Law in Contemporary Society

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MichelleLuoFirstPaper 2 - 16 Apr 2012 - Main.EbenMoglen
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 This is probably one of the more desperate attempts I’ve made to produce some reflection of the world, but I didn’t purposely set out to make things up that may have no basis in reality. I fell into the Barbie paper by accident and the end result was shaky, but during the process, I did the best I could to make connections that made some sense. Maybe this focus on logic – this reaching for abstract relationships that existed only in my mind and not in the real world – is why the end result was bullshit.
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A beautiful story, well told and deeply understood. It remains only to say—and you should say it, your way—that this is precisely the experience that one's life as a lawyer ought never to be about. Though for far too many of the thousands of lawyers I've taught over the years, it most exactly and tragically is.

 

Cognitive Limitations

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What is bullshit? Let’s assume it’s something like transcendental nonsense – concepts that we can’t tie to any empirical fact, concepts that we artificially create through rationalization. After our discussion of Oliver Wendell Holmes’ “The Path of the Law” and Felix Cohen’s “Transcendental Nonsense,” I am more skeptical of how human beings can produce any reflection of the world that rises above bullshit. If, as Eben said, logic is a cognitive structure of human beings and if the only way we can think about the world is through logic, aren’t we trapped? If the universe isn’t capable of being thought about rationally, then even when we make conscious efforts to tie our ideas to what’s going on in the world, don’t we inevitably fail? How can we trust, or even evaluate, anything that we think or communicate when everything we take in is distorted by our cognitive limitations? Even when we consciously try not to bullshit, isn’t it inevitable that we will be making something up?
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What is bullshit? Let’s assume it’s something like transcendental nonsense – concepts that we can’t tie to any empirical fact, concepts that we artificially create through rationalization. After our discussion of Oliver Wendell Holmes’ “The Path of the Law” and Felix Cohen’s “Transcendental Nonsense,” I am more skeptical of how human beings can produce any reflection of the world that rises above bullshit.

As Harry Frankfurt shows in his classic book on the moral philosophy of bullshit, about which see JenniferDoxeyFirstPaper, we avoid bullshit by caring more about truth, the domain of what you call in your opening graf the "so real," than we care about presenting ourselves. We used to call this idea "Diogenes."

If you had said on that first day "I came here to write about sex, not about the Arctic, and you either have to let me write about sex or I'm leaving," that would not have been bullshit, and a great deal of subsequent bullshit would have been avoided. But you might have appeared to the other people present to be a sex maniac. The point of a human life that rises above bullshit is to free yourself from caring what "they" think. "Arctic Barbies" got you a trip to Canada, a great story, and a heap of bullshit. The other approach might have produced a trip somewhere nicer, an even greater story, and no bullshit. Who can tell? My bet is that the instructor would have produced bullshit in response to your challenge, and he wouldn't be dining off his bullshit anywhere right now.

If, as Eben said, logic is a cognitive structure of human beings and if the only way we can think about the world is through logic, aren’t we trapped?

I said Holmes said that. I don't think that, because I think that logic is a secondary process in the human mind, not a primary one. The primary processes are unconscious, and the way we think about the world in our unconscious is a very different way indeed. We are trapped by our unconscious patterns of thinking, indeed, until we bring them to consciousness and interpret them: that's the heart of the idea system we call "Freud."

If the universe isn’t capable of being thought about rationally, then even when we make conscious efforts to tie our ideas to what’s going on in the world, don’t we inevitably fail?

We fail if we only make conscious efforts to think logically, instead of conscious efforts to think fully, aware of our unconscious as well as conscious thinking, and the forms of knowing— relationship, empathy, engagement, intuition, what you will—that go beyond formal relations among ideas to actual relations among beings.

How can we trust, or even evaluate, anything that we think or communicate when everything we take in is distorted by our cognitive limitations?

By thinking and communicating about our cognitive limitations as well as the other subjects of our thought as we are thinking.

Even when we consciously try not to bullshit, isn’t it inevitable that we will be making something up?

Yes, because making things up is both how we remember and how we learn. Stories are how we understand reality. Memory is synthetic, rather than merely a system of fetching. But making things up is not bullshit. Everything true has been made up at some point. Bullshit is making things up that aren't true or false, but simply ways of representing ourselves as knowing.
 There’s also the problem of how we synthesize information. I’ve tried to internalize Eben’s rejection of our separation of time into past, present, and future. I can begin to understand the example of the guy standing on the beach, smelling the fire in the forest milliseconds after he sees it and looking at stars the way they were lightyears ago. But if I’m the guy standing on the beach, what am I supposed to do with that information? Do I understand the world better when I think nowness is a false conception? Am I thinking about the world more accurately? More truthfully? Am I experiencing it differently at all?
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Whether you are or not depends not on whether you think the thought I offered you, but rather on whether you can relate to other people differently by understanding them in a new light. The world in which they live is not the world in which we tend to picture them as living, and if we reunderstand their world, we can change the way we relate to them, which changes ours.
 

