(Upon your suggestion, Eben), I’ve looked further into the application of Wittgenstein’s philosophies to legal theory. Where Carroll lavishes in nonsense as a storytelling technique, Wittgenstein sees a belief in the mutable status of words as a great threat to philosophers and human understanding. As Carroll scholar George Pitcher states, “the Philosopher’s mind, on Wittgenstein’s view, is just Alice’s mad world internalized” (611). A philosopher is much like a child—both grapple with new and troubling environments and only succeed in understanding when they find a system that functions logically.

Even if we accept that Wittgenstein does not support an linguistic indeterminacy argument—that he rather suggests that “language is safe and that it is not particularly malleable” because there is no need to justify the application of words, do we not still face problems with understanding meaning?

Skeptics find even rule-based accounts of language suspicious—that rules cannot guide new applications of words because they are “merely generalizations about observed regularities in the past,” with the expectation that the future will be the same (492). While Wittgenstein might say that these inquiries about rules do not apply to the meanings of words, they could easily apply to the meaning of legal precedent and judicial decisions.

The “Interpretive Community Account,” (the common consensus of how a word should be used defines it’s meaning) runs somewhat parallel to Cohen. The Moglen/Zapf article examines possible problems with this theory: 1) It requires a community consensus, which there is inherently not in many legal actions; and 2) The theory is still a rule that rests on previous meaning. Cohen’s theory seems not so different, as it just incorporates more factors and consequences that require more social information and values. This approach is not nearly as “rules” based, but it’s also unwieldy. How far down the consequences line are judges required to see?

So when I ask myself now, after ten months of law school, what the law is, or what it means, I cannot truly say. I suppose in trying to lessen the anxiety about the world, the law is not really the best place to turn to find truth. It is itself a rabbit hole, at least from what I’ve seen of legal theory so far.

When I ask myself what a lawyer is, I think of him as a moderator, or negotiator, like a coach directing players in court where the judge is the (sometimes biased) referee. Only this game is recorded in detail and even the smallest changes can affect precedent.

Additionally, what most of this thinking has really helped me realize is that I could never be first and foremost a lawyer. One of our guest speakers in Legal Methods said: “Even if you lose your job, you’ll always have your profession. You’ll always be a lawyer.”

If we are actually moving "easily," it's probably because we have failed to appreciate something important about the differences. Law is not a system in the sense that mathematics is a system, and it is less like time than it is like mathematics. Law is a rhetoric, used by politics to impose governmental social control. To question, which means to challenge, this rhetoric is no more nor less than lawyers do all the time: there is no way to represent clients without questioning "the system that is 'the law.'" Questioning the system that is mathematics is not the business of mathematicians, even supposing that mathematics is but a rhetoric itself, and all the formalities in which it fortifies itself are but shadow's of immense Gödelian uncertainty, which for most purposes I think all the mathematicians I know would deny.

Legal thinking in the twentieth century was affected by Einstein and Gödel, but also by Freud and by Marx. It will help you to remember as you think about these questions that law is made of the social and the psychological more than it is made of the physical or formal.

While I don’t mean to inspire fear in myself or in the world at large, I think it is worthwhile to probe these questions in much the same way that Holmes says we should always continue the search for truth, even if we know it is futile.

Which does not prevent "faith in axioms" from being an effective description of a very important component of human thought, quite philosophically defensible from pragmatist positions like Holmes'. Indeed, this is a point of view one might find in both Holmes and the younger Wittgenstein. Finding that connection, with results that are possibly relevant to the larger discomfort you say you are feeling, can be seen tediously occurring in a law review article I wrote once upon a time with a very clever former student in this course. See Zapf & Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. Rev. 485 (1996).

When I’m feeling particularly unattached from the world I live in, I’ll wake up feeling like Alice—feeling like it’s possible I’ve been cast into some dream world where backwards is upwards and all the convictions I thought I held are meaningless. I realize that the only way around this is to adhere to the “rules” of the system in which I find myself, in much the same way that Alice does while she makes her nonsensical journey.

