How to Do Things with Contexts

"Is There Anything in the Oven?"

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Children are a never-ending well of interpretive puzzles and delights. A few days ago, I was standing in the kitchen with my four-year-old when he asked me, "Is there anything in the oven?" I said no. Now that was not literally true. Inside there were heating elements, as well as two oven racks, though one could say that those were just part of the oven. But I also knew that hanging from the bottom oven rack there was an oven thermometer. That was a "thing." And it was in the oven. But I said no. And not just that, I knew that in the oven there were two cast-iron skillets. Those are certainly "things." On no theory would the cast-iron skillets be part of the oven, and they were in the oven. And yet I said no when asked "Is there anything in the oven?"

Did I answer truthfully? Of course. The reason, as you have no doubted intuited, gentle reader, is that my four-year-old son was asking whether there was any food in the oven.

How did I know? This is not because "food" is one of the senses in the dictionary for "anything." In the linguistic community of our family or neighborhood or city there is no special usage by which "anything" could be a special term for "food." Nor was there any semantic ambiguity that would make me decide to turn to background or context. To the contrary, his question was about as free from semantic ambiguity as one could get. The referent for "oven" was clear. What part of "anything" didn't I understand?

But I knew that it was 5 pm and said four-year-old was eager for supper. In other words, I knew the setting. I knew--to put it in legal language--what the mischief was to this four-year-old.

Now imagine a different setting. I've told my four-year-old that we're going to clean the oven. And I've told him that the first step is to clear everything out of it. And he asks: "Is there anything in the oven?" Now I answer differently: "Yes, there are two cast-iron skillets, a couple oven racks, and a thermometer. We have to take those out before we can clean it."

In this second setting, his question was verbally identical. The semantics were the same: there was no distinctive meaning of "anything" in one question or the other, no semantic seam that would allow you to distinguish the two cases. Instead, the question was operating in a different context, against a different background. Which made it a different question. And, critically, I needed to know the context and background before I could make sense of the question.

For the longer, more elaborate version of this point, you can see The Mischief Rule. And as I argue there, the mischief is not just a device for resolving ambiguity, but it is part of the background and context in which a court discerns that there are multiple possible meanings for statutory text.

NEXT: Today in Supreme Court History: July 28, 1880

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  1. Well said.

    Such is the challenge of AI in natural language processing. Context is necessary to do it right.

  2. This is nothing but "inside baseball" A specialty language.
    I learned this a few years back when I was involved in software updates to the accounting system. In agriculture retail.
    The software writer was a young guy with not agriculture background.
    He said our entire system was stupid and confusing.
    He couldn't understand why we buy grain across the scale, but immediately convert to bushels. Dividing the scale weight by a random(to him) number. Corn by 56, yet when checked most corn is 58 to 60 ibs per bushel.
    Oats by 32, but are rejected if they test less than 36 lbs per bushel.
    Bags of cattle and hog feed are sold CWT (hundred weight) in 50lb bags, but horse feed is sold per bag.
    So 2 50lb bags of cattle feed is 1 unit, and 2 50lb bags of horse feed is 2 units.
    Crop herbicides in 2.5 gal jugs are sold per gallon, but oil in 2.5 gal jugs is sold per jug.

    All fields have their own language (context). That's why the first thing I do when learning something in a new field, zero in on the lexicon of the specialty.

    1. iowantwo talking about corn and hogs.

      Sometimes stereotypes are true.

    2. "He said our entire system was stupid and confusing."

      Seems like he was onto something.

      1. (chuckle) are you by chance from the U.S., one of the select club of countries (whose only other member last I checked was Burma) which has not gone metric?

