Law in Contemporary Society
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In Defense of Nonsense

-- By JustinFlaumenhaft - 28 Feb 2020

The Limits of the Functional Approach

In “Transcendental Nonsense and the Functional Approach,” Felix Cohen derides the absurdity of legal formalism. Cohen reveals how the hypostatization of legal concepts, like the legal personality of a corporation, leads judges to argue in vicious circles about nonsensical questions like where a corporation really is. Cohen urges legal thinkers to reject such “transcendental nonsense” and embrace instead a more “functional” approach based on a “realistic, rational, scientific account of legal happenings.” Such an account, Cohen suggests, will allow legal thinkers to better understand and predict the underlying forces that determine judicial decisions.

While Cohen concedes that transcendental nonsense might help convey a message memorably, he nonetheless believes that it only obscures the study of law. In Cohen’s view, the usefulnesses transcendental nonsense is limited to practical concerns like “releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions or attitudes in a political or judicial audience.” My contention, however, is that we should reconsider such a sweeping dismissal of so-called “nonsense.” I believe that there are conceptual frameworks that might well be viewed as nonsense under Cohen’s theory, but are nonetheless valuable tools for understanding the law.

Cohen’s intellectual project is encapsulated by Bertrand Russell’s maxim, “wherever possible, logical constructions are to be substituted for inferred entities.” This maxim reflects the broader aim of Cohen’s theory of law to replace abstract, “inferred entities” (like an anthropomorphized corporation) with simpler, “logical constructions,” explained in terms of what we actually see and experience. Embedded in this project are two central tenets of Cohen’s functional approach: logic and empiricism. Any theory that contains logical contradictions or posits entities whose existence cannot be stated in straightforward empirical terms is liable to be deemed “transcendental nonsense” under Cohen’s functional view.

It is important to note, however, that logic and empiricism are not completely disentangled from transcendental nonsense. For example, the foundations of logic are plagued by the same vicious circularity that Cohen criticizes: for you cannot prove the fundamental axioms of logic without presupposing those same axioms. Moreover, empiricism—the idea that knowledge derives from sensory experience of the physical world—contemplates a world of detached observers perceiving information that is unaltered by any social or conceptual framework. I believe this notion is a fiction which, like the fiction of a corporation’s legal personality, we ought to be wary of accepting too literally. Thus, we might well be skeptical of the idea that any insight which does not conform to the principles of logic and empiricism is simply nonsense.

Moral and Social Nonsense

Jeremy Bentham famously decried the notion of “natural rights” as nonsensical, or as he once memorably put it, “nonsense upon stilts.” In applying the twin pillars of logic and empiricism, we can see how Bentham reached this conclusion. Natural rights, by definition, exist independently of whether they are recognized or protected in any particular society. Natural rights are therefore not social facts, but a moral facts. As such, natural rights are not the kind of things whose existence we can prove through empirical investigation or deduction from logical or mathematical principles. In light of these considerations, it is reasonable to assume that Cohen would render the same verdict on natural rights as Bentham: natural rights are simply nonsense.

Cohen’s logic seems to imply that we should replace the transcendental notion of natural rights with value-neutral “social facts” about the duties which are recognized and protected within a particular society. It seems to me, however, that doing so would risk stripping the language of rights of its persuasive power and binding force. For even if you agree that natural rights are nonsensical, you might well wonder if treating them as such undermines the worthy ends for which rights are frequently invoked. I think fully embracing Cohen’s theory is more likely to jeopardize than to strengthen respect for civil and human rights.

Of course, Cohen’s article is primarily about how to predict judicial decisions. One might argue that Cohen’s suggestion to remove transcendental nonsense from our predictive framework is perfectly reasonable, even if it is beneficial for a society to believe in certain nonsensical moral fictions, like natural rights. For it seems perfectly plausible that legal thinkers could predict judicial decisions on an empirical and amoral basis without eroding a general and genuine belief in beneficial moral fictions. However, I think this line of argument illicitly assumes that the act of predicting a social phenomenon does not affect that social phenomenon. The beliefs and attitudes we bring to bear as predictors and critics of judicial decisions may very well end up affecting how judges make these decisions and what the public thinks about them. A common fallacy accompanying empiricism is that the observer does not in any way affect that which she observes. I believe this fallacy is particularly important to call attention to when studying legal phenomena. In attempting to make the study and prediction of law as empirically-based and value-natural as chemistry or physics, we may end up studying an institution that has grown skeptical of its own values.


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r1 - 28 Feb 2020 - 22:31:27 - JustinFlaumenhaft
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