My last post, Corpus linguistics: Empiricism and frequency, prompted a Twitter exchange between Carissa Hessick and me, a lightly edited version of which I present here.
Hessick:
One question based on my quick read: Do you think most people would understand “relying on linguistic intuition” to be an empirical undertaking? I appreciate the insight into how people’s linguistic intuitions are formed. But don’t most people think that, if something is an empirical question, that means there is a demonstrably correct answer?
And if we often have different intuitions about what a word means (as the split decisions on ordinary meaning illustrate), and if judges resolve the Q of ordinary meaning by consulting their own intuitions, then how can ordinary meaning be an empirical Q? If I have one intuition and you have another, then how to we demonstrate which is correct and which is incorrect?
Me:
(1) I don’t know whether there are people who would think that “empirical Q” = “can be answered definitively,” but isn’t it pretty clear that that equation doesn’t hold, & that there are empirical Qs that can only be addressed probabilistically? E.g, aren’t weather forecasts and climate-change models empirically based, while still being probabilistic?
(2) As for how to reconcile the existence of differing intuitive judgments about meaning:
(a) there may be a real ambiguity that isn’t easily resolved, so both answers might be reasonable,
(b) cognitive biases & illusions; e.g., giving too much credence to dictionary definitions and to mistaken beliefs about how language works,
(c) disagreements about how to frame the issue (as in Smith v. US), which is really a *legal* disagreement,
(d) in some cases, disingenuous opinion-writing.
Probably other factors, too.
I still intend to write a post about this issue, but it keeps getting pushed down the to-blog list by other stuff.
Hessick:
Thanks for the response. I think my original description of the empirical issue may not have been precise enough. I think that when people (esp. lawyers) use the phrase “empirical question” they are referring to questions that are provable or verifiable.
Let’s take your example of weather forecasts. The empirical question they are trying to answer is “what will the weather be tomorrow.” Meteorologists don’t just consult their intuition (does my knee ache, if so it’ll probably rain). Instead, they look at quantitative data about past weather conditions to make a probabilistic assessment about what the weather will be tomorrow. And then we are able to observe whether their prediction was correct or not–we wait and see what the next day’s weather is.
So now let me contrast the weather prediction example with statutory interpretation. A judge has to construe a statute. There are two possible constructions, A or B. The judge chooses A. There is no way to prove that the judge’s construction was “wrong.” Unlike the meteorologist, who is predicting an event that we can measure, the judge is making a decision between two possible choices. You and I might disagree with the decision. But we can’t point to the thermometer the next day and say “look it was warmer than you said”
Now, don’t get me wrong, judges often frame what they are doing in terms that sound quantifiable. For example, they might say construction A is the one that meaning that is “most common” or “most commonly understood.” But I think that phrase is probably shorthand for “my intuition about what is most commonly understood.” The reason I think it is a shorthand for that is because the same judges (sometimes in the same opinions) talk about what a “reasonable listener” would understand.
As you know, the “reasonable person” standard is a qualitative standard, not a quantifiable one. And because whether something is reasonable is not (in doctrine) considered to be something you can prove as a quantifiable matter. I don’t see how the reasonable listener test is properly understood as an empirical test.
I intend to do a post here addressing the issue Hessick raises. Watch this space.
