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.