Law in Contemporary Society

Beyond Transcendence

Reading Arnold’s description of the more active, non-rational, emotional basis of human behavior was great fun. It was difficult though, because I read his description holding the assumption that it was a criticism. I read it thinking that Arnold’s ideal was for the Thinking Man to cease to be a fiction, and for his readership to assume the vacancy that the Thinking Man pretends to fill. I read it assuming Arnold was calling for humanity to wake up and become emotionally detached Thinking Men.

How could it be any other way? I suppose an ultimate proof of his point, at least in its application to me, is that I assumed he was calling for the very myth he believed was so blinding.

The hero of our society, maybe besides the Business Man, is the Principled Man. He is in our books, song, and movies. He is the man who loses everything because he is adhering to a principle that doesn’t obviously serve his interests, but by the end of the story everything works out somehow anyway (this is the story of It’s A Wonderful Life, but for some reason that analogy doesn’t feel right here). He is the man with ideals. He is the martyr, the Christian thrown to the lions. He is James Bond being tortured by the Russians, who will never give into the Commie Scum (even if they were going to feed the children instead of blow up the moon). But it seems that Arnold doesn’t want to honor these men, he just wants to describe them. These men and women are sacrificing for creeds, but “their content and their logic are the least important things about [the creeds].” (21). The content of the situation is more important than that of the creed – what action is expected to do the most good, irrespective of whether your creed is supposed to affirm or deny it? (maybe this is Jimmy Stewart’s rescue). It runs counter to humans valuing consistency, honor, faith, devotion to an idea. Reading this piece, I kept hearing the great Dylan line: “You always said people don’t do what they believe in, they just do what’s most convenient, then they repent

But submission to creed is so much a part of humanity, there’s an easy evolutionary just-so story to tell about its value to our survival. In fact, a recent article in the Journal of Institutional Economics focuses on this story: the "aim is to outline the argument that institutions are effective not despite human cognition but, in part, because of human cognition." Habits and custom form the basis of organizations and explain common features that are found across enduring institutions. The answer is not functional efficiency. Transcendence is an unrealistic goal (or if you are persuaded by the evolutionary story, an undesirable one), and we should aim for understanding.

So if the value is in understanding and not transcending, and if the point is efficacy and not faith to a creed, maybe we are back to Modern Legal Magic, and Trial by Battle as an efficient fact-finding exercise.

The paper is actually interesting:

In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction.

-- AlexKonik - 16 Feb 2012

I think interestingly Mr. Brown is a perfect exemplification of who you propose the hero of our society is → the principled man, sacrificing everything for his principles (“Do unto others”), but one who accounts for [your interpretation of] Arnold’s criticism of such a man → for Mr. Brown the content and the logic of his creed are the most important things about it, or at least the driving factor that leads him to the act of freeing slaves. Seemingly Mr. Brown operates as a perfect example of a principled man who adhered to realism. Yet we killed him.

-- SkylarPolansky - 28 Feb 2012


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r4 - 22 Jan 2013 - 18:07:45 - IanSullivan
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