      2. The point is, as you so aptly demonstrate, ignorance of the subject causes confusion. Could it be changed?
        Yes but the nation is based on survey measure. Chains, rods, miles. acres. 640 acres to a section. 1 mile X 1 mile. 36 sections to a township. Townships make up counties. Land is valued by production, bushels per acre . City dwellers dont know, or care about any of this. But it is the base structure of our society. To ignore it, is like ignoring insects. While most think meaningless, or bothersome, the roll played is foundational

  3. The article is behind a paywall, so all I can go by is this post.

    And I have a problem with it. A question like 'is there anything in the oven?' can certainly have multiple meanings. Just as the identical combination of words can have multiple meanings by changing prosodic stresses. But is a legal text written with the intention that under different circumstances, it should be interpreted in different ways? Does someone say this at the time of writing?

    In the above example, the different meanings of 'in the oven' are clear to an American English speaker - the language has developed in this way over time (including 'in the oven' as pregnant). But in law, unless we are all told at the time the different expected interpretations, then I don't see how the analogy holds.

    1. The article isn't behind a paywall for me (and I certainly haven't paid for any service in the past) I just had to accept the cookie. I think if you at least read the abstract it will put the post in a much better context.

      Lets imagine a rental agreement, that states that "tenant shall keep nothing in the oven when its not being used"
      Most people would interpret that to mean that the cast iron pans could not be stored there.
      Some people might say the thermometer can't be kept in there either.
      Few people would say the oven racks can't be kept in there.

      But if we look at the mischief rule (per the abstract of the article "The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute.") We could probably guess that some tenant left something flammable in the oven and it caught fire or otherwise damaged the oven. Given that interpretation we might determine that the rental agreement does not preclude cast iron pans in the oven, as that scenario would not lead to the "mischief" that prompted the rule in the first place

    2. "But is a legal text written with the intention that under different circumstances, it should be interpreted in different ways? Does someone say this at the time of writing?"

      The meaning of "anything in the oven" is determined in accordance with context as of the time it was uttered. That utterance is not going to mean anything different tomorrow, next week or next year, no matter what happens. A new utterance, of course, may have a different context and meaning.

      1. I think JonFrum is saying that in the legal sense, there's a narrower field for interpretations.

        For example, for the federal law for Microwave Ovens, there are many definitions to help narrow interpretations.

        So we automatically know we're not talking about pregnancies, etc.

        https://www.law.cornell.edu/cfr/text/21/1030.10

        1. Sure. Laws generally are written with an attempt to be clear in their meaning based on text alone. Statutes passed today generally include ever-more increasing detail and definition. And yet, they still end up with ambiguities and inconsistencies, maybe even more so in sprawling legislation.

          But to the question, "is a legal text written with the intention that under different circumstances, it should be interpreted in different ways? Does someone say this at the time of writing?" The answer should be no, and I think this blog post is consistent with that. The only context and circumstances that weigh on the meaning are those that pertained at the time, not the various infinite subsequent developments.

          1. Well not according to Justice Scalia.

            "The Supreme Court further embraced an expansive view of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where Justice Scalia, writing for a unanimous Court, declared that 'statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.' Id. at 79."

            1. In what way do you think that quote is inconsistent with the position outlined by Prof. Bray?

            2. I don't see how that's relevant to JonFrum's question, and to the extent that it is, it supports my answer.

              I do see the resemblance to the broader point of the blog post.
              But I'm guessing Samuel Bray would fully agree that that "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The question is what are the "provisions of our laws"? I.e., what is their meaning.

              In the last sentence OP writes, "the mischief is not just a device for resolving ambiguity, but it is part of the background and context in which a court discerns that there are multiple possible meanings for statutory text." Another way to say that, I think, is the mischief rule not only helps resolve ambiguity but also helps identify it.

        2. Pregnancies are "A Bun In The Oven"

      2. You miss my point. The various meaning of 'something in the oven' pre-exist the question. The context is just the trigger for choosing one over another. Now - at the time a particular law is written, do similar known meanings exist, just waiting to be triggered by context? This is not a trivial question. How can we know what the law is if it will depend on future 'context?' I know not to rob a bank - I need no context. If the various cases depending on various contexts are not spelled out, how the hell can citizens keep themselves out of trouble?

