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Then and Now: Two Perspectives on our Legal System |
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< | -- By CourtneyDoak - 16 Feb 2012 |
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> | -- By CourtneyDoak - 14 May 2012 |
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A Revelation While Reading Transcendental Nonsense and the Functional Approach |
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< | I grew increasingly unsettled while reading Transcendental Nonsense and the Functional Approach. Upon reflection, I think the piece elicited discomfort because Cohen made me realize that I have been growing gradually more cynical in my outlook on the law. As a child, I regarded the law as synonymous with justice and morality. Yet starting law school and studying the system that I had thought functioned to protect the innocent and promote fairness made me increasingly skeptical about whether it actually does so. Ultimately, Transcendental Nonsense made me conscious of the fact that I currently hold two disparate views of the law – and this realization left me uneasy. |
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> | Reading Transcendental Nonsense and the Functional Approach left me unsettled, eliciting discomfort because Cohen made me realize that I have been growing increasingly cynical in my outlook on the law. |
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> | As a child, I regarded our legal system as synonymous with justice. Yet my first year of law school, spent studying the very system I had regarded as infallible, left my faith profoundly shaken. I was uneasy and in search of answers – answers on how to reconcile my perspectives, on how to bring the law into alignment with my childhood reverence for it. |
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< | Our Legal System Through a Child's Eyes |
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< | My first perspective on the law – that it is a vehicle to effect meaningful change and to advocate on behalf of those who need it most – may seem naïve, but this was the perspective that was informed by my only actual experience with a lawyer. My sisters and I were raised by a mother who was neglectful at best, abusive at worst. The promise of escape came when I was ten years old and my father filed for divorce. I recall how scared I was of being taken from my dad, how helpless I felt at my fate being decided by strangers in this world of courtrooms, filled with lawyers and judges who spoke a language I couldn’t understand. |
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< | I distinctly remember the day when my fears were quelled. Someone stepped in to help, someone who promised that my voice would be heard in that world of courtrooms, who promised that she would represent my sisters and me and protect our interests. When the proceedings had ended, I remember thinking that my lawyer kept her promise. My dad had full custody of my sisters and me, and we were finally safe. |
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< | I knew my lawyer only briefly, and never saw her again following the settlement of my parents' divorce, but the difference she made in my life is virtually indescribable. This advocate – who made sure that my voice was heard when I couldn’t use it myself – freed me from the circumstances of my childhood and changed the course of my life entirely. And so it was this experience that informed my initial understanding of our legal system as synonymous with advocacy and justice. |
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> | Law, Through a Child's Eyes |
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> | My first perspective on the law – that it is a vehicle to effect meaningful change and safeguard morality – may seem naïve, but this was the perspective informed by my only actual experience with a lawyer. |
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< | Cynicism (and Transcendental Nonsense) Creeps In |
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> | My sisters and I were raised by a mother who was neglectful at best, abusive at worst. The promise of escape came when I was ten years old and my father filed for divorce. I recall how scared I was of being taken from my dad, how helpless I felt at my fate being decided in this unfamiliar world of courtrooms, filled by strangers speaking a language I couldn’t understand. |
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< | My second perspective on the law is more cynical. Interestingly, this is the perspective that has been molded by my experiences thus far in law school, learning the intricacies of the very system I previously regarded as infallible. I struggled with reading and speaking in the legal jargon that fills the pages of every judicial opinion that we read, mostly comprised of words and rules that meant nothing to me just a few months ago. I began to wonder how these words and rules originated. Moreover, I wondered why the words are regarded as meaningful, why the rules are regarded as self-evident truisms. Cohen’s piece brought coherence to my nebulous thoughts: the magic ‘solving words’ of legal problems are hollow transcendental nonsense; the ‘rules’ are self-referential creations by the law. Thus there is inherent circularity in couching legal arguments in these meaningless terms. |
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> | I distinctly remember the day when my fears were quelled. Someone stepped in to help, someone who promised that my voice would be heard in that world of courtrooms. My lawyer promised she’d do all she could to protect my sisters and me, and this was a promise she kept: when the proceedings ended, my dad had full custody and we were finally safe. |
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< | Cohen made me acutely aware of the disheartening implication of my more jaded musings about our legal system: courts use transcendental nonsense to hide that arbitrary factors and undisclosed agendas drive much of their decision-making. |
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> | This advocate – who made sure that my voice was heard when I couldn’t use it myself –freed me from the circumstances of my childhood and changed the course of my life entirely. And so it was this experience that informed my initial understanding of our legal system as synonymous with justice. |
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< | Bringing the Law into Alignment With My Childhood Outlook |
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< | After realizing that I do in fact have two clashing perspectives on the law, I began wondering how studying a system I revered as a child could have diminished my reverence for it so rapidly. I think that an explanation lies in the fact that when I was a child, my view of the law was not colored by transcendental nonsense. As a child, the contours of my understanding were shaped by functionalism. |
