• That's not a quote and it shouldn't be inside quotation marks.

And according to Mr. Cohen, a whole lot of what is nominally known as ‘law’, such as property rights should rather be known as transcendental nonsense, due to their ‘thingification’ and circular logic and their disconnection from the consequences of the application of the law.

Thus according to Holmes, ideas embodied in the First Article, section one of the German Basic Law would not be law. This clause poetically claims that ‘human dignity is inviolable’. This is, at face value, an untruth. Human dignity is far from being inviolable; in fact it is violated many times every day. This is hence an untruth, a lie, a fiction, and completely unrelated to what happens in the real world. It seems to meet the criteria of transcendental nonsense and to fall outside Holmes’ definition of the law.

If this is not so then it appears that I have mistaken Mr. Holmes and Mr. Cohen and you should cease reading now. Else let us continue with the fiction.

A fiction indeed, and a necessary one at that.

Everyone who has ever played with Lego, who has built a wall, a sandcastle, painted a picture, hewn a sculpture, written an article, cut a piece of wood or completed a sentence knows an important truth: Everything is created twice. First, it is created in our minds, and secondly it gains substance in reality. We imagine a blueprint of what we will create. Of course, our abilities may be less than perfect, the sand may be soggy, the brush too broad, the stone too soft. But we have a mental ability to imagine how the sculpture ought to look, how the picture ought to turn out. We also have oughts about how we and other people ought to behave, which germinates into social conventions, religions, prejudices, biases, definitions of sanity, normality, morality and, finally, into what is known as law.

A fiction of what ought to be. An example is that human dignity ought to be respected. Another is that the ruling class of a country ought to behave in a certain way.

Are these fictions real? That is a transcendentally nonsensical question.

What is the value of this fiction? The idea of an autonomous judge is certainly fictional, as is the idea of an objective point of view or of an objective journalist. What, I wonder, would be the functional approach to journalism? Write a certain report, and then empirically study how people behave according to standards of ethics (which would again incorporate an ought) or standards of efficiency or minimized crime (both of which are oughts)? Does it even make sense to consider a functional approach to architecture, art, engineering while disregarding the oughts behind them?

These fictions are hence a necessary evil (or good). Law is based on the fiction that it is real.

Mr. Cohen has ‘dismantled’ a few of these fictions in the article. Yet I find his argument puzzling. He criticizes that in a case no arguments were raised regarding whether “unions would be seriously handicapped by the imposition of financial responsibility for damage done in strikes [read: unions ought not be seriously handicapped], that it would be impossible for labor unions to control agents provocateurs [unions ought not be responsible for incontrollable agents provocateurs], and that labor unions served a very important function in modern industrial society which would be seriously endangered by the type of liability in question [we ought to have labor unions]. Instead of offering any such argument to support the claim of the labor union to legal immunity for the torts of its members, counsel for the union advanced the metaphysical argument that a labor union, being an unincorporated association, is not a person and, therefore, cannot be subject to tort liability [law: only incorporated associations ought be liable].

So let’s reduce this:

• Cohen thinks that labor unions ought not be seriously handicapped, unions ought not be responsible for incontrollable agents provocateurs and that we ought to have labor unions.
• The law says that only incorporated associations ought be liable.

To me, Cohen’s arguments sound like policy, which ought to be brought to attention in Congress. Attempting to argue this in court and expecting to be successful means conflating the legislative and judicial process, in which case he has a very different agenda then he lets on indeed.

More to the point, he is lamenting that the lawyers in the case are referring to a law which arguably serves a different motive than that what is at stake here. This happened due to the law (no pun intended) of unforeseen consequences. The idea that only incorporated associations ought be liable was almost certainly not a progeny of congressional labor union policy. The law on unincorporated associations has had unforeseen consequences. Again, his argument is better addressed to congress in support for a plea in change of laws than in a critique of the legal system in toto. Simply arguing that a certain law X does not meet the considerations mention in Y does not make X useless or senseless.

