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JohnBarkerFirstPaper 6 - 18 Jun 2012 - Main.EbenMoglen
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| | | But one possible factor that, potentially just for its newness to me, really stuck out as a consequence of Jerome Frank’s article comes at the end of his discussion on 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 people in control are essentially good and strive for objectivity, 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.
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Much improved. The central idea, if I correctly understand, is that
by asserting the "scientific" quality of law, those "in the know" (by
which I think you mean the ruling class) unconsciously "instill their
own social values into the legal system and retain control." This
seems to me possible.
Another possibility is that the ruling class always, consciously,
instills its preferred values and outcomes in the legal system. One
of the ways it prevents that from being fully visible to those whom
it does not help is by talking up "law as a science" or formalism.
Results the law arrives at are "neutral," according to the ideology
of the system, so dispute about the class nature of justice is moved
onto a "scientific" plane.
How should we decide among these possibilities, and the others that
are also posed, once, as you are doing, we treat the idea of "law
as science" as ideology, rather than fact?
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