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JudicialDecisionsandSocialConsequences 3 - 03 Feb 2008 - Main.TheodoreSmith
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While on the whole I enjoyed Cohen's piece on Transcendental Nonsense and the Functional Approach, I can't help but take issue with his conception of judicial decisions. As I understood him, Cohen is advocating for a conception that sees judicial decisions as "social events," rather than as discrete, unrelated occurrences that are borne of "judicial bellyaches." Part of seeing judicial decisions as "social events," Cohen writes, is to recognize that they are "a product of social determinants and an index of social consequences." While I agree that judicial decisions are a product of a social context, I'm more skeptical that judicial decisions actually produce social consequences. In fact, for several reasons, I often think that judicial decisions don't really do much at all in the way of imposing "forces upon the future." For one, I think that judges and the judicial branch often lack the power to enforce their decisions. The judicial branch, to a large extent, relies on the other branches of government and the lower courts to implement and adhere to their decisions. Because judges lack budgetary power and a prosecutory power, many of their decisions wind up being just symbolic proclamations that are only effective if the other branches respect them. Secondly, often judicial decisions are not afforded much attention in the media. Thus, most of the public is completely unaware of the most recent judicial pronouncements, regardless of how relevant or important the issue in dispute may be. | | |
-- BarbPitman - 02 Feb 2008 | |
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I think I see what you are saying, but are you maybe stating the point too strongly? Very few events are "direct" causes of social change. One could argue that a dictators decree in an authoritarian system is only effective to the degree that it is interpreted by the people and groups that form the system, yet it probably does have social consequence. High court decisions clearly have some social consequence (though indirect), and I am not sure why it would be "more pragmatic" to view their capacity for change as centered on the microlevel... Don't we want to be aware that judicial decisions are influencing society, albeit indirectly?
My understanding of Cohen's point was that judicial decisions are nexuses of social force. They are not independent events that shape society, nor are they effectless endpoints of social forces.
To invoke the overused metaphor of the human body, the human endocrine (hormone) system is a good example of a feedback device that is, in itself, neither a end nor a beginning. The release of a hormone has no "direct" effect, and is the result of a vast web of physiological interactions. Although it is extraordinarily complex, it seems strange to argue that we should only look at hormone regulation in a local and limited context, when clearly each "hormonal event" is the result and cause of changes throughout the body.
-- TheodoreSmith - 03 Feb 2008 | | | |
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