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Published online by Cambridge University Press: 18 July 2011
It is important, in the light of the continuing debate concerning the interpretation of agreements, to clarify the underlying assumptions of contextual methodology and to determine its theory of meaning. The issues have recently been probed in some detail in Gidon Gottlieb's critique1 of the philosophic underpinning of the framework for the interpretation of agreements adopted by Myres S. McDougal, Harold D. Lasswell, and James C. Miller. It is the thesis of this paper that in significant respects Gottlieb's alternative solution and the framework of McDougal and Lasswell admit a similar need for analyzing extra-textual data to facilitate nonarbitrary decision-making.
1 Gottlieb, Gidon, “The Conceptual World of the Yale School of International Law,” World Politics, xxi (October 1968), 108-32CrossRefGoogle Scholar, reviewing McDougal, Myres S., Lasswell, Harold D., and Miller, James C., The Interpretation of Agreements and World Public Order (New Haven 1967), 3–35Google Scholar.
2 Language, as Wittgenstein outlined in the Philosophical Investigations, consists of complicated families of meanings. Language puts together a host of interactive participants that are constantly represented in new and not strictly equivalent circumstances of meaning. And this raises the difficulty of selecting the proper interpretation of a term that is ambiguous. There is, in our ordinary discourse and in our agreement-making, a constant flow of residual ambiguity.
3 It should be noted that Richard M. Hare, whom Gottlieb cites as a post-Wittgen-steinian philosopher deserving of McDougal's and Lasswell's attention, is in accord with this approach. “We have to bring in both effect—to give content to the decision—and principles, and the effects in general of observing those principles, and so on, until we have satisfied our inquirer. Thus a complete justification of a decision would consist of a complete account of its effects, together with a complete account of the principles which it observed, and the effects of observing those principles—for, of course, it is the effects, what obeying them in fact consists in, which give content to the principles too. Thus, if pressed to justify a decision completely, we have to give a complete specification of the way of life of which it is a part.” The Language of Morals (London 1961), 69Google Scholar.
4 The key to principles of interpretation for McDougal and Lasswell is two-fold relating to content (events to be observed) and to procedure (order and techniques of observation). Under the heading of “content” is included: The Principle of Projecting Genuine Expectations, 52-53; The Principle of Adapting the Level of Generality or Particularity to Other Features of the Context, 57-58; The Principle of Adapting Impartiality (“every party is entitled to equality of consideration”), 61; and The Principle of Explicit Rationality. Under “procedure” is included: The Operation of Estimating the Effects of Decision, 76-77; The Operation of Examining the Self for Predispositions Incompatible with the Goals of Human Dignity, 77.
See “Delimitation of the Problem: The Processes of Agreement, Claim, and Decision as Context” for a detailed understanding of how these principles are situated in the broad methodological orientation of die book. For an incisive elaboration of these principles see Lasswell, Harold, “Clarifying Value Judgment: Principles of Content and Procedure” Inquiry, 11 (Nov. 1958), 87–98CrossRefGoogle Scholar.
6 Gottlieb, 116.
6 Here Gottlieb refers to Alice Roller, who is said to have philosophically discredited the referential theory of meaning.
7 Feigl, Herbert, Scriven, Michael, and Maxwell, Grover, eds., Minnesota Studies in the Philosophy of Science, ii (Minneapolis 1967)Google Scholar.
8 The importance of context is central to Strawson's, Peter F. Introduction to Logical Theory (London 1952)Google Scholar; see 186-187, 211-217.
9 Scriven, Minnesota Studies, 100.
10 Interpretation of Agreements, 57.
11 Gottlieb wrongly ascribes a deductivist model to the McDougal-Lasswell framework. He criticizes the book on interpretation for setting up a universalist map that is too vague and from which no particulars can be deduced. Here Gottlieb attacks a straw man. The book is not devoted to deducing everything from concepts like “world order” and “human dignity.” It strikes a blow at logical derivationism and the upshot of the argument throughout is that human choices cannot be deduced or induced in logically restricted areas, engineered sub specie aeternitatis and without regard for the particular circumstances in each specific instantiation of claim.
