Loevinger, Lee

English

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Men and Measure in the Law, by Arthur T. Vanderbilt; Language and the Law:  The Semantics of Forensic English, by Frederick A. Philbrick; Language of Politics:  Studies in Quantitative Semantics, by Harold D. Lassell and Associates

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 25 | Issue 1 Article 11Fall 1949Men and Measure in the Law, by Arthur T.Vanderbilt; Language and the Law: The Semanticsof Forensic English, by Frederick A. Philbrick;Language of Politics: Studies in QuantitativeSemantics, by Harold D. Lassell and AssociatesLee LoevingerMember, Minneapolis BarFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Law and Politics CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationLoevinger, Lee (1949) "Men and Measure in the Law, by Arthur T. Vanderbilt; Language and the Law: The Semantics of ForensicEnglish, by Frederick A. Philbrick; Language of Politics: Studies in Quantitative Semantics, by Harold D. Lassell and Associates,"Indiana Law Journal: Vol. 25: Iss. 1, Article 11.Available at: http://www.repository.law.indiana.edu/ilj/vol25/iss1/11INDIANA LAW JOURNALeffectiveness which I have found surprising. And I gladly report that it is thebest little book in a big field of which I know. It is probably ungracious toask for more than the author has planned.CHARLES E. CLARKfMEN AND MEASURES IN THE LAW. By Arthur T. Vanderbilt.* NewYork: Alfred A. Knopf, 1949. Pp. xxi, 156. $3.00.LANGUAGE AND THE LAW: THE SEMANTICS OF FORENSIC ENGLISH.By Frederick A. Philbrick. New York: The Macmillan Company, 1949.Pp. ix, 254. $3.75.LANGUAGE OF POLITICS: STUDIES IN QUANTITATIVE SEMANTICS. ByHarold D. Lasswell** and Associates. New York: George W. Stewart,1949. Pp. 398. $5.75.The goddess of justice may be blind, but she is certainly not mute. In-deed, the complaint has often been lodged against her that she talks too much,and (it .has been insinuated) she says too little. She might even be calledthe garrulous goddess.It is not recorded who lodged the first charge of verbosity against thegarrulous goddess, but there are records of some eminent and telling criticismsof her language, or anyway that of her disciples. The history of real criticismin this field begins, appropriately enough, in 1776. In that year JeremyBentham (A Fragment on Government; etc.,) derided the stuffy conservatismof Blackstone and the other conventional legal writers by gibing that "thecommonplace retinue of phrases," Justice, Right, Reason, the Law of Nature,"are but so many ways of intimating that a man is firmly persuaded of thetruth of this or that moral proposition, though he either thinks he need not, orfinds he can't, tell why." We must distinguish, he said, between things andnames; "all else is but womanish scolding and childish altercation, which issure to irritate, and which never can persuade. . .. "Although influential in some other respects, Bentham did not have muchimmediate effect on that branch of legal thinking which modem scholarswould call "legal semantics." It was a century later that the commonplaceretinue of legal phrases and concepts was brilliantly satirized by Rudolph vonJhering, a German professor of law, in his Heaven of Juristic Concepts.About the same time our own Oliver Wendell Holmes, Jr., was beginning toattack the formal verbalisms of traditional legal thinking with keen realisticanalysis. In 1913 he told a meeting of the Harvard Law School Associationof New York, "If I ffiay ride a hobby for an instant;-Ish6uld saywe need tot Judge, United States Court of Appeals for the Second Circuit.* Chief Justice of the Supreme Court of New Jersey.** Professor of Law, Yale University School of Law.BOOK REVIEWSthink things instead of words . . ." Since Holmes, there has been a certainamount of critical examination of legal language, or symbolism, chiefly inthe writings of the so-called "legal realists," but most of this has been largelyincidental to the consideration of other matters.If the practitioners in any field are completely dependent upon words itis in the field of law. It is difficult to think of any other profession in whichthere is not some working with tangibles, some operational definitions. Butnot so in law. Everything here depends upon the verbal formula. Whetherthe words, written or spoken, of two parties are or are not called "a contract"decides a lawsuit. Whether an act is called "negligent," or "malicious," or"intentional," decides the fate of a man. Always it is the name which is givento the event that is important in the law.Some of the details and effects of this dependence upon