Individuation (Theory Moves)

in·di·vid·u·a·tion  noun \-ˌvi-jə-ˈwā-shən\

The determination of the proper or relevant individual unit for purposes of interpretation, analysis, calculation, etc.  Individuation portends both integration into a stable identity and differentiation of that identity from its environment.

Antonym: fusion, dedifferentiation

Example: A text is individuated into paragraphs.  Paragraphs are individuated into sentences.  Sentences are individuated into phrases.  Phrases are individuated into words.

Caution:  Individuations are not necessarily stable.  They are variably successful, enduring, deep, pervasive, portable, etc. Various schemes of individuation are often reciprocally interfering.

See Also: Bentham, Raz

The concept here is serious—though the example used to illustrate the point is, in all sorts of ways, not.

Begin then with an example of individuation taken from the admittedly tedious  opinions in the handgun case of District of Columbia v. Heller.  The main issue in the case is whether the Second Amendment right is going to be tied to a military purpose (“A well regulated militia being necessary…”) or not.   Interpretation will be necessary.  All are agreed that, whatever else might be said, the following should not be the result:

Beyond that, things are up for discussion.

Plying his “original meaning at the time” approach, Justice Scalia decides in good Anglo-analytic fashion to break down the operative phrase (“the right to keep and bear arms”) into its constituent parts.

The first thing he wants to do is segment “arms” from “keep and bear arms.”

From there, Justice Scalia breaks things down into:  “keep arms” and “bear arms.”  This way he can interpret “keep arms” separately from “bear arms” and actually get down to the real business of interpreting “keep” separately from “bear”.  The former means “to have” and the latter means “to carry.”

So over all, Justice Scalia has broken down the thing into the following units of constitutional meaning:

arms

keep

bear

Left unanalyzed and apparently unnoticed throughout all this hermeneutic activity is the “and” which Justice Scalia nonetheless interpreted sub rosa to be additive (as in, to keep as well as to bear…) as opposed to conjoined (as in, “keep-and-bear” or more colloquially, “keep n’ bear.”)

These terms then—keep, bear, arms—are the discrete units of meaning to which Justice Scalia brings his formidable powers of concentration.  These terms are an example of individuation: that is to say, they represent (at least for Justice Scalia) the proper units for analysis, interpretation, argument, etc.

Justice Stevens will have none of this.  He doesn’t believe in breaking things down into single words (at least not in this context.)  Justice Stevens wants to break down “keep and bear arms,” differently.   He thinks that the phrase “bear arms” is of a piece–a phrase to be interpreted all at once.

All this leaves us with a law professor’s question and here it comes: Which is the proper form of individuation here—Scalia’s or Stevens’?   Notice that it matters.  Scalia’s relentless breakdown of the phrase into individual words yields a total absence of military meaning. By contrast, Stevens’ insistence that the two-word expression “bear arms” has a unitary meaning does accord the phrase a military gloss.

It matters—and yet note that we have no principle, no criteria, to decide on the proper individuation.  Indeed, this is generally true of individuation in law:  We have no more satisfactory principles to decide on our individuations than we do on deciding our frames of analysis.

This then is the individuation problem.  How is a text, an economic activity, a cultural practice to be broken down into its constituents elements?  Which ones?  On what grounds?  Can it (whatever it may be) be “broken down” at all?  Or is this notion that texts, cultural forms, economic activities can automatically be broken down into constituent elements simply the result of a metaphor gone wild?

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