Law in Contemporary Society

-- MichelleChun - 27 Feb 2009

Last Thursday on Lincoln’s birthday, I had a dream of Honest Abe himself sitting at a picnic table in a friend’s backyard, wearing nothing but a threadbare undershirt. We talked about deliberative democracy. I was nervous but secretly hoping he’d stick around long enough to take a photo with me so I could post it on facebook (which would surely beat a $2500 pic with an un-minted, living presidential candidate).

My friend, incidentally, dreamt of Obama that same night – not playing Scrabble with the rest of Judith Warner’s unfulfilled coterie of freshly-self-discovered-as-mediocre friends – but dictating notes for her to type, as he hovered obnoxiously, demandingly, perfectly presidential. She was annoyed.

I offered her this trenchant analysis of her dream: your Obama isn’t a reflection of all we could have been, but the “dictator” (yes) of dreams we’re supposed to inscribe into our twenty-something earnest yes-we-can overachieving lives. Obama was the lawyer to her scrivener and her response, as Herman Melville’s Bartleby would put it: “Mr. President, I would prefer not to.”

I bring up Bartleby because, like Obama, he easily reflects whatever preferred worldviews we project onto him. He’s an absurdist precursor to Holmesian jurisprudence: he states his preferences (he’s got only one) and gets the job done (or not done) with one phrase. If he’s a parody of Thoreau disobeying civil-ly, he’s equally a friend to Cohen without a trace of transcendental nonsense behind his reasoning, or for that matter, his life of quiet desperation. He makes a mockery of the thinking man, embodied by the respectable and moderate narrator with a well-deserved income – whose reaction to Bartleby flip-flops between pity, panic, and self-righteousness.

But is it fair to compare Obama to the uptight Wall Street lawyer whom Melville disdained?

To me, the question pivots on what being a lawyer means, if that’s defined as using words to make changes in society. As Arnold seems to say, the codification of creeds into our language of justifying existing social organizations turns words into catchphrases and observation into mythology. We’re a society based on words, which just points us back to the fact our Constitution is a codification of our mythologies. We’re faced then with how we very problematically evoke logic, through nicely worded arguments, to float around cold hard facts and social realities and preferences. But this is where I get stuck. As simplistically as I understand it – and tried to explain to President Lincoln – that Habermasian notion of meaningful democratic deliberation or rational discourse towards achieving shared ends treads on people sharing a linguistic realm. And in the vein of Arnold, beyond Habermas, or Stanley Fish, or whoever, our language is a byproduct of external social forces and is its own social organization. So where do we place the myth of the thinking man into this linguistic organization? If the antecedent to being a writer or a lawyer is being enmeshed in a linguistic organization that we would be fools to believe can be controlled by a rational thinking man through his self-determined words, then how different really is a risk-adverse scrivener from any law student attempting to use words to make changes in society?

So invoking the thinking man to ridicule the notion that we make choices of our own free will implicates the very way we choose our words – or don’t really choose them after all. Whether we choose Obama or a Wall Street lawyer as our literary apostle, we’re still just inscribing the dictates of broader social forces and passing them off as our own. Maybe that leaves us with only a sliver of agency in declaring whether we’d prefer not to take part in this exercise at all.

There’s probably a gap (or several) in logic here – that being part of a determinate linguistic-social organization doesn’t mean we can’t change how or what we say. Just as the present moment seems to offer tantalizing potential to change the social organizations we’ve clung to for decades, maybe we can also find a way to insert bogeyman terms like “socialism” or “justice” into our popular discourse. But this is where I don’t follow Arnold (though I’m pretty sure I lost his point much earlier). It seems like words themselves, even if we judge them on the basis of what they do, not the niceties of their logical construction, aren’t going to get us out of this situation. Whether we call it “socialism” or a “bail-out” or ditch our “Yes We Can” incantations, how do we know the words we use are our own – part of our own personal reflections and decisions on the changes we want to make in society?

Arnold uses the analogy of the thinking rational man as a flattering self-portrait we hang on our walls, which is a useless prop to show a doctor if you want him to diagnose an illness plaguing your actual, factual body. And it seems only fair to turn to diagnose my own Lincoln dream and question the unwritten subtext of that conversation. Maybe my own ambition of being an honest participant in some political conversation is plagued by factors beyond my control. Maybe deep down I would like to sit with Lincoln, stripped down –literally – from his lofty American hero perch, talk about the facts of democracy without the incantations of the Emancipation Proclamation: then we'd be facebook buddies, in our pajamas, and play board games with Obama too! I could then post the notes of our meeting on this wiki and get a good grade from my professor! But maybe this isn’t about me or Lincoln, but justice! humanity! Bartleby! Or maybe my ambition is just to understand where to draw some baseline of responsibility and agency behind the jumble of words I’m offering here and to figure out what to do with a potentially self-defeating interpretation of other people’s dreams.

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r1 - 27 Feb 2009 - 18:06:34 - MichelleChun
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