verbalizationare suggested in Justice Vanderbilt's book Men and Measures in the Law.Justice Vanderbilt does not explicitly relate his discussion to this aspect ofthe subject, but his facts and analysis tell their own story.His book is divided into three topical divisions. The first two chaptersare concerned with "Taking Inventory" of the law. The third chapter con-siders "The Growth of Substantive Law"; and the last two chapters discuss"Procedure-The Stumbling Block."I In his inventory, Justice Vanderbilt notes that in the time of Bacon andCoke there were, in all, about 5,000 reported English cases. The number haddoubled by 1775; increased a hundredfold by 1890; and by 1940 had reached1,750,000. Today the largest law library has 600,000 volumes, arida good work-ing bar library requires 20,000 volumes. Similarly, in an average biennium,Congress and the state legislatures pass over 50,000 pages of legislation tosupplement the more than quarter of a million pages of legislation alreadymaking up our statute books! Add to this the mass of administrative regula-tions, and the charge of verbosity seems-proved against the garrulous goddess.Even worse, says Justice Vanderbilt, than the mere mass of material whichcomprises the corpus juris, is "the unknowability of its vast wilderness."There is no general system of classification of statutes, and not even anygeneral digest or encyclopedia of statutory or administrative law. There aredigests of decisions, but the scholar who attempts to apply law reviewstandards of research to the ordinary problems arising in the practice of law(which presumably are the objects of primary concern) will quickly reacha definite and unflattering conclusion as to the adequacy of the digest systems.The great stumbling block to progress in the law, Justice Vanderbiltbelieves, is procedure. By this, however, he does not mean the limited numberof technical rules usually comprehended in that term. By procedure he meanswhat might be called methodology. "The truth is," he says, "that we need aINDIANA LAW JOURNALnew concept of procedure. At the same time that we are simplifying andrationalizing our rules of pleading and practice, we need to acquire the pointof view that procedure comprehends everything which the lawyer has to dowith a case from the moment that he is brought into it." Earlier JusticeVanderbilt makes it plain that such an improved methodology for law mustinclude a new and more precise terminology.Beyond this Justice Vanderbilt does not go. In this thin volume heprincipally measures the failures of the professional men in the law, andsuggests the need for improvement. He does not particularly emphasize theimportance of an analysis of terminology in achieving progress; indeed, it isnot clear that he is fully aware of the importance of this problem. His bookis an interesting and stimulating summary of the views of a mature, moderateand intelligent legal mind. It is certainly not revolutionary in its implications,nor even radical. Yet it is plain from his analysis that some way must befound for dealing with the flood of words that threatens to engulf all legalthinking if the lawyers are ever to be able to swim upstream to higherintellectual ground.Anyone aware of this problem should be delighted to find a book entitledLanguage and the Law: The Semantics of Forensic English, especially whenthe author casually refers to building on the work of Ogden and Richards(The Meaning of Meaning) and Holmes. Unfortunately the delight is rudelydisappointed by Philbrick's book. It is true that it deals with semantics, ofa kind and to a degree. But his observations on legal semantics can besummed up in a single sentence: To persuade a jury, use terms with favorableemotional connotations in referring to aspects of your own case, and terms ofunfavorable emotional connotations in referring to your opponent's case.Furthermore, there can be little doubt as to just how literally he means thisadvice to be taken. The book throughout is little more than a collection ofillustrations and anecdotes of particular cases (mostly criminal trials) inwhich one or another appeal to sentiment was more or less successful in mov-ing a jury. One of his earliest illustrations tells how the lawyers secured theacquittal of the lynchers of Willie Earle, a young Southern negro, withoutgoing to the trouble of presenting any testimony. In the closing argumentsthe corpus delicti "was commonly referred to as a dead nigger or a deadnigger boy, and there was a strong suggesti'on that the law was unreasonablein taking note of the death of so insignificant a creature." The author com-ments, "The closing arguments