1. The use of objectivist and subjectivist terminology is especially prevalent in the law and language literature, where it was first used by Mark Greenberg, Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication, in Philosophical Foundations of Language in Law 231 (Andrei Marmor & Scott Soames eds., 2011). This literature has subsequently been developed by Asgeirsson and Goldsworthy. See Asgeirsson, Hrafn, Expected Applications, Contextual Enrichment, and Objective Communicative Content: The Linguistic Case for Conception Textualism, 21 Legal Theory 115 (2015)CrossRefGoogle Scholar [hereinafter Asgeirsson, Expected Applications]; Hrafn Asgeirsson, On the Possibility of Non-literal Legislative Speech, in Pragmatics and Law: Practical and Theoretical Perspectives (Francesca Poggi & Alessandro Capone eds., 2017) [hereinafter Asgeirsson, Non-literal Legislative Speech]; Jeffrey Goldsworthy, Subjective Versus Objective Intentionalism in Legal Interpretation, in Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Heidi Hurd ed., 2018). The debate in law and language, however, has primarily been between what I call subjectivists and audience-objectivists.

Outside the law and language literature, the notions of subjective and objective intent have also been discussed by Justice Scalia in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1998), at 16–17.

2. By accepting that some interpretations are correct and others are not, I am assuming what Lucy calls the Orthodox View of adjudication where objective legal principles and content do exist. If the reader does not believe in objective legal principles and law, then there is little reason to do any theorizing on legal interpretation anyway. William Lucy, Understanding and Explaining Adjudication (1999), at ch. 1. Even on the Orthodox View, I am not committed to there being only one correct interpretation for any legal provision; there could be a range of interpretations that are correct.

3. Alexander, Larry, Originalism, the Why and the What, 82 Fordham L. Rev. 539 (2013)Google Scholar; Kay, Richard, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703 (2009)Google Scholar.

4. Stephen Breyer, Active Liberty (2006), at ch. 6; Barak, Aharon, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 19, 66–67 (2002)Google Scholar [hereinafter Barak, A Judge on Judging]; Aharon Barak, Purposive Interpretation in Law (2007), at ch. 7 [hereinafter Barak, Purposive Interpretation].

5. Asgeirsson frames audience-objectivism as: “A speaker asserts p only if a rational hearer, knowing the relevant conversational background and context, is warranted in taking her to be intending to assert p.” Asgeirsson, Non-literal Legislative Speech, supra note 1, at 74–75, 81. There is a small distinction in the way we define audience-objectivism as he frames objectivism in terms of what the rational speaker “is warranted” in their inference. I take this as already incorporated into my definition (i.e., a rational audience will only make inferences that are warranted).

6. Goldsworthy supra note 1; Scott Soames, Deferentialism: A Post-Originalist Theory of Legal Interpretation, 82 Fordham L. Rev. 597, 598 (2013); Andrew Marmor, The Language of Law (2014), at 19. Endicott suggests that this is what judges are doing when they say they give effect to legislative intentions. Timothy Endicott, Arbitrariness, 27 Can. J. L. & Juris. 49, 60 (2014).

7. Barak, A Judge on Judging, supra note 4, at 66; Barak, Purposive Interpretation, supra note 4.

8. One could theorize this by relying on the distinction that speech act theorists make between illocutionary and perlocutionary intentions. John Searle, Expression and Meaning: Studies in the Theory of Speech Acts (1979), at 3. Barak also makes the distinction between the “interpretive intention” of a lawmaker and the “policies the legislature sought to realize.” See Barak, A Judge on Judging, supra note 4, at 74.

9. Richard Ekins, The Nature of Legislative Intent (2012); Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011); Farber, Daniel & Frickey, Phillip, Legislative Intent and Public Choice, 74 Va. L. Rev. 423 (1988)CrossRefGoogle Scholar; Tan, David, Uncommon Legislative Attitudes: Why A Theory of Legislative Intent Needs Non-Trivial Aggregation, 34 Ratio Juris 139 (2021)CrossRefGoogle Scholar.

