1.
Much has (and much will be) said of the recent leaked opinion from the Supreme Court that would overturn the major legal precedents of Roe and Casey. Here I want to focus on one small part of it, but a part that represents a common ideology of language. Beyond the stock controversies of American jurisprudence—originalism versus textualism, for instance—there is a public imagination of language as something complete and available for stable interpretation, whichever hermeneutics one adopts.
One of the more telling citations in Alito’s opinion is to a speech given by Abraham Lincoln in 1864. Lincoln is cited as an authority for a cynical outlook: “We all declare for Liberty; but in using the same word we do not all mean the same thing.” The idea here is obvious, however incoherent. If there is a plurality of definitions, meaning is arbitrary. This is quickly followed in due course by some equally arbitrary selection of definition, based upon an authority hastily summoned. This is most often a dictionary.
This view of the dictionary supposes that a definition is the meaning of a word. A perfect dictionary, then, would contain a complete vision of a language with all its meanings rendered explicit. But the authority of a dictionary rests upon usage: lexicographers must research usage—historical and contemporary—and then do their best to describe the rule of that usage. Definitions in modern dictionaries are the result of research, not proclamations. But there were definitions prior to dictionaries: they appear all through the rhetorical canon as a form of argument, a way of temporarily stabilizing the rule of usage within a discourse. In classical stasis theory, it was the second point: after conjectural argument (Was the item taken from the house?) we arrive at a contest over meaning (Was taking this item a theft?). Definitional arguments are more or less persuasive, they involve us in the details of a situation, and they inflect our attitudes towards the events of civil life by showing the possibilities of meaning not through words alone but through richly-described action.
Lincoln was also aware of this, and as you might suspect, the quoted section in the opinion isn’t where his speech leaves off. I quote at length:
With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name, liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names--liberty and tyranny.
The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act, as the destroyer of liberty, especially as the sheep was a black one. Plainly, the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the process by which thousands are daily passing from under the yoke of bondage hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty, and thanks to them that, in what they have done, the wolf's dictionary has been repudiated.
The “wolf’s dictionary” is not repudiated by appealing to another one, but by “doing something.” In this case, liberty—not only in its moral but also in its political and legal senses—was defined by war. The wolf, too, speaks: but whose meaning should prevail over the rest?
Dictionaries, rightly understood, are guides to researching linguistic usage and references for establishing the meaning of particular usages. They are often misunderstood as authorities over language that represent universal meaning. But Lincoln’s metaphor shows why this can never be so: language users are normally in conflict over meaning, and this conflict is downstream from other conflicts: political, legal, social, religious, scientific, etc.
2.
Conflicts over meaning are especially pertinent to law, since the quaestio iuris or “question of law” is almost always fought over definitions or the application of definition. Unlike a dictionary, the law does have power to create definitions rather than just describe them. But this power is not unlimited: it must rediscover the meaning of a rule in cases under dispute.
No one explored this issue at a grander scale (perhaps too grand by modern judgment) than Giambattista Vico. Denied his bid to be admitted into the Faculty of Law, he nevertheless made his historical interpretation of law a Rosetta Stone for his “new science” of historical humanity. While the details of this argument would take us far beyond the length of this piece, it may be worthwhile to look at a few poignant passages.
Vico called “heroic jurisprudence” one that is nothing but “verbal scrupulosity.” Heroic here is part of Vico’s idiolect and does not imply a high moral evaluation. The age of heroes (an age that in Vico’s peculiar historiography never fully passes away) falls between the age of gods and the age of humans. In heroic law, arms are the arbiter of right. It rules over a city split between the self-appointed heroic families and the plebeians beneath them, originally excluded from legal rights. Vico uses Roman history to model an ideal vision of this conflict: the heroic law only comes to be written down through a struggle between the patricians and the plebs. The desire to fix the law is a reaction of the plebeians who balk at the arbitrary power lorded over them, always said to be de iure. But there is also an upshot to this: once written, both plebs and patricians hold tightly to those verbal formulae:
With their limited ideas, the heroes thought they had a natural right to precisely what, how much and of what sort had been set forth in words; as even now we may observe in peasants and other crude men, who in conflicts between words and meanings obstinately say that their right stands for them in the words.
Whatever its importance and achievements in time, the heroic law is a barbaric one in asserting right through conquest and is a naïve institution that misrecognizes its own origins, thinking it was the heroic declarations of right—the words themselves—that had mythically conjured the law.
Vico contrasts this with the more developed “human jurisprudence”:
The last type of jurisprudence was that of natural equity, which reigns naturally in the free commonwealths, where the peoples, each for its particular good (without understanding that it is the same for all), are led to command universal laws. They naturally desire these laws to bend benignly to the least details of matters calling for equal utility.
Here there is a paradox: in order for the law to achieve genuine universality, it must be able to bend to the demands of equity, constantly adapted to the “particular good” that cannot be the same. Universality of law is achieved precisely by creating institutions that respond to claims of equity. In Vico’s work, the pleader inhabits the position of an appeal to equity before the law: it is law’s deference to rhetoric and its concern with the particularity of meaning that sustains its claim to universality. It is not from the to all but from the to each that law approaches justice. Otherwise, we live out the ancient legal maxim—summum ius, summa iniuria: supreme law, supreme injustice.
3.
What, then, when the law does not make room for a dispute over its meaning? Alito’s definition of liberty is quite clearly an attempt to confine any disputes into the realm of “verbal scrupulosity”:
While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
But in this argument we also discover a weakness. The realms of thinking and saying are considered to be outside the realms of action. Since the authority of meaning always lies in usage, the power of those who wield law that no longer says what they claim reveals the basis of their power not in legitimacy—the popular approval of the law’s enacted meanings—but in inequity. Legitimacy is ultimately an impersonal power and one that can and has been manipulated by pressures upon the public’s opinion formation. But it is never a power that can be wholly arrogated to the law itself, a law which can only remain mute before the pleas of equity, whether honored or ignored.
We might think about the struggle over legitimacy not as a merely legal topic, but one of social politics. Here we may think of what German feminists call Definitionsmacht, the power to define the meanings that in turn define your freedom. The feminists of a prior generation, like the semi-legendary plebeians of Vico’s Rome, used their own courage of openness to contest the legitimacy of “inhuman laws.” While barred from the ability to make or unmake law, it is always within the power of the people to contest what meanings are legitimate and which are cited from the wolf’s dictionary.