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. 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. 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. A touch of “transcendentalism,” I think, is necessary.

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 constantly enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events. 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 is wrong.

Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists (which I will use as a proxy for legal realists) 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. In other words, it is easy to tell someone that all they have to do in order to effect a change is to abandon pretense, formal constructions, and 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. 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. 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.

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