Transcendental Nonsense Is Useful

-- By JessicaCohen - 22 Feb 2010

Legal Realism's Deficit

Cohen, a legal realist, rails against concepts without meaning because they are devoid of experience. Contracts, “due process,” “police power,” title: each of these have no real-life value. Therefore, he says, we must resort to looking at how like cases are decided and act accordingly. Cohen writes, "...I think that creative legal thought will more and more look behind the traditionally accepted principles of 'justice' and reason' to appraise in ethical terms the social values at stake in any choice between two precedents."

This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed.

It's not circular, it's spiral, in the way that all social process is spiral: our engagement with the future—which we call "policy," "planning," or even "law"—emerges out of our experience of the present relentlessly conditioned by the experience of the past.

And often, the "social values at stake" amount to traditionally accepted principles of justice. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. And often, these social values are animated by our individual and collective understandings of transcendentalist nonsensical concepts, however fluffy or devoid of meaning they may seem. I wish to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, often are (and should be) employed by successful advocates. These concepts are often the "social values" of which Cohen speaks. A touch of “transcendentalism,” I think, is useful - maybe even indispensable.

I do not purport to argue that Cohen was without morals or goals. Surely many moral and ethics-minded realists have used employed his strategy of weighing social forces and studying the consequences of events. However, it seems that his account is missing a bit of the spirit – perhaps should I say irrationality – that one should employ when lawyering. Lawyers enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events. They are also heuristics: to lay-people and other lawyers, using a term of "transcendental nonsense" amounts to a shortcut that most people understand. Our in-class discussion of real life consequences and legal realism reminded me of Randolph Bourne's “Twilight of Idols."

Bourne and Reality

Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, who came out in public support of the war because it promoted democracy. In other words, the ends (i.e. freedom, liberty over tyranny) would be good. In their support, however, they lost sight of the fact that war itself - and the means employed during war - is always wrong.

Bourne’s critique, however, is ultimately about much more than World War I. Bourne explains that pragmatists have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a sense of optimism and control. The pragmatists he criticized were not all legal realists - many of them were not even lawyers - but the philosophy underpinning their attachment to real-world outcomes is quite similar. Bourne would say that it is easy to tell someone that all they have to do in order to effect a change is to first abandon pretense and formal constructions, and then do it. Individuals who heed Cohen’s call to use social science techniques to understand the legal world cannot solve our greatest problems with a few punches into a calculator. But Cohen's view must be supplemented Bourne’s, who says that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life."

If we, as advocates, are to simply become a predictor of social forces, we may also end up like Dewey and his followers, who in Bourne’s words were, in the end, “vague” about their long-term goals for American society. Understanding how things function is only part of the solution. We need to start with ultimate vision and work backwards, says Bourne. If you want to be in "radiant cooperation with reality," he says, then your success is "likely to be just that and no more...you never transcend anything." An individual who relies on statistics and other science-influenced tools is prone to missing the bigger picture.

The individuals we have learned about in class, including MLK, John Brown, and the fictional Robinson might be said to have been pragmatists. After all, they each saw a social problem and discerned how to solve it on the ground. Along with our decision-makers Holmes and Cohen, each of them was absolutely concerned with “social policy,” which Cohen says should be the “gravitational field that gives weight to any rule or precedent.” Yet each of these figures no doubt believed in “justice.” Perhaps the cynical Robinson would never muttered the word in a courtroom, but the concept, however fuzzy or “meaningless” it might be, certainly informed his work. Each of these figures used formalistic concepts to transcend what was happening on the ground.

Many of our most successful (some beloved, others not) advocates, judges, and politicians continue to appeal to "transcendental nonsense." The spirit and fundamental rights often alluded to in judicial opinions, whether full of formal concepts or not, are often what move us.

I think this invocation of Randolph Bourne is really fascinating, and I'm glad to find out that there's someone who's still as moved by his writing as I was myself when I was an undergraduate. With his cape, his limp, and the amazing swell of his prose, he's the last Romantic in America, and if guys had been my thing I'd have loved him at once. With time, it wears off.

I think forcing him into the ring with Felix Cohen is a waste on both sides: you have to distort Cohen pretty seriously to make him into an antagonist for Bourne; in fact, one suspects he's argued on Bourne's side against his father Morris from time to time. Cohen too believes you should sing to judges whatever makes them decide in your favor, after all, and if having grand visions will do it, he's all for vision. I think the real intellectual pugilism to want a ringside seat for is the dust up of Bourne with Thurman Arnold. Between those two there's not only a series of the true American dichotomies (West/East, Head/Heart, etc.) but also a real issue about how we think socially. Bourne takes the grander visions of social policy and social action seriously, while Arnold is determined to see them as the mere chin music to which, as unconscious social animals in the termite mound, we dance in regimented time. Now there's a fight between boys!