Hi John,

Regarding the idea of transparency and public belief being manipulated by elites, this quote by Nobel-Prize winning economist Paul Samuelson came to mind:

"I think there is an element of truth in the view that the superstition that the budget must be balanced at all times [is necessary]. Once it is debunked [that] takes away one of the bulwarks that every society must have against expenditure out of control. There must be discipline in the allocation of resources or you will have anarchistic chaos and inefficiency. And one of the functions of old fashioned religion was to scare people by sometimes what might be regarded as myths into behaving in a way that the long-run civilized life requires. We have taken away a belief in the intrinsic necessity of balancing the budget if not in every year, [then] in every short period of time. If Prime Minister Gladstone came back to life he would say “uh, oh what you have done” and James Buchanan argues in those terms. I have to say that I see merit in that view.”

I think this speaks directly to your final conclusion, that: "On some level, then, the perceived scientific quality of the law is a form of social control that has more power than the law itself" - so-called "budget sustainability" and "national debt" concerns have led us to collectively accommodate huge amounts of suffering and injustice in the name of economic "laws" that would otherwise be completely unacceptable. The current economic crisis is, I think, as good an example as you'll find of how refusing to engage with realism through social self-deception can cause harm far greater than any temporary peace of mind that it creates.

Much improved. The central idea, if I correctly understand, is that by asserting the "scientific" quality of law, those "in the know" (by which I think you mean the ruling class) unconsciously "instill their own social values into the legal system and retain control." This seems to me possible.

Another possibility is that the ruling class always, consciously, instills its preferred values and outcomes in the legal system. One of the ways it prevents that from being fully visible to those whom it does not help is by talking up "law as a science" or formalism. Results the law arrives at are "neutral," according to the ideology of the system, so dispute about the class nature of justice is moved onto a "scientific" plane.

How should we decide among these possibilities, and the others that are also posed, once, as you are doing, we treat the idea of "law as science" as ideology, rather than fact?

Transparency in the Law

As soon as the question was asked, I thought it was a very interesting one, and worth thinking about. In fact, we have had similar discussions in a couple of my other classes in the last six months, about how faith in the court system on the part of the people is vitally important, and how courts must sometimes make policy decisions specifically to retain that faith. So I was very interested in hearing the professor’s response, and was thus somewhat surprised to see the consideration basically dismissed outright, almost with a sneer. And Eben was right. Why would it even cross our minds as a consideration that we should remain ignorant about how the world really works (and how it should work) just for the sake of tricking the population, and indeed tricking ourselves, into some sort of static compliance? Too strong of a focus on order and on some understanding of national unity as opposed to on really interacting with the truth and with reality results in a failure to progress and a failure to better ourselves and our system.

Challenging the scientific quality of the law

Why make an ugly neologism in order to put scare quotes around it? For that purpose, the sign "science" or "scientific quality" would do.

This sentence was obviously unedited. The missing word wasn't found, and the extra words weren't removed. That means the rest of the graf wasn't edited either, which means the piece wasn't edited.

One of my colleagues asked a question that was something along the lines of pondering whether maybe there would be societal unrest if the law was less opaque, that maybe exposure to concepts like legal realism would have a negative effect on morale and faith in the government (very much paraphrasing here).

Why is the essay's reader best brought into the idea you have to present by a slack and "very much paraphrased" version of an argument you could have presented tautly in half a sentence? We're 160 words into your draft and we haven't heard anything about your idea.

But that's not the same argument being dismissed. Another argument is being dismissed there, for other reasons. Whether I was sneering can be left to the tape. I was objecting that such an argument is incompatible with a theory of democratic self-government by informed citizens—a theory we tend to call "Jeffersonian" when we're not working actively against it. Your subsequent sentences reach towards that argument, which you claim to agree with, before you joly off again in the direction of a different argument, given by Holmes, in which he more thoroughly believes.

