Friday, October 22, 2004

Benzene 4 Book Review - Lew, Language, Pinker, Holmes and the Law

Benzene 4 Book Review - Lew, Language, Pinker, Holmes and the Law

Mark D. Lew at Benzene 4 has a book review of Steven Pinkers' The Language Instinct: How the Mind Creates Language (1994).

We certainly do not follow all of Pinker's logic on language, and we also can not agree with statements such as these by Pinker, cited by Lew:

"A general statement of irregularity and the human condition comes from the novelist Marguerite Yourcenar: "Grammar, with its mixture of logical rule and arbitrary usage, proposes to a young mind a foretaste of what will be offered to him later on by law and ethics, those sciences of human conduct, and by all the systems wherein man has codified his instinctive experience.""

No ranking legal scholar would ever subscribe to the idea that "man has codified his instinctive experience" in law, as if this were somehow distinctive from "actual experience". We find that the codification of law is "dinstinctive" rather than instinctive.

As Holmes wrote in The Common Law (1881). :

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

Instinct has little to do with it.

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