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| | | Law is Action | |
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< | Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the law as a mode of action rather than a theoretical activity. Some approached the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative view, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the law in the active territory between social structure and individual behavior. | >
> | Of the various legal perspectives encountered throughout 1L year, the most persuasive (in my opinion) treated the law as a mode of action. Some adopted a territorial approach, exploring a series of related actions in a single legal dimension. Others adopted a more holistic approach, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the study of "The Law" in the active territory between social structure and individual behavior. | | | Nonsense Matters | |
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< | If we accept that law is social action, and lawyers applied theorists thereof, why do we spend so much time studying legal language, and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic gaps of semantic ambiguity in the otherwise static and tightly functional vocabulary of the law. At an individual level, these gaps enable lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, they offer political pressure valves that can overcome intransigence in the legislative process without resorting to revolution. | >
> | If the law is social action, and lawyers applied theorists thereof, why do they place so much attention on legal language - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | | | | |
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< | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomena. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... | |
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< | Thus, while there is a clear need for the legal system to address the dynamic and expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | >
> | While the legal system must have some way to overcome the political and expressive limitations of purely functional language, it is likely that transcendental language does more harm than good. As with economists and mathematical economic models, Legal professionals' familiarity with transcendental language enables them to obscure underlying issues and accumulate political power for themselves. By framing legal issues as purely positive questions of language, the legal profession is also able to offload responsibility for addressing social problems onto other actors and social structures. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | | | | |
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< | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | >
> | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe predictable meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging the dynamic and political nature of the underlying sources of that meaning. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully predicted by written code. | | | A Nation of Men | |
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< | Is it possible to acknowledge the cracks in the law's linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by established rules. Every individual possesses some degree of lawmaking power, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to distill the law down to a perfect logical formula, but rather how to optimally divide legal power between relevant actors for any particular issue. If we paid greater attention to the quality of human decision-making and less to devising rules that purport to eliminate humans from the legal decision-making process entirely, then we would be free to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the formal tools inherited from preceding generations. | | | \ No newline at end of file | |
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> | Is it possible to acknowledge the cracks in the law's objective linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by interpreted rules. Every individual possesses some degree of lawmaking discretion, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to generate the perfect "law", but rather how to use law to allocate decision-making power justly between relevant actors for any particular issue. If we devoted more energy to improving the quality and distribution of discretionary decision-making power and less to devising rules that purport to eliminate discretion from the decision-making process entirely, perhaps we would begin to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the limited tools inherited from preceding generations. |
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