12 Gottlieb, 116.
13 Interpretation of Agreements, 29.
14 Lasswell, “Clarifying Value Judgment,” 96.
15 In the event that it can be established that a clearly stated focal agreement is available, it is essential to our understanding of what is entailed in a system of legal order that expectations are embedded in the text. Some agreements are immediately applicable in so far as they can be fully understood without recourse to extra-textual props, auxiliary information, or cues from the environment.
16 Gottlieb, 118.
17 Ibid., 118.
18 Ibid., 117-18.
19 Interpretation of Agreements, 372.
20 Gottlieb, 117.
21 Which is the ideal form of rule? What quality of guidance does it afford? What of the realm of the vague rule that guides a party in a manner stronger than its claim to clarity? Gottlieb would maintain, I take it, that the vague rule fails as a guidance device. At the same time he argues that the overwhelming majority of our legal experiences guide without necessary recourse to the confusions they engender.
22 Gottlieb, Gidon, The Logic of Choice (New York 1968), 67Google Scholar.
23 Gottlieb writes: “It is a psychological phenomenon that in obvious cases rules are applied quasi-automatically, with practically no heed and that there is a feeling the decision is ‘predestined.’” Logic of Choice, 68. He qualifies this by noticing that even where this almost automatic process is operative, a linkage going from facts to conclusions is present, accompanied by “a certain experience of transition.”
24 “Materiality is neither to be found in the factual situations which are the presupposed contexts of rules, nor in the rules themselves. The selection of the material facts is a process which itself presupposes standards to select the facts which ought to be treated as material from among the amorphous mass of other facts which can be ignored.”, 54.
25 Ibid., 69.
26 Gottlieb adds that this question is best dealt with in connection with purpose and policy. Logic of Choice, 47.
27 Gottlieb, “The Conceptual World of the Yale School,” 120.
28 Gottlieb does admit that the interpreter who in good faith seeks to be guided by the written provisions need not always have to resort to consideration of purposes.
29 Gottlieb, The Logic of Choice, 113.
30 Gottlieb, “The Conceptual World of the Yale School,” 118.
31 Gottlieb, Logic of Choice, p. 114.
32 However, it must be pointed out that Gottlieb seems to be of two minds on the necessary range of the policy inquiry. In a discussion of the language of rules he observes “the operative parts of rules, which point to the circumstances in which they are applicable, are often inordinately ‘vague.’” Logic of Choice, 47. Farther on in his book he notes, “Moreover, the application of rules to facts always requires a decision involving the selection of material facts based upon more or less overt considerations of purposes and policy.” 160.
38 Cf. Ibid., 119.
34 It is worth noting that A. K. Saran, in a discussion of Peter Winch's, The Idea of a Social Science, a work upon which Gottlieb heavily relies, finds similar difficulty with Winch's interpretation of Wittgenstein. “For ordinarily we would think of a concept of ‘following’ and a concept of ‘rule,’ but not of a composite concept ‘following a rule.’ The fact is that Wittgenstein invented these composite concepts in the service of his tabu against several concepts and generalizations, and he himself would not allow any general concept of ‘following a rule’—for it is one thing to follow a rule of chess, another to follow one of good manners, and quite a different thing to follow a rule of grammar. It would be against the spirit of Wittgenstein to move from these to a general concept of rule or of ‘following a rule’ that is any ‘following’ of any ‘rule.’ Winch takes over from Wittgenstein the use of composite concepts without understanding its spirit, context, or function. (In fact it never occurred to Winch to ask whether Wittgenstein believed in rules at all.) 196. “A Wittgensteinian Sociology?” Ethics (Chicago 1965)Google Scholar.
35 Wittgenstein, Ludwig, Philosophical Investigations (New York 1961)Google Scholar.
36 Ibid., 8oe.
37 Ibid.
38 Ibid., 82e.
39 Ibid., 83c.
40 Wittgenstein, 86e.
41 Ibid., 87e.
42 Ibid.
