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RohanGreyFirstPaper 15 - 09 Aug 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | Nonsense Matters | |
<
< | If the law is social action, and lawyers applied theorists thereof, why do they place so much attention on legal language - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | >
> | If the law is social action, and lawyers applied theorists thereof, why is so much attention placed on the communicative medium - law speak - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous from a functional point of view? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | | | | |
<
< | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomena. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomenon. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... |
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RohanGreyFirstPaper 14 - 31 Jul 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | Law is Action | |
<
< | Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the law as a mode of action rather than a theoretical activity. Some approached the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative view, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the law in the active territory between social structure and individual behavior. | >
> | Of the various legal perspectives encountered throughout 1L year, the most persuasive (in my opinion) treated the law as a mode of action. Some adopted a territorial approach, exploring a series of related actions in a single legal dimension. Others adopted a more holistic approach, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the study of "The Law" in the active territory between social structure and individual behavior. | | | Nonsense Matters | |
<
< | If we accept that law is social action, and lawyers applied theorists thereof, why do we spend so much time studying legal language, and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic gaps of semantic ambiguity in the otherwise static and tightly functional vocabulary of the law. At an individual level, these gaps enable lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, they offer political pressure valves that can overcome intransigence in the legislative process without resorting to revolution. | >
> | If the law is social action, and lawyers applied theorists thereof, why do they place so much attention on legal language - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | | | | |
<
< | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomena. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... | |
<
< | Thus, while there is a clear need for the legal system to address the dynamic and expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | >
> | While the legal system must have some way to overcome the political and expressive limitations of purely functional language, it is likely that transcendental language does more harm than good. As with economists and mathematical economic models, Legal professionals' familiarity with transcendental language enables them to obscure underlying issues and accumulate political power for themselves. By framing legal issues as purely positive questions of language, the legal profession is also able to offload responsibility for addressing social problems onto other actors and social structures. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | | | | |
<
< | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | >
> | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe predictable meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging the dynamic and political nature of the underlying sources of that meaning. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully predicted by written code. | | | A Nation of Men | |
<
< | Is it possible to acknowledge the cracks in the law's linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by established rules. Every individual possesses some degree of lawmaking power, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to distill the law down to a perfect logical formula, but rather how to optimally divide legal power between relevant actors for any particular issue. If we paid greater attention to the quality of human decision-making and less to devising rules that purport to eliminate humans from the legal decision-making process entirely, then we would be free to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the formal tools inherited from preceding generations. | | | \ No newline at end of file | |
>
> | Is it possible to acknowledge the cracks in the law's objective linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by interpreted rules. Every individual possesses some degree of lawmaking discretion, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to generate the perfect "law", but rather how to use law to allocate decision-making power justly between relevant actors for any particular issue. If we devoted more energy to improving the quality and distribution of discretionary decision-making power and less to devising rules that purport to eliminate discretion from the decision-making process entirely, perhaps we would begin to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the limited tools inherited from preceding generations. |
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RohanGreyFirstPaper 13 - 31 Jul 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | Nonsense Matters | |
<
< | If law is social action, and lawyers applied theorists thereof, what role does legal language play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to uncontroversial and functional words, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for the evolving and otherwise indefinable values of those who use them. Their use creates limited semantic ambiguity in the otherwise tight working vocabulary of the law to facilitate evolving political understandings and changes in complex social structures and forces. | >
> | If we accept that law is social action, and lawyers applied theorists thereof, why do we spend so much time studying legal language, and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic gaps of semantic ambiguity in the otherwise static and tightly functional vocabulary of the law. At an individual level, these gaps enable lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, they offer political pressure valves that can overcome intransigence in the legislative process without resorting to revolution. | | | | |
<
< | Transcendental language, however, also brings its own problems. Politically significant and highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... | |
<
< | Thus, while there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | >
> | Thus, while there is a clear need for the legal system to address the dynamic and expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | | | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | |
<
< | A Nation of Laws Through Men | >
> | A Nation of Men | | | Is it possible to acknowledge the cracks in the law's linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by established rules. Every individual possesses some degree of lawmaking power, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to distill the law down to a perfect logical formula, but rather how to optimally divide legal power between relevant actors for any particular issue. If we paid greater attention to the quality of human decision-making and less to devising rules that purport to eliminate humans from the legal decision-making process entirely, then we would be free to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the formal tools inherited from preceding generations.
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RohanGreyFirstPaper 12 - 09 Jul 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | Whereof One Cannot Speak... | |
<
< | Thus, while there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer programs facilitate neoliberal economists' ongoing obsession with reductive mathematical modeling, ambivalence towards the use of transcendental language enables complex legal issues to be framed as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | >
> | Thus, while there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | | | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. |
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RohanGreyFirstPaper 11 - 09 Jul 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | Law is Action | |
<
< | Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the practice of law as a mode of action rather than a theoretical exercise. Some measured the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative approach, focusing on how individual actions – such as Judge Weinfeld's requirement that partners remain on call for the entire day that their case is scheduled – affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the law in the active territory between social structure and individual behavior. | >
> | Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the law as a mode of action rather than a theoretical activity. Some approached the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative view, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the law in the active territory between social structure and individual behavior. | | | Nonsense Matters | |
<
< | If law is social action, and lawyers applied theorists thereof, what role does legal language itself play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to words with near-universally accepted definitions, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for otherwise inarticulable ideas. They are linguistic “black holes,” absorbing and releasing particles of meaning in a state of perpetual flux. This flux creates a limited semantic space in the otherwise tight working vocabulary of the law that facilitates discussion of subjective values and complex structures and forces. | >
> | If law is social action, and lawyers applied theorists thereof, what role does legal language play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to uncontroversial and functional words, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for the evolving and otherwise indefinable values of those who use them. Their use creates limited semantic ambiguity in the otherwise tight working vocabulary of the law to facilitate evolving political understandings and changes in complex social structures and forces. | | | | |
<
< | While not completely valueless, transcendental language also brings its own problems. Important or highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape. This is the case today with the word “efficiency,” for example, which depending on context can be used to refer to taxation, the absolute protection of exclusionary property rights, or an absence of legal intervention whatsoever. Such tensions are typically only resolved when a particular definition (or family of definitions) defeats its competitors and achieves widespread acceptance, or the term is replaced entirely in a Kuhnian-style paradigm-shift and the process of defining the indefinable begun again from scratch. The latter outcome explains how one generation's struggle over “economic rights” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | Transcendental language, however, also brings its own problems. Politically significant and highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... | |
<
< | While there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that transcendental language does more harm than good. Similar to how sophisticated computer programs facilitate neoliberal economists' ongoing obsession with reductive mathematical modeling, transcendental language enables complex legal issues to be approached as purely positivistic or scientific questions. So long as the real variables are correctly inputed, the story goes, the answer will be discoverable in the language of the law itself. | >
> | Thus, while there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer programs facilitate neoliberal economists' ongoing obsession with reductive mathematical modeling, ambivalence towards the use of transcendental language enables complex legal issues to be framed as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate. | | | | |
<
< | This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto non-legal social structures. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of easily measurable phenomena at the expense of less directly observable but potentially more important forces, as current debates over renewable energy legislation demonstrate. | >
> | One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | | | | |
<
< | One response to the latter problem is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ground the meaning of transcendental terms such as “efficiency” and “intent” in non-legal authority while simultaneously acknowledging such terms lack intrinsic or functional meaning. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | >
> | A Nation of Laws Through Men | | | | |
<
< | A Nation of Men, Not Laws
But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to develop the perfect logical formula, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society.
If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations. | | | \ No newline at end of file | |
>
> | Is it possible to acknowledge the cracks in the law's linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by established rules. Every individual possesses some degree of lawmaking power, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to distill the law down to a perfect logical formula, but rather how to optimally divide legal power between relevant actors for any particular issue. If we paid greater attention to the quality of human decision-making and less to devising rules that purport to eliminate humans from the legal decision-making process entirely, then we would be free to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the formal tools inherited from preceding generations. | | | \ No newline at end of file |
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RohanGreyFirstPaper 10 - 01 Jul 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to develop the perfect logical formula, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society. | |
<
< | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations. | | | \ No newline at end of file | |
>
> | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations. | | | \ No newline at end of file |
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RohanGreyFirstPaper 9 - 19 Jun 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | A Nation of Men, Not Laws | |
<
< | But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to create a just law, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society. | >
> | But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to develop the perfect logical formula, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society. | | | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations. |
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RohanGreyFirstPaper 8 - 19 Jun 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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| | | But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to create a just law, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society. | |
<
< | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that issues like poverty, sickness, unemployment and violence are confronted with the full force of human imagination and potential rather than the limited tools afforded by our long-dead ancestors. | >
> | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations. |
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RohanGreyFirstPaper 7 - 18 Jun 2012 - Main.RohanGrey
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<
< | King Solomon's Justice | >
> | First Paper | | | -- By RohanGrey - 20 Feb 2012 | |
<
< | Introduction | >
> | Law is Action | | | | |
<
< | This essay examines the biblical parable of King Solomon's "Wise Decision" in an attempt to gain insight into the nature of justice. | >
> | Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the practice of law as a mode of action rather than a theoretical exercise. Some measured the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative approach, focusing on how individual actions – such as Judge Weinfeld's requirement that partners remain on call for the entire day that their case is scheduled – affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the law in the active territory between social structure and individual behavior. | | | | |
<
< | The Parable | >
> | Nonsense Matters | | | | |
<
< | Solomon is asked to rule over a dispute between two women, each of whom claim maternity of a living infant. Unable to differentiate between them, Solomon orders that the baby be killed and its body split in two. Woman 1 rejects the ruling, offering instead to withdraw her claim in order to preserve the life of the infant. However, Woman 2 insists that the ruling be carried out. In light of this interaction, Solomon deems Woman 1 to be the true mother and awards her custody. | >
> | If law is social action, and lawyers applied theorists thereof, what role does legal language itself play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to words with near-universally accepted definitions, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for otherwise inarticulable ideas. They are linguistic “black holes,” absorbing and releasing particles of meaning in a state of perpetual flux. This flux creates a limited semantic space in the otherwise tight working vocabulary of the law that facilitates discussion of subjective values and complex structures and forces. | | | | |
<
< | What is the Function of the Parable? | >
> | While not completely valueless, transcendental language also brings its own problems. Important or highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape. This is the case today with the word “efficiency,” for example, which depending on context can be used to refer to taxation, the absolute protection of exclusionary property rights, or an absence of legal intervention whatsoever. Such tensions are typically only resolved when a particular definition (or family of definitions) defeats its competitors and achieves widespread acceptance, or the term is replaced entirely in a Kuhnian-style paradigm-shift and the process of defining the indefinable begun again from scratch. The latter outcome explains how one generation's struggle over “economic rights” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | | |
<
< | Viewed outside its broader Biblical setting, the parable presents the reader with a stark legal universe, devoid of any historical or social context. As the divinely anointed sovereign (cue Handel), Solomon possesses plenary judicial power akin to a primitive court of equity. He adjudicates with absolute discretion, making no attempt to explain or rationalize his decisions in accordance with any external set of values. Instead, he is guided by "divine wisdom" that enables him to overcome the psychological and biological constraints of his humanity. | >
> | Whereof One Cannot Speak... | | | | |
<
< | The explicitly transcendental nature of Solomon's judgment renders him a judicial tabula rasa; formally embodying the ideal "Lawmaker" while not possessing any inherent substance. Instead, this substance is provided by the reader through the meaning they assign to Solomon's actions. Hence, rather than offering any direct insights into the nature of the law, the story functions as a means by which the reader can reflect on his or her own normative theory of lawmaking or "justice." | >
> | While there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that transcendental language does more harm than good. Similar to how sophisticated computer programs facilitate neoliberal economists' ongoing obsession with reductive mathematical modeling, transcendental language enables complex legal issues to be approached as purely positivistic or scientific questions. So long as the real variables are correctly inputed, the story goes, the answer will be discoverable in the language of the law itself. | | | | |
<
< | A Realistic Reading | >
> | This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto non-legal social structures. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of easily measurable phenomena at the expense of less directly observable but potentially more important forces, as current debates over renewable energy legislation demonstrate. | | | | |
<
< | At the outset, Solomon is presented with what appears to be an empirical question. There are three possible ways to interpret his response. The first is that Solomon decides it is impossible to empirically determine who the biological mother is. Consequently, he chooses the only non-arbitrary solution available to him: splitting the asset equally and dividing the proceeds. This interpretation fails, however, to explain Solomon's willingness to later overturn his decision in light of new empirical evidence. | >
> | One response to the latter problem is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ground the meaning of transcendental terms such as “efficiency” and “intent” in non-legal authority while simultaneously acknowledging such terms lack intrinsic or functional meaning. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully expressed in written code. | | | | |
<
< | The second is that Solomon decides it is possible to empirically determine who the biological mother is, but finds the evidence insufficient at the outset to make a decision either way. When later presented with additional evidence, he modifies his decision. This interpretation is equally unconvincing, since it fails to explain why the new evidence was dispositive to the question of biological maternity, or why Solomon chose not to investigate or cross-examine the women prior to making his initial decision. | >
> | A Nation of Men, Not Laws | | | | |
<
< | The third interpretation is more nuanced. Rather than accepting a biological definition of motherhood, Solomon creates a new legal definition centered around care for the wellbeing of the child. He then tests this functional definition by threatening the life of the child in order to provoke observable reactions from the two women. The judicial feint works as intended, providing Solomon with sufficient evidence to conclude that the first woman does in fact care for the child, and hence is the rightful mother. This interpretation is persuasive because it coherently explains Solomon's actions and addresses both the epistemological and normative elements of lawmaking. | >
> | But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to create a just law, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society. | | | | |
<
< | Reflection
If we accept the latter account as a highly stylized but essentially accurate view of the human judicial decision-making process, what can we infer from it about the relationship between justice and society?
Unlike King Solomon, real judicial decision-makers are not guaranteed to possess unique insight into the human condition. Instead, most rely upon axiomatic beliefs derived from their personal life experience. The degree of accuracy of these beliefs, like in Solomon's case, can literally mean the difference between justice and the arbitrary murder of an innocent child. Moreover, even highly sensitive judges remain vulnerable to the Machiavellian strategies of equally or more enlightened individuals with influence over the judicial process. It is not hard, for example, to imagine Woman 1's settlement offer as a deliberate preemption of Solomon's strategy, or alternatively as an attempt to move the dispute to an extra-judicial context in which she expected to perform more favorably.
While the the inherent fallibility of mortal judges underscores the need for a healthy skepticism of the law, it is not cause to abandon faith in it entirely. Human law, unlike Solomon's law, is not based on a monolithic decision-maker. Instead, it consists of a myriad of actors with varying forms of discretionary lawmaking power, ranging from politicians and judges to law enforcement officials and the voting citizenry. These actors jostle against each other to preserve and expand their respective spheres of influence, creating a constant tension that self-regulates the system from the risks posed by any one individual or group.
The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over human action. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience.
In light of this, perhaps the real hero of the parable is in fact the mother, whose rejection of Solomon's initial ruling forms the critical action of the story. On one level, this rejection functions as a metaphor for human compassion. On another, it represents a suitable grounds upon which Solomon is able to make his decision. The juxtaposition of these meanings invites the almost Buddhist conclusion that our ability to achieve justice ultimately depends on the cultivation of feelings of empathy and compassion.
I find this draft very puzzling. At its heart, there seems a willful
determination to pretend ignorance. You don't need these conflicting
"interpretations" of the story. The King (it has been told since
before there was writing, no doubt, and the version interpolated in
the miscellany of Hebrew literature we call the "Old Testament" was
surely not less than its thousandth telling) is administering a test
to find out who is the mother. He "knows" that the woman who would
rather live without the child than see it die is a real, biological
parent. His test, as you say, succeeds.
But no other hypotheses such as those you pretend to advance and then
discard are necessary. The test, which finds unconscious emotional
truths under rational arguments, is "the meaning" of the story.
Given which, it's surprising and (for me) telling that you
hypothesize the behavior of the natural mother as strategic or
rational, rather than being what the story presents and requires it
to be, namely unconscious and emotional. As is the other confluence
of emotions demonstrated by the second woman, who knows very well
that she will not be considered the mother if she proposes to make
the death of the child the price of winning her case, but who cannot
dissemble her malice. The sage has brought out the unconscious
condition of both women, not one.
For these among other reasons, I think this is not a story about
justice. It's about wisdom. It is told about Solomon not because he
is King, but because he is wise; this cliche story isn't biography:
it is a conventional marker, a designator, for wisdom. The human
being who does this is not a shaman, one who consults the spirits in
the spirit world, as is typical of Eurasian prehistory. Nor is he a
possessed, whom the god enters and through whom the god speaks, as in
African tradition. Those are judges. He is a human who bridges the
distance from the conscious to the unconscious and makes the truth
visible. That's the context in which the closing reference to
Buddhism makes sense.
It seems to me that the choice before you is whether to regard the
metaphor or the message as the center of the next draft. The story
of Solomon "splitting the baby" has become part of lawyers' language,
and perhaps it is the story you should stick with, through its
changes down the millennia. But maybe there was something being said
about judging that was made more puzzling by its association with the
wisdom-tale, and could be made more simple and straightforward by
leaving the tale behind.
| | | \ No newline at end of file | |
>
> | If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that issues like poverty, sickness, unemployment and violence are confronted with the full force of human imagination and potential rather than the limited tools afforded by our long-dead ancestors. |
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RohanGreyFirstPaper 6 - 25 Apr 2012 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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<
< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | King Solomon's Justice | | | In light of this, perhaps the real hero of the parable is in fact the mother, whose rejection of Solomon's initial ruling forms the critical action of the story. On one level, this rejection functions as a metaphor for human compassion. On another, it represents a suitable grounds upon which Solomon is able to make his decision. The juxtaposition of these meanings invites the almost Buddhist conclusion that our ability to achieve justice ultimately depends on the cultivation of feelings of empathy and compassion. | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: | >
> | | | | | |
<
< | | >
> | I find this draft very puzzling. At its heart, there seems a willful
determination to pretend ignorance. You don't need these conflicting
"interpretations" of the story. The King (it has been told since
before there was writing, no doubt, and the version interpolated in
the miscellany of Hebrew literature we call the "Old Testament" was
surely not less than its thousandth telling) is administering a test
to find out who is the mother. He "knows" that the woman who would
rather live without the child than see it die is a real, biological
parent. His test, as you say, succeeds.
But no other hypotheses such as those you pretend to advance and then
discard are necessary. The test, which finds unconscious emotional
truths under rational arguments, is "the meaning" of the story.
Given which, it's surprising and (for me) telling that you
hypothesize the behavior of the natural mother as strategic or
rational, rather than being what the story presents and requires it
to be, namely unconscious and emotional. As is the other confluence
of emotions demonstrated by the second woman, who knows very well
that she will not be considered the mother if she proposes to make
the death of the child the price of winning her case, but who cannot
dissemble her malice. The sage has brought out the unconscious
condition of both women, not one.
For these among other reasons, I think this is not a story about
justice. It's about wisdom. It is told about Solomon not because he
is King, but because he is wise; this cliche story isn't biography:
it is a conventional marker, a designator, for wisdom. The human
being who does this is not a shaman, one who consults the spirits in
the spirit world, as is typical of Eurasian prehistory. Nor is he a
possessed, whom the god enters and through whom the god speaks, as in
African tradition. Those are judges. He is a human who bridges the
distance from the conscious to the unconscious and makes the truth
visible. That's the context in which the closing reference to
Buddhism makes sense.
It seems to me that the choice before you is whether to regard the
metaphor or the message as the center of the next draft. The story
of Solomon "splitting the baby" has become part of lawyers' language,
and perhaps it is the story you should stick with, through its
changes down the millennia. But maybe there was something being said
about judging that was made more puzzling by its association with the
wisdom-tale, and could be made more simple and straightforward by
leaving the tale behind. | | | | |
<
< | Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | >
> | | | | \ No newline at end of file |
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RohanGreyFirstPaper 5 - 21 Feb 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over human action. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | |
<
< | In light of this, perhaps the real hero of the parable in fact the mother, whose passionate rejection of Solomon's initial ruling forms the critical action of the story. On one level, this rejection represents a willingness to resist authority when it threatens the wellbeing of others. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that the quality of human judgment depends on our collective capacity to cultivate empathy for others. | >
> | In light of this, perhaps the real hero of the parable is in fact the mother, whose rejection of Solomon's initial ruling forms the critical action of the story. On one level, this rejection functions as a metaphor for human compassion. On another, it represents a suitable grounds upon which Solomon is able to make his decision. The juxtaposition of these meanings invites the almost Buddhist conclusion that our ability to achieve justice ultimately depends on the cultivation of feelings of empathy and compassion. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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RohanGreyFirstPaper 4 - 21 Feb 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | At the outset, Solomon is presented with what appears to be an empirical question. There are three possible ways to interpret his response. The first is that Solomon decides it is impossible to empirically determine who the biological mother is. Consequently, he chooses the only non-arbitrary solution available to him: splitting the asset equally and dividing the proceeds. This interpretation fails, however, to explain Solomon's willingness to later overturn his decision in light of new empirical evidence. | |
<
< | The second is that Solomon decides it is possible to empirically determine who the biological mother is, but finds the evidence insufficient at the outset to make a decision either way and simply changes his mind later once presented with more evidence. This interpretation is equally unconvincing, since it fails to explain why the new evidence was dispositive to the question of biological maternity, or why Solomon chose not to investigate or cross-examine the women prior to making his initial decision. | >
> | The second is that Solomon decides it is possible to empirically determine who the biological mother is, but finds the evidence insufficient at the outset to make a decision either way. When later presented with additional evidence, he modifies his decision. This interpretation is equally unconvincing, since it fails to explain why the new evidence was dispositive to the question of biological maternity, or why Solomon chose not to investigate or cross-examine the women prior to making his initial decision. | | | The third interpretation is more nuanced. Rather than accepting a biological definition of motherhood, Solomon creates a new legal definition centered around care for the wellbeing of the child. He then tests this functional definition by threatening the life of the child in order to provoke observable reactions from the two women. The judicial feint works as intended, providing Solomon with sufficient evidence to conclude that the first woman does in fact care for the child, and hence is the rightful mother. This interpretation is persuasive because it coherently explains Solomon's actions and addresses both the epistemological and normative elements of lawmaking. | | | While the the inherent fallibility of mortal judges underscores the need for a healthy skepticism of the law, it is not cause to abandon faith in it entirely. Human law, unlike Solomon's law, is not based on a monolithic decision-maker. Instead, it consists of a myriad of actors with varying forms of discretionary lawmaking power, ranging from politicians and judges to law enforcement officials and the voting citizenry. These actors jostle against each other to preserve and expand their respective spheres of influence, creating a constant tension that self-regulates the system from the risks posed by any one individual or group. | |
<
< | The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over coercive power. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | >
> | The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over human action. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | | | | |
<
< | In light of this, perhaps the real hero of the parable is not Solomon at all but the mother, whose passionate rejection of his initial ruling forms the critical action of the story. On one level, it represents her willingness to resist authority in the face of genuine concern for the wellbeing of her child. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that improvement of human judgment depends strongly on our capacity to cultivate empathy for others. | >
> | In light of this, perhaps the real hero of the parable in fact the mother, whose passionate rejection of Solomon's initial ruling forms the critical action of the story. On one level, this rejection represents a willingness to resist authority when it threatens the wellbeing of others. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that the quality of human judgment depends on our collective capacity to cultivate empathy for others. | | | | |
<
< | (982 Words) | | |
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RohanGreyFirstPaper 3 - 20 Feb 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over coercive power. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | |
<
< | In light of this, perhaps the real hero of this story is not Solomon at all but the mother, whose passionate rejection of his initial ruling forms the critical action of the story. On one level, it represents her willingness to resist authority in the face of genuine concern for the wellbeing of her child. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that improvement of human judgment depends strongly on our capacity to cultivate empathy for others. | >
> | In light of this, perhaps the real hero of the parable is not Solomon at all but the mother, whose passionate rejection of his initial ruling forms the critical action of the story. On one level, it represents her willingness to resist authority in the face of genuine concern for the wellbeing of her child. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that improvement of human judgment depends strongly on our capacity to cultivate empathy for others. | | | (982 Words) |
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RohanGreyFirstPaper 2 - 20 Feb 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | If we accept the latter account as a highly stylized but essentially accurate view of the human judicial decision-making process, what can we infer from it about the relationship between justice and society? | |
<
< | Unlike King Solomon, real judicial decision-makers are not guaranteed to possess a sophisticated understanding of the human condition. Instead, most rely upon axiomatic beliefs derived from their personal life experience. The accuracy of these beliefs, like in Solomon's case, often literally mean the difference between justice and the arbitrary murder of an innocent child. Moreover, even highly sensitive judges remain vulnerable to the Machiavellian strategies of equally or more enlightened individuals with influence over the judicial process. It is not hard, for example, to imagine Woman 1's settlement offer as a deliberate preemption of Solomon's strategy, or alternatively as an attempt to move the dispute to an extra-judicial context in which she expected to perform more favorably. | >
> | Unlike King Solomon, real judicial decision-makers are not guaranteed to possess unique insight into the human condition. Instead, most rely upon axiomatic beliefs derived from their personal life experience. The degree of accuracy of these beliefs, like in Solomon's case, can literally mean the difference between justice and the arbitrary murder of an innocent child. Moreover, even highly sensitive judges remain vulnerable to the Machiavellian strategies of equally or more enlightened individuals with influence over the judicial process. It is not hard, for example, to imagine Woman 1's settlement offer as a deliberate preemption of Solomon's strategy, or alternatively as an attempt to move the dispute to an extra-judicial context in which she expected to perform more favorably. | | | While the the inherent fallibility of mortal judges underscores the need for a healthy skepticism of the law, it is not cause to abandon faith in it entirely. Human law, unlike Solomon's law, is not based on a monolithic decision-maker. Instead, it consists of a myriad of actors with varying forms of discretionary lawmaking power, ranging from politicians and judges to law enforcement officials and the voting citizenry. These actors jostle against each other to preserve and expand their respective spheres of influence, creating a constant tension that self-regulates the system from the risks posed by any one individual or group. | |
<
< | The success of this self-regulation is conditional on degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over coercive power. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | >
> | The success of this self-regulation is conditional on the degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over coercive power. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience. | | | In light of this, perhaps the real hero of this story is not Solomon at all but the mother, whose passionate rejection of his initial ruling forms the critical action of the story. On one level, it represents her willingness to resist authority in the face of genuine concern for the wellbeing of her child. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that improvement of human judgment depends strongly on our capacity to cultivate empathy for others. |
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RohanGreyFirstPaper 1 - 20 Feb 2012 - Main.RohanGrey
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
King Solomon's Justice
-- By RohanGrey - 20 Feb 2012
Introduction
This essay examines the biblical parable of King Solomon's "Wise Decision" in an attempt to gain insight into the nature of justice.
The Parable
Solomon is asked to rule over a dispute between two women, each of whom claim maternity of a living infant. Unable to differentiate between them, Solomon orders that the baby be killed and its body split in two. Woman 1 rejects the ruling, offering instead to withdraw her claim in order to preserve the life of the infant. However, Woman 2 insists that the ruling be carried out. In light of this interaction, Solomon deems Woman 1 to be the true mother and awards her custody.
What is the Function of the Parable?
Viewed outside its broader Biblical setting, the parable presents the reader with a stark legal universe, devoid of any historical or social context. As the divinely anointed sovereign (cue Handel), Solomon possesses plenary judicial power akin to a primitive court of equity. He adjudicates with absolute discretion, making no attempt to explain or rationalize his decisions in accordance with any external set of values. Instead, he is guided by "divine wisdom" that enables him to overcome the psychological and biological constraints of his humanity.
The explicitly transcendental nature of Solomon's judgment renders him a judicial tabula rasa; formally embodying the ideal "Lawmaker" while not possessing any inherent substance. Instead, this substance is provided by the reader through the meaning they assign to Solomon's actions. Hence, rather than offering any direct insights into the nature of the law, the story functions as a means by which the reader can reflect on his or her own normative theory of lawmaking or "justice."
A Realistic Reading
At the outset, Solomon is presented with what appears to be an empirical question. There are three possible ways to interpret his response. The first is that Solomon decides it is impossible to empirically determine who the biological mother is. Consequently, he chooses the only non-arbitrary solution available to him: splitting the asset equally and dividing the proceeds. This interpretation fails, however, to explain Solomon's willingness to later overturn his decision in light of new empirical evidence.
The second is that Solomon decides it is possible to empirically determine who the biological mother is, but finds the evidence insufficient at the outset to make a decision either way and simply changes his mind later once presented with more evidence. This interpretation is equally unconvincing, since it fails to explain why the new evidence was dispositive to the question of biological maternity, or why Solomon chose not to investigate or cross-examine the women prior to making his initial decision.
The third interpretation is more nuanced. Rather than accepting a biological definition of motherhood, Solomon creates a new legal definition centered around care for the wellbeing of the child. He then tests this functional definition by threatening the life of the child in order to provoke observable reactions from the two women. The judicial feint works as intended, providing Solomon with sufficient evidence to conclude that the first woman does in fact care for the child, and hence is the rightful mother. This interpretation is persuasive because it coherently explains Solomon's actions and addresses both the epistemological and normative elements of lawmaking.
Reflection
If we accept the latter account as a highly stylized but essentially accurate view of the human judicial decision-making process, what can we infer from it about the relationship between justice and society?
Unlike King Solomon, real judicial decision-makers are not guaranteed to possess a sophisticated understanding of the human condition. Instead, most rely upon axiomatic beliefs derived from their personal life experience. The accuracy of these beliefs, like in Solomon's case, often literally mean the difference between justice and the arbitrary murder of an innocent child. Moreover, even highly sensitive judges remain vulnerable to the Machiavellian strategies of equally or more enlightened individuals with influence over the judicial process. It is not hard, for example, to imagine Woman 1's settlement offer as a deliberate preemption of Solomon's strategy, or alternatively as an attempt to move the dispute to an extra-judicial context in which she expected to perform more favorably.
While the the inherent fallibility of mortal judges underscores the need for a healthy skepticism of the law, it is not cause to abandon faith in it entirely. Human law, unlike Solomon's law, is not based on a monolithic decision-maker. Instead, it consists of a myriad of actors with varying forms of discretionary lawmaking power, ranging from politicians and judges to law enforcement officials and the voting citizenry. These actors jostle against each other to preserve and expand their respective spheres of influence, creating a constant tension that self-regulates the system from the risks posed by any one individual or group.
The success of this self-regulation is conditional on degree to which coercive power is diffused between the actors in the system. Luckily, no single actor in the real world possesses a Solomonesque monopoly over coercive power. Instead, every individual retains the fundamental freedom to oppose the legitimacy of laws they perceive to be unjust, either internally through democratic mechanisms or externally through acts of civil disobedience.
In light of this, perhaps the real hero of this story is not Solomon at all but the mother, whose passionate rejection of his initial ruling forms the critical action of the story. On one level, it represents her willingness to resist authority in the face of genuine concern for the wellbeing of her child. On another, it represents a relatable action upon which Solomon is able to rely in order to make his final decision. Ultimately, these two levels of meaning blur together, inviting the broader conclusion that improvement of human judgment depends strongly on our capacity to cultivate empathy for others.
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