Law in Contemporary Society

Also On Bullshit

-- By JenniferDoxey - 14 Feb 2012

What It Is

An expert on the subject (Frankfurt, following Cohen and Frank) said that the essential thing about bullshit is that it lacks reference to truth. True and False exist in the mind as Cowboys and Indians, white and black chess pieces, good and evil, heroes and cowards. Bullshit lives in the peripheries, in epistemological no man's land. "Is that true? Is it false?" Who cares?

Bullshit permeates our analytical moods and methods. Frankfurt calls it "panoramic." It suggests metaphors of fog, smoke, smudging, shading. Its ethics is at best casual - what matters isn't whether the statement is right or wrong, whether the thing exists or not, or whether the speaker intends to educate or deceive you. What matters is whether it gets you from A to B.

Is this the same phenomenon Cohen describes as 'transcendental nonsense'? Calling a corporation a person is literally untrue in that it doesn't correspond to reality, and is certainly bullshit if the point is just to get corporations special status in the eyes of the law. It's a power play. But in law, it may be a mistake to get too enmeshed in the discourse of true/untrue according to correspondence.

On the other hand, the statement that 'a corporation is a person' serves other useful functions - metaphorical (in poetry), descriptive (in history), organizational (in law). If Coleridge or Tennyson had wanted to drive home a point about industrial society, they'd have been as well within the bounds of poetic license in employing the concept of 'corporation as person' as 'dark satanic mills'.

In fact, since the image is vivid and the comparison fruitful, we'd say that for all that it is transcendental nonsense as a concept, as a trope it has a great deal of poetic truth.(Cassirer pointed this out nearly a century ago, and we still have trouble with it. It's hard to identify how and when categories of thought blur and bleed into each other, how and when conventional wisdom becomes logical fallacy - but maybe that's what being trained as a lawyer is really good for?) Language complies with the demands of whatever category of thought employs it. There is no reason why legal discourse should be restricted to correspondent truth only; indeed, (as Posner argues), it has often adopted poetic truths as legal fictions. The trouble is when we allow these legal fictions to stand as categorical truths without examining the underlayer of bullshit upon which they may be founded.

What It Does

The instrument that best cuts through bullshit is logical precision.

When the Victorian rationalists set out to close the limits of the universe, their systems left no room for bullshit. In 1879, Frege said “all that is necessary for a correct inference is expressed in full, [...and] nothing is left to guesswork.” (SEP on Proof Theory). As we learn in characteristically Victorian Book of Life, "from a drop of water, a logician could infer the possibility of an Atlantic or a Niagara without having seen or heard of one or the other. So all life is a great chain, the nature of which is known whenever we are shown a single link of it."

(The Victorians also called this "ineffable twaddle" - a rather less pointed but perhaps more accurate term for what we're calling bullshit.) When Gödel discovered that it was impossible to close a consistent system, logic had something of a nervous breakdown, and the universe got scary again. Bullshit resurfaced.

With due respect to the failures of the Victorian project, and to the different types of truth that surface within different categories of thought, perhaps it's time now to resurrect the idea of logical coherence within the legal system. Perhaps the only way such a project could succeed would be with due respect.

Academic bullshit in law school doesn't necessarily entail academic success and it certainly doesn't exclude academic prowess. With the right frame of mind, it can become a fertile seedbed for intellectual creativity. It can lead to useful and creative legal fictions. But it blurs our sense of what's true and untrue as far as that truth corresponds to reality. This kind of bullshit is between the lines in abstracts and articles throughout academia, but especially in departments that have gone particularly post-modern - English, philosophy, history. The problem is that these fields are fundamentally responsible for preserving, refining, and bequeathing truth. The Victorian legacy was tendentiously righteous, but at least it existed. What is our legacy going to be? Bullshit?

What It Means

So is a JD from CLS a piece of academic bullshit? Am I being bullshitted or am I doing the bullshitting?

Why does our culture care so much about a JD from CLS anyway? Wikipedia tells me that both Roosevelt presidents attended CLS. Neither Roosevelt actually graduated. They both had better things to do, went out and did them, and were awarded JD degrees posthumously. Can we imagine the same thing happening now?

My point is that getting a graduate degree ought not to be the focus of my three years here. Getting a degree from a prestigious institution isn't true or false. It's mostly just a form of social shorthand: it tells people (employers, parents, elementary school teachers, etc) what to expect from you. It tells them how much to demand of you, how much to defer to you, and what sort of jokes to make at your expense. It tells them something about your inner qualities and character, but not much. It helps you tell yourself what sort of person you are; it tells you about what you choose to value. About what you mean, what is essentially, necessarily true of you, it tells you hardly anything. In that sense maybe it's bullshit.

What getting the degree ought to essentially mean is that I have learned how to distinguish between different types of truths - and legal truths are more than just correspondent, poetic, political, or ideological. Whether it always means that in reality is not clear.


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r4 - 22 Jan 2013 - 20:10:31 - IanSullivan
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