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Socratic Method / Legal Reasoning
« on: July 27, 2005, 04:20:40 AM »
Anyone interested in legal reasoning method, its pecularities and the like, please post here.

I think the need to believe in the power of legal reason plays an important role in producing the extremely complex and interesting psychological phenomenon, the modern legal mind.

I hope you have heard of unicorns. One could believe that unicorns are actual biological phenomena -- that unicorns are real in the same way horses are real. Or one could believe that unicorns are creations of the human mind, imaginary creatures whose characteristics are therefore wholly a product of our assumptions about those same characteristics. Now imagine a social practice that requires persons to act as if they sincerely believe there actually are independent facts of the matter regarding unicorns -- facts not dependent on human beliefs -- and indeed routinely requires these people to assert the existence of such facts. Yet suppose this practice also requires that on certain occasions those who engage in the practice claim no such independent facts concerning the status of unicorns exist because, after all, "everyone knows" unicorns are merely products of the human mind. We could anticipate that many of the participants in this practice will develop a sort of double consciousness about unicorns, one in which they will both affirm and deny -- and in which they will in a sense both believe and not believe -- that unicorns are actual or imaginary creatures, depending on the context in which such affirmation or denial, and belief or absence of belief, is deemed appropriate.

On certain occasions, they would argue passionately about what colors unicorns really were, or about their actual population, whereabouts, and habits. On other occasions they would treat with derision anyone who could be foolish enough to take the naive view that unicorns were the sort of creatures that existed outside the minds of the men and women who imagined them into being. On yet other occasions they would seem to assert both views at once, claiming that while of course unicorns didn't really exist outside our imaginations, nevertheless by treating them as if  they were actual living animals we could eleminate any practical distinction between the characteristics of real and imaginary creatures.

Such is the ordinary mental condition of the modern American lawyer. The modern lawyer, and especially the modern judge and law professor, must continually practice a sort of "as if" jurisprudence, within the context of which the lawyer both knows and doesn't know that most important legal facts are facts only to the extent we believe them to be legal facts. Various strategies are then employed to deal with the intense cognitive dissonance that characterizes this condition. A common one among practicing lawyers is to simply ignore the dissonance -- to treat it as someone else's problem. That someone is, of course, whatever decision maker is precluded from employing the same cognitive strategy by virtue of the decision maker's decisional responsibilites.

Perhaps the proper function of a legal education is to produce persons who "think like lawyers": individuals, that is, who are trained to hold various unambivalent yet rationally unjustified beliefs, necessary for the vigorous deployment of social power, that nevertheless remain highly role specific, and are therefore subject to change at a moment's -- or a client's -- notice. Such beliefs help mold otherwise ordinary people into the sorts of state actors who will not hesitate to kill, cage, and impoverish their fellow citizens on what are deemed institutionally appropriate occasions, in much the same way that successful military training renders otherwise pacific young men capable of committing acts of politically sanctioned homicide.

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