It's odd how, say, Scalia and Thomas have such different beliefs about the ontological status of "the law," yet can come to the same decision so many times. That just busts Smith's "common-law-sans-brooding-omnipresence" theory doesn't it? I don't quite get what he means though when he talks about the conversion of law to common law.
Scalia's main objection is to Smith's assertion that speakers have intentions, and that different people can interpret those intentions to mean different things. What makes it even more confusing is when Smith tosses in Husserl like allegations about language. Whereas Smith spells intentionality (lower case i) he uses it as Husserl does; Intentionality (upper case I). When Husserl talks about Intentionality he means that assertions have an aboutness to them. It's never just a statement.
How do I dare put words in Smith's mouth? Because of this:
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“Textual meaning,” Smith says, “must be identified with the semantic intentions of an author—and . . . without an at least tacit reference to an author we would not have a meaningful text at all, but rather a set of meaningless marks or sounds.” “Legal meaning depends on the (semantic) intentions of an author.”
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And because of what I believe meaning to be, and because in the realm of law we're concerned with Truth. Suppose Smith wrote something:
The cat is on the mat
Smith believes that the above is meaningless unless the (semantic) intentions of the author are known. Suppose we know that he is asserting that there exists a cat, there exists a mat, and that the cat is somehow sitting on top of the mat. That statement satisfies the following:
1) It refers
2) It means something (at least in the mind of Smith)
3) Smith intended for it to mean something
4) It is about something
The first three conditions have nothing to do with truth. For all we know, Smith may be trying to mislead us. But since we're talking about the law and Truth, Smith's assertion that the cat is on the mat must be necessarily true in the context of the law. Hence the fourth condition is also necessary, and that is why I believe that Smith is tacitly borrowing from Husserl in order to bolster his case.
I also think Scalia is mistaken with his counterexample to Smith's "R-E-A-L" example. Scalia believes that native speakers of a language can easily come to agree upon meaning.
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Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.
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Here Smith offers a variation of Quine's "gavagai" thought experiment in which an explorer arrives on an uncharted island and encounters some natives. The native points to a rabbit and says "gavagai." The explorer points to the rabbit and says "gavagai." One would assume that gavagai would mean rabbit, but Quine offers up a difficulty. The native may have heard a rustling in the bushes a while ago and may take the explorer's utterance to mean something like "ah, that was a rabbit," or perhaps the native sees some rabbit flies which go unnoticed by the explorer. Nevertheless, the whole scenario provides a very compelling reason to argue for the indeterminacy of translation. (Quine's own words)
I believe that if Smith had read Quine that he would have come up with a better argument than his "R-E-A-L" example. Scalia's objection does not hold up to Quine's original example. In fact, not many objections do. Even if we do overcome these difficulties as set forth by Quine, we're faced with the monumental task of being absolutely sure that you and I both, understand, mean, refer, and have the same intentions when we say something like "the cat is on the mat."
In the end, it all boils down to this: Smith offers up objections claims that the law cannot possibly work whereas Scalia says that the law works despite Smith's criticisms. In a rather backward sort of way, Scalia seems accepting of the law as fact, and in a rather twisted sort of way, points to Smith's objections as wishing for a deity, as if that would solve all of Smith's problems!