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All entries have been edited for brevity and clarity. Please feel free questions or comments under the appropriate sections. |
| | 1. The Nature of Legal Nonsense |
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< | [We thought that this was a good area to list more examples of fictitious legal concepts. –J&J] |
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> | [We thought that this was a good area to list more examples of fictitious legal concepts. -J&J] |
| | An example of nonsense legal reasoning from the dissent in a constitutional law case: |
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< | “Therefore the pricing order is constitutional, because it is merely the combination of two independently lawful regulations . . . if the state may impose a valid tax on dealers, it is free to use the proceeds of the tax as it chooses; and if it may independently subsidize farmers, it is free to finance the subsidy by means of any legitimate tax.”--West Lynn Creamery, Inc. v. Healy (Stone, Constitutional Law, p. 247). |
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> | Therefore the pricing order is constitutional, because it is merely the combination of two independently lawful regulations . . . if the state may impose a valid tax on dealers, it is free to use the proceeds of the tax as it chooses; and if it may independently subsidize farmers, it is free to finance the subsidy by means of any legitimate tax.--West Lynn Creamery, Inc. v. Healy (Stone, Constitutional Law, p. 247). |
| | Interestingly enough, the Court adopted what Cohn would call a functional view of the law and viewed the law in terms of what it did and not what it was called. As a result, the state lost despite some great nonsense reasoning. |
| | II. The Functional Method
1. The Eradication of Meaningless Concepts |
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> | [Do legal principles, "meaningless concepts," bred a consistency in the law that is unachievable under a paradigm of legal functionalism? For example, while Cohen advocates for jurists to consider the real effects of decisions, are our "meaningless concepts" more likely to produce a result that is blind to the wealth of the defendant? -J&J] |
| | 2. The Abatement of Meaningless Questions |
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> | [Cohen states that from a fundamentalist perspective that there are only two meaningful questions: 1) How do courts actually decide cases of a given kind, and 2) How ought they to decide cases of a given kind. Should Cohen also encourage the examination of "legal nonsense" so that scholars may understand the reasons behind the original implementation of these legal principles and be able to see if the reasoning is still relevant today? -J&J] |
| | 3. The Redefinition of Concepts |
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> | ["All concepts that cannot be defined in terms of the elements of actual experience are meaningless." Do you agree? Are these abstract concepts useful because they work? Is Cohen making his definition of functionalism dependent on his sense of justice? Don't the current [at the time] legal principles useful in that they establish predictable outcomes and allow commerce to flourish? -J&J] |
| | 4. The Redirection of Research |
| | “Applied to the study of religion, for instance, the functional approach has meant a shift of emphasis away from the attempt to systematize and compare religious beliefs, away from concern with the genesis and evolution of religions, and towards a study of consequences of various religious beliefs in terms of human motivation and social structure…The functional approach asks of every religious dogma or ritual: How does it work? How does it serve to mould men’s lives, to deter from certain avenues of conduct and expression, to sanction accepted patterns of behavior, to produce or alleviate certain emotional stresses, to induce social solidarity, to lay a basis for culture accumulation by giving life after death to the visions, thought and achievements of mortal men.” (CB 58-62).
Cohen uses language to draw a parallel between religion and the Restatement of the Law a few pages later. He describes the Restatement as a “dogma of legal theory.” Like the functionalist studying religion, searching past the dogmas and rituals to understand how the beliefs mould true human conduct, the functional jurist must search past the “dogmas of legal theory”; Cohen’s correct legal thought “will more and more look behind the traditionally accepted principles of ‘justice’ and ‘reason’ to appraise in ethical terms the social values at stake in any choice between precedents.” By comparing law to religion Cohen makes it clear that a legal code detached from real life is little better than a religious code. Functionalists will not merely restate and blindly follow past laws, but will consider the real world consequences of those laws and decisions, and their social significance. A more useful approach in both fields is studying the social consequences of the beliefs and how those beliefs can be or are shaped by social policy. |
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< | _[Hasn’t the law been more flexible than religion in adjusting in a changing world? For example, the creation of tort law during the industrial revolution or the continual adjustment of common law and statutes in response to changes in society. Second, is it fair to compare the Restatements to religious texts? The Restatements are full with comments justifying the drafters’ rationales for the Restatements. In addition, the Restatements are periodically reexamined to make sure that they are still valid, useful statements of the law. –J&J]
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> | [Hasn't the law been more flexible than religion in adjusting in a changing world? For example, the creation of tort law during the industrial revolution or the continual adjustment of common law and statutes in response to changes in society. Second, is it fair to compare the Restatements to religious texts? The Restatements are full with comments justifying the drafters’ rationales for the Restatements. In addition, the Restatements are periodically reexamined to make sure that they are still valid, useful statements of the law. -J&J]
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| | III. The Uses of the Functional Method in Law
1. The Definition of Law |
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2. The Nature of Legal Rules and Concepts |
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> | [While discussing the law of contract, Cohen points out that lawyers and jurists will look to the current body of law, rather than look to what they "ought" to do. "The task of prediction involves, in itself, no judgment of ethical value." Does Cohen provide, or hint at, any evidence to show that there is a consistent standard of ethics? Aren't legal principles and decisions at least reliable in legal prediction, and when they are not, aren't they at least appealable? On the other hand, how would one appeal a decision that was based on ethics? -J&J] |
| | 3. The Theory of Legal Decisions |