Lex Scripta: Toward a Linguistic Determinism Theory of Legality

By Richard Komaiko

Traditional Chinese society accorded a limited role to the judiciary, lawyers, and formal legality.1 Weber explained this by reference to Confucian values which prize social harmony.2 But this account fails to explain why Confucian values had so much resonance with the Chinese populace. The hypothesis advanced by this note is that the limited role accorded to the judiciary, lawyers, and formal legality, is actually a function of the Chinese language itself. Introduction In the 1930s, psycholinguistic scholars Edward Sapir and Benjamin Whorf pioneered the theory of linguistic determinism, which holds that the contours of human thought are actually shaped by the language in which the thinker is socialized. In Sapirs own words:
Human beings do not live in the objective world alone, nor alone in the world of social activity as ordinarily understood, but are very much at the mercy of the particular language which has become the medium of expression for their society. It is quite an illusion to imagine that one adjusts to reality essentially without the use of language and that language is merely an incidental means of solving specific problems of communication or reflection. The fact of the matter is that the real world' is to a large extent unconsciously built up on the language habits of the group. No two languages are ever sufficiently similar 3 to be considered as representing the same social reality. Although the expansive theory linguistic determinism fell out of fashion in the 1980s, more attenuated versions of 4 the theory have recently been validated by empirical research. Among the studies in support of linguistic determinism, researchers at Stanford University have shown that speakers of Chinese and English understand time 5 differently as a result of linguistic differences. Whereas English speakers use only horizontal metaphors to express temporal relationships (looking forward to it; lets put the past behind us), Chinese speakers use both horizontal metaphors (qian tian; hou tian) as well as vertical metaphors (shang ge yue; xia zhou). The reaction speed of Chinese speakers to sequences of events that are depicted in visually vertical arrangements is faster than the reaction speed for English speakers under the same circumstances, and the difference in reaction speed is statistically significant. There is strong academic foundation for the proposition that the cognitive effect of linguistic variation is not limited to perceptions of time, but instead, exerts an influence over our experience of all abstract concepts, 6 including justice, as well as societal attitudes thereto. This note draws on concepts from comparative law, psycholinguistics, and philosophy of language to posit a linguistic determinism theory of legality. Hypothesis Ginsburg and Cooter have shown that the size of the bar in any given country varies positively with the average 7 length of legal instruments, including constitutions, statutes, judicial opinions, and private contracts. The authors explain this correlation in pragmatic terms: the longer the legal instrument, the more difficult it is to understand without a specialized education. As legal texts become more difficult to understand absent a specialized education, society attributes greater importance to lawyers and formal legality. It stands to reason that the corollary must also be true: the easier it is to understand legal texts without a specialized education, the less

