Law in Contemporary Society

Also On Bullshit

-- By JenniferDoxey - 14 Feb 2012

What It Is

I thought I'd write about bullshit.

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?

I've always like Harry's book. You do him no service, and fail the requirements of academic propriety, in that you nowhere state that you are depending (completely, really) on the analysis offered by Harry G. Frankfurt in On Bullshit (Princeton, 2005).

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 a fair summary, and is this the same phenomenon Cohen describes as 'transcendental nonsense'? I think the two are siblings at least: calling a corporation a person is certainly bullshit if the point is just to get corporations special status in the eyes of the law. It's a power play.

Maybe. But this is blunt in precisely the way that Harry Frankfurt's analysis is not. If "siblings at least" means "not the same," then you've bullshitted your way out of a difficulty: procedurally, you have made it not matter what is true, by redefining the question so that there isn't any difference between that which is the same and that which is not the same (but can somehow be characterized as a sibling in its not-the-sameness, which is presumably as far apart as Cain and Abel, or Goneril and Cordelia).

Bullshit, Frankfurt says, is communication that presents an image of the communicator, at the expense of eliding the distinction between telling the truth and lying, by presenting a facsimile of a proposition which is in fact neither true nor false. The first part, which is crucial, is not the role of legal fictions at all. They are formulations of deeming, or "as if" which permit the law to vary without legislation, through the deliberate unchallengeable assumption of false relevant facts. A number of people have written usefully about the philosophy and history of legal fictions, including Lon Fuller and ... well ... me. Legal fictions, thus, are also not statements neither true nor false: they are false statements that are judicially rendered undeniably true.

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 well within the bounds of poetic license in employing the concept of 'corporation as person.'

Wouldn't "dark satanic mills" do the job more effectively?

In fact, since the image is vivid and the comparison fruitful, we would probably say it has a great deal of poetic truth. Language complies with the demands of whatever category of thought employs it.

What It Does

The enemy of bullshit is logical precision.

I thought the enemy of bullshit was the love of truth.

When the Victorian rationalists set out to define 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 The 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."

But that's not a Victorian idea; it's about 1500 years older than that.

(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.

There are different types of bullshit. Political bullshit is called propaganda after the fact. Literature has its forms too (hack writing).

I don't see how this item is appropriate in the series.

Interviews, personal statements, and resumes are chock full of bullshit: it's called filler, embellishment, or "presenting your best side."

Michelle Luo's example is fabulous - writing a 100-pager on Arctic Barbies is epitomical of the form of intellectual bullshit that all high-achievers engage in at least a dozen times before they're twenty.

As no one has used the word "epitomical" in print since 1842, it's not easy to say for sure, but probably this usage is "non-standard." Why you wouldn't use a slightly less obsolete adjective, like "characteristic," I have no idea. So far as the behavior of high-achievers is concerned, I doubt you're right.

(Does anyone disagree?). I hope she won't mind me using her paper to discuss another genre I'll call academic bullshit.

This is the "fake it 'til you make it" genre of bullshit. The object is to put one over on the authority figures: I haven't got the resources (time, energy, inclination) to do my best work, so I'll blow smoke in their eyes until I can manage to get around to it. This (unvoiced) 'until' clause separates a lie and a bullshit. If the teacher asks you to do long-division by hand and you grab a calculator, that's lying; if the teacher asks you whether you've learned to do long-division by hand, and you say "oh sure" but guess and check for the next twelve years until you finally buckle down in junior year of college and learn what your fourth grade teacher told you to learn - well, that's obviously bullshit.

Now you do seem to have departed from Frankfurt's analysis. Or mine. I think it's fair to say that "Oh sure" is a lie.

True story, by the way.

Academic bullshit 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. The best academic bullshitter was probably Leibniz, who was too busy being completely brilliant to bother citing his sources very rigorously.

I'm not sure why the non-citation of sources is bullshit, either. It might be plagiarism, or it might not, but bullshit does not seem to be the relevant category.

In Michelle's case, her paper topic led her to a certain amount of recognition, discussion, and interest, and at least one or two genuine insights.

But in general, academic bullshit is just our bread and butter. It's 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

A closing question: 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 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.

But going to law school isn't getting a law degree, and having a law license isn't getting a law degree either. So the decision about the "degree" is immaterial anyway. I have no idea where my law school diploma is. I believe I lost it years ago. I'm a little more sure where my PhD is, though I haven't seen it in years either. My law license has no physical existence, but it is absolutely necessary to my professional activity and I call upon it every day.

I think this draft would be improved by more scrupulous outlining. You want to say something more than Harry Frankfurt said, not a great deal less. But it isn't clear either at the outset, where there is a more or less clear evocation of his argument, or later, where the coherence of the draft breaks down, what your intended contribution is.

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r2 - 13 Apr 2012 - 20:57:37 - EbenMoglen
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