingly the center of controversy in legal studies. To some it seems
curious that such a minor topic should receive so much attention, and
from several quarters there has been an almost incredulous response to
Steven Knapp's and Walter Michaels' assertion that "what a text means
is what its author intends." 3 Knapp and Michaels have been misread as
urging a methodology in order to assure that interpretation will pro
ceed "objectively"; but in fact their identification of intention with
meaning removes the possibility of objectivity in interpretation by
making its object something the interpreter constructs. It is only if
meaning is embedded in texts--is a formal fact--that one could devise
a method for "reading it off"; but if meaning is a matter of what a
speaker situated in a particular situation has in mind (precisely the

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thesis of speaker-relative presupposition), one can only determine it by
going behind the words to the intentional circumstances of production
in the light of which they acquire significance. Nor is it the case that
these circumstances can themselves be regarded as a new (and higher)
set of formal facts, a new text whose meaning can now be read off;
for if it is by means of the intentional context and not directly that
a reader imputes meaning to a text, that context must itself be im
puted--given an interpreted form--since the evidence one might cite
in specifying it--the evidence of words, marks, gestures--will only be
evidence, have a certain shape rather than another, if its own shape
has already (and interpretively) been assumed. Once words have been
dislodged as the repository of meaning in favor of intention, no amount
of them will suffice to establish an intention since the value they have
will always depend on that which they presume to establish. In Unger's
words, "as soon as it is necessary to engage in a discussion of purpose
[another word for intention] to determine what an utterance means
formalism has been abandoned" (p. 93); and it is my contention in
the essays that follow that the abandonment of formalism--of the
derivation of meaning from mechanically enumerable features--has
always and already occurred.

This is a hard conclusion for many linguists and philosophers to

reach for reasons that are nicely articulated by John Searle. Comment
ing on H. P. Grice's theory of meaning, a theory in which meaning is

the effect of having recognized another's intention, Searle points out

that "on Grice's account it would seem that any sentence can be uttered
with any meaning whatever, given that the circumstances make possible
the appropriate intentions." 4 This is, of course, precisely Kempson's
objection to speaker-relative presupposition when she rejects "an analy
sis of meaning which claims that every sentence has an indetermi
nate number of . . . meaning representations"; and Searle anticipates
Kempson when he adds, "but that has the consequence that the mean
ing of the sentence then becomes just another circumstance." In fact,
the case is worse than that: under this analysis, a sentence doesn't have
a meaning if by "have a meaning" you refer to its meaning in the
abstract, apart from an occasion of use; any meaning a sentence might
be seen to have would be the product of a moment of situated inter
pretive labor, and that labor would not be constrained by any mean
ings the words themselves (now a nonsense phrase) contain. It is at
this point that we see the full implications of the shift by which mean
ing is disengaged from language and relocated in the (interpreted)
intentions of speakers: there are no longer any constraints on interpre
tation that are not themselves interpretive. Since intentions themselves
can be known only interpretively, the meanings that, follow upon the
specification of intention will always be vulnerable to the challenge of
an alternative specification. It is just as the Cargill court feared; a
contract or anything else will be enforced not by its plain language
(something that simply does not exist) but by the litigant or inter
preter "having at the time being the great power of persuading the
trier of fact" or any other socially situated agent who is captured by his
"story."

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As an example of how interpretation works under this analysis,
consider the case of John Milton as he argues in 1643 for the relaxing
of the constraints on divorce. In 1643 both sides must support their
positions from Scripture, and one of the crucial proof texts cited by
Milton's opponents is this verse from Matthew: "Whosoever shall put
away his wife, except it be for fornication . . . committeth adultery"
( 19: 9). In the course of his Doctrine and Discipline of Divorce Milton
labors at what might seem an impossible task, to read that text as say
ing that a man may put away his wife for any reason he likes. He does
it (or tries to do it) by arguing from intention. He points out that
when Christ uttered these words he was speaking to the Pharisees in a
context in which they were tempting him to a lax pronouncement con

