| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Transcendental Nonsense Is Useful | >
> | What the Realists Are Missing | | | | |
<
< | -- By JessicaCohen - 22 Feb 2010 | >
> | -- By JessicaCohen - 25 May 2010 | | | | |
<
< | Legal Realism's Deficit | >
> | Arnold’s Deficit | | |
| | |
| |
<
< | | | | | |
<
< | 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."
However, we must to know the social values underlying the decision in order to decide 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.
The "social values at stake" often 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. I would argue that these social values are animated by our individual and collective understandings of transcendentalist nonsensical concepts, however fluffy or devoid of meaning they may seem. 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 may well be 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." | >
> | As American society underwent a radical shift in the time of the New Deal, American thinkers like Thurman Arnold sought to provide descriptive explanations of what was going on. Something was different in America, it seemed, but the sea changes must have been connected to (or at least similar to) social movements. Arnold provides a coolly rational account for why our society - with its organizations big (the national government) and small (a rotary organization) - works the way that it does (no small task). Yet his work adopts an intensely professorial tone: he has the answers; this is the way that things are. His work seeks to simplify and elicit “aha moments” and feelings in his reader. | | | | |
>
> | In Symbols of Government, Arnold tried to explain how organizations – to him, the foundations of our society - stick together. He writes that the culture of “common values” in every organization creates an atmosphere in which ostracism of those with divergent values is tolerated, even encouraged. These organizations, he says, are bigger than the individuals comprising them: they are built to continue rather than change. In Arnold’s estimation, political animals (us) might as well be wind-up toys. In the vein of other legal realists like him, Arnold explains step-by-step how institutional creeds and mythologies lead to truisms organization members do not even think to challenge, as they are unable to. He speaks of the “folklore of 1937” in this way: the old myths and conventional wisdom about what government is or should be caused a great deal of backlash against New Deal thinking.
Yet as Howard Zinn points out, Arnold focuses on method to a fault. “He was so intent on sweeping away old debris, that he became obsessed, ironically, with a failure of his own in which the idea of debris-clearing crowed out the concept of what he wanted to plant in the cleared area,” says Zinn. In other words, Arnold’s work lacks some sort of overall vision to which we can turn. This is a shame, if we take somewhat for granted his unique and revelatory ideas on how organizations cohere and move from generation to generation. | | | Bourne and Reality | |
<
< | Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, who came out in public support of the war because it promoted democracy. In other words, the ends (i.e. freedom, liberty over tyranny) would be good. In their support, however, they lost sight of the fact that war itself - and the means employed during war - is always wrong. | >
> | Randolph Bourne provide some answers, or at least a foil to Arnold, in his “Twilight of Idols." Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, publicly supported the war because it would ultimately promote democracy. In other words, the ends waiting for them after the Great War (i.e. freedom, liberty over tyranny) would excuse the means. In their support, however, the realists lost sight of the fact that war itself - and the means employed during war – were destructive and evil. | | | | |
<
< | Bourne’s critique, however, is ultimately about much more than World War I. Bourne explains that pragmatists have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a sense of optimism and control. The pragmatists he criticized were not all legal realists - many of them were not even lawyers - but the philosophy underpinning their attachment to real-world outcomes is quite similar. Bourne would say that it is easy to tell someone that all they have to do in order to effect a change is to first abandon pretense and formal constructions, and then do it. Individuals who heed Cohen’s call to use social science techniques to understand the legal world cannot solve our greatest problems with a few punches into a calculator. But Cohen's view must be supplemented Bourne’s, who says that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | >
> | Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a dangerous sense of optimism and control. An emphasis on method prevents the thinkers from determining, in Zinn’s words, what should be “planted.” Bourne writes that who that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | | | | |
<
< | If we, as advocates, are to simply become a predictor of social forces, we may also end up like Dewey and his followers, who in Bourne’s words were, in the end, “vague” about their long-term goals for American society. Understanding how things function is only part of the solution. We need to start with ultimate vision and work backwards, says Bourne. If you want to be in "radiant cooperation with reality," he says, then your success is "likely to be just that and no more...you never transcend anything." An individual who relies on statistics and other science-influenced tools is prone to missing the bigger picture. | >
> | (While the reference to Niestzche’s “Twilight of the Idols” is clear, it is less so what Bourne attempted to evoke. Was it that men do in fact have free will to shape their destiny, contrary to Arnold’s view of organizational actors? The irony here is that both Nietzsche and Bourne were romantics in a way, but that’s neither here nor there.) | | | | |
<
< | The individuals we have learned about in class, including MLK, John Brown, and the fictional Robinson might be said to have been pragmatists. After all, they each saw a social problem and discerned how to solve it on the ground. Along with our decision-makers Holmes and Cohen, each of them was absolutely concerned with “social policy,” which Cohen says should be the “gravitational field that gives weight to any rule or precedent.” Yet each of these figures no doubt believed in “justice.” Perhaps the cynical Robinson would never muttered the word in a courtroom, but the concept, however fuzzy or “meaningless” it might be, certainly informed his work. Each of these figures used formalistic concepts to transcend what was happening on the ground. | >
> | Critics of Bourne may write him off as a hapless romantic who is somehow denying the realities of life. To be fair, he points to the "malcontents" as leading the way to what he wants but doesn't quite how us how they will get there. However, his plea should be taken seriously in thinking about the New Deal and today. He writes: “We are in the war because an American Government practiced a philosophy of adjustment, and an instrumentalism for minor ends, instead of creating new values and setting at once a large standard to which the nations might repair.” If we are simply going to discuss the way things work, we end up like Dewey and his followers, Arnold too, who were “vague” about their long-term goals for American society. Understanding how society and its organizations function gets us only half-way there. I find extremely compelling Bourne's argument that we must start with our final vision and work backwards. If you want to be in "radiant cooperation with reality," he says, then your success is "likely to be just that and no more...you never transcend anything." | | | | |
<
< | 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.
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!
_1) is Arnold a cynic?
2) if yes, can i be a cynic (i.e. recognize that institutions are held together by unconscious ideologies from generation to generation) and a romantic?
3) Obama -->
4) excessively pragmatic/relationship to new deal and arnold. symbols (symbols of govt) from psychology other areas underpin institutions. how to relate that type of big govt move/institutions w/ romantic rightstalk/obama? | | | _
\ No newline at end of file |
|