|
>
> |
| META TOPICPARENT | name="FirstPaper" |
|---|
Legal Concepts in Our Very Own Wonderland
-- By AnneFox - 14 Feb 2012
Introduction
At the risk of sounding as though I’m teetering on the edge of an existential crisis, much of what we talk about in class makes me question the stability of the world around me. If we question the system that is the “law”—whether it be the morality, consistency, or definition of legal practices—we can easily move to questioning other overarching infrastructures of our existence like mathematics or time. While I don’t mean to inspire fear in myself or in the world at large, I think it is worthwhile to probe these questions in much the same way that Holmes says we should always continue the search for truth, even if we know it is futile.
I spent the bulk of last year researching mathematical systems in Lewis Carroll’s literature—looking mainly at the successes and limitations of logic in providing meaning to an individual. I see many of the same issues arising with the idea of “the law” and often find myself reflecting on the conclusions I drew while working on my thesis—questioning some, affirming others, but all the while throwing myself back at the same obstacles I faced then in interpreting reality.
“Certainty Generally is Illusion”
I cannot seem to shirk the idea of necessary faith in axioms and how unsettled it makes me. Unfortunately, as Holmes states, “certainty generally is illusion, and repose is not the destiny of man…you can give any conclusion a logical form.” In order to feel safe, we assume that we think about law in a way that provides us with certain consequences, but it’s simply not true—it’s all just a rationalization to keep the system from collapsing.
When I’m feeling particularly unattached from the world I live in, I’ll wake up feeling like Alice—feeling like it’s possible I’ve been cast into some dream world where backwards is upwards and all the convictions I thought I held are meaningless. I realize that the only way around this is to adhere to the “rules” of the system in which I find myself, in much the same way that Alice does while she makes her nonsensical journey. But any action requires trust in something unseen—like Godel’s proof. You can’t achieve a system that proves the true and eliminates the false. Legal concepts do not attach to anything in the “real world,” so how can judicial decisions hold if they are essentially meaningless?
I would argue that they hold because they must in order to prevent social chaos. Suppose that a man one-hundred yards away collapses to the ground, bullet in his stomach, moments after a gun fires. How can we be sure that the bullet was shot from the very same gun? Relying on pure instinct, it’s clear that we do not know—relying on physics it’s less clear that we do not know, but really we still do not, simply because truly “knowing” involves proving the “truth.” To make any decision within the rules of our society we have to suspend belief in a consistent method. There seems to be some difficulty here, as Jerome Frank notes when he points out the limitations on absolute justice due to subjective facts. It is hard to know anything for sure.
Legal Consequences
Holmes says that things are what they do, not what they’re called, and Cohen says that legal decisions are more than what they do—that they operate on various factors to do what they do, so they are composed both of the past and the future. My guess is that what Cohen is looking to set up is some sort of function like C=D(X1, X2, X3,…, Xn) where C is the consequence resulting from the action of D (the decision) on any number of pieces of social information (the Xs). It’s nice to think of things this way—putting things in terms of a formula makes me feel a little safer, but that calm implodes when I actually think about laws in the real world. Social information is infinite, and it would be impossible to know how many factors a decision takes into account, let alone the subjectivity of taking anything into account in the first place. Do we kid ourselves by thinking that law has anything great to do with society?
What, then, is Law?
In discussing Cohen, we said that law is a weak form of social control—that law does not determine, but reflects. I suppose this is to say that laws are not unreliable in general, but that they do not really hold much significance in the present. To bring in Carroll again, the White Queen teaches Alice “the rule is jam tomorrow and jam yesterday, but never jam today.” According to this, there is no present—once the brain perceives something, that thing is already in the past. In line with this idea, the law can never control anything—it can only pass judgment on things that have already occurred. It seems the law does not exist to change a social trajectory but more so to enforce it as it moves through time.
When Alice plays croquet, she admits that the Queen is “so likely to win, that it’s hardly worth while finishing the game.” In Wonderland’s political system, there are no clear rules, no clear laws, but only the absolute power of a singular monarch. Robinson’s case with the kid who breaks into the AUSA’s house works in much the same way—the people in power try to exact their own motives on those who are powerless. Our world, though, unlike Wonderland, has some order—at least enough to help Robinson protect his client. Legal rules are clearly important in this way, but the outcomes are still unpredictable. Is law then just a means of defining our mob mentalities? Does it bring us any closer to certainty, or does it just prevent chaos? Is it as passive as Cohen makes it out to be? All questions to which I have no answers.
(999 Words)
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
|