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Wednesday, July 27, 2011

Michel Leiris on Learning the Law?

One of my favorite opening chapters in all of literature is from the French author Michel Leiris's autobiographical novel Biffures (first published in 1948, as the first in a 4-book series). It begins with Leiris, as a young boy of maybe 3 or 4 years, playing alone in a room with his toy soldiers. As he is playing, one of the soldiers falls from the table and lands on the hard floor. Afraid that it has broken, he rushes over to pick it up and, seeing that it was not broken, spontaneously utters "reusement!" -- an informal (or childlike) shortening of the French word "heureusement," which means "fortunately" or "happily," or here perhaps best translated as, "thank goodness!" He then hears an adult, who has presumably been standing in the doorway watching him during some or all of this incident, correct him: "Heureusement," the adult says. This is when the young Leiris realizes that what he thought was a spontaneous utterance of relief is actually a word, one that is correctly said as the adult has indicated.

This is a very rich scene, and I can't capture here all that it represents. But at least in part, it represents the child's entry into what Leiris calls the spiderweb of language - its "tissu arachneen." The child, still at the early age of acquiring language, thinks he is generating a spontaneous, purely emotional response, but he realizes that his apparently off-the-cuff utterance is in fact a part of a bigger, completely interconnected system of language, one that he has already partly learned -- and more importantly, one that has been there all around him all along, much like the watchful adult whose presence he only just then noticed.

This is a fascinating meditation on language, and our socialization into it, but -- perhaps insofar as learning the law is like learning a language - it reminds me also of the experience of being a law student. It recalls the realization, slowly developed over the first year of law school, that the terms and even concepts are interconnected in a broader "web," as we say (a "tissu arachneen"?). One also comes to see how much of what happens in the world around us (but of course, by no means all of it) is motivated by legal realities, rules, and incentives that we never knew existed or were only dimly aware of; and how the process of learning the law is one of socialization into this larger network, as much as it is anything.


Posted by Jessie Hill on July 27, 2011 at 10:31 AM | Permalink


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The problem with metaphor....

I spent a good part of March helping my son study for the Massachusetts licensure exam for Teaching English as a Second Language, which meant learning a lot about the theory.

Assuming that learning law is like learning a language, it's like learning a second language as a fluent adult speaker of a native language, not original language acquisition or even second language acquisition, as a child. For an overview, see http://en.wikipedia.org/wiki/Second_language_acquisition_theories.

I was, however, intrigued enough by the metaphor to see what if anything had been written by legal academics, and the article most on point was Jim Chen's "Law as a Species of Language Acquisition," 73 Wash. U. L. Q. 1263 (1995). Even Jim's article, however, concerns itself with the dynamics of Chomskyan-Pinkerian language acquisition as an approach to interpretation of legal texts (I think), and not the process of "learning the law" as though it were "learning a language."

To be blunter about it, I'd love there to be something there to write about, but building the metaphor so as to be meaningful would involve dealing with, for example, the difference between what the second language experts (Jim Cummins and Stephen Krashen are among the guiding lights) call "basic interpersonal communicative skills" or BICS, and "cognitive academic language proficiency," or CALP. BICS is what you need to know on the playground or for making your way to work in the morning, but CALP is what students need to succeed in school (or business people need to succeed in a business meeting). It all struck me, ultimately, as a not-very-illuminating stretch, at least from the standpoint of educating law students.

Posted by: Jeff Lipshaw | Jul 27, 2011 12:11:10 PM

Those interested in language acquisition might enjoy Steven Pinker's The Language Instinct. The topics are interesting and the writing is superb.

Posted by: Patrick Luff | Jul 27, 2011 11:38:22 AM

It’s hard to quibble with the proposition that “learning the law is like learning a language,” for one is, of course, learning the “language of law” or legal language! Even better, it is like learning to master a narrative practice, for the development of language skills by way of narratives of one kind or another is the means by which we acquire our “folk psychological” capacities for intentional understanding. At least that is the intriguing argument of Daniel Hutto. Among other things, Hutto is trying to understand the roots of our capacity to employ folk psychology (roughly, ‘the practice of making sense of intentional actions, minimally, by appeal to an agent’s motivating beliefs and desires’). Against “theory theory” and “simulation theory” arguments which essentially resort to “internalist” or biological explanations, Hutto finds our capacity to understand intentional actions has “a decidedly sociocultural basis,” i.e., more “nurture” than “nature” by way of a fundamental accounting: “[C]hildren only come by the requisite framework for such understanding and master its practical application by being exposed to and engaging in a distinctive kind of narrative practice.” Of course this practice encompasses both dialogue or conversation and story-telling generally (in second- and third-person forms) and thus is not limited, for example, to reading literature to children but certainly includes it insofar as the Narrative Practice Hypothesis (NPH) claims that “direct encounters with stories about persons who act for reasons—those supplied in interactive contexts by responsive caregivers—is the normal route through which children become familiar with both (1) the basic structure of folk psychology and (2) the norm-governed possibilities for wielding it in practice, thus learning both when and how to use it.” This may strike some of us as fairly intuitive but it’s a novel argument a considerable body of philosophical literature in which “theory theory” and “simulation theory” rule the roost. On Hutto’s model, folk psychology itself is a distinctive kind of narrative practice that at bottom or in the beginning means being exposed “stories involving characters who act for reasons.”

I think the learning of law is even closer to the learning to participate in (socialization into) such a narrative practice. This sounds, correctly I think, “Wittgensteinian” in inspiration. Learning the law through “law stories” (as in a well-known publication series on different areas of the law) strikes me as pedagogically prudent if not indispensable. As Jerome Bruner writes, “We are so adept at narrative that it seems almost as natural as language itself.” In Making Stories: Law, Literature, Life (2002) Bruner quotes Rovert Cover: “Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which to live.”

Posted by: Patrick S. O'Donnell | Jul 27, 2011 11:13:07 AM

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