The Law: Critical Legal Theorists

Originally, the whole reason I started writing about the law was in anticipation of a discussion of same sex marriage. And now here we are, the day after the Bill passes. I suppose I should get cracking.

To recap the last four law posts, I talked about the evolution of jurisprudence. From Aristotle's Equity and Aquinas' Natural Law, to Hart's idea of the law as a system of rules dependant upon recognition. I ended with Dworkin's principles. There are many other systems, of course; Leon Fuller's internal morality, or Devlin's paternalism. But they aren't quite so interesting, so I'll skip them.

Back here, I talked about power and discourse. There's a philosophy of law based upon Foucault's (and those of other continentals) ideas - Critical Legal Studies. If this post is a bit choppy, it's because it's just my study notes for the final exam. Here, I'm just repeating my professor's presentation of CLS, not critiquing it myself. But suffice to say, I really like this account of law. Sorry for the length.

CLSers say the law is neither repressive or a repository of noble but perverted ideas. It is a discourse that quietly conditions how we experience social life. I.e., it creates distinctions between employers and employees.

The law creates categories of separation; we are individuals given rights to protect our isolation. Then the law provides formal channels to re-connect, through things like contracts, partnerships and corporations.

It also splits up the world into categories that filter our experience. For example, the law tells us which harms we have to accept as "the hand of fate," which are our own fault, and which are the fault of others. An example of this is sexual harassment; at one time, it was simply an occupational hazard for women.

The basic points: 1) Power. The law is not just the tool of the powerful - all of us invoke it every day. But the ability to actually wield the law on your own behalf is one of the primary sources of power in our society. I.e., money to pay for a lawyer. So the law will reflect the interests of those with the power to pay for it.

2) Legal discourses normalize the status quo. Even a complaint of discrimination implies that this single act of discrimination is only a momentary disruption that can be resolved through law - this is the belief that the system will work if you let it.

Another example is a middle-aged woman that buys a cheap promotional package at a dance studio, then is flattered into buying a giant, huge, expensive package. To get out of this contract, she'll have to pay for a lawyer who will argue that this was a case of fraud. Even if she wins, she has reinforced and participated in a system that assumes "‘normal' marketplace relations are unproblematically voluntary, informed, non-coercive, and efficient."

Our legal system presents a particular view of society to us: that society is a series of dealings between genuinely free and independent equals, and any appearances of inequality is just because the law has not been properly applied.

So the big premise - legal action is political action, and it is typically - though unnecessarily - conservative.

CLSers want to take the law apart and change the social discourse it has hardened.

Why isn't CLS more widespread? Legal educations make even lefties conservative because of all the money involved. Traditional legal educations talk about centrist positions - middle ways.

Methods CLSers use against mainstream legal discourses:

1) Trashing. It's a 60s' phrase. About making attacks against the system's claim that it is the best system. Trashers point out the inconsistencies and logical loops in traditional discourses.

For example, their attack on legal economists. Legal economists' basic assumption is that people are "rational self-interested maximizers of their satisfactions." In other words, they assume people "want" everything they get.

Which is silly. People are often irrational and, in truth, what they really want is non-material things such as the recognition of others. Legal economists are a product of our consumeristic culture. This is a type of individualism that the economists claim is universal, but it is a product of the market forces of our society.

The CLSers (aka Crits) don't totally dismiss legal economism; they just point out it is a type of rhetoric that can be manipulated. It isn't a science, just a sometimes useful perspective. It obscures from view - it can't even talk about - the huge portions of human existence that violent, coercive, irrational, etc.

Trashing is very similar to deconstruction; I'm not sure why CLSers bother to make the distinction.

2) Deconstruction. CLSers don't believe that the law is pure power or personal whim; there are patterns and CLSers use deconstruction to find the patterns. For example, there are plenty of laws that make it easy for business groups to pursue their political and economic interests, but make it difficult for labour, poor people, and civil rights groups to pursue theirs.

The law often holds contradictions within itself that can be deconstructed. Like contract law; there are two opposite views that underlie it. One is a neo-Hobbesian vision where everybody is out to get each other and we need the law to protect ourselves from each other. The other view is one where people will long term relationships assume a certain level of trust and responsibility. Both images are possible in every ruling about a contract, though the system persistently gives the Hobbesian view precedence and leaves the other view for minority cases.

3) Genealogy. This is about showing how the transitory and manipulable ways our legal discourses divide our world — write their history. Crits write a lot of histories of legal categories. For example, they write about how corporations went from serving the public interest to being private in the 19th century.

Another example is private property. The definition of private property has never actually had been definite or totally agreed upon. The legal system makes it seem otherwise, and Crits point out that this stability is an illusion.

