Then and Now: Two Perspectives on our Legal System

-- By CourtneyDoak - 18 Jul 2012

A Revelation While Reading Transcendental Nonsense and the Functional Approach

Reading Transcendental Nonsense and the Functional Approach left me vaguely unsettled, likely because Cohen forced me to acknowledge that I had been growing increasingly cynical in my outlook on the law.

As a child, I regarded our legal system as synonymous with justice. Yet our 1L year, spent studying the very system I had regarded as infallible, left my faith profoundly shaken. I was uneasy and in search of answers – answers on how to reconcile my perspectives, answers on how to bring the law into alignment with my childhood reverence for it.

Law, Through a Child's Eyes

My first perspective on the law – that it is a vehicle to effect meaningful change and safeguard morality – may seem naïve, but this was the perspective informed by my only actual experience with a lawyer.

My sisters and I were raised by a mother who was neglectful at best, abusive at worst. The promise of escape came when I was ten years old and my father filed for divorce. I recall how scared I was of being taken from my dad, how helpless I felt at my fate being decided in this unfamiliar world of courtrooms, filled by strangers speaking a language I couldn’t understand.

I distinctly remember the day when my fears were quelled. Someone stepped in to help, someone who promised that my voice would be heard in that world of courtrooms. My lawyer promised she’d do all she could to protect my sisters and me, and this was a promise she kept: when the proceedings ended, my dad had full custody and we were finally safe.

This advocate – who made sure that my voice was heard when I couldn’t use it myself –freed me from the circumstances of my childhood and changed the course of my life entirely. And so it was this experience that informed my initial understanding of our legal system as synonymous with justice.

Cynicism, and Transcendental Nonsense

My second perspective on the law – molded by my 1L experience – is more cynical.

As I struggled reading opinions littered with legal jargon – words and rules that meant nothing to me a year ago, I wondered why these words were regarded as meaningful, why the rules were regarded as self-evident truisms.

Cohen’s piece brought coherence to my nebulous thoughts, illuminating the inherent circularity in legal arguments couched in these rules, which themselves are self-referential creations by the law.

Moreover, Cohen posited that the magic “solving words” of legal problems are transcendental nonsense. In so doing he heightened my awareness that courts use such nonsense to hide that, oftentimes, arbitrary factors and undisclosed agendas drive decision-making.

Reconciling my Perspectives

Upon realization that I had two clashing perspectives on the law, I pondered how studying a system I revered as a child could have diminished my reverence for it so rapidly.

I think an explanation lies in the fact that when I was a child, my view of the law was not colored by transcendental nonsense. The contours of my childhood understanding of law were shaped by my lawyer’s answers to my questions. She conveyed clearly to me how the judge would decide which parent my sisters and I would live with; she made the foreign universe of courtrooms understandable by describing what would transpire there and how it would tangibly impact me.

I see now that my attorney, who stripped her language of nonsensical legal terms that mean nothing to a child, employed Cohen’s functional approach.

The Implications of my Epiphany

This revelation sparked reflection on how to improve our legal system so that it would reflect my childhood conceptions. I posited that the answer was for lawyers and judges to speak and write as if informing a child, as my attorney did for me so many years ago. After all, children do not revere meaningless legal principles – children make outcome-based inquiries and seek functional answers. A shift to this outcome-oriented functionalism was the only way I could see to reconcile the law with my childhood admiration for it.

I believe that there is merit to my original conclusion, but its applicability is perhaps limited to unambiguous cases, cases straightforward enough for a lawyer to effectively convey the workings of the law in a manner understandable to a child. As Professor Moglen pointed out, my story is such a case, devoid of ambiguity, one in which the rightness of my wishes was corroborated by the record of my parents’ conduct.

My epiphany has less obvious application to the full range of legal experiences, disputes where right and wrong aren’t immediately discernable from the record. Oftentimes such conflicts arise out of human affairs too complex for judges or lawyers to implement functionalism, to write briefs and opinions in language that carries meaning to a child.

