Rebirth of an Ideal

First, I became insecure of my ability to succeed as a law student and as a lawyer. The formal system, with its specific goal of identifying the rules of legal opinions, made me fear that I would not be able to follow the logic and gain a deep enough understanding of the opinions I was assigned to read. This insecurity became a self-fulfilling prophecy. I did not trust my instincts as a law student who could solve the “equation” and fully understand the reasoning or “legal talk” used by judges, and as a result, I did not ultimately achieve the academic success I was seeking.

Moreover, as I became obsessed with conquering the formal aspects of the law, I began to view all of the law and law school in these formal terms, and consequently lost a clear understanding of my original goal. I could no longer see how the law could make change for people because I was caught up in formal analytical exercises that reduced the legal process to identifying universal rules. I began to feel that the law was not a mechanism for helping people, but an organized way of minimizing societal troubles. This conclusion was not only enforced by the work done in the classroom but by the institutional focus of law school in general. The focus has not been on creating “lawyers as advocates,” but more so lawyers as “academics,” “profit-maximizers” or “people in power.” The path for achieving my original goal began to fade; it seemed far-fetched and misguided.

Goal back into focus

Detached from my original reason for going to law school, I geared up for the completion of an institutional requirement – summer internship. Though mentally exhausted, I started my summer internship soon after the end of finals. I went to work for Catholic Charities Immigration and Refugee Services. Because the organization is a non-profit, I was given instant responsibility; entire asylum cases were put into my hands, as well as all client interaction. It was finally the relational experience I had been seeking. It provided a tangible application of how the law can actually help people, and it revived and refocused my goal. I was able to use the formal legal principles and processes, so stressed in 1L, to achieve a real-life result: protecting someone from horrific persecution and possible torture.

Meditating on this revival, I feel that this internship saved the law for me and put the experience of law school into perspective. I now see the role of formal study and how the law can be practically used to achieve human, relational goals. The relief this provided me was immense, for it allowed me to get my head above water and regain the most important element to success in any career path: my confidence.

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But that change of words would be a change of concept, unless the words are being used arbitrarily, outside their normal denotations. The logic of the formalist and the factual determinations of the consequentialist are both independent of the standpoint of the observer, and are thus "objective" analytics. The two pairs of terms describe different axes, and the result of conflating them can be serious confusion.

But only to the extent that the Court agrees with you that its decision about justiciability is "in actuality" a "fairness" decision. That's not what the Court says, and I'm pretty sure it's not what Justice Scalia believes.

I doubt I fully understand the "microcosm" idea. The Court is making, I think you are saying, a decision which is "personal" to the Justices doing the deciding: they think a standard of "fairness" in drawing district lines is unmanageable, but another bunch of Justices might feel differently. This makes clear, for you, "the subjectivity upon which the legal system forms its opinions." So, is every decision that a different bunch of judges might make differently a "microcosm" of "subjective" decision? Or only such cases in which the decision turns on judges' views of "institutional competence," "administrability," or "the appropriate role of the courts"? Is "microcosm" a synonym for "example," or does it mean something more?

See, this is where the confusion gets hopeless. Formalist ways of legal thinking, that take the situational, personal elements out of the calculus of decision, are now "subjective," and are "clouding" the issues, which are about the actual people, the subjects, whose lives the decisions affect in ways the law does not acknowledge. The complaint is that the law is too subjective to be subjective enough. It would be better to use Cohen's terminology, or to pick some other terms that suit you for some other reason. Using "subjective" and "objective" in an idiosyncratic way is not a good choice.

One example that comes to mind is Cohen’s discussion of corporations and labor unions being considered legal “persons.” To describe them as “persons” twists the natural understanding of this word in a nonsensical way that works to “thingify” the word so that these corporations and labor unions can be sued, the true objective of the Court. This lack of transparency seemed to keep the focus off the “people” because it made the law about “supernatural concepts” used to facilitate objectives rather than the tangible rights at stake in a case. This flawed system seemed insurmountable; I resigned myself to accept the law for what it was- subjective and nonsensical at times and a weak form of social control.

