Coming to Terms with the Subjectivity of the Law

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.

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.

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?

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.

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.

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.

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.