Coming to Terms with the Subjectivity of the Law

Eben, I would like to continue to edit my paper.

My Search for Understanding of Legal Opinions

I came to law school to be become a knowledgeable and efficient instrument of change. Not necessarily grand social change, but certainly at least individual, client-based change. I idealized the power of the law (what the law could achieve for people), but feared that I was unworthy and incapable of deciphering it. Beginning law school was extremely daunting for many reasons, but in particular because I was afraid I would not be able to follow the logic and gain a deep enough understanding of the opinions I was assigned to read. Insecurity and fear of being embarrassed in class plagued my first semester. As I tried to move past these feelings, I began to search for the logic behind opinions in the hope that it would lead me to the promise land of competence, and then further to a place where I could have meaningful insight on the material.

“A Thing Is What It Does”

After reading and digesting Cohen, I have come to terms with an important concept: the legal system has created a network of rules, logic and terminology, which it uses to make decisions and justify those decisions, and that this process is only legitimized through itself. For Cohen this is a farce; “our legal system is filled with supernatural concepts... concepts which cannot be defined in terms of experience.” He uses the word “supernatural” to mean concepts that are unverifiable, and “experience” as concepts whose consequences are known; I would use the word subjective, meaning based on an individual's personal perspective, rather than on an independent, objective point of view, to describe this phenomena.

Cohen’s point came to life for me when reading Justice Scalia’s plurality opinion in Vieth v. Jubelirer. He held that gerrymandering claims present a non-justiciable question because the Court lacks the standards to resolve these claims. Fairness, he wrote, is not “judicially manageable.” This struck me as dubious because in actuality, the Court had already made a fairness determination in deciding not to decide (rightly or wrongly irrelevant), therefore the decision seemed to be a pretense based on “supernatural concepts” of judicial manageability. In broader terms, this decision was a microcosm that revealed the subjectivity upon which the legal system forms its opinions.

Increased Understanding

Cohen’s view that legal opinion is “supernatural” both furthered and complicated my understanding of the law. On one hand, I gained a deeper understanding because I was free to frame the legal issues in ways that made sense to me. It no longer seemed pedestrian to acknowledge non-doctrinal motivations behind decisions. There was no fear that I was tainting these decisions by politicizing them and thus lessening the “value” of the law in general as an impartial or pure process. On the other hand, in accepting Cohen’s viewpoint, I couldn’t help but feel a loss of the idealization I had previously felt, and I was forced to rework my sense of the “value” I thought the law provided to society.

My goals did not instantly seem to mesh with a legal system that does not say what it does; the level of subjectivity created a lack of transparency that kept the focus of the law off the people I hoped to work for and help. Subjectivity created a lack of transparency because the “supernatural concepts” behind legal opinions (transcendental nonsense) were clouding the objectives of the Court. One example that comes to mind is Cohen’s discussion of corporations and labor unions being considered legal “persons.” To describe them as “persons” twists the natural understanding of this word in a nonsensical way that works to “thingify” the word so that these corporations and labor unions can be sued, the true objective of the Court. This lack of transparency seemed to keep the focus off the “people” because it made the law about “supernatural concepts” used to facilitate objectives rather than the tangible rights at stake in a case. This flawed system seemed insurmountable; I resigned myself to accept the law for what it was- subjective and nonsensical at times and a weak form of social control.

The Law from a Slightly More Seasoned Point of View

Cohen frames the realist search for understanding of legal reasoning as attentiveness to the consequences of legal decisions, coupled with a critical theory of values. A critical theory of values looks at human desires and habits, and through this gains “real world” (how it affects people) applicability and importance. Thus the fact that the law is far from “objective” (perfectly equitable and impartial) is not devastating to the “value” of the law in general because the “value” should not be defined in terms that are so alienated from people. People are diminished through objectivity because the focus is on the self-substantiated logic (through its own system of rules and terminology) rather than on real life consequences.

I interpret this as brining the human factor into legal analysis and this gives me great hope, because I feel capable of analyzing and understanding the law from this perspective. I am also hopeful because the law’s inability to achieve perfect objectivity creates a space that allows freedom to flourish; freedom is a consequence of the law being the weakest form of social control. Within that space I hope to work.

