Law in Contemporary Society
In the spirit of some concerns posted on the discussion under the rubric of free speech, I would like to turn some ears over to Cohen's conception of the 'state,' which, I think, calls into question many ethical issues noteworthy for our discussion: "The process by which government is created and its commands formulated is a process of human bargaining, based upon mutual consent but weighted by the relative power of conflicting individuals or groups" (837). I would break this statement into three parts: (1) creation of government and formulation of laws arise out of continuous negotiations between private individuals and collective interests; (2) the terms of the offer generated by this bargaining are accepted and consented to; (3) and yet everybody's influence in this process is not on an equal playing field, but, rather, is separated along lines of relative and unequal densities constantly in "conflicting" tension.

This conception implies a danger largely prevalent in our society: corruption. To return to a familiar question: Why has the chief clerk of the Supreme Court found so much resistance in Congress to change the judicial register by dividing opinions into numbered paragraphs as to render it more legible? Because mutual consent in our contemporary society brings with it a crucial caveat - mutual does not mean equal, and the law is not indifferent to the refracted forces at play. I wonder whether there is hidden in this idea an echo of Holmes's distinction, quoting Hegel, between the appetite and the opinion, money and the command of ideas. It would be great to hear your thoughts on (1) the 'practicality' of Cohen's conceived world (2) the potential for corruption in this model and (3) how much our process disguises and consequently legitimizes this corruption with political and legal rhetoric and systems, "appeals to reason or goodness" (837)?

-- JesseCreed - 29 Jan 2008

I don't know if I understand the question.

To the extent I do get it, here are my thoughts:

(1) Leaving Hobbes aside--I read all of six pages of him in college--I don't know if I see that quote as concealing any danger about corruption. If anything, it does the opposite.

It seems to me that Cohen here isn't putting forth a comprehensive theory of actual government so much as he's pointing out that a useful definition of government shouldn’t be drawn from ideals about the world, but from social actualities (838). If I read his definition as concealing corruption, then Cohen would be trying to conform the social actualities to his definition, not vice versa. I don’t think this is what he’s going for.

  • You are entirely right on this matter, and I fixed my semantics this morning before you posted. Corruption is revealed by implication in this quotation. -- JesseCreed - 29 Jan 2008

(2) I think his definition does make room for the role of corruption in at least two places. Corruption could be seen as an example of the "relative power of conflicting individuals or groups" that's involved in creating government. Or, drawing on Cohen's quote that "governments do not arise once and for all," corruption could be seen as one of the forces outside of lawful government, working against it.

  • This seems to me to be a beautiful distinction between systemic and unlawful forms of corruption. In our society, the former version worries me drastically more - the variety by which agents work within the confines of the system yet against what seem to be our social policy goals. Campaign finance is usually at the center of this debate. The corruption "working against" the state largely disables governments in third worlds: illegally embezzling and laundering money, tinkering with budgets to get paybacks, etc. -- JesseCreed - 29 Jan 2008

(3) I think I get your (3), though I think the question might be less if our “process” disguises corruption and more if our common definitions do. At least for me, I don’t think I learned about the role political corruption in government in any high school history course. Instead, we talked about our government as it’s set up in the Constitution. But if corruption does play a big role in our government, then it seems a useful definition should take it into account.

  • The result of this "process by which government is created and its commands formulated" is a continuous, incessant negotiation between the "relative power of conflicting individuals or groups." Cohen reminds us that the state of nature is not a long-forgotten, Eden-like paradigm; indeed, it exists at all times as if our system could be dissolved at any point. With this inescapable influence of the state of nature, our system must continuously reform itself and make compromises according to its demands and stresses. What I conclude from this discussion is that such systemic structures as constitutional government cannot insulate themselves from corruption entirely as long as this state of nature continuously strains the original installation. Justice Potter's request for 'favors' from his fellow justices is exemplary in this model. Legitimate systemic processes and lawful procedures could shield the cowardice of these justices for failing to fulfill their judicial duties in honor of a requested favor - that is, in my view, to shield their corruption. -- JesseCreed - 29 Jan 2008

(4) Apologies if I misunderstood your post or Cohen’s text. Or both.

  • Perfectly understood. Thanks for your reply. My thinking is clearer from your comments. -- JesseCreed - 29 Jan 2008



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r7 - 11 Jan 2010 - 16:54:17 - IanSullivan
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