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< | More specifically, my first understanding of our legal system was created by the answers that my lawyer gave me when I asked her questions. While I don’t have memories of specific conversations with her, I know that she conveyed clearly to me how the judge would decide which parent my sisters and I would live with. She was straightforward; she allayed my fears by telling me exactly what would transpire in the courtroom. I see now that my attorney was using Cohen’s functional approach - her language was stripped of nonsensical legal terms that mean nothing to a child. My attorney made the world of courtrooms and judges understandable to a ten year old by distilling this foreign universe down to how it would actually, tangibly impact my sisters and me. In so doing she eased my fear at having my fate decided by a process I could not control. |
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> | Cynicism, and Transcendental Nonsense |
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< | And so perhaps the key to improving our legal system so that it is synonymous with justice, so that it truly does reflect my childhood conception of it, is for lawyers and judges to speak and write as if informing a child, as my attorney did for me so many years ago. After all, children do not revere meaningless legal principles – children seek functional answers. Their inquiries are outcome-based. A shift to this outcome-oriented functionalism in conjunction with a disregard for hollow, amoral legal principles is the only way I can see to bring my childhood perception of the law into accord with reality. A transformation of this type will make room for ethical appraisal of our legal system, and in turn, perhaps someday it will be guided by human values and conceptions of morality. Only then will our legal system actually be worthy of my childhood reverence for it. |
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> | My second perspective on the law – molded by my 1L experience – is more cynical. |
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< | A strong and very compelling draft. Well done. |
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> | As I struggled reading judicial opinions littered with legal jargon – words and rules that meant nothing to me a few months ago, I wondered why these words were regarded as meaningful, why the rules were regarded as self-evident truisms. |
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< | It seems to me that the most interesting direction in which to go
would be to consider what besides functionalism contributed to the
experience of the law which you urge with such strong emotional
conviction we should return to. |
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> | Cohen’s piece brought coherence to my nebulous thoughts: the magic ‘solving words’ of legal problems are hollow transcendental nonsense; the ‘rules’ are self-referential creations by the law; as such the legal arguments couched in these terms are inherently circular. |
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< | Your lawyer seems to have done an ideal job in communicating with
you, as well as in the proceedings, but she was fortunate in having
an unambiguous case. "The best interests of the children" had been
clearly expressed, and the confirmation of the rightness of your
express wishes was compellingly visible in the record of your
parents' parenting. |
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> | I became acutely aware that courts use transcendental nonsense to hide that, oftentimes, arbitrary factors and undisclosed agendas drive decision-making. |
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< | A legal system can explain as to a child what it is doing in such a
situation. But the complexities of human affairs are sometimes
greater, cases are harder, and the simplicity with which such a
standard can be implemented in a situation such as yours eludes the
wisest and most lucid of us at such times. How your ideas bear on
the full range of legal experience will have to be different than
their consequences in relation to your epiphany. Which by no means
implies that what you call cynicism is any more completely sufficient
than the child's clarity of emotional vision. |
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Reconciling my Perspectives
Upon realization that I have two drastically different perspectives on the law, I began wondering how studying a system I revered as a child could have diminished my reverence for it so rapidly.
I think that an explanation lies in the fact that when I was a child, my view of the law was not colored by transcendental nonsense. The contours of my childhood understanding of law were shaped by answers that my lawyer gave me when I asked her questions. She conveyed clearly to me how the judge would decide which parent my sisters and I would live with; she made the foreign universe of courtrooms understandable by describing what would transpire there and how it would tangibly impact me.
I see now that my attorney, who stripped her language of nonsensical legal terms that mean nothing to a child, was using Cohen’s functional approach.
The Implications of my Epiphany
This revelation made me reflect on how to improve our legal system so that it would reflect my childhood conceptions. I posited that the answer was for lawyers and judges to speak and write as if informing a child, as my attorney did for me so many years ago. After all, children do not revere meaningless legal principles – children make outcome-based inquiries and seek functional answers. A shift to this outcome-oriented functionalism was the only way I could see to reconcile the law with my childhood admiration for it.
While I believe there is merit to my original conclusion, Professor Moglen illuminated the fact that my lawyer was able to convey the workings of the law in a way that carried meaning for a ten-year-old in part because my case was unambiguous: the ‘rightness’ of my wishes was corroborated by the record of my parents’ conduct.
So I sought to explore the application of my epiphany to the full range of legal experiences, to cases involving more complex human affairs, where right and wrong aren’t immediately discernable from the record. On further reflection, I have come to understand that in practice oftentimes it simply won’t be possible to implement functionalism in a manner understandable to a child, as my lawyer was able to do for me.
However, I do still fundamentally believe in the principle underpinning my initial conclusion, if not its practical application. I still believe that transformation to a functional approach to law is key to making room for ethical appraisal of the legal system. Thus, while speaking and writing as though to a child may not always be possible, perhaps what is more important is simply for judges and lawyers to replace the fictions of traditional jurisprudence with honesty in their spoken and written word.
Such honesty could form the starting point for functional analysis, as we would have a more realistic conception of ‘law’, as defined by Justice Holmes in The Path of the Law: “prophecies of what the courts will do in fact”. Perhaps such functionalism will in turn eradicate the use of amoral legal principles and open the door to a legal system informed by human values and conceptions of morality. It is transformation of this kind that would truly render the law worthy of my childhood reverence for it.
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-- CourtneyDoak - 15 May 2012 |