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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 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. | >
> | 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.
It's not circular, it's spiral, in the way that all social process is spiral: our engagement with the future—which we call "policy," "planning," or even "law"—emerges out of our experience of the present relentlessly conditioned by the experience of the past.
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." | | | Many of our most successful (some beloved, others not) advocates, judges, and politicians continue to appeal to "transcendental nonsense." The spirit and fundamental rights often alluded to in judicial opinions, whether full of formal concepts or not, are often what move us. | |
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> | I think this invocation
of Randolph Bourne is really fascinating, and I'm glad to find out
that there's someone who's still as moved by his writing as I was
myself when I was an undergraduate. With his cape, his limp, and the
amazing swell of his prose, he's the last Romantic in America, and if
guys had been my thing I'd have loved him at once. With time, it
wears off.
I think forcing him into the ring with Felix Cohen is a waste on both
sides: you have to distort Cohen pretty seriously to make him into an
antagonist for Bourne; in fact, one suspects he's argued on Bourne's
side against his father Morris from time to time. Cohen too believes
you should sing to judges whatever makes them decide in your favor,
after all, and if having grand visions will do it, he's all for
vision. I think the real intellectual pugilism to want a ringside
seat for is the dust up of Bourne with Thurman Arnold. Between those
two there's not only a series of the true American dichotomies
(West/East, Head/Heart, etc.) but also a real issue about how we
think socially. Bourne takes the grander visions of social policy
and social action seriously, while Arnold is determined to see them
as the mere chin music to which, as unconscious social animals in the
termite mound, we dance in regimented time. Now there's a fight
between boys! | | | \ No newline at end of file |
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