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Messages - B Ashton

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Current Law Students / Re: Legal Reasoning
« on: February 28, 2012, 12:42:08 PM »


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. [...] 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.

[...] 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. [...] And of course various militant ideologies of the far right serve as disconcerting 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.

Exactly, pobis, one should not overdo it - take a look at the novel approach a poster was taking in relation to this post - he e-mailed me a couple of lines, fully justifying the method (exemplified by the "manual," regardless of what actually the manual contains - if it's in the "manual," it's good to go)

I guess no one. I mean, this "body language" thing is complete bulls h i t - I know that it's being relied on a lot, by a hell of a lot of LE pros, but they KNOW deep down themselves that that's just not true (that they can actually tell if one's lying using the "behavioral cues" they elicit in their suspects). I am sure this may not the right time for class, but I have to tell you this: there are simply no verbal or non-verbal cues unique to lying. In fact, there are very small differences between those who tell the truth and liars. A truth-teller might appear nervous and thus judged to be lying, as it also possible that a liar might just be very good at it (lying). Not to mention that oftentimes lies are embedded in truths.

LE people will tell you that they "know what they are doing" and that their years of experience have taught them things - stuff that they can't even explain logically (rationally) to other people, that 'vibe' kind of thing - that enable 'em to detect lying (deceit). They will mock, for instance, psychologists' work on the subject showing the absence of any credible "cues to deception" and they will boast they have learned such "cues" by spotting liars in real-life situations, not in "experimental studies."

Psychologists, then, had LE personnel as study participants, asking them to detect deception by actually interviewing in the manner of their choice a mock suspect. The police officers were no better than plain folk study participants - they were able to say whether someone was lying or not with an accuracy of just 57% (remember that you have an 50% chance of telling such just by guessing!)

Finally, LE people will tell you that they need a "method" when going for this kind of thing, and that "something" is better than "nothing." They start with a certain "version" of the story (the so-called "evidence") and slowly get the suspect to "validate" such story, with a written statement at the end of the process, signed by him and witnessed by 2 other people. The most critical part of this process is at the beginning, when the LE people will try to rationalize to themselves that the person they have in front of them may have actually committed the crime, and that they have, more likely than not, accurately classified him as either a truth-teller or a liar. So, in a certain sense, it does involve a certain degree of self-brainwashing on the part of the investigators themselves. I mean, think about it - if you consider the actual method/technique you are using completely 'crap', you just won't be able to carry it on for hours and hours on end, every day of your life!


Basically he (probably working as LE himself) that it's easy to sit back and criticize - philosophize as how to do this and how to go for that - but it's a totally different thing to step up and try to actually do the job! There's nothing perfect in this world and yes, truth-be-told, something is better than nothing!

Current Law Students / Re: 1 year later....still glad u went to law school?
« on: February 28, 2012, 12:06:27 PM »



As a Mother, I totally understand these objections, and so far as I am concerned, I wouldn't endorse PGD.

And yet, if one takes if one takes the stance of the devil's advocate [...]

Mother, does one take the stance very often?

LOL Habibe, you're so funny! ;)

beepster, some people (like the case certainly is with some law professors, for instance) will take ridiculous stances like these all the time - it is, I guess, kind of like that omnipotent ruler who has so much power in his hands that he goes literally insane.

Remember Caligula - the guy, the one who planned to planned to make his horse, Incitatus, consul?!

Fast-forwarding a bit, Hitler, Stalin were all paranoid leaders who couldn't trust anyone. Their absolute power was what corrupted them and made them all the leaders of corrupted, twisted nations under totalitarian regimes. The paranoia and lack of trust that characterizes many of the dictators is one of the things that allows them to take power. It is also the thing that leads them to murder their friends, confidants and the citizens in their country, thereafter.

Current Law Students / Re: Psychopath attorneys
« on: February 28, 2012, 11:57:36 AM »

Delusional Disorder is indeed horrible - I remember some years ago when my neighbor, a twenty-nine-years old male, approached the authorities (the police) and asked them for protection; he told them his life was in danger because of a group of individuals who were following and harassing him on a daily basis for over a year or so. His wife told the police no actual threat had been made by anyone. He was functioning rather satisfactorily in work and his social relations and did not appear to have any other complaints. The police believed him initially and had several people watch him for a time period, only to discover that no one was, in actuality, following the guy. He was referred for psychiatric evaluation and found to suffer from delusional disorder.

Mental breakdown is all too common during times of war, anarchy and turmoil. I remember when I was once in Africa people were suffering from all kinds of stress-related disorders when all of a sudden there was no rule of law, with the State not functioning at all. The country descended in anarchy and violence, the goverment was toppled and some 2,000 people were killed. The entire country fell under the control of rebels and criminal gangs.

Guns became available to just about anyone, with fears on the part of people that old scores were going to be settled. In fact, rebels took even control of 19 combat aircraft type "MiG," let alone military vehicles and tanks.

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