10. Barak, A Judge on Judging, supra note 4, at 66–67.

11. The term rational person is used since the epistemologists I engage in Sections II and III tend to use the term rationality rather than reasonableness.

12. For an example of a conceptual distinction between reasonableness and rationality, see Keating, Gregory, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311, 313, 318–319 (1996)CrossRefGoogle Scholar.

13. By positing different perspectives of rationality, I am not denying that there might be universal rules of rationality (I remain neutral on the issue). Rather, even if universal rules of rationality exist, they would be applied very differently in different domains. This is evidenced by the simple fact that someone who can reason well about language (e.g., a linguist) might not reason well about economics (compared to an economist).

14. Soames, supra note 6, at 102; Marmor, supra note 6, at 11.

15. Breyer, supra note 4, at 12.

16. Justice Breyer says: “The judge will ask how this person [the reasonable member of Congress] . . . aware of the statute's language, structure, and general objectives (actually or hypothetically) would have wanted a court to interpret the statute . . . .” Id. at 84. See also Barak, Purposive Interpretation, supra note 4, at 92 (“The language . . . must be able to bear the purpose of the norm.”).

17. Commonwealth v Bank of New South Wales (1949) 79 CLR 497, 639 (Austl.). See also Sarah Joseph & Melissa Castan, Federal Constitutional Law: A Contemporary View (4th ed. 2014), at 395–396.

18. Cole v Whitfield (1988) 165 CLR 360, 394 (Austl.).

19. Id. at 391–394.

20. Goldsworthy, Jeffrey, Moderate Versus Strong Intentionalism: Knapp and Michaels Revisited, 42 San Diego L. Rev. 669, 671–672 (2005)Google Scholar.

21. Alexander argues that this does not differentiate subjectivism from audience-objectivism and that both theories need a version of readily (or in Alexander's terms publicly) available evidence. He argues this because (a) a rational speaker would only take into account readily accessible evidence and (b) even if there were private evidence, no one could discover the true intentions of the speaker without getting access to this private evidence—both objectivists and subjectivists would be equally led astray by the private evidence. Larry Alexander, Appreciations and Responses, in Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander 423 (Heidi Hurd ed., 2019).

I agree that these reasons suggest that subjectivists and audience-objectivists will often agree, but I dispute that they will always agree. Alexander's proposition (a) assumes that lawmakers are always rational and perfect communicators. That might not always be the case. As for proposition (b), this in-text hypothetical is a counterexample where the “readily accessible” requirement makes a difference. Further, I suspect that the reason that Alexander believes subjectivists too need a readily accessible criterion is that there is an equivocation with “readily accessible” meaning evidence that the public at large can access and comprehend or “readily accessible” meaning that at least some people, even if not the average person, can obtain the evidence. Alexander seems to be taking “readily accessible” as meaning the latter—which is why he would say that no one could ever get at what the speaker really intended unless it was public or readily accessible in this sense. I take Goldsworthy as meaning the former (even if he does not, it is plausible that an audience-objectivist might mean this).

22. Alexander, Larry, Telepathic Law, 27 Const. Comment. 139, 140–141 (2010)Google Scholar.

23. This idea of communication as transmission is often attributed to Shannon and Weaver. See Claude Shannon & Warren Weaver, The Mathematical Theory of Communication (1949), at 6–7. This notion of transmission has also been adopted by philosophers and linguists. Pagin, Peter, What Is Communicative Success?, 38 Can. J. Phil. 85, 88, 91 (2008)CrossRefGoogle Scholar; Dan Sperber & Deirdre Wilson, Relevance: Communication and Cognition (1st ed. 1986), at 3–5.

24. Jeffrey Goldsworthy, Legislative Intentions, Legislative Supremacy, and Legal Positivism, 42 San Diego L. Rev. 493, 503, 518 (2005).

