My response to these hypotheticals is going to be useless, although, I hope, in a useful way. It’s going to be useless because I’m an English teacher, not a lawyer, and I have no idea what Mary or the judge should do. But, of course, Larry Alexander and Steve Smith already knew this when they asked me to contribute. Presumably, it’s in my capacity as a theorist of interpretation and in particular (since the hypotheticals might be understood to raise particular difficulties for intentionalists) as an intentionalist theorist that they asked for my views. But, as an intentionalist theorist, I not only don’t have anything to say about what Mary and the Judge should do, I don’t even have anything to say about what the texts mean. Why? Because nothing in intentionalism is of any particular use in figuring out the meaning of any text. Why not? Because intentionalism has no normative or methodological value. It tells you what the object of interpretation is, not what it ought to be or how to find it. By contrast, the various theories of legal interpretation (my main example here will be “original public meaning”) do exactly the opposite. So this is what I hope will be the useful part. No doubt, the attractions of the therapeutic reading of Wittgenstein are overstated but if ever there were a theoretical practice that made you see the value of making “philosophical problems” “completely disappear” (italics his) the theory of legal interpretation would be it. I won’t even try to say what Mary should do but I would like to help make the philosophical problem of the theory of interpretation completely disappear (italics mine).
Michaels, Walter Benn
"Using a Firearm, Using a Word: What Interpretation Just Is,"
The Journal of Contemporary Legal Issues: Vol. 23
, Article 11.
Available at: https://digital.sandiego.edu/jcli/vol23/iss1/11