How can you be ready for a conclusion? We still don't know what your idea is, nor have we seen any development or argument. As recently as 150 words ago, at the beginning of a long graf with little content, you were still asking rhetorical questions about ideas that aren't yours.

So your conclusion begins by summarizing yet another idea that isn't yours in a single 100-word run-on sentence?

And in the end your conclusion is "maybe" something? Your point is that perhaps there is "some sort of" an "effect" in which power embeds its values in the legal system?

This draft seems to me the first sketchy, unedited, notes made on the pad on the way to identifying the theme of an essay. From this and other similar free-writing, the theme would emerge, as it would otherwise emerge from staring out the window, taking a walk, or whatever is the method by which you best do your thinking. Then you have an idea of your own you can put down sharply, in a sentence or two. You develop an outline, starting from the brief exposition of your idea, passing through the efforts necessary to explain it in full to the reader, including summoning the materials in others' writings that will help to substantiate your idea and put it in context. This is when your reading and research are done. Your outline is then subjected to rigorous editorial assessment. Every link between items is tested for weight-bearing, and each proposition is itself considered in a skeptical light: what is the strongest thing that can be said against it, and how might that objection be met or avoided? Then a draft is made which "writes out" the outline. A conclusion is drafted that shows clearly what you have gained, and offers the reader points of departure for new lines of thought branching out from what you've made good. That draft is then edited for clarity and economy. At the end, you have an essay draft that does justice to the energy of your thought.

Challenging the "scientificism" of the law

-- By JohnBarker - 16 Feb 2012

Introduction

As soon as the question was asked, I thought it was a very interesting one, and worth thinking about. In fact, we have had similar discussions in at least a couple of my other classes in the last six months, about how faith in the court system on the part of the people is vitally important, and how courts must sometimes make policy decisions specifically to retain the faith of the population. So I was very interested in hearing the professor’s response, and was thus somewhat surprised to see the consideration basically dismissed outright, almost with a sneer. And Eben was right. Why would it even cross our minds as a consideration that we should remain ignorant about how the world really works (and how the world should work) just for the sake of tricking the population, and indeed tricking ourselves, into some sort of static compliance? Too strong of a focus on order and on some understanding of national unity as opposed to on really interacting with the truth and with reality results in a failure to progress and a failure to better ourselves and our system. As Holmes says, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Courts on Trial

But why do we keep coming back to these ideas involving the fallacies of our legal system? Why in general is it so difficult to really interact with that system and focus on understanding its theory, as well as on bettering that theory and its application? There are a lot of possible answers, and certainly the truth is that many of them in combination make people resistant to challenging the way we think about the world. Such an exercise would be difficult and highly theoretical, and then there is maybe some fear of the unknown and of what it means for our society and culture if the law doesn’t “mean” something logically. These are certainly on point; the second is a particularly strong and noteworthy factor, and connects in an interesting way to Robinson’s seeming paradox that some rapists are the worst people, and some are the kindest (things aren’t black-and-white).

Conclusion

But one possible factor that, potentially just for its newness to me, really stuck out as a consequence of Jerome Frank’s article comes at the end of his discussion on equating law and science. Some legal thinkers, so the argument goes, have striven for “scientific dispassionateness” which has resulted in “confus[ing] scientific objectivity with disinterest in values” and attempts to be completely removed from ethics; and precisely because law is not a science and ethical values are in reality pervasive in any legal thinking, such theorists have essentially selectively “buried” their own ethical assumptions within their supposedly logically coherent thoughts (216-17).

As much as this process might be unconscious, I believe it could have an effect on peoples’ reluctance to acknowledge the truth about the subjectivity and human element of the law or to think of ways to improve our understanding of the law. My point is that perhaps there is some sort of “digging in” effect, where those “in the know” are able to (again, unconsciously) instill their own social values into the legal system and retain control. So maybe individuals are keeping power and featuring their values prominently in the structure of our legal system by doing exactly what my colleague on the second day of class suggested. Maybe on some level the “scientificism” of the law is a form of social control that has more power than the law itself.

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