| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | American Repression and its Effect on our Legal System | >
> | Repression and its Effect on the American Legal System | | |
Army officer Al Lorentz’s first of four main reasons for “why we can’t win” in Iraq is that there was “a refusal [by Americans] to deal in reality.” Lorentz was speaking of the effects of political repression saying “we are in a guerilla war, but because of politics, we… must label the increasingly effective guerilla forces arrayed against us as ‘terrorists, criminals, and dead-enders.’” (Lorenz, Al “Why We Can’t Win” Lew Rockwell September 20: 2004 lewrockwell.com/orig5/lorentz1.html (February, 22 2009).) Americans’ repression also affects us economically. In Frank Rich’s New York Times’ Article “What We Don’t Know Will Hurt Us” he argues that even though “the cruel ambush of 9/11 supposedly slapp[ed] us into reality…one of our most persistent cultural tics of the early 21st century is Americans’ reluctance to absorb…bad news” and that this “denial won’t fix the economy any more than it won the war in Iraq.” (New York Times Vol. CLVIII..NO 54,594 (February 22, 2009)). What, then, is repression? and how does it affect other areas of American policy, specifically our legal system?” | |
<
< | Repression is defined by dictionary.com as “the rejection from consciousness of painful or disagreeable ideas, memories, feelings, or impulses.” I learned its true meaning, however, when I left the U.S.. Upon arriving in Spain, I asked a Spaniard the typical American question: “What do Americans look like to Europeans?” Instead of the typical “you wear white sox with sandals” answer, he said “You are naïve. The truth is right there in front of you, but you won’t see it.” I was angry at first, because he had begun to make the wall of denial I had built crumble around me. But as weeks passed and the “Spanish candidness” began to wear on me, my wall fell. I began to see what was in front of me, and I began to see what most Americans do not. We are afraid of dealing with what things truly are. We fear this not only in politics and economics but in all aspects of our lives: in love, in friendship, in sex, in daily interaction, in our social hierarchy, and even in the sector of America where they say the Truth is found; our legal system. | >
> | Repression has many meanings, but the particular repression I wish to discuss is that popularized by Sigmund Freud and defined by the Oxford English Dictionary as: “the action, process, or result of suppressing into the unconsciousness or keeping out of the conscious mind unacceptable memories or desires.” ("repression, n.2" The Oxford English Dictionary. 2nd ed Volume XIII Clarendon Press (1989)). I do not argue that we are repressing sexual desire or unwanted memories, rather I argue that we repress our unconscious recognition of the truth. Having been away from the United States for over 2 years, I began to interpret American society from another culture rather than observe it from within. (Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, Inc., Publishers 1973). From this perspective, I saw that generally, as Americans, we are afraid of dealing with what things truly are. We fear this not only in politics and economics but in all aspects of our lives: in love, in friendship, in sex, in daily interaction, in our social hierarchy, and even in the sector of America where they say the Truth is found; our legal system. | | | | |
<
< | There are three important ways in which the American legal system is affected by our repression. Firstly, because we don’t want to face the truth we believe in logic, magic, and nonsense. Secondly, the fact that we don’t want a “real” connection in our lives means that lawyers don’t interact with clients in the most effective way. And thirdly, because lawyers, like most Americans, deny their role in the bigger system around them, they often work to keep the “capitalist creed” alive instead of doing what needs to be done. | >
> | There are three important ways in which the American legal system is affected by our repression. Firstly, we fail to see that judges decide cases based on nonsense and “magic” because we wish to believe there is logic behind the results. Secondly, many lawyers do not want to face the difficult reality of many people’s situations and therefore a large class of people is left without proper representation. And thirdly, many lawyers repress recognition of their role in the capitalist system around them and therefore don’t notice where their skills could be put to better use. | | | | |
<
< | Oliver Wendell Holmes defines law in “The Path of Law” as “what the courts will do in fact” (P.3) and what the courts will do, is dependent on various factors such as unconscious judgments, tradition, and other human limitations. Similarly, according to Felix S. Cohen in “Transcendental Nonsense and the Functional Approach,” we are taught in law school that “transcendental nonsense” and magic words are the actual “logic” that the court uses. However, what they really are is a mask covering up why judges really do what they do. Why do Americans allow this? Jerome Frank argues that it is because people are uncomfortable with uncertainty and therefore prefer magic (“Modern Legal Magic” Courts on Trial Princeton University Press, 1973.) In other words we are afraid of the truth or, “repressed” | >
> | Oliver Wendell Holmes defines law in “The Path of Law” as “what the courts will do in fact” (P.3) and suggests that what the courts will do, depends on various factors such as unconscious judgments, tradition, and other human limitations. Similarly, Felix S. Cohen argues in “Transcendental Nonsense and the Functional Approach,” that we are taught in law school that “transcendental nonsense” and magic words are the actual “logic” of the court. Jerome Frank argues that we believe this because we are uncomfortable with uncertainty and therefore prefer magic (“Modern Legal Magic” Courts on Trial Princeton University Press, 1973.) This repression however, makes us unable to predict “what the courts will do in fact,” and in turn makes us less likely to succeed for our clients. | | | | |
