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The Futility of Countering Ceremony

-- By FarayiMafoti - 26 Feb 2010

Introduction

In Thurman Arnold’s book The Folklore of Capitalism he depicts the American legal system as one of many institutions that comprise a ritualistic cement,

Wholes don't comprise parts: it's the other way around. The word was wrong here anyway.

the folklore that prevents human beings from achieving awareness of the reality around them.

It's not that the folklore prevents awareness, Arnold says, but rather that it permits the existence of human organizations, which cannot be held together by conscious processes at all.

We posit the courts as the peremptory diviners of rational principles and universal truth while in actuality they are merely cultural formations through which governing institutions attempt to exercise their political will.

This may or may not be true, but it's not Arnold's point in any particular way.

Arnold’s general project is to reconcile the “study of law in action with law in the books” (Law Enforcement – An Attempt at Social Dissection), ushering a legal framework that is not preoccupied simply with the production of politically informed concepts and abstract principles but rather one that is relevant to the realities that reside in the knowable world. From there, Arnold’s discourse takes a decidedly morose turn as he acknowledges the impossibility of people disregarding the charade. In this paper, I will assert that Arnold’s work amounts to an unfulfilling, compromising exercise; it encourages recognition of the folklore but recommends that we operate within it in order to accomplish functional goals.

Section 1. Explanation of Arnold's Position

According to Arnold, people are simply too entrenched in the drama that entails the ritual.

"Entails" is the wrong word, but that's not Arnold's point. Arnold's point is that human organization occurs through unconscious processes mediated by drama.

As creatures of habit, men are bound by “loyalties and enthusiasms to existing organizations. If they are successful in obtaining prestige and security from these organizations, they come to regard them as the ultimate in spiritual and moral perfection” (The Folklore of Capitalism, 10). These organizations are the dominant political culture that structure political discourse and inform every societal institution, including the courts. Debunking this ceremonial heuristic is impossible. In fact, Arnold is not recommending that we do so.

Well, that's what he says, but it can't quite be what he means, can it? After all, debunking the ceremonial heuristic is what he is doing, right?

The Futility Arnold Expresses/ My Criticism

Governance, economics, and law are formalist abstractions that men of power attempt to define in order to suit their end; these abstractions, which Arnold often calls symbols, are central to law and so they cannot be divorced from it. He writes, “so long as our belief in rational government depends upon the law, it must continue to balance logically the contradictory ideals which that government must express (The Symbols of Governance, 69). And so the compromising begins. Rather than attempt to posit the possibility of a new order devoid of symbols, an order which pertains to “temporal world of affairs, the day-to-day needs of the people” (Folklore, 20) and would lead to a modern, functional, and transparent legal system, Arnold recommends that we first detect the charade and then use it to our advantage to advance particular functional programs.

This isn't a compromise. It's a direct conclusion necessitated by Arnold's organizational psychology, which holds that a "transparent, functional" system of ideas cannot be the basis of effective social organizations.

In this case, Arnold seeks to con the ritualistic establishment into espousing the New Deal and its proposals for curbing the economic crisis of the ‘20s. But why must reform be so piecemeal? In other words, why is not possible to substitute formalist concepts for functionalism entirely? Arnold’s analysis is almost Sophist in that it ends up being reduced to a political “how-to” book. “If you want to get things done in the political arena, here is a guide on how to do so.” While Arnold would rejoin by stating that symbols will never disappear so long as human beings are the way they are (i.e. ceremoniously inclined), he should acknowledge that his scheme is devoid of values. It never rises above political how-to.

There is no reason whatever for the acknowledgment demanded. It depends on the failure to deal with his central thesis, that the nature of organizations is not what would be required by functional approaches to politics in the first place.

My Criticism (cont'd)

The New Deal is Arnold’s contemporary project and he articulates that formalism can be used persuasively to engender a paradigm shift in this regard. But why commit to this project if it will ultimately have no impact in ameliorating the erosion of the nation’s economic, legal, and governmental functionality? Moreover, what makes the New Deal a concept that is functional ex ante as opposed to one that is infected with the ritualistic traits that stifle industrial development? Perhaps Arnold would argue that any technique that devises to change the established order with the welfare of the citizenry in mind is functional. If the democratic apparatus as a whole is ceremonial, then there must be a way for the functional programs that we devise, regardless of what they are, to progress at a rate that is faster than that of the ceremony of democracy.

This passage doesn't make historical sense: "the New Deal" is not a strategy, but the name of FDR's political packaging, that contained various, often conflicting, governmental experiments for dealing with the economic collapse and social damage that ensued from it.

Conclusion

In the final analysis, Arnold would call my disillusionment with symbols “futile” (Folklore, 131). So long as human beings are inclined towards the histrionic, there will always be symbols and folklore. Legal doctrines will continue to be out of sync with the temporal and even individuals who are aware of the ceremony will use it to their advantage. The end result is a piecemeal approach towards functionalism that never amounts to a revamping of the societal framework.

You believe Arnold denies that the French Revolution happened?

While I made a proposition as to how functionalism may succeed, it ultimately fails given Arnold’ characterization of the citizenry.

Not "of the citizenry." Of organizations and the psychology of "belonging" to them. The way to improve this essay is to go back to Arnold and work out more closely the stages of his argument, in order to take a less tangential account of his central ideas.

Revised Version (under construction):

Thurman Arnold contends that many American institutions contain ceremonial practices which, however emotionally appealing they are to our sense of security, are not functional. He writes, when men choose to act in concert, they develop organizations which are held together by traditions and an institutional creed. This creed can only be effective, however, if it undertakes to reconcile the conflicting ideals that are held by the members of the organization. The creed then "must be false" - inconsistent per se. Social consolation can therefore only be sustained if the inconsistency is concealed by a ceremony, "the little pictures," which shape and mask reality rather than describe it. One need only look to the American legal system to find ceremonial excesses at work. Since time immemorial, men have believed that their own freedoms are intertwined with the freedom of industrial organizations from despotic restraint and yet that has not prevented corporate officials from imposing despotic regimes over their employees. The courts, under the mantle of the Constitution, have continued to disguise the sordid practices of huge corporations using abstract concepts such as freedom of contract, which are emotionally satisfying to the vast majority of us. Arnold's general project here is to reconcile the study of law in action with law in the books (Law Enforcement – An Attempt at Social Dissection). In other words, he wants to bridge the gap between what is preached by the courts and what is practiced, ushering a legal framework that is not preoccupied simply with the production of politically informed concepts and abstract principles but rather one that is relevant to the realities that reside in the knowable world. From there, Arnold's discourse takes a decidedly morose turn as he acknowledges the impossibility of people disregarding the charade. In this paper, I will assert that Arnold's work amounts to a cynical exercise; it encourages recognition of the folklore but recommends that we operate within it in order to accomplish functional goals.

As creatures of habit, men are bound by loyalties and enthusiasms to existing organizations. If they are successful in obtaining prestige and security from these organizations, they come to regard them as the ultimate in spiritual and moral perfection” (The Folklore of Capitalism, 10). These organizations are the dominant political culture that structure political discourse and inform every societal institution, including the courts. Debunking this ceremonial heuristic is impossible. In fact, Arnold is not recommending that we do so.