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Current Law Students / Re: Legal Reasoning
« on: August 16, 2005, 01:29:02 AM »
In America today the juridical saturation of reality becomes more and more of a fact of daily life. And not merely in America: in Europe, for example, the particular political and social cultures of more than a dozen nations are being swallowed up by that monument to the pretensions of technocratic rationality, the European Union. All over the so-called developed world, law is manifesting itself as a kind of cultural madness, whereby hyperrational modes of decision making are employed in a vain attempt to resolve rationally what are rationally irresolvable moral and political conflicts.

The hypertrophied rationalism of American law is a product of trying too hard to be good: of failing to accept that law is always a somewhat crude and potentially destructive social steering mechanism, that works best when it remains a tacit presence in the social background. Instead Americans insist on subjecting themselves to a dictatorship of the bureaucratic: one in which the answer to every important social conflict inevitably involves more rules and procedures, more rights and obligations, more "reasons" and "principled justifications" given in the course of constructing ever-more complex analytic and rhetorical circles for choosing to do this rather than that -- in brief, more law.

Much of the baroque complexity of modern American law represents what is at best a wasteful multiplication of transaction costs, and at worst a symptom of a species of institutionalized mental illness. Much of the basic structure of American law is a pointless or even pathological outgrowth of various rationalist delusions.

The excesses of American rule of ideology are in large part enabled by our unwillingness to accept that reason, when properly employed, works to make its further employment superfluous. Reason, that is, works ironically toward its own effacement. When it works well, it takes the reasoner to a point in the decision process where the use of reason no longer helps. Hence, "legal reasoning" works well precisely to the extent that we are not conscious of its presence. Outside a legal equilibrium zone law tends to be both an invisible and a powerful factor in the maintenance of social cohesion. By contrast within such a zone the inevitable contradictions in the legal rules such situations produce are clearly visible, and as a consequence the rules themselves are rendered relatively useless. Faced with such legal and social contradictions, we can not decide efficiently processed legal diputes on the basis of "reason". We merely decide.

The essential fallacy of legal rationalism is thus to think that what works well in moderation will work even better in large doses. So deep is this belief that when the more extreme manifestations of legal reason fail altogether we tend to manifest a willful blindness to this failure, or we undertake what soon become perverse efforts to perfect systems of rules that, by the nature of the problems they address, can't be perfected. When neither of these strategies work we do what courts often do and simply indulge in magical thinking, assuming, of course, e.g., that because a court ends its opinion with the phrase "it is so ordered," "it" is both going to happen, and to produce a series of predictable social effects.

Because of such rationalist excesses of the American legal system is in some danger of being treated as roughly by the coming decades as the great American railroads were treated by the century that passed. American law, that is, may well find itself betrayed by its own overweening pride in having succeeded in its quest to bring so much of American life under its sway. As a consequence of the legal system's increasing tendency to deny the true nature of its crucial but relatively modest role as a social coordination and dispute processing mechanism, our law is becoming so elaborate, so hypertrophied, so pointlessly complex, and hence so unnecessarily expensive that alternate modes of getting from here to there on the social map are already springing up all around us. Accountants are taking over the tax business; insurance companies are eleminating real dispute processing; mediation and arbitration services of every kind are booming. And of course various militant ideologies of the far right serve as diconcerting reminders of how considerably more radical forms of dissent against what is called the rule of law are already simmering.

Like the donkey of the fable who starves to death because he is exactly equidistant from two stacks of hay and therefore can't decide rationally to which stack he should go, we demand dispositive reasons for choosing where there are none. Less principled than the ass, we than "discover" -- at great fiscal and psychological expense -- some answer that must be arrived at more or less arbitrarily, while still insisting that this particular outcome was impelled by the law, or legal principles, or reason itself. 

Current Law Students / Re: Legal Reasoning
« on: August 16, 2005, 12:12:33 AM »
After a verbose preamble, which among other things informs you helpfully that "behavior becomes unacceptable when it infringes on the rights of others," the  Code of Conduct of the Public Library of the city where I live provides thirty-one examples of unacceptable conduct. These examples can be sorted into five general categories:

1. Highly site-specific regulations (i.e., "Eating or Drinking," "Overcrowding at Study Tables or Carrels (limit of 4 per study table").
2. Behavior associated with street people ("Bathing/Washing Clothes," "Lack of Shoes or Shirt," "Loitering including refusal to leave at closing").
3. Behavior evincing failures of basic acculturation mechanisms ("Obscene Language," "Body Odor/Perfume/Cologne (Excessive) which Elicits General Complaint or Causes Discomfort to Other Library Users," "Excessive Public Displays of Affection").
4. General criminal behavior ("Theft," "Gambling" "Physical, Sexual or Verbal Abuse or Harassment of Library Users or Staff").
5. Criminalized behavior associated with mental illness or substance abuse ("Exhibitionism/Flashing," "Visible Drug or Alcohol Intoxication," "Voyeurism/Peeping").