<
< | We are not only fearful of the truth, we are fearful of true connection. This is the reason that lawyers “swindle and sell” to their clients instead of dealing with what the client really needs. Arthur Leff argues that we allow ourselves to be swindled and sold to because we actually want a feeling of “human connection.” However, in some situations our fear of connection is very real. When shopping, for example, we choose to use a machine instead of speaking with a cashier. It seems that what we want is a “false human connection.” When we are being swindled we sense that the connection being created is not real. When we have the chance to make a “real” connection when not being swindled, we run. What we are afraid of then, is the reality that is in front of us. | >
> | Acknowledging the truth would mean we would have to face the dire situation that many people needing legal representation are facing, and therefore we repress recognition of them. C. Oliver Robinson is an exception to the rule. He boasts being able to chose his own clients, and he choses to defend people in grave legal situations that others ignore. In Lawyerland: Robinson’s Metamorphasis it seems as if Robinson recognizes the unfortunate effects of denying this class of people legal representation when he fantasizes about a situation in which lawyers are forced to face its effects. After mentioning that the number of prisoners is much higher than lawyers in the country he suggests that “lawyer becom[ing] prisoner, prisoner [becoming] lawyer… [is] no more than a form of exacting justice.” However, because lawyers do NOT have to be the “prisoner” or recognize what the “prisoner” faces, a large number of people do not have proper legal representation. | | | | |
<
< | We are, however, connected in a way that most of us cannot see. “Men become bound by loyalties and enthusiasms to existing organizations. If they are successful in…these organizations, they come to regard them as the ultimate in spiritual and moral perfection.” (Arnold, Thurman. The Folklore of Capitalism Beard Books (1937)). In America our creed is “capitalism.” This affects our legal system because lawyers too, are the men that Arnold speaks of. Because “capitalism” has made them winners and they are afraid to face the truth, they refuse to recognize even that it is a creed. Not all lawyers are blind to this Folklore. C. Oliver Robinson is an example. Robinson, in Lawrence Joseph’s Lawyerland, expresses his discontent at “how little anyone who isn’t a lawyer really knows about what comes down” (p.14). He recognizes what is going on and isn’t afraid to face the injustice of the legal system.
How then can we be more like Robinson and less like “an American”? First we must be aware of the consequences our repression has had on the legal system. It has made us believe in magic and nonsense and ignore what is really behind judges’ decisions, it has made lawyering less about working with people and more about “swindling and selling,” and it has kept lawyers ignorant of the organizations within which they work. Being slapped “back into reality” hasn’t worked, but maybe by seeing the consequences of our repression, little by little, people’s wall’s will begin to crumble and they will see the reality in front of them.
- A slight acquaintance with Spanish history suggests that repression (of whichever kind among the several that are confuted in the course of this essay) is not entirely unknown there. Your experience might be denominated "away" more accurately, I think, than "away amidst Spanish candor." So one aspect of US-American experience, monolingual insularity, might be a clearer conceptual guide than repression to the nature of the national difficulty in seeing ourselves as others see us.
- You deal here with the mechanism of repression on several levels, some more metaphorical than others. Repression of cognitive dissonance, repression of trauma, and other intrapsychic mechanisms are conflated with social phenomena that may be structurally similar in some respects but that must depend on forms of social communication in addition to the processes that distort the cognitive stream or access to memory within a single mind. A little more selective focus on the particular repression you are actually interested in, and the particular idea about that form of repression you want to elucidate, will make an immense difference in the effectiveness of the essay.
| | | \ No newline at end of file | |
>
> | Simmilarlly, because “men become bound by loyalties and enthusiasms to existing organizations [and] if they are successful in…these organizations, they come to regard them as the ultimate in spiritual and moral perfection” lawyers tend to repress where their skills could best be put to use. (Arnold, Thurman. The Folklore of Capitalism Beard Books (1937)). Many lawyers are content working to continue the organizations of wealth that have developed here, and are, as Professor Moglen states, “pawning their law degrees.” Two main results have come from this: new organizations and ways of practicing law have not been developed, and many lawyers are unhappy in their jobs. As the world changes we need to progress in the types of legal representation we offer. If we face the truth of what we want instead of simply following the beaten path ahead of us, we can build new organizations, become more satisfied, and in turn improve our legal system.
Culture, like law, is constantly metamorphosing. We therefore can make a positive change on our legal system by changing our cultural tendency to repress. If we don’t we will be stuck in a system in which we are unable to recognize how judges make their decisions or predict how a judge will decide, huge numbers of people will be without proper legal representation, and we all will be working for a system that doesn’t progress and at the same time makes us unhappy. Progression can happen. It must start with recognition. | | | \ No newline at end of file |
|