Omg this is blowing my mind! As you know, I'm all about applying objective scales to things/people ("the objective reality" as I see it), while being horribly delusional about my own desires/characteristics/experiences, so this totally totally resonates with me!

Frankfurt is right on that "there is nothing in theory, and certainly nothing in experience, to support the extraordinary judgment that it is the truth about himself that is the easiest for a person to know." I contradict my self-representations so often (and get called out for it by people close to me, like you, so often) that I no longer have delusions about any successful pursuit of this "alternative ideal of sincerity."

I don't think logical reasoning itself is problematic. The problem is when legal decisionmaking is based solely on logic, when it should be based on desired social outcomes ("The life of the law has not been logic but experience" -Holmes). "As conscious beings, we exist only in response to other things, and we cannot know ourselves at all without knowing them." I think this parallels the relationship between law and society. Law is like the conscious being, which is closer to the truth and further from bullshit when it tries to be true to social facts. As Eben said, judicial decisions lie at the intersection of a collection of social forces and all interpretation requires additional social information. Accessing the objective reality means getting to the social forces outside of the "conscious being," perhaps through unconscious mental processes.

Gotta think about this more...

-- MichelleLuo - 21 Apr 2012

"The contemporary proliferation of bullshit also has deeper sources, in various forms of scepticism which deny that we can have any reliable access to an objective reality, and which therefore reject the possibility of knowing how things truly are. These "antirealist" doctrines undermine confidence in the value of disinterested efforts to determine what is true and what is false, and even in the intelligibility of the notion of objective inquiry. One response to this loss of confidence has been a retreat from the discipline required by dedication to the ideal of correctness to a quite different sort of discipline, which is imposed by pursuit of an alternative ideal of sincerity. Rather than seeking primarily to arrive at accurate representations of a common world, the individual turns toward trying to provide honest representations of himself. Convinced that reality has no inherent nature, which he might hope to identify as the truth about things, he devotes himself to being true to his own nature. It is as though he decides that since it makes no sense to try to be true to the facts, he must therefore try instead to be true to himself.

But it is preposterous to imagine that we ourselves are determinate, and hence susceptible both to correct and to incorrect descriptions, while supposing that the ascription of determinacy to anything else has been exposed as a mistake. As conscious beings, we exist only in response to other things,and we cannot know ourselves at all without knowing them. Moreover, there is nothing in theory, and certainly nothing in experience, to support the extraordinary judgment that it is the truth about himself that is the easiest for a person to know. Facts about ourselves are not peculiarly solid and resistant to sceptical dissolution. Our natures are, indeed, elusively insubstantial - notoriously less stable and less inherent than the natures of other things. And insofar as this is the case, sincerity itself is bullshit."

I like your idea of harnessing the unconscious on a personal level, though I'm a little ambivalent about and uncertain as to what it would even mean to apply this to "the institution of law." To try and depart from logical reasoning would seem to be a move away from the entire enterprise of being a legal practitioner; it's the tool we have to work with, and there are other disciplines that are far better equipped to deal with the utility of emotional memory than the legal profession. Then, again, if we believe that an institution is not a monolithic entity, but comprised of and informed by its constituent parts, I think allowing more than legal reasoning to inform the the way we, as individuals, personally think about our practice, and view our role as lawyers, would already go a long way towards making the profession one we're proud to be a part of. But anything beyond that just strikes me as, perhaps, unrealistic.

I agree with you that the unconscious is a freaky place to dip in, but I'm not sure I understand what you mean by "[the unconscious] doesn't seem to leave us with much ground to stand on." The unconscious doesn't seem to me to be less abstract of a concept than logic. The difference is that we've been socialized to think logically, but we haven't trained ourselves to "harness" the unconscious. The unconscious is what moves us; people remember things emotionally. I think the challenge is training ourselves to be not only "deeply cognizant of just how limited, fragile, and incoherent legal logic is," as you say, but also to be cognizant of how the unconscious drives us. I am only beginning to grasp what this means for us on a personal level as lawyers, who happen to be humans. But I'm not quite sure how to apply these ideas to the institution of law, where bullshit seems to be a particularly strong force.

-- MichelleLuo - 21 Apr 2012

-- MichelleLuo - 19 Apr 2012

Michelle, as you know, I really enjoyed both the first draft of this essay, as well as your re-write in progress.

Correct me if I'm wrong, or mischaracterizing your ideas, but I feel like this essay goes to the very heart of what makes it so difficult to be a lawyer- and why people who aren't lawyers regard the profession and its practitioners with wary disdain. As I was telling you earlier, I think "bullshit" is symptomatic of a lot of specialized disciplines that have their own vocabulary, framework, and modes of thought that one must be inducted into- which is pretty much what our entire 1L year has been about. It sounds like what struck you most about the class in which you wrote on Arctic Barbies was how easy it was to not only learn the discipline, but to excel in it, primarily through mimicry and adopting jargon. There is a fear that this the only thing law school teaches us to do, and if we choose, we can walk away from this experience with only that to show for it.

