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Messages - casusbelli

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Socratic Method / Re: Legal Reasoning
« on: August 09, 2005, 07:17:58 AM »
Well I guess one of the most curious aspects of socially constructed entities is that many of them are the sorts of artifacts that can perform the social work they are supposed to accomplish only if we ignore or forget their artificial nature. A classic example of this is the socially necessary assumption that value inheres in what we call "money." As a matter of practical psychology money can fucntion as a medium of exchange only to the extent that we manage to treat it as valuable in itself. We don't "believe" money is valuable: we know it is. Yet what is that knowledge other than our unconscious confidence that, in this case, knowledge and belief are not merely compatible, but actually identical? We believe we know money is valuable becuase we know we believe it is. In such cases, the psychology of appropriate social belief requires that we maintain an involuted state of mind in which we both know and don't know that various artifacts in whose existence we believe exist precisely because we believe they do.

Films, and to a lesser extent currencies, are examples of where our knowledge of the fictional, context-specific nature of our belief remains fairly close to the surface of conscious thought. But many other psychological artifacts of contemporary life are much more cognitively complicated. To what extent do we, or should we, recognize that a concept like "the government" or "the court" is also a pragmatic and mimetic fiction? One thing is certain: given the socially constructed nature of so much of our daily experience, the structure of modern life ensures that a great deal of what we think of as "reality" will be product of a kind of mass hypnosis, which requires that we maintain ourselves in delicately balanced, psychologically complex states of knowing ignorance and skeptical credulity. (To paraphrase Thomas Szasz: if you believe in the United States of America that's called "patriotism"; if you believe in the Republic of Texas that's called "schizophrenia.")

Which brings us to what is called "the law." In what sense does law exist? As a historical matter, it is fairly clear that at one time the lawyers and judges of the English common law thought of their law as rather more like a horse than a unicorn; that is, to the extent they considered the question at all, they believed "the law" was an objective, metaphysically robust entity. They also appeared to believe the law had existed from time immemorial and that therefore it certainly was not a product of, or dependent on, human beliefs and desires. This particular metaphysical vision -- what Oliver Wendell Holmes famously called "the brooding omnipresence of the law" -- cannot be maintained as a matter of self-conscious belief in a thoroughly secular, aggressively materialist public culture such as our own. In our legal culture, one can no longer assert openly the proposition that law is not an artifact of human will without running the risk of being told that anyone who could believe such a thing must be deeply confused, if not actually deluded.

Nevertheless contrary to the explicit claims of rationalizers, technocrats, and utiliatarians of every stipe the implicit belief in law as a brooding omnipresence is far from dead. Indeed, given what we require of law, it may be that some degree of belief that it is "really" there -- that the unicorn that you dear poster mention still inhabits some hidden hollow of the forest --  remains a necessary component of the legal form of thought.

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