        I understand that context may modify understanding - the law can't account for all possible cases. I just criticized the analogy made above. As I said, the various meanings of 'something in the oven' pre-exist the question - we can all agree on that, and so we don't confuse each other when we speak. Linguists have shown that much semantic information is not carried in the dictionary definitions of words - it's called 'expressions.' I don't see how that commonplace applies to the law as suggested above. We all don't walk around with hundreds - thousands - of possible contextual meanings for laws.

        If this were an analogy test, I'd give a failing mark.

        1. The meaning does not depend on any future or hypothetical context whatsoever. Just the actual pertinent context at the time the statement is made or the law written.

  4. Should be titled, "An apology but not an apology for The Mischief Rule.

  5. You know who else wanted things in the oven?

  6. The question in question has an entirely different context in the presence of a fat woman.

  7. This post illustrates why the constantly seen comments:
    "You lied. You're a liar. That's another lie."
    are not only counterproductive on their face, but are actually counterproductive by intention.
    Wie schade.

  8. Context is often very important. For example, my friends have a sign in their kitchen that says:

    "You only live once. Go ahead and lick the bowl."

    Now, take that sign - the same exact words in the same exact order - and move it to the bathroom. The context is *very* different.

  9. This thread invites a reminder about originalism. As the examples in the OP show, context matters, a lot. What almost never happens when lawyers try their hands at originalism, is any reckoning for how that actually works in an originalist analysis.

    Problem is, a founding era document written in English looks pretty comprehensible. What today's readers rarely think about is that they use a transformed context to interpret an antique narrative—a far different context than did the folks who wrote it. Today's contextual meaning is inflected by an almost endless list of post-founding-era occurrences, discoveries, changes in customs, inventions, religious upheavals, philosophical transformations, economic innovations, changes in sexual norms, transformations in the routine practices of governments, plus our own characteristic prejudices, partialities, cupidities and excitements—a list of factors vividly present in our thinking, but almost entirely developed by experience during the interval between then and now, and thus completely absent from founding era thinking. What we are pickled in, they were innocent of.

    Here is the critical part for the would-be originalists. What we mostly cannot do, and what we barely take any cognizance of, is think in the absence of that list of influences on our thought—a list which founding era figures knew absolutely nothing about, because all that stuff was yet to happen.

    Thus, the context for our thinking is startlingly different than the context for theirs. Because our context is different than theirs, we readily think thoughts that were utterly impossible for founding-era people to think. Given the same kind of events as stimulus, our thoughts in response diverge almost instantly from theirs. We do it all day long, without noticing in the slightest that we rely on context available to us, and alien to them. If, while we turn our attention to the past, we use that kind of thinking as our context—and we are almost powerless to do otherwise—we inevitably distort past narratives, by supplying from our era context for interpretation that was unknown then. And we do it, mostly, without the slightest awareness that any invalid process is going on.

    That is what it means to be present-minded. For those ambitious for the success of originalism, it is a huge obstacle to overcome.

    1. Originalism is stupid, but to the extent it works, it works in two situations:

      1. Where there's continuous historical practice that supports the original meaning. This is similar to a contract case where the parties' course of performance shows what they meant. If a contract calls for the shipment of "large boxes", and for 10 years the shipper ships 10 cubic foot boxes, and the recipient does not complain and accepts the boxes, that is good evidence that something around 10 cubic feet is what the parties meant by a "large box". So it is with constitutional interpretation. The fact that we have consistently not applied the Establishment Clause, from the very start of the country forward, as banning legislative prayers is good evidence that it does not, in fact, ban them.

      2. To supply general principles. Prof. Kerr's Fourth Amendment article is actually a very good example of this. What is the Fourth Amendment about, fundamentally? It's about privacy. It's about outlawing general warrants. It's about containing the government search and seizure power.

