Legal Nativism?



Over at Law and Liberty, John McGinnis favorably quotes legal scholar Harold Berman. Berman apparently told The Fulton County Daily Report (although, I can't for the life of me find the quotation in its original context):

A child says, ‘It’s my toy.’ That’s property law. A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.

McGinnis finds strong support for Berman's claims in the developemt in of his own daughter: "As my daughter turns two this week, nothing has been more remarkable to this law professor than her already intense relation with rules, vindicating Berman." McGininis proceeds to tell us how his daughter does not appear to have acquired knowledge of the law, but that "the law has categories that appear to map on to inborn modules of our nature."

Such observations lead McGinnis to conclude that "having a child makes me appreciate all the more the reality of a given human nature that has evolved through millions of years." McGinnis concludes this idea of human nature led to the establishment of American ideals in law but the ignorance of which will lead people ever closer to visions of childless utopias.

Whether or not refraining from childbirth leads one to embrace a Brave New World I cannot say. However, McGinnis' comments are illuminating for other reasons.

First, note the appeal to legal categories that are innate to human beings. If they are innate, then they are there from the get go - not acquired through experience. Ever since Chomsky, nativists have been in ascendence. They are far from dominant in some disciplines such as philosophy but fast making gains in cognitive sciences, and linguistics. Until recently, such a view--that there are domain specific modules in the brain the contents of which is composed innate beliefs, concepts or dispositions--was largely the preview of the religious. Theists have long been attracted to arguments reliant upon innately possessed concepts or beliefs, or dispositions to form concepts or beliefs. They are relatively new to other disciplines especially modern science.

Quite whether McGinnis' observations of his child are enough to suggest that she has innate legal categories is difficult to tell. It may be that his child has acquired those categories as she lives with someone who presumably talks about those categories all the time.

Second, do we think the founders had the same view of human nature as McGinnis does today? There is a reason to think not. Consider what McGinnis says:

having a child makes me appreciate all the more the reality of a given human nature that has evolved through millions of years.

McGinnis claims that there is a human nature, but then tells us that that nature has evolved over millions of years. Can this be? Presumably, to evolve is to change over time. Indeed, since Darwin, many have assumed that what was human nature millions of years ago is not what human nature is today.

In contrast, the founders' concept of human nature was probably much more Aristotelian: Human nature is tied to the essence of what it is to be human and such essential properties determine the purpose or goal of human beings.

It is unlikely that the two views make a happy marriage. If human beings evolve in the way McGinnis suggests, then observing a child now tells us nothing about the nature of human beings; it only tells us the nature of this or that human being as he or she is at this or that time. 

It is the Times who tell me the source of the quote from Berman, but I can't find it. See here

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