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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.

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Socratic Method / Re: Legal Reasoning
« on: August 17, 2005, 06:03:11 PM »
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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.

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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.

There is a wonderful sketch by the Monty Python comedy troupe called "The Royal Society for Putting Things on Top of Other Things." The Royal Society for Putting Things on Top of Other Things meets annually to evaluate the performance of the group's membership in the carrying out of the Society's mission over the course of the previous year. At the beginning of the sketch the President of the Society calls the meeting to order and notes that he himself, on his way to this very meeting, noticed several things not on top of other things. This announcement is met by cries of "Shame, shame!" which the President calms by pointing out that "if there were not one thing that was not on top of some other thing, we would be nothing but a meaningless group of men who gathered together for no good purpose." Then follow the reports of several chapters ("our Australasian chapter, have in the last year placed no less than twenty-two things on top of other things") that continue until the representative of the Staffordshire chapter causes a sensation by admitting that his group has failed to place a single thing on top of some other thing. When asked by the President to explain this extraordinary behavior, the representative replies meekly, "Well sir, it's just that most of the members in Staffordshire feel the whole thing's a bit silly," to which the outraged President responds, "Silly? What do you mean, silly? Hm ... I suppose it is, a bit. What have we been doing wasting our lives with all this nonsense?" (General cries of "Hear, hear.") "Right then. Meeting adjourned forever."

It should be obvious the Legal Society for Giving Rationally Compelling Reasons isn't going to be adjourning any time soon. The most we can hope for is that some way might be found to make its meetings a little shorter, and the catering bill a little less.

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