-- By JuliaCatania - 15 Feb 2012

I have never liked the word “transcendent.” It has always struck me as vague and ineffectual, attempting to suggest something beyond a natural state of being, but inevitably ending up in a place that is, in and of its self, meaningless. Merriam-Webster defines transcendent as “being beyond comprehension”; therefore trying to comprehend the meaning of the word in any given context is inherently a leap of faith, which in my mind strips the word of any real impact. The law, and more specifically judicial opinion, concerns me in the same way. When I began law school, everyone told me that reading judicial opinions is like reading another language - it just takes some getting used to, and eventually you will understand what the judges are saying and most importantly why they are saying it. The problem is that even five months in, I am not sure that I am coming to a better understanding of the logic and reasons behind particular judicial opinions (though I submit to a greater process). Frankly, I am not sure it is even possible within the current framework of legal reasoning. After reading and digesting Cohen, I have come to terms with an important concept: that the legal system has created a network of rules, logic and terminology, which it uses to make decisions and justify those decisions, and that this process is corrupt because it is only justified through itself, within the system.

The inherent problem is that when courts make decisions, they often do so by citing other court-made ideas as reasons for their conclusions. One example that comes to mind is Cohen’s discussion of corporations and labor unions being considered legal “persons.” To describe them as “persons” twists the natural understanding of this word in a nonsensical way that works to “thingify” the word so that these corporations and labor unions can be sued. Another example is the idea brought forth in Justice Scalia’s plurality opinion in Vieth v. Jubelirer that “fairness” is not “judicially manageable,” when in actuality, the court has already made a fairness determination in deciding not to decide (rightly or wrongly irrelevant), but uses the pretense that there is no standard for the court to use.

The incentive for the court to use circular and baseless reasoning is, supposedly, an attempt at impartiality.

Who supposes this?

In this case, impartiality is achieved through arbitrarily favoring certain terms over others; words such as “fairness” are treated with disdain and hold less validity than other words such as “non-justiciable.” Taboo terminology is therefore avoided to an inappropriate degree.

What is the appropriate degree for the avoidance of taboo terminology?

Despite the legal system’s claim to a superior methodology behind its decisions, it stumbles into the same pitfalls of subjectivity as any other personal opinion influenced by life experience. This does not necessarily mean that these legal decisions are not the “best,” when this word is taken to mean the most thoughtful, and/or thorough, and/or the most desirable for any number of particular reasons (education, political affiliation, experience… this list could go on), but it does mean that they are still subjective.

Why is "subjective" a word indicating a taboo to be avoided? What does it mean?

The next logical question is, if the legal system is still potentially the “best” body responsible for making these decisions, why does it matter if they subjective?

You didn't edit this sentence.

The answer is, perhaps there is some value in simply recognizing this fact and calling it like it is. At the very least, this might provide more self-evaluation in the legal system. There would be less conviction in the notion that we have somehow “transcended” subjectivity and entered a higher plane of evaluating what is right and wrong, or more accurately, what is legal and not legal. Because even though the legal system is the weakest form of social control, judicial opinions still have a very real and profound effect on people’s lives. And the “people,” as was reminded in class, are those for whom justice does not spare. The danger is that on the metaphysical plane of nonsense where judges make their decisions and the legal system supplies the theoretical backing, all the little people below become dangerously insignificant.

Would "all the little people below" be better off in a system in which judges were doing something different in a way you could specify (but haven't)? Why? How do you know?

As members of a society, people should be able to question the validity of court made law without the pretense that it is impartial, but most importantly without the pretense that it is above common notions of right or wrong. It seems that a more critical and fluid system would eventually produce “better” law and that it would inevitably be more reflective of a larger truth, albeit one that is inescapably subjective. As Professor Moglen recounted to us in class, the video camera is why L.A. burned; once the people had evidence of police brutality, the jig was up, and change was ushered in.

That wasn't what I said. I said that a riot occurred in LA because a judge made a decision about venue on the basis of traffic. I said that a friend of mine who did police brutality litigation in Dallas said (jokingly) that the difference between LA and Dallas was fewer video cameras in Dallas. Now there are plenty of video cameras everywhere. On LA policing, under the direction of William Bratton—a man who knows a great deal about standing in front of video cameras—see ElviraKrasFirstPaper.

The more we understand without legal nonsense coloring reality, the more we can move towards a more perfect subjective truth.

I'm not sure what this means.

I think the fast route to improvement here is the identification of a terse and forceful way to express exactly the idea that you believe the essay intends to get across. That expression should then form the introduction, replacing a discussion of your reservations about a word that plays no rule in either your idea of the remainder of the essay. Placed on that foundation, it should then be possible to re-edit the draft to provide a coherent exposition of your idea's place against the background of Cohen's thinking, ending with some invitation to the reader for the exploration of avenues beyond.