These again are different ideas. Law is a weak form of social control not because it is "objective," "subjective," "formalist" or "realist," sensible or nonsensical. Law is a weak form of social control because the state is not the center of social cohesion: human sociality is older than the state by eons. The forces that most effectively tie human beings to one another, and to their social groups, are not the written regulations of state organizations, and the dispute-resolution processes that make use of them.

That legal personality is not the same as biological personality should be no surprise, and is hardly an invention of recent constitutional law. Corporations and other collective persons are ancient to the law, as a few moments with histories of the Roman law will show. There's no "nonsense" in a view of legal personality that includes artificial as well as natural persons, unless your inclination is to ignore the large number of collectivities that behave juridically in any society, pretending instead that there are only individuals and the State, with nothing in between.

Formalism is now "objective" again, being contrasted with the "subjective" nature of realism. But Cohen's "ethical theory of value" is needed in order to determine which consequences in the real world are important to consider in setting rules and deciding disputes. The consequences themselves are objectively measurable. Cohen doesn't think there's no truth, only truths. He thinks that truth is determined in social processes, which is different. (You might think of William James' proposition that truth is "what the community of investigators is fated to agree about, in the long run." That's science, which is sure that it is "objective.") If anything, Cohen's "ethical theory of value" is unconvincing as a concept, because he believes ethics are objective: everybody's "Sunday School morality" he thinks is more or less the same.

I interpret this as bringing the human factor into legal analysis and this gives me great hope, because I feel capable of analyzing and understanding the law from this perspective. I am also hopeful because the law’s inability to achieve perfect objectivity creates a space that allows freedom to flourish; freedom is a consequence of the law being the weakest form of social control. Within that space I hope to work.

Here it seems to me that we're closer to solid ground. The distinction now seems to be between "formal" reasoning and "social" or "relational" reasoning, whatever "the human factor" denotes. You were afraid that if the law were like math or physics, or formal propositional logic, you wouldn't be good at it. But if the law is about interpreting and negotiating human social behavior, you could hack it.

So indeed, you're right to be confident. Human society is not held together by mathematics, or the rigid enforcement of inferences from rules. It is held together by table manners, religion, sexual possessiveness, familial love, envy, greed, persuasive rhetoric, and fashion, among other things. Law and justice are therefore human exercises, of which the stars and the fish are equally ignorant.

I think the route to improvement here is to worry less about Felix Cohen: his thinking is not so much the subject as the occasion of your thinking. Your real subject, I think, is the relief you gain from contemplating the humanity of the law, which is more congenial to how you think, and what you want to work with. Going beyond that point furthers your thinking, which is what we want to do, and presents, I think, the goal of the next revision.

Coming to Terms with the Subjectivity of the Law

Eben, I would like to continue to edit my paper.

My Search for Understanding of Legal Opinions

I came to law school to be become a knowledgeable and efficient instrument of change. Not necessarily grand social change, but certainly at least individual, client-based change. I idealized the power of the law (what the law could achieve for people), but feared that I was unworthy and incapable of deciphering it. Beginning law school was extremely daunting for many reasons, but in particular because I was afraid I would not be able to follow the logic and gain a deep enough understanding of the opinions I was assigned to read. Insecurity and fear of being embarrassed in class plagued my first semester. As I tried to move past these feelings, I began to search for the logic behind opinions in the hope that it would lead me to the promise land of competence, and then further to a place where I could have meaningful insight on the material.

“A Thing Is What It Does”

After reading and digesting Cohen, I have come to terms with an important concept: the legal system has created a network of rules, logic and terminology, which it uses to make decisions and justify those decisions, and that this process is only legitimized through itself. For Cohen this is a farce; “our legal system is filled with supernatural concepts... concepts which cannot be defined in terms of experience.” He uses the word “supernatural” to mean concepts that are unverifiable, and “experience” as concepts whose consequences are known; I would use the word subjective, meaning based on an individual's personal perspective, rather than on an independent, objective point of view, to describe this phenomena.