After the list of specific examples the Code of Conduct concludes with the American's lawyer's equivalent of the old anti-Soviet slander provision in the USSR's criminal code: "Any unlawful behavior and any other behavior that unreasonably interferes with the safe or reasonable use of the library by the other persons."

This code, posted as it is in prominent places all around the building, is of course a very ordinary document of the kind found throughout the public spaces of America. Normally, neither you nor I would give it more than a glance; and we almost surely wouldn't spare it a second thought. Yet it is in its own quotidian way a remarkable text. Orthodox American rule of law ideology demands that those actions the state has prohibited be made public so that persons may have an opportunity to inform themselves as to what is and is not allowed. Once this condition has been met people may then be held to "know the law" -- ignorance of it being, famously, no excuse. It follows from this that when persons fail to conform their conduct to the law it can be assumed they are "choosing" to violate its publicly announced requirements.

Such at least is the theory. How well does this theory apply to a typical piece of modern bureaucratic regulation? Or the types of behavior the library code prohibits, you might note that only those listed in the first category can be thought to convey useful information to any minimally socialized member of the community. There could be a real reason as to whether you're allowed to bring a bag of pretzels into the library, but do you really require "notice" that you can't snatch purses, expose yourself to patrons, do your laundry in the bathroom, or play high-stakes poker in the reference area? Suppose you hadn't been given notice of any of these things; does it follow you're free to claim as a defense insufficient publicity on the part of the state?

Can there be any non-psychotic person of minimally functional intelligence who would suppose that any of the things on this list, other than those dealt with in the most site-specific regulations, were not prohibited? Of course all social rules include areas of vagueness (which public displays of affection are "excessive?"), but these borderline problems can hardly be cured by posting general proscriptions of the type found in public legal notices. So here we seem to be faced with a wholly superfluous invocation of legal rules: rules that merely reflect tacit social understandings that themselves have no apparent need to be cast into a public legal text.

Note that ultimately the supposed purpose of the library code is to give persons the knowledge they need to exercise a freely willed choice to follow the law. That is, the idea must be that people who would otherwise engage in acts of voyeeurism, or who would stumble into the Public Library under the influence of crack cocaine, will duly note they are prohibited from doing so, and will therefore choose to refrain from indulging in such legally proscribed behavior. These assumptions are -- to put it as charitably as possible -- unwarranted. There is no evidence whatsoever that people in the grip of sexual compulsions or substance addictions need to be informed their behavior is unacceptable; indeed, in the case of voyeurism and exhibitionism, the very unacceptability of the behavior is what sexualizes and thus enables it.

The library's code of conduct also illustrates the characteristic hypertrophy of modern legal reasoning. It's not that legal concepts such as "notice" and "choice" never make sense -- in fact, most of the time they do. It is rather that we tend to employ these sorts of concepts so promiscuously that we lose sight of the relative lack of salience they have to many social situations. For instance, in the context of anti-drug legislation, the common-sense insight that attaching bad consequences to certain actions often deters persons from undertaking those actions is exaggerated out of all reasonable proportion. In a similar vein, the modest idea that talking about their problems sometimes makes people feel better gets blown up into the grand scientific and cultural pretensions of psychotherapeutic ideology. The library code illustrates some of the ways in which otherwise useful modes of analysis can be pushed to a point where the hypertrophied character of what is called "reason" becomes indistinguishable from a form of magical thinking.

Posting a public notice of the unacceptability of theft, or of exhibitionism, or of physical and sexual abuse, is very much like passing yet another law providing still more penalties for the sale of already illegal drugs. Such actions represent our legal culture's equivalent to the practice of nailing garlic over doorways to repel vampires. In each case a psychological imperative born of a sense of lack of control, and of the fear and anxiety this sensation produces, demands of us that we "do something." Those same factors then lead us to do things that appear in the cold light of rational analysis to be almost wholly irrational.

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