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JessicaCohenFirstPaper 12 - 29 Mar 2010 - Main.JessicaCohen
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Cohen, a legal realist, rails against concepts without meaning because they are devoid of experience. Contracts, “due process,” “police power,” title: each of these have no real-life value. Therefore, he says, we must resort to looking at how like cases are decided and act accordingly. Cohen writes, "...I think that creative legal thought will more and more look behind the traditionally accepted principles of 'justice' and reason' to appraise in ethical terms the social values at stake in any choice between two precedents."
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< | This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed. And often, the "social values at stake" amount to traditionally accepted principles of justice. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. And often, these social values are animated by our collective understandings of transcendentalist nonsensical concepts, however fluffy or devoid of meaning they may seem. I wish to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, often are (and should be) employed by successful advocates. A touch of “transcendentalism,” I think, is useful - maybe even indispensable. | >
> | This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed. And often, the "social values at stake" amount to traditionally accepted principles of justice. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. And often, these social values are animated by our individual and collective understandings of transcendentalist nonsensical concepts, however fluffy or devoid of meaning they may seem. I wish to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, often are (and should be) employed by successful advocates. These concepts are often the "social values" of which Cohen speaks. A touch of “transcendentalism,” I think, is useful - maybe even indispensable. | | | I do not purport to argue that Cohen was without morals or goals. Surely many moral and ethics-minded realists have used employed his strategy of weighing social forces and studying the consequences of events. However, it seems that his account is missing a bit of the spirit – perhaps should I say irrationality – that one should employ when lawyering. Lawyers enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events. They are also heuristics: to lay-people and other lawyers, using a term of "transcendental nonsense" amounts to a shortcut that most people understand. Our in-class discussion of real life consequences and legal realism reminded me of Randolph Bourne's “Twilight of Idols." |
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