of these lawyers, which occupied several hours,are instructive examples for study. They must have been effective, for allthe defendants were acquitted by the jury."This book bears about the same relation to semantics that a book on se-duction, or a collection of "French art photos," would bear to physiology. IfBOOK REVIEWSit is semantics, it is the semantics of the carnival barker and the sideshowshill. We do not need more instruction on how to subvert, but on how toimprove the administration of justice. Vanderbilt would most certainly notconsider Philbrick's book a contribution to that improvement in legal methodol-ogy which is so urgently needed.At nearly the opposite pole in the manner of its approach to the use ofwords is Dr. Lasswell's book, Language of Politics: Studies in QuantitativeSemantics. This book is actually a collection of papers, edited by Dr. Lasswell.The papers are concerned with what may be more familiarly known to readersas "content analysis." This consists of establishing analytical categories forapplication to particular kinds of subject matter by "validating" these cate-gories by the judgment of a representative group of experts. The subjectmatter is then analyzed by tabulating the frequency of the occurrence ofsymbols falling within the various categories, the tabulations also being madeby groups of experts. The results are expressible in precise quantitativeterms, and are subject to all the mathematical tests for reliability, dispersionand central tendency which modern statistical methods have developed.Regardless of whether or not the intelligent reader is aware of all thetechnical implications of the mathematical formulae, he can hardly fail to beimpressed with the scientific objectivity of the method. Beyond this, evena reader to whom the multiplication table is a hopeless maze can understandthe general conclusions and the possibilities of the technique. The principalstudies included in the book consist of analyses of nazi and communist propa-ganda. One application of the studies was their use in the trial of allegedforeign agents. The testimony of Dr. Lasswell, and the results of his scienti-fic content analysis, were admitted in evidence by the courts as part of theproof that certain publications were actually nazi propaganda vehicles, andnot independent publications, as they claimed .Other studies included in the book consist of content analyses of slogansused by the Communist Party and the Comintern during the period from1918 to 1943. The changes in emphasis and direction of propaganda effortare traced, not in broad outline, but in precise detail and with quantitativemeasures.The possibility of the application of this technique of analysis to judicialdecisions is too obvious to be overlooked. It is to be'hoped that some seriousstudies along this line are undertaken soon. But, while this book indicatespotential techniques for dealing with difficult problems of legal terminology,it is no more than suggestive. It is not directly concerned with, and it offersno immediate answers to, any specific legal problems. Rather than criticism,this simply means that however suggestive it may be, the book is not a directattack on the problems of legal semantics.INDIANA LAW JOURNALHowever, it is a sorry reflection on the profession, and particularly onthe law schools, that no one has yet undertaken the scholarly and rigorousexamination of the terminological and conceptual foundations of law that isso badly needed. Some aspects of the problem have -been considered in thelight of modern principles of psychology by Jerome Frank in 1930 (Law andthe Modern Mind) and by E. S. Robinson (Law and the Lawyers) andThurman Arnold (The Symbols of Government) in 1935. Yet it is significantthat in the most recent and most pretentious collection of essays on legalphilosophy yet made, of thirty-eight eminent legal scholars not a single onethought it worthwhile to consider the operating concepts of law. One of thecontributors to the massive Interpretations of Modern Legal Philosophies,Professor Stone of Sydney, Australia, did indeed consider the application oflegal concepts to specific cases in a general way. The rest of the contributorswere almost wholly concerned with such airy legal abstractions as "naturallaw," "positive law," "justice and expediency," "juridical values," and othersimilar emotional slogans. Comparing the language used by "modern legalphilosophers" with the Communist Party slogans analyzed by Dr. Lasswell'sassociates suggests that the legal philosophers are more elegant in their choiceof words, less practical in their choice of subjects, and about equal to