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Mark L. Johnson

Publication Date

5-2007

Document Type

Article

Abstract

Change, as John Dewey observed, is a basic fact of human experience. We are temporal creatures, and the situations we find ourselves in, the situations that make up the fabric of our lives, are always evolving and developing. The omnipresence of change throughout all human experience thus creates a fundamental problem for law, namely, how can law preserve its integrity over time, while managing to address the newly emerging circumstances that continually arise throughout our history? If, following one extreme, we think of law as fixed, static, and univocal in its content, then law runs the risk of losing its relevance to the new conditions and problems that face us each day. However, the opposite extreme-that law is completely malleable-is equally untenable, for that would make law nothing more than a tool of those in power. Our problem, therefore, is how law can be both stable and capable of growth.

I believe that part of the answer to this foundational question is beginning to emerge from recent research in the cognitive sciences. Human law is a many-splendored creation of the human mind, that is, of human understanding and reasoning. The primary business of the cognitive sciences is to study empirically how the mind works. Therefore, cognitive science ought to give us insight into the nature of legal concepts and legal reasoning.

Even though the "cognitive science of law" is a very recent development, its potential for transforming legal theory is substantial. However, most people do not believe that the cognitive sciences are theoretically rich enough, and sufficiently non-reductionist in character, to do justice to the depths of legal understanding. This prejudice is based, I suspect, on the fact that people tend only to know about what I call "first-generation" cognitive science, which grew out of work in the 1950s in computer science and artificial intelligence and assumed views of meaning and thought that came straight out of early information processing psychology, analytic philosophy of mind and language, and generative linguistics. I have to admit that this type of cognitive theory has almost nothing to tell us about the nature of law because it has turned out to tell us very little about how the mind actually works.

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