cerning the law. It is, says Milton, in response to their provocations

that Christ delivers a judgment even more severe than they themselves
would have delivered, thus simultaneously escaping their net and un
dercutting their strictness by overgoing it: "So heer he may be justly
thought to have giv'n this rigid sentence against divorce, not to cut off
all remedy from a good man who finds himself consuming away in a
disconsolate and uninjoy'd matrimony, but to lay a bridle upon the bold
abuses of those overweening Rabbies."5 In other words, since this stric
ture was intended only for those of pharisaic temper, the freedom of
men who are not Pharisees cannot properly be abrogated by invoking a
prohibition that was not addressed to them. While Christ might say to
the Pharisees, "You can divorce only for reason of adultery," he says to
us, "to you divorce is permitted if, in your judgment, your marriage is
not a true spiritual union"; and since true spirituality does not show
itself, but is a matter of interpretation, there is no principled way of
ruling out of court the judgment of one who claims a spiritual lack in
his marriage. Therefore, by Christ's own words, a man may put his wife
away for any reason he likes.

It is an open question as to whether this argument works, but its

success or failure is less important than the illustration it provides for
the point I am making. Meanings that seem perspicuous and literal are
rendered so by forceful interpretive acts and not by the properties of
language. In the event that Milton is persuasive, it is not because he
has moved the words from their "normal" setting to the setting of a
special intention, but because he has dislodged the words from one
special setting (all intentional settings are special), where their mean
ing was obvious, and placed them in another where their meaning is
also obvious, but different. It is not a matter of doing something willful
as opposed to doing something else, but of one willful action supplant
ing another. Those who read Christ's words as plainly prohibiting
divorce (except in one well-defined circumstance) are not submitting
their interpretive wills to the "words themselves"; for they, no less than
Milton, are hearing those words within some intentional context (i.e.,
of a God who would hold his creatures to strict, even mechanical stric
tures, as opposed to a God whose stance toward his creatures' weak
nesses is charitable) to which they have been persuaded in the same
way and by the same means that Milton would now persuade us.

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The result is a world aptly described by Bishop Hoadly's observa
tion that "whoever hath an absolute authority to interpret any written

or spoken laws it is he who is the lawgiver to all intents and purposes

and not the person who first wrote or spake them."6Hoadly is cited by
H. L. A. Hart as an illustration of the conclusion he wants us not to
reach, for were we to reach it, he points out, the law would rest on
grounds no different from those assumed by the gunman who demands
your money or your life, the grounds of force.7 The fear is of a world
without principle, a world where might makes right, and personal
preferences run roughshod over the rules and laws intended to con
strain them. Does might make right? In a sense the answer I must give
is yes, since in the absence of a perspective independent of interpreta
tion some interpretive perspective will always rule by virtue of having
won out over its competitors. This at any rate is explicitly the argument
of "Force," "Fish v. Fiss," and "Still Wrong After All These Years."
But at the same time in these and other essays the identification of
might or force as the bottom-line category of interpretive and delibera
tive activity is followed by an assertion that the situation--that is, our
situation--is not as bad as it might seem. Here the reasoning depends
on challenging the picture of the self and of the decision-making
process in relation to which the ascendancy of force is a disaster. In
that picture the self is a quantity of desire that must be constrained by
something independent of it so that its actions might have a social or
public direction rather than a merely personal one. Constraints are
found in rules or laws or principles that hold the self's natural im
pulses (desires, biases, prejudices) in check. Responsible persons accept
these constraints and defer to them in the course of reaching a conclu
sion; irresponsible persons ignore them and give reign to their "mere
preferences." It is this picture that underwrites much of the thinking in
legal circles about the activity of judging. What judges do, at least
when they are doing their jobs properly, is set their personal feelings
aside and come to their decisions by consulting the rule (of law) they
have accepted as a bridle on their wills. Thus Kenney Hegland cites a
famous contract case ( Mills v. Wyman) in which Chief Justice Parker
of the Massachusetts Supreme Court, finding himself faced with a de
fendant whose actions he abhors, nevertheless rules for him because the
law he has sworn faithfully to execute bids him do so. Hegland takes
this as a particularly perspicuous example of the operation of indepen
dent constraints on "personal predilections," an example which, he
claims, refutes the "deconstructionist position that legal doctrine does
not constrain judicial decision." 8