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Socratic Method / Re: Legal Reasoning
« on: August 17, 2005, 06:45:20 PM »
Why all this "reasoning" madness? In the end, overgeneralizations concerning the power of reason and intellectual pretensions born of lawyers' professional vanity are symptoms of fear.
America has never been a fatalistic culture, except to the extent we have always believed it our manifest destiny to be "progesssing" toward something or the other. Faced with the prospect of existential dread at our helplessness before the mysteries of life, we look for someone or something that can dispel that uncanny sensation. Hence, despite our vaunted pragmatism, we are prone to a certain child-like faith that some person or institution will with a single heroic gesture free us from the intolerable webs of uncertainty sorrounding our most difficult choices. In the American law school, the most striking evidence of this faith is the way in which an entire generation of legal academics almost literally worships the Warren Court. The continuing fascination that long-departed institution holds for law professors of a certain age resembles in some ways a collective case of arrested emotional development. The kindly image of Earl Warren himself, with his granfatherly shock of white hair, and his famed willingness to brush aside legal technicalities with the question "But is it right, is it fair?" helps satisfy the longing for some paternal figure in comforting ceremonial garb -- a sort of juridical Santa Claus -- who goes about dispensing justice in much the same way reformed misers in Dickens shower pounds and guineas on everyone they meet.
To paraphrase Samuel Johnson, a man becomes a judge to forget the pain of being a man.
We believe in the transcendent, more-than-human authority of "the rule of law," and by extension of its various fetish objects and their official interpreters, because the alternative would be to accept the authority of ourselves over ourselves.
America has never been a fatalistic culture, except to the extent we have always believed it our manifest destiny to be "progesssing" toward something or the other. Faced with the prospect of existential dread at our helplessness before the mysteries of life, we look for someone or something that can dispel that uncanny sensation. Hence, despite our vaunted pragmatism, we are prone to a certain child-like faith that some person or institution will with a single heroic gesture free us from the intolerable webs of uncertainty sorrounding our most difficult choices. In the American law school, the most striking evidence of this faith is the way in which an entire generation of legal academics almost literally worships the Warren Court. The continuing fascination that long-departed institution holds for law professors of a certain age resembles in some ways a collective case of arrested emotional development. The kindly image of Earl Warren himself, with his granfatherly shock of white hair, and his famed willingness to brush aside legal technicalities with the question "But is it right, is it fair?" helps satisfy the longing for some paternal figure in comforting ceremonial garb -- a sort of juridical Santa Claus -- who goes about dispensing justice in much the same way reformed misers in Dickens shower pounds and guineas on everyone they meet.
To paraphrase Samuel Johnson, a man becomes a judge to forget the pain of being a man.
We believe in the transcendent, more-than-human authority of "the rule of law," and by extension of its various fetish objects and their official interpreters, because the alternative would be to accept the authority of ourselves over ourselves.