-- By JohnBarker - 16 Feb 2012
As soon as the question was asked, I thought it was a very interesting one, and worth thinking about. In fact, we have had similar discussions in a couple of my other classes in the last six months, about how faith in the court system on the part of the people is vitally important, and how courts must sometimes make policy decisions specifically to retain that faith. So I was very interested in hearing the professor’s response, and was thus somewhat surprised to see the consideration basically dismissed outright, almost with a sneer. And Eben was right. Why would it even cross our minds as a consideration that we should remain ignorant about how the world really works (and how it should work) just for the sake of tricking the population, and indeed tricking ourselves, into some sort of static compliance? Too strong of a focus on order and on some understanding of national unity as opposed to on really interacting with the truth and with reality results in a failure to progress and a failure to better ourselves and our system.
But why do we keep coming back to these ideas? Why is it so difficult to really interact with that system and focus on understanding its theory, as well as on bettering that theory and its application? There are a lot of possible answers, and certainly the truth is that many of them in combination make people resistant to challenging the way we think about the world. Such an exercise would be difficult and highly theoretical, and of course there is some fear of the unknown and of what it means for our society and culture if the law doesn’t “mean” something logically. These are certainly on point; the second is a particularly strong and noteworthy factor, and connects in an interesting way to Robinson’s seeming paradox that some rapists are the worst people, and some are the kindest (things aren’t black-and-white).
But one possible factor that really stuck out as a consequence of Jerome Frank’s article comes at the end of his discussion regarding equating law and science. Some legal thinkers, so the argument goes, have striven for “scientific dispassionateness” which has resulted in “confus[ing] scientific objectivity with disinterest in values, and attempts to be completely removed from ethics. And precisely because law is not a science, and ethical values are in reality pervasive in any legal thinking, such theorists have essentially selectively “buried” their own ethical assumptions within their supposedly logically coherent thoughts (216-17).
As much as this process might be unconscious, I believe it could have an effect on peoples’ reluctance to acknowledge the truth about the subjectivity and human element of the law or to think of ways to improve our understanding of the law. My point is that perhaps there is a sort of “digging in” effect, where those “in the know” are able to (again, unconsciously) instill their own social values into the legal system and retain control. Which means individuals are keeping power and featuring their values prominently in the structure of our legal system by doing exactly what my colleague on the second day of class suggested. Even when the members of the ruling class are essentially good and strive for objectivity, which I believe is generally true, when a scientific gloss is put on the law, the values and ethics of those people become inextricably involved in the legal system. On some level, then, the perceived scientific quality of the law is a form of social control that has more power than the law itself.
Hi John,
Regarding the idea of transparency and public belief being manipulated by elites, this quote by Nobel-Prize winning economist Paul Samuelson came to mind:
"I think there is an element of truth in the view that the superstition that the budget must be balanced at all times [is necessary]. Once it is debunked [that] takes away one of the bulwarks that every society must have against expenditure out of control. There must be discipline in the allocation of resources or you will have anarchistic chaos and inefficiency. And one of the functions of old fashioned religion was to scare people by sometimes what might be regarded as myths into behaving in a way that the long-run civilized life requires. We have taken away a belief in the intrinsic necessity of balancing the budget if not in every year, [then] in every short period of time. If Prime Minister Gladstone came back to life he would say “uh, oh what you have done” and James Buchanan argues in those terms. I have to say that I see merit in that view.”
I think this speaks directly to your final conclusion, that: "On some level, then, the perceived scientific quality of the law is a form of social control that has more power than the law itself" - so-called "budget sustainability" and "national debt" concerns have led us to collectively accommodate huge amounts of suffering and injustice in the name of economic "laws" that would otherwise be completely unacceptable. The current economic crisis is, I think, as good an example as you'll find of how refusing to engage with realism through social self-deception can cause harm far greater than any temporary peace of mind that it creates.