Cohen’s point came to life for me when reading Justice Scalia’s plurality opinion in Vieth v. Jubelirer. He held that gerrymandering claims present a non-justiciable question because the Court lacks the standards to resolve these claims. Fairness, he wrote, is not “judicially manageable.” This struck me as dubious because in actuality, the Court had already made a fairness determination in deciding not to decide (rightly or wrongly irrelevant), therefore the decision seemed to be a pretense based on “supernatural concepts” of judicial manageability. In broader terms, this decision was a microcosm that revealed the subjectivity upon which the legal system forms its opinions.

Increased Understanding

Cohen’s view that legal opinion is “supernatural” both furthered and complicated my understanding of the law. On one hand, I gained a deeper understanding because I was free to frame the legal issues in ways that made sense to me. It no longer seemed pedestrian to acknowledge non-doctrinal motivations behind decisions. There was no fear that I was tainting these decisions by politicizing them and thus lessening the “value” of the law in general as an impartial or pure process. On the other hand, in accepting Cohen’s viewpoint, I couldn’t help but feel a loss of the idealization I had previously felt, and I was forced to rework my sense of the “value” I thought the law provided to society.

My goals did not instantly seem to mesh with a legal system that does not say what it does; the level of subjectivity created a lack of transparency that kept the focus of the law off the people I hoped to work for and help. Subjectivity created a lack of transparency because the “supernatural concepts” behind legal opinions (transcendental nonsense) were clouding the objectives of the Court. One example that comes to mind is Cohen’s discussion of corporations and labor unions being considered legal “persons.” To describe them as “persons” twists the natural understanding of this word in a nonsensical way that works to “thingify” the word so that these corporations and labor unions can be sued, the true objective of the Court. This lack of transparency seemed to keep the focus off the “people” because it made the law about “supernatural concepts” used to facilitate objectives rather than the tangible rights at stake in a case. This flawed system seemed insurmountable; I resigned myself to accept the law for what it was- subjective and nonsensical at times and a weak form of social control.

The Law from a Slightly More Seasoned Point of View

Cohen frames the realist search for understanding of legal reasoning as attentiveness to the consequences of legal decisions, coupled with a critical theory of values. A critical theory of values looks at human desires and habits, and through this gains “real world” (how it affects people) applicability and importance. Thus the fact that the law is far from “objective” (perfectly equitable and impartial) is not devastating to the “value” of the law in general because the “value” should not be defined in terms that are so alienated from people. People are diminished through objectivity because the focus is on the self-substantiated logic (through its own system of rules and terminology) rather than on real life consequences.

I interpret this as brining the human factor into legal analysis and this gives me great hope, because I feel capable of analyzing and understanding the law from this perspective. I am also hopeful because the law’s inability to achieve perfect objectivity creates a space that allows freedom to flourish; freedom is a consequence of the law being the weakest form of social control. Within that space I hope to work.

Who supposes this?

In this case, impartiality is achieved through arbitrarily favoring certain terms over others; words such as “fairness” are treated with disdain and hold less validity than other words such as “non-justiciable.” Taboo terminology is therefore avoided to an inappropriate degree.

What is the appropriate degree for the avoidance of taboo terminology?

Despite the legal system’s claim to a superior methodology behind its decisions, it stumbles into the same pitfalls of subjectivity as any other personal opinion influenced by life experience. This does not necessarily mean that these legal decisions are not the “best,” when this word is taken to mean the most thoughtful, and/or thorough, and/or the most desirable for any number of particular reasons (education, political affiliation, experience… this list could go on), but it does mean that they are still subjective.

Why is "subjective" a word indicating a taboo to be avoided? What does it mean?

The next logical question is, if the legal system is still potentially the “best” body responsible for making these decisions, why does it matter if they subjective?

You didn't edit this sentence.

Would "all the little people below" be better off in a system in which judges were doing something different in a way you could specify (but haven't)? Why? How do you know?

