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Law in Contemporary Society
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Primitive: Fear in Veblen, and in lawyers-- By MikeCarson - Edited 26 April 2017 “I asked my partner what he thought of cousin Thorstein. Now this is a very socially aware young man, a very good lawyer I'm very fond of him. Do you know what he said?" Tharaud smiled. "'Cousin Thorstein was primitive.'” Lawrence Joseph, Lawyerland 125 (1997).I. Proxies of 'primitive' forceMartha Tharaud didn't misunderstand her partner when he called Thorstein Veblen “primitive.” Certainly he did mean that his philosophies were at least outdated and out of fashion, if not completely archaic. But he may also have meant more, The currency of the social systems Veblen describes (at least through the first few chapters of The Theory of the Leisure Class) is grounded in understandings of the most primitive kind: waste of time and money develop as useful proxies for displaying brute, destructive force. Veblen drains some of the blood from the his descriptions, but “prowess” and “prepotency”—the kind of strength signaled by successful exploit—stand in for displays of the ability to cause harm. Cousin Veblen's theories say at least in part that what drives our economic and social behavior is a pervasive need to signal the traits that makes us “better capable of a sudden and violent strain”—namely, the capability to crush one another. What could be more primitive? “The predatory instinct and the consequent approbation of predatory efficiency are deeply ingrained in the habits of thought of those peoples who have passed under the discipline of a protracted predatory culture. According to popular award, the highest honours within human reach may, even yet, be those gained by an unfolding of extraordinary predatory efficiency in war, or by a quasi-predatory efficiency in statecraft; but for the purposes of a commonplace decent standing in the community these means of repute have been replaced by the acquisition and accumulation of goods.” The emulative efforts of individuals are the outgrowth of this ancient respect for “predatory efficiency.” In a world with no buffalo to hunt and no tribal territory to go to war over, demonstrating wealth or leisurely refinement are the only ways left to demonstrate one's strength.II. Fear as a driver of emulationIn class, we talked about how one mechanism for ingraining the need to show these distinctions in sexual selection and romantic competition. But it seems obvious that the same instincts must have functioned also toward mere survival. In a world of exploit, broadcasting strength does more than bring social approbation and self-esteem—it also signals to rivals who isn't to be trifled with. Ability to emulate is just evidence of exploitative capability; pick a fight with the one displaying the most social status, and one is liable to find themselves “exploited.” To the extent this hold true, it fits with the treadmill of acquisition and waste which Veblen describes as requiring individuals to always aspire to the next class. Ambition is one thing; fear that someone else will come and hurt you is quite another. Societal approbation and self-esteem are the engine of the patterns of waste and consumption Veblen identifies. But fear is forced induction for that process, supercharging each individual's effort to climb ever higher in the parade of emulation that determines social status to try to scare away violent challenges before they start. As Veblen himself points out, the increasing industrialization of society reduces the frequency and necessity of violent action. This makes the incentives for displaying exploitative prowess less clear in industrial societies. But many-thousand-year-old habits die hard in people. Even if new methods of display and new cultural and psychological tensions develop with the gradual decline of more “primitive” economic states, there's no reason to think that the old, visceral fears get left behind.III. In defense of Thorstein's cousinIn the last draft of this essay (see revision history, but treat it as useful reading at your own peril) I made a lot of the gallows humor and and combative rhetoric of Joseph's lawyers in the opening chapters of Lawyerland. After Veblen, it seems clear to me that all three of the lawyers at the center of that draft are well in touch with their primitive sides. They feel fear, and they know how to cause it at their courtrooms and conference tables. They intuitively know their way around a nervous system forged in a few a few millennia of violence. I'm certain that it makes them better lawyers. I feel reasonable sure it doesn't help them feel less afraid. To differing extents, all three show they are in touch with this vestigial condition of fear, but dissociate it (or perhaps embrace it), rather than transcending it. They intuitively know both how to leverage that kind of fear and to cope with it, but still spend much of their psychic energy like most everyone else in the industrial world Veblen describes—either broadcasting their strength, or else balled up and hoping to avoid the kind hammer shot unlike to come in their economic era. As Robinson and Celia Day know better than most, violence and exploit remain in the modern world. But even that is of a different character: our interpersonal contacts tend to be more dense, our means of violence more efficient. The old saw says “God created man, Sam Colt made them equal.” Economic and social factors have a role to play too, but generally, any level of protection afforded by demonstrations of wealth and leisure become a less valuable form of protection in a larger modern surrounding. There is too much that's outdated in the instinct toward violence and the accompanying fear. It's powerful, and likely to cloud efforts to feel or to do good. I don't think it's a given that Tharaud's partner doesn't feel this, even if he might not say it. Veblen sees us left with primitive instincts difficult to cast off. A bright young lawyer might see rejecting those fears as helpful for doing good, or feeling good, in a world where they've lost so much value.
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