April 06, 2004

Grammar and Law

by Nick Morgan

Yesterday, I asked: "can a grammatical prescriptivist embrace legal realism? If there are rules of grammar that posit correctness, must there also be a domain of natural law against which we can judge the rightness of legislation or common law?" Crescateers Will and Amanda responded here and here, and Mr. Sandefur offered some interesting thoughts here. I guess it's only fair that I answer the question myself.

Amanda and Sandefur offer some convincing distinctions between the law and the laws of grammar, but I still think there's significant tension between grammatical prescriptivism and legal realism. By legal realism, I have in mind something like the nihilistic vision of Holmes, that law is merely what is convenient, and has no metaphysical origin beyond the changing judgments of people.

The debate over grammatical correctness is not essentially empircal, but philosophical. For the descriptivist, it's not that correctness can't be proved, it's that correctness doesn't meaningfully refer to linguistic behavior. As I see it, the real question is whether correctness means anything at all. Legal realism, as I understand it, does not provide an account that could distinguish correct laws from wrong ones--assuming all laws in question were effectuated properly (i.e., made by real lawmakers). For legal realism, the rightness of a law properly enacted doesn't seem to be a meaningful notion. The rightness in grammatical prescriptivism goes beyond merely indicating what patterns in language are dominant (if it didn't, there would be no difference between prescriptivism and descriptivism--which, in fact, I sometimes think is true). I do not think it's readily clear how a prescriptivist could on the one hand make sense of "correctness" as a meaningful concept in language but on the other hand deny that some laws can be just bad, even if properly made. Even if language evolves largely beyond our control, we can still select, among many principles of usage, which we think are the proper ones (schools do this all the time) and which aren't. If I were to think Oxford English is superior to, say, African American English, but reject, on philosophical grounds, the notion that some laws are not only different, but sometimes better or worse than others, I think I'd be philosophically confused.

The challenge isn't so much drawing logical distinctions, but figuring out whether one's base, metaphysical assumptions about "correctness" are the same in language and in law. [insert elegant conclusion]

April 6, 2004 07:31 PM | TrackBack
Comments

Man, did this subject fall flat. The New Coke of legal theory blog posts.

Posted by: Timothy Sandefur at April 7, 2004 03:38 PM

Ha! Well, I guess the world's just not ready to reconcile philosophies and grammar with philosophies of law. [sigh]

Posted by: Nick Morgan at April 7, 2004 05:59 PM

I think that the lack of responses indicates that most people (or at least readers here) don't see a necessary connection between believing in an objective set of rules for grammar (for a given language) and believing in an objective set of laws.

Generally, the argument here is that the following conditional is true:

If (A believes that there exists objective rules of grammar) then (A believes that there exists objective laws).

I don't think I've read anything yet supporting the truth of such a proposition.

You could make a similiar argument that if one believes in objective rules of logic then one must believe in objective rules of law. But I would imagine that every legal realist out there would deny that--particularly because by denying that there are objectively true rules of logic, they cannot really argue that legal realism is true.

In other words, must one who believes that 2+2 necessarily equals 4, or that an argument form employing modus tollens neccesarily implies the conlucusion, neccesarily believe that there exists an objectively correct set of laws?

One distinction that hasn't been drawn is that rules of grammar, like rules of mathematics and rules of logic, are necessarily contained within a system, that the truth and falseness of such propositions are dependent upon the system. i.e. a rule of grammar that is correct within the system of English language might not be correct within the system of Italian language. Likewise, a rule of logic that is true in a bivalent truth system might not be true in a multivalent truth system.

Rules of law, however, generally aren't contained within such systems. i.e. the law that "Unjustified homocide should be punished" can be true outside of any legal system.

Furthermore, rules of grammar, math, or logic don't ascribe value judgments (other than truth values). i.e. if a proposition is false under the rules of logic, that does not mean that the proposition is "evil" or "more good" or "just." Likewise, I can't really argue that the world would be a better place if we defined triangles as having four sides and squares as having three.

But rules of law, like rules of morality, generally do ascribe value judgments. i.e. "Unjustified homocide should be punished" necessarily implies that unjustified homocide is bad or not good. Rules of law generally place a value on conduct, valuing some types more than others. Absent such value judgments, rules of law would be meaningless. Why would there be a rule of law that "Unjustified homocide should be punished" if unjustified homocide were not a bad thing?

My point there is that it is generally easier to believe that there are objectively true rules that a) do not make a value judgment, and b) are system-relative, than it is to accept as objectively true rules that do make value judgments and that are not system-relative. Thus, I don't see why there must be a connection between believing in objective rules of grammar and not believing in objective rules of law.

Posted by: Anthony 2 at April 7, 2004 11:56 PM

Anthony, you make a lot of interesting points, but I don't accept your analogies to math and logic. Grammatical prescriptivists say that one ought to say "This isn't my finger" but ought not to say "This ain't my finger." They also think there's a right answer to the question whether one should use split infinitives. If there is anything correct in those judgments, it is not the correctness of logic and math. You seem to have taken "correctness" to mean descriptive correctness (truth) while I've been using it normatively (rightness, what ought to be done). Math doesn't say that 2 + 2 ought to be anything, it just tells us what 2 + 2 is.

When you write "If (A believes that there exists objective rules of grammar) then (A believes that there exists objective laws)" I think you are misstating my argument (maybe my fault for expressing it poorly). "Objective" is a very ambiguous word, so I'll avoid it. The basic argument I'm interested in is something like this:

If one believes that it makes sense to distinguish between proper and improper usage of language, then in order to remain consistent one should also believe that it makes sense to distinguish wrongs laws from right ones.

Descriptivists don't deny that language abides something like "objective rules," they simply say that there is no one best version of a language (among its many dialects, etc.).

That said, I can't quite say why I think a grammatical prescriptivist should not embrace normative legal realism--it's an intuition, I guess. People have pointed out lots of important, and relevant differences between language and law, but I don't think the differences pointed out so far have drawn a distinction between the kind of "correctness" judgments that appear in the two separate debates. They still look like very similar philosophical judgments to me.

Posted by: Nick Morgan at April 8, 2004 01:06 AM

"I think that the lack of responses indicates that most people (or at least readers here) don't see a necessary connection between believing in an objective set of rules for grammar (for a given language) and believing in an objective set of laws."

Or they just don't care and follow a more Zen philosophy of life without feeling the need to analyze minutia in lieu of downloading internet porn.

Posted by: Brian at April 8, 2004 06:20 PM

I would write a response, Nick, but apparently I'm too busy downloading porn. I'll just save my minutia analyzing for work, where it comes in pretty handy.

Posted by: Anthony 2 at April 9, 2004 12:01 AM

No, I'm downloading the porn, you do the minutia.

Posted by: Brian at April 9, 2004 12:07 AM

Now now, fellas, there's plenty of porn for everyone. [all-to-easy innuendo involving "minutia" omitted]

Posted by: Nick Morgan at April 9, 2004 01:04 AM
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