25. Goldsworthy says: “the meaning of a communication cannot be something hidden within the speaker's mind and inaccessible to its intended recipient.” Jeffrey Goldsworthy, The Case for Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 48 (Grant Huscroft & Bradley Miller eds., 2011).

26. For a linguistic analysis of ordinary meaning see Brian Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2016); Thomas Lee & Stephen Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018).

27. Lee & Mouritsen, supra note 26, at 793.

28. Breyer, supra note 4, at 12.

29. Barak, A Judge on Judging, supra note 4, at 39.

30. Id. at 28–29.

31. Id. at 28.

32. Barak, Purposive Interpretation, supra note 4, at 209.

33. Id. at 151.

34. It might appear that Asgeirsson's requirement that the rational audience be warranted in coming to their inferences is no longer a minor point, supra note 5. Rational audiences might come to different conclusions but they are only warranted to come to one conclusion. This line of reasoning is basically what epistemologists call the Uniqueness Thesis, which I discuss in Section III.

35. For some general work on rational disagreement and law see Adam Dryda, The Epistemology of Theoretical Disagreement, in Metaphilosophy of Law (Pawel Banas, Adam Dryda & Tomasz Gizbert-Studnicki eds., 2016).

36. For disagreement in the legal case, consider the number of dissents that one finds in courts. For example, Epstein et al. found that 62 percent of US Supreme Court cases in 2011 had at least one dissent. Lee Epstein, William Landes & Richard Posner, Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, 3 J. Legal Anal. 101, 106–107 (2011). Songer et al. show that the Supreme Court of Canada had a dissent rate of 10 to 40 percent between 1980 to 2005. Donald Songer, John Szmer & Susan Johnson, Explaining Dissent on the Supreme Court of Canada, 44 Can. J. Pol. Sci. 389, 392 (2011). Lynch shows that over the period between 1981 and 2003, dissent occurred in the High Court of Australia between 40 and 50 percent of the time. Andrew Lynch, Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981 – 2003, 33 Fed. L. Rev. 485, 497 (2005).

There is no reason to think that rational disagreement would disappear at the average level of rationality if we switched from a societal notion of rationality—what people perceive to be averagely rational—to some normative standard of what is averagely rational. On both accounts we are dealing with people who make mistakes. Hence, it would be very surprising if, at the average level, agents all made mistakes in the same way to end up with the same conclusions.

37. Gideon Rosen raises this problem as an objection to Soames. Gideon Rosen, Deferentialism and Adjudication, in The Nature of Legal Interpretation: What Jurists Can Learn from Linguistics and Philosophy 255 (Brian Slocum ed., 2017). Rosen seems, however, to accept that cases of rational disagreement are simply hard cases for the objectivist, and notes that other theories would have their own hard cases. Id. at 255. Further, Rosen does not think that the objection here is that “[the objectivist] makes an easy case hard.” Id. at 256. Instead, Rosen thinks that the real problem is that the potential for various rational interpretations risks audiences imputing intentions the lawmakers did not really have. Id. at 256. While I agree that imputed intentions are undesirable, I think that Rosen underestimates how hard these cases really are. I show in Section II.D, when discussing the notion of instability, that the way these hard cases are generated is highly problematic.

This objection has also been raised in areas outside of law where the consensus on a topic is taken as a presupposition or necessary element for some concept. See Noel Carroll, Art Interpretation: The 2010 Richard Wollheim Memorial Lecture, 51 Brit. J. Aesthetics 117, 130 (2011); Timothy Horgan & Mark Timmons, Troubles for Michael Smith's Metaethical Rationalism, 25 Phil. Papers 203, 212 (1996); David Enoch, The Disorder of Public Reason, 134 Ethics 141, 164–170 (2013).