      Those general principles don't get you the results to all the cases, but they help point courts in the right direction in how to interpret the Fourth Amendment in particular situations. And they are, in a sense, "originalist" principles.

      And as long as you keep things on those levels, originalism doesn't pose the problems you are positing. It's only when you get to the granular level of "this constitutional provision was enacted in light of this obscure case that addressed this 18th Century practice, and therefore this 21st Century practice must be subject to the exact same legal rule" that you start having to think about changing historical context and presentism.

  10. I think this approach works better when there is an author of a rule and the author's intent matters. Were I a landlord who had suffered oven damage from things left in ovens -- food that burned, aerosol cans that exploded, etc. -- and I didn't want to have to litigate over what types of things I was worried about, I might write a blanket, and prophylactic, rule saying that nothing at all may be left in the oven. Some officious, intermeddling law professor coming along later might start prattling on about the context of the rule, and mess things up.

    But when there is no author of a rule whose intent counts, as in the case of a statute or constitution, where we want to know what the people who voted "Aye" for the rule (or ratified the constitution) thought it meant, we have a multiplicity of intents and contexts to consider, and the best we can do (I think) is try to figure out what the words meant to the decision makers. So if I voted for a statute including the phrase "exchange established by a state" I would think that referred to exchanges established by states, not municipalities, Indian tribes, or the federal government. If I ratified a constitutional provision barring infringement on the right to bear "arms" I would understand "arms" to mean weapons of war used by soldiers, and understand that the effectiveness and sophistication of those arms would likely increase over time, as they had in the past. (I might not think of cannon in those terms, even though merchant ships in pirate infested waters might be expected to seek to defend themselves, and even though my government might issue letters of marque, that presupposed privateering as a possibility.)

  11. Would anyone like to nerd out on the linguistics behind this?

    I forwarded this article to a dear friend with a master's degree in computational linguistics. She said the search term for anyone who wants to start a deep dive is "pragmatics". That's what linguists call the study of sentences like "Is there anything in the oven?" and what those sentences mean.

  12. I asked her if she was in court tomorrow. She checked the firm’s diary and said, “I have nothing on.” It took me a while to recover.

  13. There is an entire field of linguistics that deals with this issue. It has nothing to do with the exact meaning of the word 'anything'. The branch of linguistics called 'pragmatics' deals with why people say what they do, and with the people to whom they are speaking making reasonable guesses about why it was said.
    In particular, a philosopher named Paul Grice argued that there are general principles governing why we say what we do. Normally we say things because we want to be informative, but we don't say more than is necessary. The classic example is someone saying to someone else, out of the blue, 'Your wife is faithful'. Since this is something one would normally assume to be true (given cultural context and such), there must be some reason to assert it beyond 'just saying'. In fact, 'just saying' is exactly an example of the Gricean notion of Relevance. You'd only say it if you thought it mattered in the present circumstances. Hence, if you bring up the topic it must be because it is a topic about which there might be a serious question.
    Consequently, asking about whether there was something in the oven would not be asked if the answer was 'just the stuff that's there all the time'. You would only ask if you had reason to believe there was something beyond the normal interior equipment of the oven. Unless, as someone pointed out above, the context was oven cleaning. Then you would be asking about normal interior equipment that shouldn't be there (oven thermometer, some kinds of racks..). So it's not just context, it's also the assumption that there is a reason for a remark or a question, and we continuously infer those reasons as part of understanding what people are saying, and we say things in a way that will cause our interlocutors to infer something beyond the literal words. For more reading, consult https://en.wikipedia.org/wiki/Implicature#Conversational_implicature

  14. In maybe twenty years, that four year-old will make a demand of someone to "get your biscuits in the oven and your buns in the bed," and with clear intent, a la Kinky Friedman.

    In maybe the same number of years, a person will either accede or decline to such a demand using a kiss or a cast iron pone pan.

    Contextualized communication doesn't have to be that unclear or complicated, but the oven metaphors are always hot.

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