Eben said in one of our classes that as we go through life, we'll come to recognize that the vast majority of people suffer from a dullness of the mind. It's not a lack of intellect or an inability to learn and assimilate information. It's the failure to recognize that there is more to being a great legal practitioner than learning the language, because all you're really allowing yourself to engage with are complex layers of signifiers without any regard to what's actually being signified (to use Saussurian terms).

On the other hand, the unconscious is an incredibly scary and powerful place- and there is a real sense that to recognize that much of what informs what happens in the world comes from there, and not man-made logic, doesn't seem to leave us with much ground to stand on. Perhaps the lesson I would take away from your paper is that it's important for our humanity as lawyers, regardless of what work we end up doing, to be deeply cognizant of just how limited, fragile, and incoherent legal logic is rather than futilely trying to grasp at some "strong" measure of "truth." I don't see a way out of bullshit, but in recognizing and deeply understanding what it is and how we use it, we can best harness it to meet our goals.

-- RumbidzaiMaweni - 19 Apr 2012

What is Bullshit?

What is Not Bullshit?

The Lawyer Who Bullshits

How I've Bullshitted

What is bullshit?

One way to define bullshit is in terms of what it is not - truth. I like what Eben had to say about Harry G. Frankfurt's "On Bullshit" (an essay I have not yet read), so I will borrow those ideas. Bullshit is not the opposite of truth. Bullshitters don't care about the truth; they care about selling a certain image of themselves. Liars have to know what the truth is in order to lie about it. Bullshitters don't have to know what the truth is to bullshit.

Legal bullshit is what Felix Cohen calls "transcendental nonsense." Transcendental nonsense is precisely a disregard for truth. When we don't tie the "supernatural concepts" to "social fact and ethical value, legal thought "trapez[es] around in cycles and epicycles without coming to rest on the floor of verifiable fact." When unguided by the social forces that ought to mold it, law is bullshit.

Thinking Over the Bullshit

Holmes said that logic is a cognitive structure of human beings and that the only way we can think about the world is through logic. If this were true, our cognitive limitations would preclude us from producing any reflection of the world that rises above bullshit. Is this true?

If we're going to think about human cognitive limitations, we should start with biology. We are social animals with the burden of consciousness and this mental process called logic. Before we were human, before we had logic, we were social animals living in a state of relative unconsciousness. The conservative estimate for the origin of human language and other complex cognitive abilities (roughly, logic) is 50,000 years ago (Bednarik, R. (2003). A Figurine from the African Acheulian. Current Anthropology, 44(3), 405-413.) Logic cannot be the only way we process information, because 50,000 years is an impossibly short amount of time to evolve away the mental processes we had before. The unconscious thinking remains.

There is no bullshit in the unconscious. The unconscious thinking of social animals involves the emotional knowing of relationships to other primates and an intrapsychology undistorted by theory of mind. It doesn't frame things in terms of formal relations among ideas/people and it doesn't define itself according to other's judgments. The way around bullshit then is to make conscious efforts to understand reality through multiple ways of thinking, particularly through forms of knowing that go to actual relations among people.

How I Could've Not Bullshitted

My Arctic Barbie experience, consistently reciprocated over time, is the tragedy of lawyers. Lawyers need to know how things happen in society, but most are content with legal bullshit.

I should’ve said, “I’m not here to write about the Arctic. I’m here to write about sex. I’m going to follow Bukowski’s advice to Steve Richmond - 'What you need is life. Your work has to be alive. Drink, write, and fuck.' I can’t do those things if I have to make shit up about the Arctic, so I’m going to drink and fuck and write about it.”

A beautiful story, well told and deeply understood. It remains only to say—and you should say it, your way—that this is precisely the experience that one's life as a lawyer ought never to be about. Though for far too many of the thousands of lawyers I've taught over the years, it most exactly and tragically is.

As Harry Frankfurt shows in his classic book on the moral philosophy of bullshit, about which see JenniferDoxeyFirstPaper, we avoid bullshit by caring more about truth, the domain of what you call in your opening graf the "so real," than we care about presenting ourselves. We used to call this idea "Diogenes."

If you had said on that first day "I came here to write about sex, not about the Arctic, and you either have to let me write about sex or I'm leaving," that would not have been bullshit, and a great deal of subsequent bullshit would have been avoided. But you might have appeared to the other people present to be a sex maniac. The point of a human life that rises above bullshit is to free yourself from caring what "they" think. "Arctic Barbies" got you a trip to Canada, a great story, and a heap of bullshit. The other approach might have produced a trip somewhere nicer, an even greater story, and no bullshit. Who can tell? My bet is that the instructor would have produced bullshit in response to your challenge, and he wouldn't be dining off his bullshit anywhere right now.

If, as Eben said, logic is a cognitive structure of human beings and if the only way we can think about the world is through logic, aren’t we trapped?

I said Holmes said that. I don't think that, because I think that logic is a secondary process in the human mind, not a primary one. The primary processes are unconscious, and the way we think about the world in our unconscious is a very different way indeed. We are trapped by our unconscious patterns of thinking, indeed, until we bring them to consciousness and interpret them: that's the heart of the idea system we call "Freud."

