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General Board / Re: Join PAD Legal Fraternity -- Bad Idea?
« on: March 04, 2012, 06:52:05 PM »Quote
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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.
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 disputes 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.
Here it is an interesting post on Americans in general - the way they think, behave and the like - very much in consonance with the prevailing ideology described in the above post. Couldn't be otherwise, after all, America's "philosophy" and ideology was fashioned after of the French Revolution's Illuminism.Quote
In casual conversation (called "small talk"), Americans prefer to talk about the weather, sports, jobs, people they both know, or past experiences, especially ones they have in common. As they grow up, most US citizens are warned not to discuss politics or religion, at least not with people they do not know rather well, because politics and religion are considered controversial topics. By contrast, people in some other cultures are taught to believe that politics and/or religion are good conversation topics, and they may have different ideas about what topics are too "personal" to discuss with others.
The ideal among Americans is to be somewhat verbally adept, speaking in moderate tones. They are generally taught to believe in the "scientific method" of understanding the world around them, as if there is some kind of "truth" about people and nature that can be discovered by means of "objective" inquiry. People from some other countries might pay more attention to the emotional content or the human feeling aspects of a message, without assuming the existence of an "objective truth."
The result is that Americans are likely to view a very articulate person with suspicion. This is because Americans are not intellectually capable of anything more than simple talk. The conclusion that Americans are intellectually inferior is logically reached when you also consider the fact that Americans do not regard argument as a favorite form of interaction. What US citizens regard favorably as "keeping cool" -- that is, not being drawn into an argument, not raising the voice, looking always for the "facts" is nothing else but coldness and lack of humanness.
pobis, not surprisingly, here I find another post describing a bit the American mentality, stressing on the Puritan/Calvinist inheritance as well:
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[...] The Puritan mind reasons: "Well of course the witch doesn't want to be saved from her own evil. That's why we must save her from herself by burning her at the stake." Sounds absurd, but that American major said after the destruction of the village of Ben Tre in Vietnam: "It became necessary to destroy the village in order to save it." A true Puritan there. [...] Think Fallujah. We're burning the country at the stake. It's a form of mental illness, but it's a sickness we all accept as normal.
Terrorism is the latest encounter of the Puritan mind with the irrational, and the traditional Islamic culture that promotes it will just have to be destroyed to save it. World politics will be so much more hygienic once we exterminate the vermin. [...] A key element in understanding the Calvinist mentality is its need for control and its willingness to use whatever level of violence necessary to repress the "irrational" elements in human experience, and the pre-modern in the Puritan demonology is full of irrational images triggering fears in need of suppression—magic, witches, Catholic ritual, shifty Jews, hot-tempered Italians, voodoo practicing Africans, the savage Indian.
Theirs is a tight, priggish, white-bread, control-obsessed world, sterilized of anything that suggests mystery, transcendence, or the non-rational in general. The Puritans and their Calvinist cousins the Scotch Irish, of course, didn't invent priggishness, nor are they, obviously, the only ones in the history of humanity who have justified the violent repression of their enemies for religious reasons. But theirs is the peculiarly modern form for the religious persecution of the enemy, and it lingers in Anglo-American culture, and is so much in the cultural air we breathe that we cannot see it clearly. At the very heart of modern "religiosity," whether in its Calvinist or its more secular versions, is fear of the uncontrollable non-rational.
The American right's fear of communism/socialism is more akin to the Islamic fear of modernity, which is the fear of an uncontrollable future. If fascism derives its mystique from a mythological past, communism derives it from a mythologized future. Progressives look to the future. Conservatives look to the past. Progressives distrust the past and its pre-modern irrationality; Conservatives distrust those who look to the future with an irrational utopianism. Progressivism is experiencing hard times these days because during a culturally decadent period like the one we're currently suffering through, we don't know what to hope for. We have only the weakest sense of plausible future possibility. We are capable of seeing the future only as a variation on 'more of the same', and that is not a vision that inspires concerted action. [...]