38. Smith v. United States, 508 U.S. 223 (1993).

39. Id. at 229 (emphasis added).

40. Id. at 242.

41. Scott Soames, Towards a Theory of Legal Interpretation, 6 N.Y.U. J. L. & Liberty 231, 238–239 (2011); Robyn Carston, Legal Texts and Canons of Construction: A View from Current Pragmatic Theory, in 15 Law and Language: Current Legal Issues 22 (Michael Freeman & Fiona Smith eds., 2013).

42. Smith, 508 U.S. at 240.

43. Id. at 240 (emphasis added).

44. This might be slightly controversial given the Equal Weight View in epistemology; I address this further below in Section II.

45. False in the following sense. Suppose we have total epistemic access and have God's viewpoint where all legally relevant facts are accessible. Further, suppose that “p is the correct interpretation” is true since p is what the lawmaker intended. The audience-objectivist, for reasons given in text, will be forced to say that there are cases where “p is the correct interpretation” is true, but a judge is forced to not believe that proposition.

46. Endicott says that “[a]n arbitrary decision in general is one that is not distinguished, by reasons in favour of it, from an unreasoned choice.” Timothy Endicott, Arbitrariness, 27 Can. J. L. & Juris. 49, 70 (2014).

47. Neil Duxbury, Random Justice: On Lotteries and Legal Decision Making (2002), at 88, 114–115.

48. See generally his work on second-order reasons. Joseph Raz, Practical Reason and Norms (1999), at 36– 46.

49. Cases of incommensurability might be a counterexample to this: where neither is p better than q nor q better than p, nor are they equal. No comparison can be made. Grant argues that incommensurable decisions are examples of arbitrary decisions that satisfy the rule of law. In my terminology, he argues that these are cases where there is no first-order arbitrariness but there is second-order arbitrariness. However, the second-order arbitrariness of incommensurability is very different from the second-order arbitrariness of the objectivist. In the case of incommensurable values, it is logically impossible to remove the second-order arbitrariness. In the case of the objectivist, the second-order arbitrariness occurs simply because the decision-maker and someone else disagree. To use Duxbury's term, using chance in the objectivist case would be “blind” and “mindless,” but it might be the case that using chance in the incommensurability case is actually a fairly reasonable way to resolve disagreement. James Grant, The Ideals of the Rule of Law, 37 Oxford J. Legal Stud. 383, 397 (2017); Duxbury, supra note 47, at ch. 4.

50. Duxbury does mention that in some circumstances chance is a good way to handle disagreement. For example, consider an egalitarian group of people who cannot decide what to do in a certain case. It seems fair in that case to decide to draw lots to decide which option to take. Handling disagreement in this way could work in the case of ties (e.g., the court is split). However, where a majority of the court reasons a certain way, it is unclear why a decision by legal chance is an option. Duxbury, supra note 47, at 71.

51. I am neutral on whether a theory of interpretation will always be able to supply supplementary interpretations.

52. We could distinguish between initial indeterminacy (where there is no correct interpretation but there might be supplementary interpretation) and ultimate indeterminacy (where there is no correct interpretation and no supplementary interpretation). Nevertheless, such a distinction is not necessary for the arguments I make.

53. It might be questioned whether objectivists might consider principles other than the rational standard to be a part of the core principles. This might very well be possible, but the objectivists I am targeting do not seem to do so. Hence, by objectivism in this paper I am focused on those who purely use the rational standard as core.

54. Lawrence Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 9 (2010); Randy Barnett, Interpretation and Construction, 34 Harv. J. L. & Pub. Pol'y 65 (2011); Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).

55. Scott Soames, Response to Chapter Ten: Comments on Rosen, in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy 277 (Brian Slocum ed., 2017). Goldsworthy independently, in conversation, has also raised this as a possible response to the problem of disagreement.

56. Slocum, supra note 26, at 86–88.

57. Adam Elga, Reflection and Disagreement, 41 Noûs 478 (2007).

58. For debates on legal determinacy see Robert Lipkin, Beyond Skepticism Foundationalism and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory, 75 Cornell L. Rev. 811 (1990); Ken Kress, A Preface to Epistemological Indeterminacy, 85 Nw. U. L. Rev. 134 (1990).

