My New Paper!
stevenjamar at gmail.com
Sun May 17 12:42:16 PDT 2009
1. Law uses language. It is not just language.
2. Language is not controlled by anthropology.
Sent from Steve Jamar's iPhone
On May 17, 2009, at 2:18 PM, Sean Wilson <whoooo26505 at yahoo.com> wrote:
> ... Hi Chris.
> I think I'm going to develop a section in my paper in future drafts
> to deal with this objection. Let me just throw these thoughts out.
> (They need explained better I'm sure).
> The view that I think you are presenting is whether a generation can
> inculcate its culture to others by resorting to a constitutional
> formalism (as opposed to using ordinary language). The idea would be
> something like this. Hypothetically, a constitution is passed and
> someone sticks in a kicker that says: "NOTICE: all of these words in
> this document actually only mean how the 1787 culture elects to
> behave under them. Therefore, all the fairness words and general
> words and family resemblances actually only say what specifically
> transpires in the choices made at or about 1787." Let us call this
> the Fine Print Clause (FPC).
> A couple of comments:
> 1. Article VI of our current Constitution cannot be said to say this
> unless, perhaps, one were to indulge originalist orthodoxy -- which
> is to say, unless one commits a language fallacy. For the framers to
> have made Article VI a true FPC, they would have had to specifically
> say it. (Sort of like those insurance policy clauses that take the
> rug out from under you. You know, "if God does it, we don't pay").
> 2. I also don't see how any semanticist of the framing period could
> ever say that Article VI can become an FPC by a generation's
> protocol election. Making the constitution supreme law in a federal
> system and swearing fealty to it only means that its language rules
> over other legal language in the American legal system (states), and
> that brains must do what the language "says." (Please note that I
> downloaded three of your papers but have not read the one about
> Article VI. I'm grading exams today, but I have plans for reading it
> this week. In fact, given what I see you are saying about equal
> protection, I think I'm going to add a Chris Green chapter to this
> project soon. Your arguments clearly need addressed.)
> 3. Hypothetically, if our Constitution had an FPC, there would be no
> real difference between this and a constitution that had simply said
> in a one sentence document, "the customs, traditions, ways, mores
> and rules of 1787 shall be the supreme way of life until this
> document is amended." I ask that you consider the arguments I make
> in Chapter 2, Part IV of my manuscript. Ask yourself whether a
> document that did this would really be "a constitution." Because it
> seems like it would take on a radically different function in
> sociology. Its essential purpose would be to sanctify and celebrate
> the transmission of culture rather than to pass "laws." The
> constitution would become a sacrament. Imagine what reality would be
> like if 1787 culture really did try to be like the Amish, only using
> the style of a celebratory document enshrined in democratic ritual.
> Sociology would say this sort of "legalism" is only different in
> STYLE from simply going out in a field to sacrifice an animal or
> cutting the hand with a knife in order to show "blood brothers."
> Look, you have to ask yourself whether you agree with these premises:
> (1) Law is language.
> (2) Language meaning is governed by anthropology.
> (3) The anthropology of language is governed by cognition (language
> means how brains process it).
> (4) Brains process most words as clusters. (Hail to Ludwig!).
> (5) Words that do not function as clusters are things like names,
> ostension, scientific jargon, tautological jargon, etc.
> (6) Most constitutional sentences use cluster words.
> (7) To comply with them, you need to select protocol.
> (9) The protocol is not the meaning of the word (see (4)).
> Chris, where is the error?
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> New Website: http://seanwilson.org/
> Daily Visitors: http://seanwilson.org/homepagelucy.html
> SSRN papers: http://ssrn.com/author=596860
> Find Wilson!: http://twitter.com/seanwilsonorg
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> Please note that messages sent to this large list cannot be viewed
> as private. Anyone can subscribe to the list and read messages that
> are posted; people can read the Web archives; and list members can
> (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof