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RohanGreyFirstPaper 12 - 09 Jul 2012 - Main.RohanGrey
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< | 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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