59. These are derived from Grice's communicative maxims. See Paul Grice, Studies in the Way of Words (1989), at 28.

60. Robert Lipkin, Indeterminacy, Justification and Truth in Constitutional Theory, 60 Fordham L. Rev. 595, 605 (1992).

61. Elga, supra note 57, at 484–485, 494. For an application of this to criminal law, credences, and courts, see Lee Youngjae, Reasonable Doubt and Disagreement, 23 Legal Theory 203 (2017).

62. Elga, supra note 57, at 492

63. Id. at 492–493.

64. Brian Leiter, Explaining Theoretical Disagreement, 76 U. Chi. L. Rev. 1215, 1230–1232 (2009).

65. Roger White, Evidence Cannot Be Permissive, in Contemporary Debates in Epistemology 312 (Matthias Steup, John Turri & Ernest Sosa eds., 2d ed. 2013); see also Christopher Meacham, Impermissive Bayesianism, 79 Erkenntnis 1185, 1193 (2014).

I should add that this has nothing to do with Dworkin's Right Answer Thesis (RAT). The RAT is about the metaphysics of law. All legal propositions are either true or false. In fact, subjectivism is sympathetic to RAT since there is always a correct interpretation—the interpretation the real lawmakers intended. Uniqueness is about epistemology. It simply states that fully rational agents will agree with each other. It does not guarantee that legal propositions are either true or false. Ronald Dworkin, A Matter of Principle (1986), at ch. 5.

66. Tjerk Gauderis, On Theoretical and Practical Doxastic Attitudes, 5 Logos & Episteme 425, 425–426 (2014).

67. In this paper, I assume a binary model of belief where the two doxastic attitudes to a proposition are either “believe p” or “disbelieve p.” If one subscribes to a graded model then the doxastic attitude might be the belief in a hypothesis with 0–1 probability (sometimes called a credence). See generally David Christensen, Putting Logic in Its Place: Formal Constraints on Rational Belief (2004).

68. For a more concrete example of the fully rational agent, Horgan and Timmons characterize Michael Smith and Bernard Williams as defining a fully rational agent as one who (a) does not have false beliefs, (b) has relevant true beliefs, and (c) deliberates correctly. See Horgan & Timmons, supra note 37, at 205.

69. I show in Section III.A that they reemerge in another form.

70. Thomas Kelly, How to Be an Epistemic Permissivist, in Contemporary Debates in Epistemology 298 (Matthias Steup, John Turri & Ernest Sosa eds., 2d ed. 2013); Gideon Rosen, Nominalism, Naturalism, Epistemic Relativism, 35 Noûs 69 (2001); Anthony Brueckner & Alex Bundy, On “Epistemic Permissiveness”, 188 Synthese 165 (2012). There are also metaethicists who dispute uniqueness in regard to moral disagreement. See Horgan & Timmons, supra note 37, at 209–213.

71. Jane Friendman, Why Suspend Judging?, 51 Noûs 302, 303 (2017). Alternatively, if the reader takes uncertainty to be the lack of an attitude then the Uniqueness Thesis must be modified to allow for this. For example, it cannot be the case that if the fully rational agent only knew that two types of animals existed—cats and dogs—that the agent would be able to know if evolution is true or false. The Uniqueness Thesis must surely allow that the agent would be able to have a lack of a doxastic attitude (assuming the reader does not take uncertainty itself to be a doxastic attitude).

72. For a more detailed examination of the problem of vagueness and indeterminacy in counterfactual intentions see Natalie Stoljar, Counterfactuals in Intentionalism: The Case Against Intentionalism, 20 Adelaide L. Rev. 29 (1998); Ronald Dworkin, Law's Empire (1986), at 325–327.