Despite this qualification, I believe in the fundamental principle underpinning my initial conclusion, if not its practical application. I still believe that transformation to a functional approach to law is key to making room for ethical appraisal of the system. Thus, while speaking and writing as though to a child may not always be feasible, perhaps what’s more important is simply for judges and lawyers to replace the fictions of traditional jurisprudence with honesty in their spoken and written word.

Such clarity of language – irrespective of whether it is understandable to a child – would at least form the starting point for functional analysis. We'd have a more realistic conception of ‘law’, as defined by Justice Holmes in The Path of the Law: “prophecies of what the courts will do in fact”. Perhaps such functionalism will in turn eradicate prevalent amoral legal principles and open the door to a legal system informed by human values and conceptions of morality. It is transformation of this kind that would truly render the law worthy of my childhood reverence for it.

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-- CourtneyDoak - 18 Jul 2012

I wanted to respond to a couple of quotes of yours.

1. "After all, children do not revere meaningless legal principles – children make outcome-based inquiries and seek functional answers." Maybe your experience wasn't about being a child--it was about being a client. Clients aren't interested in estoppel or laches or whatever other transcendental nonsense. They want to know if they can get what they want. It's interesting that you associate an outcome-based inquiry with childhood, when most clients are that way. Maybe because you've started law school, you look at the difference between child-Courtney and adult-Courtney, but really it's client-Courtney and counsel-Courtney.

2. "Thus, while speaking and writing as though to a child may not always be feasible, perhaps what’s more important is simply for judges and lawyers to replace the fictions of traditional jurisprudence with honesty in their spoken and written word." I've often thought about this, too. But I think it is actually just impossible to replace jurisprudence with honesty since in modern disputes there are often so many interested parties, many of them sophisticated, that there is simply no way to just be 'honest.' Courts can be fair, but sophisticated parties need to be able to make predictions about courts would do, as Holmes would say, and the transcendental nonsense makes that possible. When the parties are not sophisticated, I actually completely agree with you, and we could probably get by with just equitable principles.

-- HarryKhanna - 20 Jul 2012

Harry, Thanks for your comments. I've spent time reflecting on your first point in particular, because it has given me a new way to frame and think about my experiences with our legal system, and the ways in which those experiences have framed my clashing perspectives on the law.

I think there's a lot of merit to the notion that my transformation from client to counsel (or at least law student analyzing legal issues through an attorney's lens) is what truly underpinned my changing views on law and the way it functions. I appreciate that you elucidated this point in your comment, because I don't think I would have seen it this way myself, since my experience as a client is inextricable from and fundamentally intertwined with my childhood. That said, I think that the point you raise that most clients aren't interested in transcendental nonsense and legal fictions is entirely valid, at least to the extent that those clients are not also lawyers in their professional lives. However, while both adult and child clients may be similar in the sense that they don't revere meaningless legal principles, as a more general matter I do still think that children (clients or not) are unique in that, at least in my experience, they don't buy into BS and oftentimes possess a clarity of vision that adults may lack, as it gets clouded over time by selling and swindling and cynicism. Ultimately, as your point pertains to my essay and its conclusion, I think that perhaps I can't entirely separate these lines of demarcation (client/counsel Courtney or child/adult Courtney), but that both of these dichotomies, and their interplay, have shaped and contributed to my clashing perspectives.

I also agree with your second point. I think I just need to clarify/be more precise in my language above, because really, what I mean by "honesty" is in fact employing functionalism, predicting what courts will do in fact, and being cultivating a more realistic conception of "law". However, I recognize that transcendental nonsense may still be necessary in facilitating that process (in more complex scenarios, those predictions couldn't be made without having a grasp on how courts have evaluated or decided on the underlying legal fictions). However, I do think that a transformation to a more functional approach (regardless of whether the transcendental nonsense words can ever be eradicated from that approach or not) will at least open the door to a more honest, and hopefully more ethically grounded, assessment of our legal system.

Thanks again for your comments; they inspired reflection, and I really appreciate it. Courtney

-- CourtneyDoak - 26 Jul 2012