No Conclusion

It would be convenient to write a bullshit conclusion at this point so I can stop thinking. The truth is that I don’t know how to answer any of these questions yet and I don’t know where these ideas are going, so I won’t pretend to. I hope that others will add their thoughts.

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The next draft has a conclusion that isn't bullshit. The only question that matters now is whether you are ready to write it yet.
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MichelleLuoFirstPaper 1 - 13 Feb 2012 - Main.MichelleLuo
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How Do We Stop Bullshitting?

-- By MichelleLuo - 13 Feb 2012

How I’ve Bullshitted

On the first day of class, Eben said, “You have all been rewarded for bullshit.” This is so real.

There have been times when I’ve semi-consciously bullshitted and not only gotten away with it, but was heavily rewarded. My freshman year of college, I signed up for a writing elective called "Desire." I thought it was going to be about sex. On the first day of class, I learned that the full title of the course was “Desire of the Arctic Region.”

“So” my professor began, “I hope you have all chosen a topic related to the Arctic for your term-long research and writing project. Let’s begin with you” (me).

I had nothing. “Arctic…Barbies,” I said.

Luckily, Mattel had made three Arctic Barbies, and I spent the next ten weeks drawing tenuous links between “the design and marketing techniques” of these Barbies and “changing American perceptions of the Arctic.” I wound up submitting my paper to the 16th Inuit Studies Conference, the conference people liked it, and my school paid for a week-long trip in Canada for me to give a speech about my “findings” to a hundred Inuit Studies scholars.

The whole thing felt fraudulent to me. But I did do the research and I did write a 100-page paper and I couldn’t have given that speech if I didn’t at all believe in what I was saying, right? Yet when I explain this paper to people who ask about it – when I hear myself saying the ideas out loud – I feel embarrassed.

To illustrate how far I stretched logic and a priori conclusions, here is a synopsis of 20 pages of my paper: 1) In the 1970’s and 80’s, videos surfaced of commercial seal hunters clubbing seal pups to death. 2) Western animal rights advocates successfully campaigned to cease all seal hunting, but they were ignorant of the fact that Inuit hunters did not follow such inhumane practices. 3) The sealing bans destroyed the only sustainable economic option in Inuit communities. 4) In 1982, Mattel released Eskimo Barbie. 5) “Eskimo Barbie is a cultural artifact of a significant conflict between Inuit and Western viewpoints in modern history.” (an actual line from the paper)

This is probably one of the more desperate attempts I’ve made to produce some reflection of the world, but I didn’t purposely set out to make things up that may have no basis in reality. I fell into the Barbie paper by accident and the end result was shaky, but during the process, I did the best I could to make connections that made some sense. Maybe this focus on logic – this reaching for abstract relationships that existed only in my mind and not in the real world – is why the end result was bullshit.

Cognitive Limitations

What is bullshit? Let’s assume it’s something like transcendental nonsense – concepts that we can’t tie to any empirical fact, concepts that we artificially create through rationalization. After our discussion of Oliver Wendell Holmes’ “The Path of the Law” and Felix Cohen’s “Transcendental Nonsense,” I am more skeptical of how human beings can produce any reflection of the world that rises above bullshit. If, as Eben said, logic is a cognitive structure of human beings and if the only way we can think about the world is through logic, aren’t we trapped? If the universe isn’t capable of being thought about rationally, then even when we make conscious efforts to tie our ideas to what’s going on in the world, don’t we inevitably fail? How can we trust, or even evaluate, anything that we think or communicate when everything we take in is distorted by our cognitive limitations? Even when we consciously try not to bullshit, isn’t it inevitable that we will be making something up?

There’s also the problem of how we synthesize information. I’ve tried to internalize Eben’s rejection of our separation of time into past, present, and future. I can begin to understand the example of the guy standing on the beach, smelling the fire in the forest milliseconds after he sees it and looking at stars the way they were lightyears ago. But if I’m the guy standing on the beach, what am I supposed to do with that information? Do I understand the world better when I think nowness is a false conception? Am I thinking about the world more accurately? More truthfully? Am I experiencing it differently at all?

No Conclusion

It would be convenient to write a bullshit conclusion at this point so I can stop thinking. The truth is that I don’t know how to answer any of these questions yet and I don’t know where these ideas are going, so I won’t pretend to. I hope that others will add their thoughts.

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Revision 2r2 - 16 Apr 2012 - 16:34:27 - EbenMoglen
Revision 1r1 - 13 Feb 2012 - 17:04:58 - MichelleLuo
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