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I allowed for a week to pass from the start of the course before jotting any of my thoughts down in the present journal. I wanted to acclimate to the idiosyncrasy of the class, and resist the urge to “quibble” which whether as a systemic by-product or not, law school has so strongly encouraged me to do over the past six months to the point of it morphing into an almost “default” response to an assignment (written or oral).

I find our engagement via the Etherpad wonderfully refreshing. At first, I found it limiting; I was disoriented by the seeming lack of structure that it involved and the synchronicity, which quickly gave rise to a fear that between trying to listen and trying to participate, I wouldn’t be able to learn at all (perhaps confirming Holmes’ observation that a thing we have enjoyed as our own, whether property or an opinion “takes root in your being and cannot be torn away without your resenting the act”). In subsequent sessions, I have come to see that it is precisely this synchronicity that is so key to my learning process. The etherpad makes space for me to think imaginatively – not by putting my intellect to work through the process of deducing whether my idea is going to be deemed “right” or “wrong” but by focusing instead on developing my informed ideas (with input of my own and/or the rest of the class’). It may sound simplistic to say, but this change in approach feels revolutionary to me, largely because I have seldom exercised that skill in prior classes (at least definitely not in a class where it constituted the central focus). More revolutionary still, because I am understanding that such creative thinking about the law is not simply a “skill”, but part of a larger project – that of my life and what I wish to make of it so as to experience happiness.

All this to say, that I am pleasantly surprised at how I find myself imaginatively “participating” in this class as opposed to simply “performing”, which is of immense significance to me, since law school thus far has seemed largely performative. That is, my impression has been that as law school students we are called upon to simply learn the law (and do so in quite a dry, uninspired, formalistic manner) so much so, that at the end of last semester I had started to fear that I would lose track of why I chose the law in the first place; I could very-well picture such resignation (which, in my case would come hand in hand with accepting a job in biglaw for the wrong reasons i.e. not because I harbored the expectation that it could ever lead to personal fulfillment) following me into my legal career, thereby wasting my passion for grappling with ideas (which is the principal reason why your course stood out to me). Your statement about how one of the two-fold purposes of this course is to learn how to create lives for ourselves as lawyers that will satisfy us (and in which we can thrive) as human beings in all respects: intellectually, materially, morally, politically, and socially, deeply resonated with me. In my mind and in my life, I am realizing that such fulfillment is also interrelated with finding a way to incorporate the humanities (namely my passion for poetry and literature more brodly and the cinema, and my interest in history, and philosophy which are all significant to my identity) in the way that I think/approach the law. It seems, both from the audio recording and the etherpad, as though the humanities are of importance to you too, Professor, and you seem to have found a way to seamlessly integrate it in your own life and legal path; although I do not quite understand how, I would very much like to be able to do that too.

Perhaps that is one of the reasons why Holmes’ writing was of such appeal to me. Although he rejects the notion that law can be studied as a science per se, he also negates the idea that the law simply follows the rules of logic and in distinguishing the law from morality, he finds an appropriate place both for history (as an understanding of the evolution of law, which is necessary to “gain a liberal view of the subject”) and for economics as a means of contemplating the material consequences of who has what and can do what with it.

Re-reading Holmes for our discussion this week, I have come to focus on three elements of his “theory” if it can be called such, namely: (1) the definition of law as a predictor of what courts will do; (2) an urge against the use of moral phraseology in the law; (3) law from the point of view of the “bad-man.” It is the last two elements, that have generated the most questions for me.

Specifically, I find the following phrase puzzling in the way that it relates to Holmes’ view of knowing the law through the point of view of a bad man: good people “find reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” This seems to imply that even though morality can be gained inherently, it can also be gained “inside the law”, presumably because the law itself has the ability to shape our “conscience.” If that is so, then can we not say that the law is not only necessary to bad men (through the threat of penalty) but also to the good man (instead, as a source of counsel)? Doesn’t that undermine Holmes’ claim that “if you want to know the law and nothing else, you must look at it as a bad man”?

I am also questioning the extent to which the law can really be distinguished from morality. Doesn’t the process of interpreting the law, necessarily involve some normative judgments (on behalf of any stakeholder e.g. a judge or a lawyer making an argument in front of a judge) and hence does it not involve morals? For instance, in interpreting the constitution, isn’t a judge’s tendency to lean towards originalism or non-originalism determined by his normative interpretation of the Constitution? Or, in the case of customs deriving from the common law, do they not have to be determined normatively (especially when trying to decide between competing customs) rather than formulated empirically? And if that is true, then does it not blur the line between that the law is, and what it should to be? My point is, that I understand why the law needs to be separated from morality – but I am questioning the extent to which that is feasible.

-- IrisAikateriniFrangou - 26 Jan 2021



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r1 - 26 Jan 2021 - 16:45:08 - IrisAikateriniFrangou
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