An example case for Crits. A group of picketers demonstrate in a shopping mall, and are kicked out by the owner. The standard way to approach this case is to balance rights. The property right of the owner to exclude unwanted visitors vs. the protestor's right to free speech. The standard way to balance these rights is to discuss the private and public spheres. The more private a shopping mall is, the greater the right to exclude.

Crits would begin by discussing the justifications of property rights. Like the efficiency rationale that says the owner will yield the highest valued uses of the property. But it is not at all clear that shoppers dislike picketers, or that they dislike them enough to shop somewhere else. And even if shoppers don't like this, their preference might be like the preference of not wanting to sit next to blacks at a lunch counter and not entitled to recognition.

The privacy rationale for exclusion is much less convincing when you look at a mall as being owned by a bodiless corporation that lets hordes of strangers swarm over its "private" property.

While Crits would probably argue for the protestors, this doesn't mean that free speech isn't also subject to criticism. They still point out that when the mall owner yells "private property!" it's like a mystical incantation meant to silence criticism... and then the protestors shout their own mystical incantation, "free speech!"

That's the first phase of CLS - pointing out what's wrong with the system. The second phase is about trying to change things. Whether it is a basic re-assessment of democracy itself or localized activist activities like housing, immigration or labour.

One of the effects of the law is to constrain our ability to imagine alternative social arrangements.

For example, our current liberal system assumes the purpose of government is to facilitate the individual pursuit of self-interest. But there are other ways of doing things - ie, republicanism, in which politics is for facilitating self-development through participation in community governance.

Another example is "downward professionalization." Concerning welfare and social work, we could follow the New Deal-era example and give the broad discretionary power currently in the hands of judges and bureaucrats to street level social workers.

So why does CLS piss so many people off? It is the harshest critique of law since the legal realists. Just like the realists, it shows how malleable and arbitrary the law really is. The other challenge to mainstream legal thought is that CLS studies law in a social context - meaning it shows how politics and culture prevent formal legal rules from working like legal theorists (like Hart) say they should.

Since CLS is basically a radical movement of the left, that's enough to make some lawyers see "Red." CLSers get called Marxists, Stalinists, nihilists, hippies/yippies, anarchists, "Bolshevik saboteurs,"etc. Mainstream lawyers assume CLSers simply think the law is a tool of the capitalists to suppress the workers.

CLS has sophisticated opponents, too. After all, CLS is out to reduce the authority and legitimacy of the establishment. And CLSers aren't always polite in their writings; sometimes they use parody, satire and occasionally even scatology. The legal system gets a lot of its power from being solemn and, well, pompous. Lawyers are arrogant, and CLS takes it all down a peg or two.

CLSers run into a lot of trouble with the legal intellectual establishment, because they don't idolize guys like Austin and Hart. CLSers tend to look to Europeans for their heros, guys like Michel Foucault. To quote the author of my textbook,

"I have heard one. . . denounced CLS as ‘un-American' and another disparage it as infected with ‘French and German' influences. Ah, the Continent - that dark breeding ground of dirty postcards and pestilential philosophic vapours!"

Other opponents - the "technocrats" - are positivists. They think that the law is grounded in scientific ideas of regularity and certainty, and they hate the CLS reduction of social science to a bunch of rhetoric.

Some see CLS as a threat to liberal freedoms. If every "right" is capable of being turned upside down by reinterpretation with such ease, then what will we rely on to save us from fascists and the mob??? CLSers answer that the term "legal rights" is short hand for the social practices that we collectively maintain. We value the latent promises of utopia in them.

Sometimes the pretense that legal rules have an objective, fixed set of meanings is a good thing; if you're living under an oppressive dictatorship, then you'll want to appeal as often as you can to transcendent legal principles to try and force change.

But the idea of an objective source for legal rules can be oppressive too; they encourage people to think that the ideas codified in law are solid and unquestionable. As long as our rights are protected, we are told, we can't complain about anything.

"A commitment to legalism can never substitute for a commitment to the ideals law distortedly symbolizes."

He quotes Vaclav Havel, a Czech dissident. Even in ideal cases, the law is only one of several imperfect ways of defending what is good in life against what is worse. "Establishing respect for the law does not automatically ensure a better life, for that, after all, is a job for people and not for laws and institutions."

The harshest criticisms of CLS come from vetern lawyers, who are the most cynical people of all when it comes to the law. They've made their peace with the way things are, and have labeled that maturity; for the sake of their peace, they wish everybody else would follow suit.

