Cosim Sayid: Dissertation
Intention and Interpretation in Law
Committee: Noël Carroll, Stephen Neale (Adviser), Jeremy Waldron
The following is a summary of Cosim Sayid’s dissertation.
By elucidating the intentional structure of communication in legal contexts, Cosim is able to satisfactorily resolve longstanding issues in the study of interpretation in law. This work is then applied specifically to the study of legal disputes in contracts, criminal procedure, defamation, and statutory interpretation. He suggests extensions of his approach for further work in administrative and constitutional law.
Cosim begins by explicating a Gricean account of communication, which is characterized by a self-reflexive audience-directed intention. Cosim places communicative intentions, like the Gricean one, in the realm of constitutive explanations, which he characterizes, including an argument that constitutive explanations are not analytic entailments. A major upshot of this is that we can be precise about why communications are endowed with the particular intentional content they possess. Two versions of the Gricean communicative intention (c-intention) are deployed: one suitable for any situation and a second suitable for cooperative contexts; most, but not all, legal contexts will be of the latter type. In non-cooperative situations, it’s necessary to use the idea of mutual knowledge (sometimes termed: common knowledge). Instead of using an iterated account, as has been standard, Cosim brings to bear a self-reflexive realization of mutual knowledge (due to Harman), which has several advantages over the infinitely-iterated formulation, especially in terms of being a psychologically real mental representation. Cosim also discusses the circumstances under which formation of a communicative intention is rationally infeasible, and how this makes communication in such circumstances strictly speaking impossible. Observing, however, that almost all legal contexts are cooperative ones, constitutive explanation in terms of mutual knowledge is not required in most cases; for the remainder, we are able to use a formulation of communicative intentions in terms of mutual knowledge. Cosim concludes chapter 2 by rejecting charges that self-reflexive mental states, like communicative intentions, are psychologically unreal or logically incoherent.
Cosim then uses that constitutive explanation of communication in terms of communicative intentions to elucidate the epistemic activity of (ordinary) interpretation, where the goal is to identify the content and force of a speaker’s communicative intention using available evidence. In legal situations and other practical contexts where resolution – often, but not exclusively, of disputes – is required, rules of evidence set the bar to be met. It is of great importance not to equivocate between the evidential sense of ‘determine’ (where a court determines, say, what § 5 of a statute means via interpretation) and its constitutive sense (where a speaker’s communicative intention determines the content of her utterance). I explain how the view of interpretation I advance is buttressed by work in cognitive science, especially due to Sperber & Wilson, concerning our mindreading abilities. Cosim argues in favor of a linguistic know-how that localizes interpretive disagreements to word-meaning, syntax, or pragmatics.
In chapter 4, Cosim turns to the idea of creative interpretation, where an interpreter goes beyond ordinary interpretation. With the latter, the target of one’s investigation is circumscribed by the speaker’s actual mental states, but the former underwrites appeal to conceptual resources that are (perhaps) not even within the speaker’s ken. Cosim begins by examining the musical case, looking at arrangements for orchestra of solo or chamber works (like Ravel’s and Stokowski’s arrangements of Mussorgsky’s solo piano suite Pictures at an Exhibition) and transcriptions of orchestral works for solo piano or piano four hands (like Liszt’s transcriptions of Beethoven’s symphonies for solo piano). In this type of interpretation, one is not concerned with recovering all and only the pertinent c-intentions but with other goals as well, such as economy or elegance. In legal situations, Cosim looks at the case of vagueness, where courts are required to draw lines in a manner consistent with legal tradition, especially the rule of law, in which Endicott and Solan have done much work in showing how courts behave. In other chapters, Cosim presents more elaborate applications of this idea.
In chapter 5, Cosim examines statutory interpretation, where work in law and language has mainly been focused. There is, however, a major complication in dealing with corporate agents, who have agency in their own right, derived from that of their constituent individuals but irreducible thereto. A major task of this chapter is to explicate how corporate bodies can have communicative intentions; Cosim discusses work in group metaphysics and philosophy of mind and language to that end. He rebuts charges by skeptics of the very idea of corporate or legislative Gricean intentions, while presenting a challenge to those who premise their theories of statutory interpretation on legislative purposes. Cosim also considers several actual cases, which have been the subject of detailed examination by others, such as the prevailing view of antitrust statutes, which sometimes sees him apply his theory of creative interpretation in a discussion of the rule of stare decisis (where the precedential weight of a decision is augmented with the volume of law reliant on it). Cosim also speaks to the importance of judicial resolution of disputes that allows disagreement to persist, since limited disagreement is immensely useful in a free society; he uses arguments by Waldron to argue for a judicial role where decisions resolve, but do not permanently end, conversation over contentious issues.
Chapter 6 is a largely self-contained application of Cosim’s theory of creative interpretation to the standards in many jurisdictions for conviction in a criminal case: the standard of beyond a reasonable doubt (BRD). BRD is (in)famously difficult to apply or even explicate, which is something of a scandal, given that an accused’s very life sometimes hangs in its balance. Cosim argues that courts should creatively interpret BARD such that guilt is justified if (a) the belief therein is judged to be epistemically safe; and (b) that belief was caused by reliable cognitive processes. The first criterion is satisfied when one could not easily have been wrong in a similar case, while the latter is met when thoughts that one has were inferred or occasioned by cognitive processes that are truth-apt in (extant) favorable circumstances. The second is a case of reliance on higher-order evidence – evidence bearing on the reliability of one’s evidence – such that Cosim conjectures one’s higher-order evidence must be such that conviction is permissible only if it is more likely than not that it is more likely than not that the accused is guilty. This allows him to address certain controversial cases, like those involving purely statistical evidence.
In chapter 7, Cosim creatively interprets the standard to be met in defamation actions brought by public figures, namely: a defamatory utterance must be made with actual malice or in reckless disregard of the truth. Cosim urges that defamatory liability in cases involving public figures extend only to cases of lying or bullshitting falsely (in a technical sense that’s described). He defends the view that it may be wrong to mislead or implicate falsely, but it is not, and ought not to be, a defamatory wrong. Cosim also criticizes the view that there are true lies, and that so-called ‘bald-faced lies’ are lies.
In chapter 8, Cosim examines what he judges the most difficult legal terrain for intentionalist theories of interpretation and meaning like his: contracts. He sketches an account of contracting as a non-promissory speech-act and address several objections to this proposal. Cosim argues that his approach best captures the basic principles of contract law while also indicating how we should proceed when parties ask the court what their contractual obligations are.
Cosim concludes by offering some possible extensions of his work to administrative and constitutional law. (For more on this, read about Cosim’s further research interests.)