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importance society will ascribe to lawyers and formal legality. The contention of this note is that the script and grammar of the Chinese language render exegesis of Chinese text relatively straightforward as compared to exegesis in other languages, and that this ease partially explains the relatively limited role that Chinese civilization has accorded to the judiciary, lawyers, and formal legality. Script We begin by considering the most fundamental unit of language: an individual word. The English word color could be a verb or a noun, and within the scope of nouns, it carries a variety of different meanings. For example, this is my favorite color, he is a person of color, he took the chattel under color of law, or his face gained color as he recovered from the flu. In each of these examples, the word color means something slightly different, though they all revolve around a core nucleus of meaning. In the immortal words of Professor Hart: Sometimes the difference between the clear, standard case or paradigm for the use of an expression and the questionable cases is only a matter of degree. A man with a shining smooth pate is clearly bald; another with a luxuriant mop clearly is not; but the question whether a third man, with a fringe of hair here and there, is bald might be indefinitely disputed, if it were thought worth while or any practical issue turned on it. Sometimes the deviation from the standard case is not a mere matter of degree but arises when the standard case is in fact a complex of normally concomitant but distinct elements, some one or 8 more of which may be lacking in the cases open to challenge. When one looks up color in an English-Chinese dictionary, one finds no fewer than 16 Chinese definitions for the 9 one English term. By contrast, when one looks up in the same dictionary, one finds only 4 English definitions for the Chinese term. We refer to this phenomenon of many meanings for one word as morphological pluralism. The most obvious explanation for the low rate of morphological pluralism in Chinese is that the Chinese script is pictographic. This means that Chinese characters are, in essence, a depiction of the concepts that they represent. By contrast, in alphabetic languages, characters are a depiction of the sounds that the language has arbitrarily chosen to associate with the concept that the word represents. As a result, the process of parsing a Chinese word requires only one step to go from character to concept. By contrast, the process of parsing an English word requires two steps: character to sound, and then sound to concept. Semitic languages take this even further by depicting only consonants in written text, leaving vowels to be inferred by the reader. Depending on which vowels the reader infers, the meaning of the word changes dramatically. For example, the Hebrew word for color is ( tzevah), but the same consonants also represent the 11 words for hue, paint, crayon, dye, tint, to paint, to draw, to color, painter, artist, etc. The letters, themselves, provide absolutely no textual indication as to which meaning is intended or which meanings are excluded. Thus, the process of parsing a Semitic word requires three steps: character to the outlines of the sound, then filling in the outlines by inferring vowels in order to construct a complete sound, then from sound to concept. It stands to reason that the exegetical challenge of parsing a piece of English text containing the word color or a piece of Hebrew text containing the word would be considerably more difficult than the exegetical challenge of parsing a piece of Chinese text containing the word . The English and Hebrew texts would be susceptible of more meanings, and open to more legitimate differences of opinion as to how they should be interpreted, than the Chinese text. An individual confronted with the former challenge must be prepared to defend his reading of the text, whereas an individual confronted with the latter challenge can appeal to plain meaning. Grammar
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The relative specificity and clarity of the Chinese language is not confined to individual words, but is also present in the structure of grammar. Below is a non-comprehensive list of grammatical features that are either unique to the Chinese language or relatively distinct among world languages. 1. No plurals Chinese nouns are not pluralized. There are exceptions, of course, such as and , but these are actually separate nouns, rather than the singular and plural version of the same noun. No conjugation Chinese verbs are not conjugated. The only ways to specify the tense of a verb are by adding a particle (, , ) or creating a compound verb phrase (). But strictly speaking, Chinese verbs, themselves, are not conjugated. No gender Chinese nouns do not accept a gender attribute. No distinction between subject and object Chinese does not recognize a distinction between a noun as subject (I bought the fruit) and a noun as object (the fruit was bought by me). In Chinese, both words are the same: . No prepositions There is an open debate among linguistics scholars as to whether the Chinese language contains 12 any words that meet the strict definition of prepositions. Chinese relies heavily on an element of grammar known as coverbs, which are verbs that play the role of prepositions. For example, in the sentence , the word zai plays the role of a preposition by indicating position, but zai is actually a verb. Even assuming, arguendo, that Chinese has prepositions, it is undisputed that the volume of prepositions in Chinese is far fewer than languages from the IndoEuropean family. No reflexive verbs The Chinese language does not contain reflexive verbs, per se. Chinese verbs can be rendered reflexive by adding a particle () to create a reflexive verb compound, but strictly speaking, the 13 verbs themselves are not independently reflexive.

2.

3. 4.

5.

6.

The consequence of items (1) through (4) is that Chinese relies heavily on strong default rules in lieu of contextual clues. The consequence of items (4) through (6) are that Chinese grammar accepts fewer constructions of the same statement, and arguably, less complex constructions overall. It is the contention of this note that the combination of these features makes written Chinese easier to understand, less susceptible to misunderstanding, and less susceptible to disagreement about interpretation than other languages. Conclusion In a society where the meaning of written text is apparent on its face, legislative intent will be relatively clear, the role of the judiciary will be minimized, and the need for a professional class of private sector interpreters and draftsmen will be limited. By contrast, in a society where the meaning of written text is obfuscated, the interpretation of legislative intent will be susceptible to reasoned disagreement, the role of the judiciary will be emphasized, and there will be a greater need for private sector interpreters and draftsmen. This is the broad outline of a linguistic determinism theory of legality.

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1 2

Richard Komaiko, Lawyers in Modern China, Cambria Press: 2009. Max Weber, The Religion of China: Confucianism and Taoism, 1954. 3 Edward Sapir, "The Status of Linguistics as a Science," 1929 4 Lev Michael, Reformulating the Sapir-Whorf Hypothesis: Discourse, Interaction, and Distributed Cognition, Texas Linguistics Forum 45: 107-116. http://studentorgs.utexas.edu/salsa/proceedings/2002/papers/michael.pdf. 5 Lera Broditsky, Do English and Mandarin speakers think about time differently? Cognition, 2010. http://psych.stanford.edu/~lera/papers/mandarin-time-2010.pdf. 6 Lera Broditsky, Time in the mind: Using space to think about time, Cognition 2008. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401924. 7 Ginsburg and Ulen, Leximetrics: Why the Same Laws are Longer in Some Countries than Others, American Law and Economics Association Meeting, 2004, paper 64. 8 H.L.A. Hart, The Concept of Law, Oxford University Press, 1997. p. 4. 9 NCIKU, Color, http://www.nciku.com/search/all/color 10 NCIKU, ,http://www.nciku.com/search/zh/detail/%E9%A2%9C%E8%89%B2/1317530 11 Melingo, http://morfix.mako.co.il/default.aspx?q=%D7%A6%D7%91%D7%A2&source=milon 12 Wikipedia, Preposition and Postposition, http://en.wikipedia.org/wiki/Preposition_and_postposition#Coverbs 13 William Xianfu Yu, Chinese Reflexives. Peeters, 2000, pp. 6-11.

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