Review of Batman Begins

Gladiator. Aliens. Saving Private Ryan. The Matrix. The Bourne Identity. Crouching Tiger, Hidden Dragon.

Every once in a while, the Hollywood* machine manages to produce a film that manages to effectively meld spectacular action and drama. It's not an easy task; I really believe that the two together tend to dilute one another. Drama is dependant on drawing the audience's heart, soul and mind into a story. Action is about getting their hearts racing. They are like nitro and glycerin; it takes an accomplished director to put the two together.

I think superhero movies are great examples of this difficulty. I really enjoyed the X-Men and Spiderman movies, but mostly on a surface level. They were a lot of fun; but the superb action tended to dilute the drama for me.

But sometimes, just sometimes, someone gets it right. Maximus asking his fellow captors if any of them have been in the army; "Then you can help me." Or Tom Hanks' "See you on the beach."

Batman Begins is another of those movies. It just... it just kicked ass. This is without a doubt the best superhero movie ever made; more than that, it's going to be on of the best movies of the year. It's on my radar the way no other superhero movie ever has been before. I loved Spiderman 2, but I'd rather watch Lost in Translation. The former I remember as a particularily tasty treat; the latter I harbour as a warm memory.

See Joel's blog for a description of the characters. They were fantastic. The action was great. it was just... yeah, it was ALL great.

It's fighting The Life Aquatic and Revenge of the Sith in my mind for favourite movie of the year. RotS, I believe, will slowly lose luster as I view it more critically.

So right now, Batman Begins is either the best or second best movie I've seen this year. That's a first for an action movie, nevermind a superhero movie. That's how good it was. I'm blown away.

Magical Language 2

I could very well have just made one post, but as I said, after that huge excerpt I was tired of typing.

I think everyone needs to be aware of how language can be used to manipulate. Many have pointed this out; Amanda's comment below reminds us that George Orwell was thinking along the same lines in the year 1949. As Cassirer says, "language is the medium in which man lives and moves and has his being," and so someone seeking to control people needs to affect their language.

I think one of the more obvious contemporary examples is the phrase "the war on terror." This phrase twines together two of the basic elemants of propaganda: ambiguity and outrage. This is a "war" in which the enemies are chosen on an ad-hoc basis, and then given a label that is international politics' equivilent to "baby raper."

I hate the phrase, and what really makes me cringe is that I hear reflective dissenters using it from time to time. Even Jon Stewart, King's Fool extraordinaire, uses it without irony.

I'll refer to language and its many uses more in later posts.

Magical Language

I just finished reading The Myth of the State by Ernst Cassirer, and learned a good bit. It's partly a discussion of the nature of myth and it's place in man's social life, partly a history of the mythic aspects of various political systems, and partly a discussion of 20th century political myths.

Cassirer was a German Jew that fled Hitler's regime in 1933; he died in the U.S. in 1945. There is a particular passage in Myth that sends shivers down my spine. I'm going to quote it at length.

"It was in 1933 that the political world began to worry somewhat about Germany's rearmament. . . . But as a matter of fact this rearmament had begun many years before but had passed almost unnoticed. The real rearmament began with the origin and rise of the political myths. . . .

"The first step that had to be taken was a change in the function of language. If we study the development of human speech we find that in the history of civilization the word fulfils two entirely different functions. To put it briefly we may term these functions the semantic and the magical use of the word. Even among the so-called primitive languages the semantic function of the word is never missing; without it there could be no human speech. But in primitive societies the magic word has a predominant and overwhelming influence. It does not describe things or relations of things; it tries to produce effects and to change the course of nature. . . .

"Curiously enough all this recurs in our modern world. . . . If nowadays I happen to read a German book, published in these last ten years. . . I find to my amazement that I no longer understand the German language. New words have been coined, and even the old ones are used in a new sense. . . . This change of meaning depends upon the fact that those words which formerly used in a descriptive, logical or semantic sense, are now used as magic words that are destined to produce certain effects and to stir up emotions. Our ordinary words are charged with meanings, but these new-fangled words are charged with feelings and violent passions.

"[In a recently published German dictionary] there was a sharp difference between the two terms Siefriede and Siegerfriede. . . . The two words sound exactly alike, and seem to denote the same thing. Sieg means victory, and Friede means peace; how can the combination of two words produce entirely different meanings? Nevertheless we are told that, in modern German usage, there is all the difference in the world between the two terms. For a Siegfriede is a peace through German victory; whereas a Siegerfriede means the very opposite; it is used to denote a peace which would be dictated by the allied conquerors. It is the same with other terms. The men who coined these terms were masters of their art of political propaganda. They attained their end, the stirring up of violent political passions, by the simplest means. A word, or even the change of a syllable in a word, was often good enough to serve this purpose. If we hear these new words we feel in them the whole gamut of human emotions - of hatred, fury, anger, haughtiness, contempt, arrogance, and disdain."

