Law in Contemporary Society

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CharacterizingBlacksObservations 3 - 05 Mar 2009 - Main.GregJohnson
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 What this is: A claim that Black’s observations (which as Moglen said today aren’t explanations) are the tip of an iceberg rather than principles themselves.

In a nutshell: Black provides top-down empirical generalizations about how law varies with social characteristics. But this is highly suggestive that there’s some bottom-up explanation in terms of more basic human tendencies. That is, his generalizations really look like they result from underlying psychological phenomena rather than merely emerging at the societal level.

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 I think it's an interesting and insightful piece, I just generally don't like the push toward behaviorism. I think it leads away from the best solutions, and, well, it offends my soul.

-- GregOrr - 05 Mar 2009

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I agree that to the extent Black's principles present themselves as immutable laws they push toward behaviorism. That implication doesn't sit well with me either. It feels hopeless. I think this is what motivated me to want to flesh out what the underlying psychology might be--to find some way to reconcile the predictability required to support the sociological phenomena Black observes, on the one hand, with some kind of personal autonomy and dignity on the other.

I was trying to leave room for that by speaking of underlying "tendencies"--not, say, mechanisms, but just likely behaviors. I'm not entirely satisfied with that, though. It still doesn't quite save autonomy. I'm not comfortable with just taking probabilistic unpredictable actions, I want to be able to choose them.

In my first essay, I think, I was similarly trying to save choice from scripts. Scripts don't sit perfectly well with me for much the same reason Black's principles don't. If scripts really work--if pulling strings is so reliable--it again suggests that somewhere down inside one's not really at the wheel. What I tried to do in the essay was to assert that, no, scripts don't always control--they just control when one goes on auto-pilot. One can choose about anything. One just can't choose about everything, because no one has the time and mental stamina. For many things, one has to act without really considering or choosing, by using rules of thumb.

In that view, yeah, in big enough groups, enough people will reliably be on auto-pilot about any particular thing that, so long as the scripts stay the same, the group behavior can be predicted astoundingly well. But about any particular thing, just like with real auto-pilot, one can take the wheel and choose one's action. And there's at least conceptual room for convincing other people to go off of auto-pilot about that thing, too. (I think that's what we're trying to do in this class.) So there's hope that, really, any particular social phenomenon could be changed by choices.

In short, though, ouch. I'm still not really content with such a state of things. But I think I can live with it. At the least, I think it amounts to a sort of Myth of Sisyphus move: assume the meaninglessness of life, and then find value in life nonetheless, so that even if life isn't actually meaninglessness at least you're sure there's some value in it either way.

-- GregJohnson - 05 Mar 2009


Revision 3r3 - 05 Mar 2009 - 21:50:37 - GregJohnson
Revision 2r2 - 05 Mar 2009 - 16:49:27 - GregOrr
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