Are you sure that this is the only way? Or, from another point of view, a closely related question: does it not seem important to you that Alice is a child? She is drawn by a great portrayer of children, and she possesses in all respects the mind and the emotional life of a girl "seven and a half exactly."

But any action requires trust in something unseen—like Godel’s proof. You can’t achieve a system that proves the true and eliminates the false. Legal concepts do not attach to anything in the “real world,” so how can judicial decisions hold if they are essentially meaningless?

By the weak force of the law as social control, which would be precisely the same as the force by which they would (and do) hold when they are essentially meaningful.

This is the crucial part of the realist understanding for your present inquiry: the power that lies in judicial rulings is not determined by their formal correctness. The judge's order, unless interfered with by some other judge, powers sufficient bureaucratic intermediaries to assure the desired incidence of the public force. Its result is its meaning; the language that rationalizes the decision is subject to multiple subsequent acts of interpretation, but the act of power is unambiguous.

I would argue that they hold because they must in order to prevent social chaos.

"Social chaos" is prevented by social control stronger than law.

Suppose that a man one-hundred yards away collapses to the ground, bullet in his stomach, moments after a gun fires. How can we be sure that the bullet was shot from the very same gun? Relying on pure instinct, it’s clear that we do not know—relying on physics it’s less clear that we do not know, but really we still do not, simply because truly “knowing” involves proving the “truth.”

What had this to do with what came before? As an argument, it is not good. The law never requires perfect certainty in the proof of facts. Most of the time, mere probability will do, which we call "preponderance of the evidence." Even at our most supposedly scrupulous, when we are finding facts bearing on the life or liberty of a prisoner standing at bay before the whole of the outraged community, we need no more to prove the most crucial fact than the degree of certitude each individual juror would require "in a matter of important business of his own," as we have been telling jurors for hundreds of years. This we call "proof beyond a reasonable doubt."

To make any decision within the rules of our society we have to suspend belief in a consistent method. There seems to be some difficulty here, as Jerome Frank notes when he points out the limitations on absolute justice due to subjective facts. It is hard to know anything for sure.

But power is not exercised by knowing for sure. No matter who wields it, no matter with what degree of deliberation or urgency, judgment is a human art, based on knowing rather than knowing "for sure."

Using "kid" and "anything great" in one sentence makes the easy answer, "yes." But that's not very edifying. Put in more precise language, even the most arbitrary act of power occurs within the system of social action, and has everything to do with society. We can think sociologically about anything that happens in society, which is where law happens. Doing so is helpful in the same way that thinking anthropologically about our own culture is helpful: it allow us to be simultaneously "inside" and "outside" our own social and cultural frames. This might be how we can best deal with the anxieties resulting from feeling particularly unattached from the world we live in, when we are no longer seven and a half, exactly.

What, then, is Law?

The latter point, though true, is not the same as the former, which is truer.

I suppose this is to say that laws are not unreliable in general, but that they do not really hold much significance in the present.

On the contrary, their weakness is that so much of what they hold is mere significance. Strong forces of social control—like family, religion, marriage, and table manners—are not required to signify in order to dominate our actions. Hence the profundity of a power, rooted in the unconscious, which law can never hope even to approach.

To bring in Carroll again, the White Queen teaches Alice “the rule is jam tomorrow and jam yesterday, but never jam today.” According to this, there is no present—once the brain perceives something, that thing is already in the past. In line with this idea, the law can never control anything—it can only pass judgment on things that have already occurred. It seems the law does not exist to change a social trajectory but more so to enforce it as it moves through time.

This is an example of the failure of a metaphor. Why two formulations merely grammatically similar should entail altogether parallel consequences, one wonders. The law controls actions by virtue of the presence of predictors of legal outcomes, who accordingly help clients to shape behavior in order to achieve intended consequences while minimizing contingent risks, including risks due to legal uncertainty. Lawyers mediate the social control exercised by the law, amplifying the actual occasions of the public force by their role in predicting and restructuring conduct, including by legislation, which in its pure form is precisely the alteration of the rules of decision in future cases.

When Alice plays croquet, she admits that the Queen is “so likely to win, that it’s hardly worth while finishing the game.” In Wonderland’s political system, there are no clear rules, no clear laws, but only the absolute power of a singular monarch.

