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Socratic Method / Re: Legal Reasoning
« on: October 01, 2005, 03:47:50 PM »
The legal profession has traditionally held dear the notion that judicial decision-making is a rational and objective process in which the judge applies precedent to existing facts. Indeed, the immense focus on "precedent" and "legal reasoning" within the legal profession has rendered these concepts irrefutable and unquestionable. One may even speak of the propaganda of the American legal culture, which holds all legal processes to be driven by logic, order, and reason. Why has this culture so seldom questioned the presupposition of rational decision-making which all of law seems to be based upon? Could there be another explanation for the process of judicial decision-making?

Lawyers and judges purport to make large use of precedents .... But since what was actually decided in the earlier cases is seldom revealed, it is impossible, in a real sense, to rely on these precedents. What the courts in fact do is to manipulate the language of former decisions. They could approximate a system of real precedents only if the judges, in rendering those former decisions, had reported with fidelity the precise steps by which they arrived at their decisions .... Of the many things which have been said of the mystery of the judicial process ... the most salient is that decision is reached after an emotive experience in which principles and logic play a secondary part.

Judges make their decisions primarily based upon emotional reactions to the facts presented to them in a case, and then use precedent to rationalize their decision. Law's indeterminacy and contingency lie in the fact that precedent can be interpreted in numerous ways, and that it is often used as justification for a position held by the judge long before he even considers precedent. Accordingly, from a psychoanalytic point of view, judicial decisions are often made based on the personal prejudices and emotional reactions of judges with respect to a set of facts, and the process of "legal reasoning" is merely a mechanism employed by the Ego to rationalize the Id's irrational prejudices. But why is there such a need for rationalization? Two possibilities present themselves. First, the legal profession and society as a whole idealize the law as the perfect father-figure, and in their search for stability, demand that the law be a coherent and logical set of rules derived from reason. In other words, the Ego seeks to use the law as a further means of bringing order to the chaotic and passionate world of the Id. Second, the legal profession engages in endless rationalization as a means for alleviating the threat of punishment imposed on the Ego for its failure to incorporate the commands of the Super-Ego's "inward court of law" in laws governing members of society. In other words, if the Ego were to acknowledge explicitly that judicial decision-making is primarily an Id-driven process, then it would be subject to severe punishment from the Super-Ego for allowing instinctual impulses to reach conscious awareness, and worst of all, be the basis for law.
 
If judicial opinion-writing is merely a linguistic practice of rationalizing pre-existing attitudes, then a judge engaged in such activity may plausibly be called a sophist (an intellectual jolly). Just as the sophist can make the worse cause appear the better through the use of oratorical skills, a judge engaged in sophistry can make the worse argument appear the better by arguing that it "more accurately conforms to precedent," and by presenting it as "the law." Opinion writing is not a mechanism by which decisions are generated, but the complex of rhetorical gestures to which one has recourse when a decision, already made, must be put into presentable form. This would lead one to say that judicial opinions codify the perpetuation of a tradition that disguises prejudice as "precedent," forever passing down arbitrary rules from one judicial generation to the next. In this light, the history of law may be viewed as the history of evolving subjective and socio-cultural prejudices that find verbal expression in legal opinions, "rules of law," and social reactions thereto formulated in new legislation.

If law is merely an arbitrary set of rules based on judicial prejudices and emotional reactions, presented under the guise of "legal reasoning based on precedent," where does that leave us? Should we acknowledge such a subversive discovery, at the expense of disturbing the normal functioning of the Ego and diminishing our sense of stability in the world? Should we simply disobey whatever law is contrary to our liking? Should we set sail in search for truth upon the tumultuous ocean of uncertainty? Or should we rather immure ourselves forever in self-deceit, so that we may live under the shadow of illusory images depicting "law," "order," and "justice"?

You decide for yourself, dear fellow reader.

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Socratic Method / Legal Reasoning
« on: October 01, 2005, 03:42:06 PM »
Trial provides various opportunities for all participants to express unconscious parent-oriented emotions that have been repressed since childhood. These emotions are repressed in childhood primarily due to the fact that they are extremely ambivalent, eliciting punishment from the Super-Ego. From a psychoanalytic view, the trial judge can be viewed as a symbolic father figure, who may arouse in the litigants parent-oriented feelings. If the judge is perceived as an unconscious symbolic father-substitute, the litigants may unconsciously displace their parent-oriented feelings onto him. This may take the form of an unconscious wish to physically harm the judge, manifesting itself in conscious hostility toward the judge, particularly if he is ruling against one's case. A trial judge who uses his discretion to limit a litigant's chances of winning the case may be perceived as a father who sought to limit the child's desire for having intimate relations with the mother, thereby evoking the child's Oedipal feelings of hatred.

In a sense, a child's parents are his first judges, constructing the family "tribunal" wherein the father's "law" adjudicates whether the child's actions are right or wrong, and mandates appropriate rewards and punishments. If someone had experienced frequent "injustice" in the parental tribunal, then it is not inconceivable that he would later view all courts and laws as instruments of oppression designed to perpetuate injustice. Such a litigant would tend to displace feelings of hostility — originating from childhood — onto the judge and the court. Likewise, someone who has experienced violent abuse during childhood may later perceive all instruments of the law — the police, the judge, and the criminal law — as extensions of the unjust father figure who will forever pursue him to inflict further harm. From this point of view, it is not surprising to observe an uncooperative attitude in criminal defendants toward the criminal justice system. These ideas may shed light on the proposition that an abusive family environment in childhood may be a significant cause of adult criminality.
 