If the universe isn’t capable of being thought about rationally, then even when we make conscious efforts to tie our ideas to what’s going on in the world, don’t we inevitably fail?

We fail if we only make conscious efforts to think logically, instead of conscious efforts to think fully, aware of our unconscious as well as conscious thinking, and the forms of knowing— relationship, empathy, engagement, intuition, what you will—that go beyond formal relations among ideas to actual relations among beings.

How can we trust, or even evaluate, anything that we think or communicate when everything we take in is distorted by our cognitive limitations?

By thinking and communicating about our cognitive limitations as well as the other subjects of our thought as we are thinking.

Even when we consciously try not to bullshit, isn’t it inevitable that we will be making something up?

Yes, because making things up is both how we remember and how we learn. Stories are how we understand reality. Memory is synthetic, rather than merely a system of fetching. But making things up is not bullshit. Everything true has been made up at some point. Bullshit is making things up that aren't true or false, but simply ways of representing ourselves as knowing.

Whether you are or not depends not on whether you think the thought I offered you, but rather on whether you can relate to other people differently by understanding them in a new light. The world in which they live is not the world in which we tend to picture them as living, and if we reunderstand their world, we can change the way we relate to them, which changes ours.

The next draft has a conclusion that isn't bullshit. The only question that matters now is whether you are ready to write it yet.

How Do We Stop Bullshitting?

-- By MichelleLuo - 13 Feb 2012

How I’ve Bullshitted

On the first day of class, Eben said, “You have all been rewarded for bullshit.” This is so real.

There have been times when I’ve semi-consciously bullshitted and not only gotten away with it, but was heavily rewarded. My freshman year of college, I signed up for a writing elective called "Desire." I thought it was going to be about sex. On the first day of class, I learned that the full title of the course was “Desire of the Arctic Region.”

“So” my professor began, “I hope you have all chosen a topic related to the Arctic for your term-long research and writing project. Let’s begin with you” (me).

I had nothing. “Arctic…Barbies,” I said.

Luckily, Mattel had made three Arctic Barbies, and I spent the next ten weeks drawing tenuous links between “the design and marketing techniques” of these Barbies and “changing American perceptions of the Arctic.” I wound up submitting my paper to the 16th Inuit Studies Conference, the conference people liked it, and my school paid for a week-long trip in Canada for me to give a speech about my “findings” to a hundred Inuit Studies scholars.

The whole thing felt fraudulent to me. But I did do the research and I did write a 100-page paper and I couldn’t have given that speech if I didn’t at all believe in what I was saying, right? Yet when I explain this paper to people who ask about it – when I hear myself saying the ideas out loud – I feel embarrassed.

To illustrate how far I stretched logic and a priori conclusions, here is a synopsis of 20 pages of my paper: 1) In the 1970’s and 80’s, videos surfaced of commercial seal hunters clubbing seal pups to death. 2) Western animal rights advocates successfully campaigned to cease all seal hunting, but they were ignorant of the fact that Inuit hunters did not follow such inhumane practices. 3) The sealing bans destroyed the only sustainable economic option in Inuit communities. 4) In 1982, Mattel released Eskimo Barbie. 5) “Eskimo Barbie is a cultural artifact of a significant conflict between Inuit and Western viewpoints in modern history.” (an actual line from the paper)

This is probably one of the more desperate attempts I’ve made to produce some reflection of the world, but I didn’t purposely set out to make things up that may have no basis in reality. I fell into the Barbie paper by accident and the end result was shaky, but during the process, I did the best I could to make connections that made some sense. Maybe this focus on logic – this reaching for abstract relationships that existed only in my mind and not in the real world – is why the end result was bullshit.

Cognitive Limitations

What is bullshit? Let’s assume it’s something like transcendental nonsense – concepts that we can’t tie to any empirical fact, concepts that we artificially create through rationalization. After our discussion of Oliver Wendell Holmes’ “The Path of the Law” and Felix Cohen’s “Transcendental Nonsense,” I am more skeptical of how human beings can produce any reflection of the world that rises above bullshit. If, as Eben said, logic is a cognitive structure of human beings and if the only way we can think about the world is through logic, aren’t we trapped? If the universe isn’t capable of being thought about rationally, then even when we make conscious efforts to tie our ideas to what’s going on in the world, don’t we inevitably fail? How can we trust, or even evaluate, anything that we think or communicate when everything we take in is distorted by our cognitive limitations? Even when we consciously try not to bullshit, isn’t it inevitable that we will be making something up?

There’s also the problem of how we synthesize information. I’ve tried to internalize Eben’s rejection of our separation of time into past, present, and future. I can begin to understand the example of the guy standing on the beach, smelling the fire in the forest milliseconds after he sees it and looking at stars the way they were lightyears ago. But if I’m the guy standing on the beach, what am I supposed to do with that information? Do I understand the world better when I think nowness is a false conception? Am I thinking about the world more accurately? More truthfully? Am I experiencing it differently at all?

No Conclusion

It would be convenient to write a bullshit conclusion at this point so I can stop thinking. The truth is that I don’t know how to answer any of these questions yet and I don’t know where these ideas are going, so I won’t pretend to. I hope that others will add their thoughts.

(800)