Stoljar also argues that an intentionalist theory that does not rely on counterfactuals would be thin. Stoljar, supra at 30. I shall not comment on this as it seems to be a variant of the criticism on the possibility of lawmaker intentions, which is not examined in this paper (for reasons given in the introduction). Dworkin argues that intentionalists need a counterfactual theory because individual lawmakers have too many mental states. Dworkin, supra at 322–324. It seems to me that this worry is overblown as we can isolate the intentions of the lawmakers in terms of how they want the law to change (in Dworkin's terminology, what they hope the law will be). Dworkin criticizes such a move, stating that lawmakers’ “hopes very often do them no credit”; for example, suppose that most legislators in parliament want the law to change in a certain way that pleases their friends and lobbyists. Id. at 323. I do not see this as a problem; intentionalists readily accept that lawmakers might hope for immoral or selfish consequences.

73. Gerald Gaus, On Philosophy, Politics, and Economics (2007), at 10. A response might be that an objectivist is purely concerned with perfect inference and not concerned with the ultimate soundness of the argument. I do not think any real lawmaker-objectivist would subscribe to this.

74. Justice Barak explicitly says that the correct interpretation must still be balanced by actual intentions. Barak, A Judge on Judging, supra note 4, at 66–67. Justice Breyer notes that a judge is still restrained and cannot choose interpretations that they personally think are the most just. Breyer, supra note 4, at 17–20.

75. For a general overview see Robert Stalnaker, Context (2014). The perspectival view is called the centered-possible worlds view in philosophy of language. However, the point of centered-possible worlds is generally to represent the perspective of speakers. To avoid wading into the technicalities and terminology of philosophy of language I have called it the perspectival view. Shen Yi Liao, What Are Centred Worlds?, 62 Phil. Q. 294, 297 (2012).

76. Stalnaker, supra note 75, at 24. See also Michael Tomasello, Origins of Human Communication (2010), at 3–6.

77. Robert Stalnaker, Common Ground, 25 Linguistics & Phil. 701, 701–702 (2002).

78. Id.

79. Hidden beliefs might very well be relevant from the perspective of total epistemic access—God's viewpoint—of what is being communicated (at the metaphysical level). However, in cases of partial epistemic access—the evidence available to audience members—hidden beliefs are not relevant (at the epistemic level).

80. David Enoch, Why Idealize?, 115 Ethics 759 (2005); David Enoch, Against Public Reason, in 1 Oxford Studies in Political Philosophy 120 (David Sobel, Peter Vallentyne & Steven Wall eds., 2011). Enoch goes further and argues that ideal persons never tell us anything about norms. I am not committed to that in this paper.

81. The most well-known paper being Tversky, Amos & Kahneman, Daniel, Judgment Under Uncertainty: Heuristics and Biases, 185 Science 1124 (1974)CrossRefGoogle ScholarPubMed. It should be noted that some argue that reasoning with biases is actually more accurate than unbiased reasoning. Gigerenzer, Gerg & Brighton, Henry, Why Biased Minds Make Better Inferences, 1 Topics Cognitive Sci. 107 (2009)CrossRefGoogle ScholarPubMed. It does not matter for my argument whether average or perfect rationality is more accurate; what matters is that they are different and that average rationality can lead to different conclusions whereas perfect rationality might not. Both sides of the heuristic bias debate accept a difference between the levels of rationality.

82. The first use of the phrase “Humpty Dumpty” as an attack on certain views in the philosophy of language—that I could find—was in Alfred MacKay, Mr. Donnellan and Humpty Dumpty on Referring, 77 Phil. Rev. 197 (1968). Asgeirsson, Slocum, and Goldsworthy have discussed it more recently in the law and language literature. Slocum, supra note 26, at 68; Asgeirsson, Expected Applications, supra note 1, at 120 n.20; Goldsworthy, supra note 1, at 178.

Both Goldsworthy and Slocum use Humpty Dumpty as a critique of subjectivists whereas Asgeirsson points out that sophisticated subjectivists have to introduce constraints to avoid Humpty Dumpty problems. As shall be seen I reject both of these views by stating that communication is, in fact, Humpty Dumpty–like in nature and that this is not unintuitive even without constraints.

