Law in Contemporary Society
-- PetefromOz - 10 Feb 2009

This post is prompted by reading Chapter XIV of Thurman Arnold's Folklore of Capitalism (1937).

In this chapter Arnold argues that to make sense of the way society functions it is helpful to be aware of certain observations applicable to all types of organizations. He then outlines 24 observations that he contends are applicable to all organizations. I will comment on two of these 'observations' which particularly fascinated me.

10. "The ceremonies which an institution adopts to reconcile its conflicting ideals are addressed to its own members not to outsiders. Therefore they are seldom convincing to the critics of the institution."

By way of illustration Arnold argues that political arguments "are actually addressed only to the side for which they are made". This observation is particularly insightful. While I acknowledge that my relative youth gives me a temporally limited perspective, I have been a keen political observer at least since my starting my political science degree. On the basis of my observations it seems to be almost invariably the case that political argument, whether written or spoken, is indeed directed primarily at an audience who are already sympathetic to the cause. This framing of political language obviously limits the ability of a candidate to alter the thinking of voters who start from an ideological position which differs to that of the candidate. If a candidate does not do this though, and instead seeks to appeal to voters of a different ideological persuasion, he or she risks not mobilizing - of even perhaps alienating - 'the base' for that candidate.

21. "Public debate is necessarily only a method of giving unity and morale to organizations. It is ceremonial and designed to create enthusiasm, to increase faith and quiet doubt. It can have nothing to do with the actual practical analysis of facts. ... d. It is important that political debate be positive and affirmative and not negative. When slogans appeal only to fears they hinder organization. The side with the positive slogans will therefore have the advantage."

I have heard this argument made with respect to political campaigns (on The West Wing!). However, Arnold contends that it is true in litigation: "[i]n a lawsuit, where the record does not disclose issues which predispose the judge to one side or the other, the affirmative argument will be most effective." Arnold calls this a "simple psychological phenomenon". I have several years of litigation experience and have not discerned any such trend. Whereas, for instance, I have my suspicions that my success in a certain appeal may have been influenced in part by the fact that the conviction being appealed related to abusive conduct against a police officer and the Justice hearing the appeal was married to a Police Sergeant. Similarly, I wonder if the magistrate-judge who threw out my prosecution of a local football star for dangerous driving was a fan of the player and team concerned. My point then, is that I readily accept Holmes' argument (O.W. Holmes - The Path of the Law) that judges use 'legal magic' - applying logical forms to justify conclusions formed on a personal and highly subjective basis. Arnold may also be quite correct in his contention that affirmative arguments are usually the most effective - I simply have not yet observed this to be so.



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r3 - 07 Jan 2010 - 22:47:57 - IanSullivan
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