So why does this scare me? I won't say yet, because I'm sick of typing.

And to the ghost of Ernst Cassirer... please don't sue me for copyright infringement.

Book Burnin'!

The good conservatives over at Human Events Online have helpfully provided us with a list of the Ten Most Harmful Books of the 19th and 20th Centuries.

There's so much to comment on here, I don't know where to begin. The very idea of a dangerous books list is kind of laughable, and until I saw this video I suspected this was some kind of parody. But it's not.

So here are a few of the more amusing choices.

4. The Kinsey Report by Alfred Kinsey et al (aka Sexual Behaviour in the Human Male)

Right, all that scary sex talk. Let's all remain ignorant and scared! Sigh.

10. General Theory of Employment, Interest and Money by John Maynard Keynes

One of the dominant economic theories of the 20th century, Keynes' basic idea was that governments should spend in lean times to prop up the economy, and reign in the budget during times of plenty. Consider the site's absurd claim: "FDR adopted the idea as U.S. policy, and the U.S. government now has a $2.6-trillion annual budget and an $8-trillion dollar debt." FDR is responsible for the present deficit? Riiiight. Certainly not Reagan and Bush II's tax cut and spend ways.

Have a look at the rest of the list and chuckle. The honourable mentions are just as amusing:

On Liberty by John Stuart Mill

What on earth...? This is one of the most classic and solid discussions of rights ever, and it's dangerous? I'm baffled.

Origin of the Species by Charles Darwin

Ah yes, the book that taught us we're all just animals and have no moral constaints. I think I'll go throw a bagfull of kittens into the Thames now, just to appease my Darwinian gods...

Blogger Tag

This is one of those chain letter things. I think everyone who reads my blog will already know what they are, so without further explanation...

Number of Books That You Own

I own about 150. The other members of my family probably own about 150 collectively.

Last Book Bought: Three together on a spending spree at City Lights.

Twilight of the Idols / Anti-Christ - Frederich Nietzsche.
Left Behind vol. 1 - Tim LaHaye and Jerry Jenkins.
The Silmarillion - JRR Tolkien

Last Book I Read:

The last book I finished was Ernst Cassirer: A Repetition of Modernity by Steve Lofts. It's Cassirer's philosophy of symbolic forms as seen through the eyes of contemporary continental philosophy. It finds a structure to hold language, myth, religion, science and art and explain their functions in human life.

Five Books that mean a lot to me: (In no particular order)

Basic Writings of Nietzsche - Trans. by Walter Kaufmann.

Particularily for The Genealogy of Morals contained therein. Nietzsche's reframing of the moral impulse was, to this rookie philosophy student, mind-blowing. It helps that Nietzsche is a bright and witty writer, and left me grinning madly more than once.

Survival in Auschwitz - Primo Levi.

Unfortunately, this book wins the award for most retarded title-change in the history of translations - Levi's title for it was If This Is A Man. But that's really neither here nor there. This is, to put it mildly, a work of humanistic scripture. Levi has wrestled a treatise on ethics, hope, dignity and evil out of the abyss, and he has the scars to prove it. Subsequent generations ignore this book at their peril.

Arslan - MJ Engh.

My favourite novel, hands down. The crazy little scenario: a 3rd world dictator takes over the world, then sets up his HQ in a midwest American town. The best discussion of authority, fatherhood, masculinity and politics I've ever seen. The characters are engaging and the writing is excellent. At times, the writing simply becomes gorgeous.

We All Fall Down - Brian Caldwell

The perfect antidote to the mind numbing idiocy of the Left Behind series. The protagonist wakes up to discover that the rapture has occured, all the Christians are gone, and the Anti-Christ is taking over the world. Now surprisingly, this is not a Christian novel by any means. This is a novel about Christianity. The protagonist, understanding full well what is happening, refuses to either become a Christian or side with the Anti-Christ. I used to think this book was a brilliant portrayal of Christianity; now I see several limitations. And the writing doesn't necassarily hold up well. For a while, though, it capitivated my thinking and buried itself into my mind.

Speaker for the Dead - Orson Scott Card

Yeah, politically speaking Card is a lunatic. And as a writer, he is hit and miss. But oh boy, when he hits, he hits. Speaker is a compelling story about truly good people, the type that only exist in fiction. Ender Wiggin's deep empathy had a major impact on the way I think about ethics.

As for my "tags," just look at the list of blogs I link to. Consider yourself tagged.