The functional approach, then to my mind is a mere determination of whether laws as created by Congress or other agencies have met their intended purpose. A law might be passed to advance labor unions as envisaged above, and a year or a few later, by means of statistics and empirics, it might be assessed whether it has met the expectation. This is nothing new then, since this is the very reason laws are changed or amended, either they don’t meet the objectives or the objectives have changed. It is the reason for the American constitution, as the Articles of Confederation apparently weren’t doing the job. The famed functional approach seems more like the rage of Caliban not seeing his face in a glass.

The second argument advanced is circularity. Trade names and property rights protect values which would be of no value without the legal protection. But here again, we can see a purpose – Congress or the social contract or whichever social theory you like has decided that innovation ought to be fostered, which can be done by creating first-in-time property rights. We may argue about whether this is a good and desirable goal or whether the means chosen are appropriate, but it certainly is not circular anymore. The law has a real impact in the world and serves a real purpose and is not created out of itself. (Note: for all my rants on purpose, I am no creationist).

Is this law? To Holmes, is not law. We run in danger of having a merely semantic debate, for who cares about whether we define law as what courts say or as including what lawmakers say? Maybe law is simply what is taught in law school, and let us turn to the issue of the bad man.

The bad man does not care what the law was created for, what purpose it serves. To him, he simply ought to stay out of jail, he ought to pay the least possible fine.

The answer is threefold. First, this is only half the story. We have all been the bad man. When our parents told us that in order to stay up late we had to tidy our room first, we all wondered what the least possible tidiness was with which we could get away with. But we are also aware of the fact that our parents put value on tidiness. That a room in their view ought to be clean. Disregarding the fact that people have intentions and agendas which they pursue and instead inserting mere if-clauses into their requests misses the richness of human interactions. It misses the educational aspect which the law plays and the incentives it creates. Moreover it is stupid. Thinking about requests (laws being requests to act in certain ways) in an if-clause way works in the short run, but does not help in the long run. It is a tactical approach not a strategic one. This is why it is the approach chosen by litigators, for they have to win one case at a time, and it is not chosen by lawmakers.

Second, law is fluid and not static. Laws change, as do perceptions of morality and normality. Reducing law to what courts do and disregarding the why (all along accepting the necessary fiction of the autonomous judge) hampers the comprehension of this process.

Third, even if law is only what the court says, then ought we not learn in law schools why he said it, which, one would hope, includes the ought of the dignity of man being inviolable? Some of us may be judges one day, others may litigate in front of them. But, says the functionalist, this is circular. Law as it is pronounced by the court is law, which includes his motives, which include his consideration of things that the lawmakers said. And that is precisely the point I intend to make.

Law, to Holmes, is what courts do (and not what they consider or where they get it from). He looks at a building without regarding the blueprint; to him architecture is what buildings are but not how they are built. It is true, he wonders about predictions and prophecies about how the building will turn out. But he disregards the important ought behind it. Like the ought, the blueprint is the idea of the building. Law is both what courts do and why they do it, both the reason and the act. This includes the notion that everything created has an ought preceding its creation.

Hence Holmes is half right in that judicial opinions should be justified according to their consequences, he just misses the part these consequences should be seen in the light of that which preceded them and the decision – the ought which the law espouses.

• This is not a careful summary of either Holmes' intention or Cohen's. It's an exercise in trying to prove an idea wrong, not to understand its implications. That, plus its excessive verbosity, are reasons why I do not think it should be emulated by other participants in the discussion.

-- TheodorBruening - 27 Jan 2009

1) Why was the title changed?

2) "This is not a careful summary of either Holmes' intention or Cohen's." - It is not meant to be that. Why would I do that? Read the fourth paragraph of this piece.

3) "It's an exercise in trying to prove an idea wrong, not to understand its implications." - Yes, it is a response. Like you, I believe in an open debate.

4) "excessive verbosity" - point taken.

-- TheodorBruening - 27 Jan 2009