Digital Mind 🧠

🪵 The Threshold

The contingency of definition hardly entails the view that it is within the province of any one actor, legal or otherwise, to change it. Neither you nor I have the power to make it proper to use…

Properties2
tagsja-picks, definitional_content, corroborated, xref, category/definitional-content
aliases@schauer_formalism_1988, loc. 26

5 min read

The contingency of definition hardly entails the view that it is within the province of any one actor, legal or otherwise, to change it. Neither you nor I have the power to make it proper to use the word ‘bird’ to refer to a frog, even though the word ‘bird’ could in another world be used to refer to frogs.

Evidence

Of course when I use the term “inexorable,” I do not mean that the world and our language could not have been otherwise; the word “bird” could have referred to frogs instead of pelicans, or to only puffins, robins, and sparrows, but not pelicans, ostriches, and condors. Definitions are contingent and subject to change, and therefore the word “bird” might yet come to be the word that speakers of English use to refer to frogs, or only to small and not to large birds. Yet although there remains a possibility that the word “bird” will come to mean these things, this is only a possible world-it is not our world. In our world, the exclusion of frogs and the inclusion of large birds is definitionally part of the meaning of the word “bird.” As I argue below, see infra notes 56-57 and accompanying text, the contingency of definition hardly entails the view that it is within the province of any one actor, legal or otherwise, to change it. Neither you nor I have the power to make it proper to use the word “bird” to refer to a frog, even though the word “bird” could in another world be used to refer to frogs. — Frederick Schauer, Formalism, 26 (#corroborates, via linked claim)

Categorization

  • corroborated: 2 independent passages support this claim
  • XREF: connects to: Lochner is merely one example in which a false assertion of inexorability is decried as formalistic. Much contemporary criticism of Blackstone, Langdell, and others of their persuasion attacks their jurisprudence on similar grounds. They stand accused of presenting contestable applications of general terms as definitionally incorporated within the meaning of the general term. It is important, however, to understand the relationship between the linguistic and the ontological questions for those of Blackstone’s vision. Blackstone’s view that certain abstract terms definitionally incorporate a wide range of specific results is tied intimately to his perception of a hard and suprahuman reality behind these general terms. If the word ‘property,’ for example, actually describes some underlying and noncontingent reality, then it follows easily that certain specific embodiments are necessarily part of that reality, just as pelicans are part of the underlying reality that is the universe of birds. These instantiations might still follow even if the general term is not a natural kind whose existence and demarcation is beyond the control of human actors. There is nothing natural or noncontingent about the term ‘basketball,’ but it is nevertheless an error in this culture at this time to apply that word to a group of people hitting small hard balls with one of a collection of fourteen different sticks. Still, linguistic clarity and rigidity are both facilitated insofar as the words track the natural kinds of the world. To the extent that Blackstone and others believed that categories like liberty, property, and contract were natural kinds rather than human artifacts, they were less likely to perceive the choices we would now not think to deny. When one believes that a general term reflects a deep reality beyond the power of human actors, the view that certain particulars are necessarily part of that reality follows with special ease.; Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that choice and thus obstructs questions of how it was made and whether it could have been made differently. Use of the word ‘formalism’ in this sense hinges on the existence of a term (or phrase, sentence, or paragraph) whose contested application generates the choice. Some terms, like ‘liberty’ and ‘equality,’ are pervasively indeterminate. It is not that such terms have no content whatsoever; it is that every application, every concretization, every instantiation requires the addition of supplementary premises to apply the general term to specific cases. Therefore, any application of that term that denies the choice made among various eligible supplementary premises is formalistic in this sense.; When I say that pelicans are birds, the truth of the statement follows inexorably from the meaning of the term ‘bird.’ If someone disagrees, or points at a living, breathing, flying pelican and says “That is not a bird,” she simply does not know what the word ‘bird’ means. (+4 more)

Broader Connections

✉️

Backlinks