theCommunist Party leadership in the relative balance of intellectual contentand emotional appeal.Why the law should be thus lacking in the kind of analytical thinkingwhich has proved so productive in other fields is a puzzling problem. Perhapsit is simply an inexplicable aspect of the general phenomenon known as"cultural lag." In any event, it would seem that the law schools must bearmuch of the responsibility both for the present and the future generations ofpracticing lawyers and teachers. So far as I am aware, no American lawschool has a course in semantics, either required or optional. (To mentiononly a few of the excellent texts available, there are the seminal Ogden andRichards, The Meaning of Meaning; Stuart Chase, The Tyranny of Words;S. I. Hayakawa, Language in Action, and his recent book, Language, Thoughtand Action; Charles Morris, Signs, Language and Behaviour; and, the mostdifficult and rigorous, Alfred Korzybski, Science and Sanity.)The only tools that a lawyer has are words, and to give him these toolswithout warning him of the difficulties and dangers in the use of all suchsymbolic tools is something like teaching a medical student surgery withoutmentioning antisepsis or asepsis. Analysis is hindered rather than helped byattaching emotional labels. However, the reader who is interested in valuejudgments will readily enough think of the effective terms in which to describea medical school which would graduate doctors taught to use scalpels onpatients without sterilization.BOOK REVIEWSThe three books under review epitomize, in a way, the present situation.justice Vanderbilt recognizes the need for radical improvements in legalprocedure and at least intimates that new techniques for dealing with ourterminology must constitute a fundamental part of any important improve-ment. Mr. Philbrick illustrates the preoccupation with trial-success thatcharacterizes our law schools today to the exclusion of their more importantfunctions. Professor Lasswell suggests some new approaches and techniquesthat might very well be adapted to the problems of legal semantics. Un-fortunately the problems remain virtually untouched. The garrulous goddesscontinues to babble without a competent interpreter.LEE LOEv NGERtINTERNATIONAL CONTRACTS, by Geoffrey Chevalier Cheshire.* Glas-gow: Jackson, Son & Company, 1948. Pp. 90. 6s.Because International Contracts is in fact a lecture delivered before adiversified audience at the University of Glasgow, it might be supposed thatthe work is merely a popularization of well-known legal principles. Such ismost certainly not the case. In the preface to the third edition of his standardwork on English conflict of laws, Professor Cheshire expressed dissatisfactionwith the treatment given therein to the contract conflicts law.' This lucid andbrilliantly written lecture is Professor Cheshire's attempt to amend and re-analyze certain topics in this area.According to the 19th century English scholar Westlake, the "properlaw" of the contract (the law which governs a contract generally) is the lawof that country with which the contract has "the most real connection."2However, English opinions have consistently stated that the proper law ofthe contract is that law which the parties intend to apply. In most cases thesedifferent theories will lead to the same result. If the parties have expressedno intention as to governing law, an intention will be presumed in "the lightof the subject matter and of the surrounding circumstances."' The presump-tion will normally select the law of that country which is most substantiallyconnected with the contract. But when the parties have expressly agreed tobe bound by the law of a country having no or perhaps only a slight factualconnection with the transaction the theories may lead to practical differences.Professor Cheshire launches a heavy attack on the intention of the parties ruleif that rule is interpreted to mean that the parties are permitted an unrestrictedt Member, Minneapolis Bar.*Vinerian Professor of English Law, University of Oxford; Fellow of All Souls;Master of the Bench of Lincoln's Inn.1. CHESHIRE, PRIVATE INTERNATIONAL LAW, iV-V (3rd ed. 1947).2. WESTLAKCE, PRIVATE INTERNATIONAL LAW 289 (6th ed. 1922).3. Bowen L. J. in Jacobs v. CrEdit Lyonnais, 12 Q.B.D. 589, 599-600 (884),

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Men and Measure in the Law, by Arthur T. Vanderbilt; Language and the Law: The Semantics of Forensic English, by Frederick A. Philbrick; Language of Politics: Studies in Quantitative Semantics, by Harold D. Lassell and Associates

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