Furthermore, trial provides an atmosphere where not only litigants but also their lawyers can displace family-oriented feelings onto the judge and opposing counsel. A lawyer who identifies with his client, or at least empathizes with his client's cause, will often perceive the other side's counsel as a threat. This rivalry is not simply limited to the purpose of winning the case, for it may have its origins beyond the immediate court action. The lawyer's rivalry may be motivated by subconscious tendencies that have been repressed in childhood, turning his case into a personal matter. Specifically, the opposition between each side's counsel may have its underlying origin in a childhood experience of sibling rivalry that significantly influenced the development of the lawyer's personality. In such a situation, the trial judge may be a symbolic parental figure for lawyers who subconsciously perceive each other as rival siblings reliving a childhood experience. The lawyers could project parental feelings onto the judge, and depending on which side he favored in the litigation, the projections could range from severe hostility to intense liking. Accordingly, sibling rivalry may be a valid explanation for why opposing counsel at times scream at each other and express hostility toward one another in the courtroom.

The judge may also subconsciously displace family-oriented emotions onto the trial participants. A trial judge who subconsciously perceives a litigant or lawyer as a symbolic daughter or son would likely displace parental emotions onto the symbolic child-figure. Depending on how the judge views his or her own child and what sort of emotions he or she feels toward the child, the litigant or lawyer who symbolically represents the judge's child would be subject to familial emotional reactions — ranging from intense like to dislike — from the judge. These ideas could explain a situation where a judge seems to favor one of the litigants over the other, even though the disfavored party has a better argument. Thus, none of the trial participants is immune to the everlasting recreation of the Oedipal triangle, and the resulting emotional reactions generated therefrom.

3
Socratic Method / here it is what they say
« on: October 01, 2005, 03:36:22 PM »
Lawyers, judges, and legal scholars have traditionally presumed that humans are rational beings, at least insofar as the law is concerned, and that judicial decision-making is a determinate process characterized by the application of precedent to existing facts in a deductive and logical manner. The presupposition of law's inherent rationality has led to the eclipse of another dimension of law -- the mysterious emotive forces lying beneath conscious awareness that often influence the life of the law without manifesting themselves explicitly. Is it possible that humans are primarily governed by irrational instinctual impulses, and that the law is a necessary external element that must regulate their behavior in order for civilization to persist?

Could it be that the law is inherently illogical, although it exists under the pretense of rationality? What of the proposition that judicial decision-making is the fulfillment of personal prejudices of judges rather than the product of "legal reasoning based on precedent"?

The idea that law serves the social purpose of regulating the resolution of disputes among members of society in a peaceful and orderly manner is rather obvious. One can imagine the chaos that would ensue in a state where citizens did not have access to an institutional mechanism for resolving their disputes with one another. The parties would have to resort to private vengeance; the stronger party would likely humiliate, extort, and/or physically harm the other. Soon society would revert back to the Hobbesian "state of nature," characterized by utter lawlessness, absence of justice or ethics, and such a war as is of every man against every man" wherein "the life of man is solitary, poor, nasty, brutish, and short.

Perhaps less obvious is the psychological function served by choosing law as the social mechanism for adjudication. The adversarial legal process serves a very important psychological function insofar as it results in the sublimation of the aggressive instinct, thereby curbing the path for the expression of the litigants' hostility towards each other. Before commencing litigation, parties have often reached a point where no other means of resolution seem to exist. They are frustrated, enraged, and filled with "combat feelings" that seek some form of expression. The adversarial legal process allows litigants to express their aggression without resorting to physical violence. That clients ... try to use litigation as a channel for ... hostile and aggressive impulses ... is, of course, hardly surprising, since lawsuits are historically, and even presently, substitutes for private brawls, blood-feuds and the like. Furthermore, litigation allows the parties' lawyers to "fight" for their clients—assuming they empathize with their client's cause — and in this way, the lawyers themselves release aggressive impulses, albeit in sublimated form.

In return for the apparent peaceful solution that the law brings to dispute resolution, there is a corresponding disadvantage bestowed upon citizens by the rule of law: namely, neurosis and unhappiness. From a psychoanalytic view, the renunciation of instincts (in the sense of suppressing innate sexual and aggressive urges) is a necessary prerequisite for joining civilization and upholding lawful society. This repression of instinctual urges increases the unpleasant experience of guilt when one fails to repress fully such unacceptable unconscious tendencies. The renunciation of instincts leads to some degree of neurosis, which in turn results in unhappiness for civilized humanity. Indeed, by becoming members of lawful society, citizens exchange a portion of their happiness—formerly fulfilled through direct instinctual gratification — for the degree of security brought about by the law.
 
However, this subordinated form of instinctual gratification is not adequate to the Id, whose impulses must be continuously repressed by the Ego in order to obey the internal and external rules of law. The Ego finds itself in a very difficult position, since it must mediate between the Id's demand for instinctual gratification, and the Super-Ego's opposing demand for the renunciation of morally questionable and unacceptable unconscious desires emanating from the Id. In order to protect itself, the Ego employs various defense mechanisms, and simultaneously uses the law as an external instrument for regulating irrational tendencies. The outcome of creating such a complex psycho-legal regulatory network is that judicial processes are inevitably influenced by irrational emotive factors. Indeed, one may speak of the "psychodynamic judicial process," where chaos is disguised as order, and irrationality disguised as reason.

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