Alice's dream is the dream of a child. Dodgson is a realistic depicter of children's dreams, made more vivid without changing the underlying semantics available to a child's unconscious mind.

Robinson’s case with the kid who breaks into the AUSA’s house works in much the same way—the people in power try to exact their own motives on those who are powerless.

Much the same way, except that it happens in the real adult world of power that is layered in complex and cross-cutting ways throughout society's complex morphology. Social power for Alice is the absolute authority of parents, which can be resisted but not defeated. But neither we nor Alice live there anymore.

Our world, though, unlike Wonderland, has some order—at least enough to help Robinson protect his client. Legal rules are clearly important in this way, but the outcomes are still unpredictable. Is law then just a means of defining our mob mentalities? Does it bring us any closer to certainty, or does it just prevent chaos? Is it as passive as Cohen makes it out to be? All questions to which I have no answers.

Questions to which you have no answers are not the appropriate content for the conclusion of an essay like this. Your goal might well be to suggest to the reader implications of your ideas their own minds might explore. But the conclusion of your writing should be one. You will not give the full measure to your readers unless you leave them imbued with the confidence that you bring to your own thinking.

There's much of interest in this draft, but it needs some strong editorial shaping. If you are to bring Alice in Wonderland along with you, I've indicated the places where I think a little more interpretive effort with the text itself is worth undertaking. For my part, I'd say that was scaffolding on which your more interesting thinking occurred as you built something rather different. It seems to me that the real issue is the anxiety produced by legal uncertainty and how to manage it. A more positive engagement with the fact that law is a weak form of social control might reduce rather than increase this anxiety. Social order comes from more powerful places than government dictates: we were social animals many an eon before the appearance of the first state.

Legal Concepts in Our Very Own Wonderland

-- By AnneFox - 14 Feb 2012

Introduction

I spent the bulk of last year researching mathematical systems in Lewis Carroll’s literature—looking mainly at the successes and limitations of logic in providing meaning to an individual. I see many of the same issues arising with the idea of “the law” and often find myself reflecting on the conclusions I drew while working on my thesis—questioning some, affirming others, but all the while throwing myself back at the same obstacles I faced then in interpreting reality.

“Certainty Generally is Illusion”

When I’m feeling particularly unattached from the world I live in, I’ll wake up feeling like Alice—feeling like it’s possible I’ve been cast into some dream world where backwards is upwards and all the convictions I thought I held are meaningless. I realize that the only way around this is to adhere to the “rules” of the system in which I find myself, in much the same way that Alice does while she makes her nonsensical journey. But any action requires trust in something unseen—like Godel’s proof. You can’t achieve a system that proves the true and eliminates the false. Legal concepts do not attach to anything in the “real world,” so how can judicial decisions hold if they are essentially meaningless?

I would argue that they hold because they must in order to prevent social chaos. Suppose that a man one-hundred yards away collapses to the ground, bullet in his stomach, moments after a gun fires. How can we be sure that the bullet was shot from the very same gun? Relying on pure instinct, it’s clear that we do not know—relying on physics it’s less clear that we do not know, but really we still do not, simply because truly “knowing” involves proving the “truth.” To make any decision within the rules of our society we have to suspend belief in a consistent method. There seems to be some difficulty here, as Jerome Frank notes when he points out the limitations on absolute justice due to subjective facts. It is hard to know anything for sure.

Legal Consequences

What, then, is Law?

When Alice plays croquet, she admits that the Queen is “so likely to win, that it’s hardly worth while finishing the game.” In Wonderland’s political system, there are no clear rules, no clear laws, but only the absolute power of a singular monarch. Robinson’s case with the kid who breaks into the AUSA’s house works in much the same way—the people in power try to exact their own motives on those who are powerless. Our world, though, unlike Wonderland, has some order—at least enough to help Robinson protect his client. Legal rules are clearly important in this way, but the outcomes are still unpredictable. Is law then just a means of defining our mob mentalities? Does it bring us any closer to certainty, or does it just prevent chaos? Is it as passive as Cohen makes it out to be? All questions to which I have no answers. (999 Words)

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