The phrase Humpty Dumpty is a reference to Lewis Carroll's version of Humpty Dumpty: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’” Lewis Carroll, Through the Looking Glass (1871) (ebook), at ch. 6.

83. Greenberg has argued that statutes should not be viewed as mere pieces of communication. Greenberg, supra note 1. As this article is only addressing other intentionalists, I shall put aside attacks by nonstandard picture theorists such as Greenberg.

84. For more details on this, see how linguists deal with semantics and pragmatics. Semantics Versus Pragmatics (Zoltan Gendler Szabo ed., 2005).

85. See Donald Davidson's comments that conventions of language are not necessary for communication:

Davidson, Donald, Communication and Convention, 59 Synthese 3, 16 (1984)CrossRefGoogle Scholar.

86. In essence, legal interpretation is a kind of mind-reading exercise. However, rather than taking this as controversial I agree with Noel Carroll when he says, “mind reading is indispensable to human life; it makes co-ordination of our activities possible . . . the everyday interpretation of the words and deeds of our conspecifics aims at the retrieval of what is going on in the minds of others . . . our mind-reading capacities are very reliable . . . in general we are extremely good at discerning the intentions, beliefs desires, thought processes, and so on of others.” Carroll, supra note 37, at 127. In fact, there is a whole study in cognitive science and philosophy of mind on how humans can seem to be mind readers as is required in social life. See Theories of Theories of Mind (Peter Carruthers & Peter Smith eds., 1996).

87. Grice, supra note 59, at 218.

88. Id. at 26.

89. Example taken from Jacob Mey, Pragmatics: An Introduction (1993), at 40.

90. There might be some remaining worries with subjectivism as it might license guessing what was communicated. Suppose some bystander by pure luck guessed that “Petting cats is fun” was used to communicate eating vegetables is healthy. Should we consider communication as having successfully occurred and thus conclude that the audience has the correct interpretation? These worries should be lessened by noting that an audience member who guesses the intended interpretation is still trying to figure out what was being communicated. They are still trying to make an effort at recovering the speaker's communicative intentions. Guessing without any basis is bad because it is a defective method of trying to infer the intended interpretation, but that is an issue for the epistemology of communication. Subjectivism is a theory of what constitutes communication and is not about the epistemology of communication. Hence, it seems to me that guessing does not affect whether an interpretation is correct or incorrect.

91. Questions might be raised as to how this would operate in cases of technical language. I propose that ordinary meaning is contextual. The ordinary meaning of “contract” in a pub will be different from the ordinary meaning of “contract” in a law lecture. When people refer to technical language they just mean the ordinary meaning of a text in the context of some specialized group of people.

92. See similar point in Richard Kay, although he doesn't make the metaphysical-epistemic distinction. Kay, Richard, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. L. Rev. 703, 712 (2009)Google Scholar. See also Allan, James, Constitutional Interpretation v. Statutory Interpretation: Understanding the Attractions of ‘Original Intent’, 6 Legal Theory 109, 111 (2000)CrossRefGoogle Scholar.

93. See Slocum, supra note 26, at 68; Goldsworthy, supra note 1, at 178.

94. In this sense, subjectivism is similar to metaphysical realism (I thank Patrick Emerton for pointing this out to me). I do not have space in this paper to discuss whether criticisms of metaphysical realism would affect subjectivism, but at least it seems to me that if they are linked, then subjectivism and metaphysical realism appear to be more commonsensical than idealism and other similar theories.

95. Timothy Endicott, The Value of Vagueness, in Philosophical Foundations of Language in the Law (Andrei Marmor & Scott Soames eds., 2011); Endicott, Timothy, The Impossibility of the Rule of Law, 19 Oxford J. Legal Stud. 1, 7–8 (1999)CrossRefGoogle Scholar.