That wasn't what I said. I said that a riot occurred in LA because a judge made a decision about venue on the basis of traffic. I said that a friend of mine who did police brutality litigation in Dallas said (jokingly) that the difference between LA and Dallas was fewer video cameras in Dallas. Now there are plenty of video cameras everywhere. On LA policing, under the direction of William Bratton—a man who knows a great deal about standing in front of video cameras—see ElviraKrasFirstPaper.

I'm not sure what this means.

Reflections on Transcendental Nonsense – Coming to Terms with the Subjectivity of the Law

-- By JuliaCatania - 15 Feb 2012

I have never liked the word “transcendent.” It has always struck me as vague and ineffectual, attempting to suggest something beyond a natural state of being, but inevitably ending up in a place that is, in and of its self, meaningless. Merriam-Webster defines transcendent as “being beyond comprehension”; therefore trying to comprehend the meaning of the word in any given context is inherently a leap of faith, which in my mind strips the word of any real impact. The law, and more specifically judicial opinion, concerns me in the same way. When I began law school, everyone told me that reading judicial opinions is like reading another language - it just takes some getting used to, and eventually you will understand what the judges are saying and most importantly why they are saying it. The problem is that even five months in, I am not sure that I am coming to a better understanding of the logic and reasons behind particular judicial opinions (though I submit to a greater process). Frankly, I am not sure it is even possible within the current framework of legal reasoning. After reading and digesting Cohen, I have come to terms with an important concept: that the legal system has created a network of rules, logic and terminology, which it uses to make decisions and justify those decisions, and that this process is corrupt because it is only justified through itself, within the system.

The inherent problem is that when courts make decisions, they often do so by citing other court-made ideas as reasons for their conclusions. One example that comes to mind is Cohen’s discussion of corporations and labor unions being considered legal “persons.” To describe them as “persons” twists the natural understanding of this word in a nonsensical way that works to “thingify” the word so that these corporations and labor unions can be sued. Another example is the idea brought forth in Justice Scalia’s plurality opinion in Vieth v. Jubelirer that “fairness” is not “judicially manageable,” when in actuality, the court has already made a fairness determination in deciding not to decide (rightly or wrongly irrelevant), but uses the pretense that there is no standard for the court to use.

The incentive for the court to use circular and baseless reasoning is, supposedly, an attempt at impartiality. In this case, impartiality is achieved through arbitrarily favoring certain terms over others; words such as “fairness” are treated with disdain and hold less validity than other words such as “non-justiciable.” Taboo terminology is therefore avoided to an inappropriate degree. Despite the legal system’s claim to a superior methodology behind its decisions, it stumbles into the same pitfalls of subjectivity as any other personal opinion influenced by life experience. This does not necessarily mean that these legal decisions are not the “best,” when this word is taken to mean the most thoughtful, and/or thorough, and/or the most desirable for any number of particular reasons (education, political affiliation, experience… this list could go on), but it does mean that they are still subjective.

The next logical question is, if the legal system is still potentially the “best” body responsible for making these decisions, why does it matter if they subjective? The answer is, perhaps there is some value in simply recognizing this fact and calling it like it is. At the very least, this might provide more self-evaluation in the legal system. There would be less conviction in the notion that we have somehow “transcended” subjectivity and entered a higher plane of evaluating what is right and wrong, or more accurately, what is legal and not legal. Because even though the legal system is the weakest form of social control, judicial opinions still have a very real and profound effect on people’s lives. And the “people,” as was reminded in class, are those for whom justice does not spare. The danger is that on the metaphysical plane of nonsense where judges make their decisions and the legal system supplies the theoretical backing, all the little people below become dangerously insignificant.

As members of a society, people should be able to question the validity of court made law without the pretense that it is impartial, but most importantly without the pretense that it is above common notions of right or wrong. It seems that a more critical and fluid system would eventually produce “better” law and that it would inevitably be more reflective of a larger truth, albeit one that is inescapably subjective. As Professor Moglen recounted to us in class, the video camera is why L.A. burned; once the people had evidence of police brutality, the jig was up, and change was ushered in. The more we understand without legal nonsense coloring reality, the more we can move towards a more perfect subjective truth.

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