Law in Contemporary Society
Question 1: Application of the Unitary & Non-Unitary Self Distinctions: Within class we probed the fiction of the unitary-self. We recognized the potential danger in treating as pathologies variations in humans’ behavior/inner-states. I am willing to accept that a skilled attorney understands and is attentive to the multiplicity of persons within an individual. I acknowledge the danger of the unitary-self outlook is that the subscriber to this outlook is less likely to take notice of human “aberrations.” What is less clear to me is how being sensitive to the non-unitary self concept further skills the attorney who presumes a unitary-self but recognizes the range of human emotion and tailors his actions accordingly. Is there a practical difference between these two outlooks? Is it that the non-unitary-self concept compels one not to merely recognize the multiplicity of human states but to search for their causes in prior experiences? If yes, then what bearing and what benefit does this have on persuasive advocacy before non-realist justices?

  • Consider the differences in the theory of persuasion (an aspect of social psychology) that would be entailed by a change in theory of personality (an aspect of intra-psychic psychology) if one concluded that human beings have multiple, interacting, not necessarily inter-conscious personalities.

Question 2: Cohen, the Realist Lawyer, & Functionalism: Both Cohen and Holmes lament the manipulation of fictive legal constructs (e.g. the language of transcendental nonsense & morals-talk) to divorce legal reasoning from questions of social fact and ethical value. While this end is made clear in each writing, a question as to means remains in my mind. Cohen and Holmes outline similar paths that include: purging meaningless dogmas/language from judicial opinions, uncovering social forces that influence judicial behavior, and assessing the consequences/social values at stake with regard to an issue. Cohen (p. 841) seems to propose an interim measure for the “realistic advocate.” When possible, the realistic advocate aims to circumvent evidentiary barriers to functionalist argument via sleight-of-hand tactics (e.g. discussion of the background and consequences of past cases cited as precedent) and, when necessary, by cloaking such argument in the ritual language of traditional jurisprudence in order to induce favorable judicial attitudes. The latter seems to risk the perpetuation of traditional “supernatural” forms. Given the resistance of justices to candidly entertain discussion of consequences (whether to skirt messy political discussion or otherwise as discussed in clas), does Cohen believe the shift away from transcendental nonsense will come from internal pressures within the judicial system (e.g. realist advocacy), external pressures (e.g. construction of Judicial Indices p. 846), or some combination of both?

-- JasonLissy - 23 Jan 2009

  • Both, obviously, and in other ways as well, having to do with the replacement of personnel and the effectiveness of education. What difference does it make what he expects? Is that in order to figure out whether he is right or wrong?

Concerning your second question, I don’t know what Cohen would say, but perhaps we can connect his strategy with the idea that judges use these fictive legal concepts in order to avoid having to actually face difficult decisions. If a judge doesn't want to face an ethical question for whatever reason and he is skilled in manipulating legal fictions, then I see no reason for him to suddenly change. It must at least be necessary for a lawyer to bring the ethical question out in the open. Otherwise there would be nothing to stop the inertia. However, if we are right about transcendental nonesense and logic being a defense that protects us from facing difficult questions, then as a lawyer trying to present the real issue of a particular case I wouldn’t expect immediate results. In fact, I would expect a violent backlash unless the judge was already willing to consider and decide the ethical issue. So it might in fact be counterproductive in the immediate case. But perhaps it might make the comfort that legal fictions provide a little less satisfying.

-- PatrickCronin - 24 Jan 2009

I'm still struggling to understand Cohen's and Holmes' views on consciousness, so I offer these thoughts somewhat tentatively . . . .

As I understand them, Cohen and Holmes aren't trying to answer the metaphysical question whether the "essence" of the self is "fundamentally" either unitary or plural. Instead, they're trying to show why people who try to answer that question one way or the other end up getting lost in a thicket of transcendental nonsense. In doing so, Cohen and Holmes challenge at least two assumptions people make when they ask that metaphysical question: (1) the assumption that the phrases "unitary self" and "multiple self" have some essential meaning--that is, a meaning which is independent of the experiences of the world we use those phrases to describe; and (2) the assumption that the experience of consciousness is somehow "really" characterized by only one of those phrases and not the other.

When critics of Holmes "attempt[] to show that [his] definition of the law . . . is either true or false," Cohen argues that they're making a category mistake--definitions aren't true or false, they're useful or useless (835). Homes is not talking about the "essence" of the law. Instead, Holmes is using the word "law" to refer to the operation of certain social institutions from the perspective of someone who wants only to avoid fines and jail time. If we think it would be useful to see what these institutions would look like from the perspective of the man who cares about grander things, Holmes doesn't say we're "wrong" to do so, or that the "essence" of the law is something different. He's just interested in a different question.

The same is true of the phrases "unitary self" and "plural self." As Cohen puts it, his and Holmes' task is to "salvag[e] ... whatever significance attaches to the traditional concepts of metaphysics" (including the concepts of the unitary self and plural self), through the "redefinition of these concepts as functions of actual experience" (827). That task involves figuring out what it would actually mean, in terms of concrete experience, to view the self as either unitary or multiple, and then to figure out under what circumstances it would be useful to take one or the other viewpoint. The task, for the functionalist, is not to decide whether the self is "really" metaphysically unitary or multiple.

To the functionalist, then, the phrases "unitary self" and "multiple self" might be understood as describing the experience of selfhood from two different viewpoints. I might describe my experience of myself at a given moment as "multiple" or "plural" when I view my thoughts, desires, emotions, and memories as "givens" that are external to and prior to my experience of consciousness. Then, in the next moment, I might describe my conscious self as "unitary" or "autonomous," when I view my thoughts, desires, emotions, etc., as encompassed by or internal to my concept of I.

The fact that I can take up two (or more?) different perspectives relative to my conscious self doesn't mean that either viewpoint is "true" or "false," just like Holmes' decision to analyze the law from the viewpoint of the "bad man" is not "true" or "false." Questions in moral philosophy can't be answered by data from biology or physics, but that doesn't mean that the perspective of moral philosophy is "true" or "false" from the perspective of physics or biology--they are simply talking past one another. The perspective you choose depends on the sorts of questions you're trying to answer at any particular moment, not any belief that the perspective you choose is the metaphysically and invariably "true" perspective.

After setting up this conceptual framework, though, what's left is the really hard part. I'm accustomed to thinking of myself and others as unitary and indivisible; indeed, I've been talking about "_choosing_" different perspectives, and the language of choice and of conscious decisionmaking is the language of the unitary/autonomous perspective. The next step would be to try to figure out what it would actually mean, in terms of concrete experience, to actually shake that habit, and to start thinking about myself and others as multiple when it is useful to do so. At that point, I have to admit, I find myself at a bit of a loss.

-- DanielMargolskee - 25 Jan 2009

  • I don't think we came to be talking about self-states because Holmes or Cohen discusses them, is interested in them, or has any opinion to offer about them. I raised the issue because Theo identified the integrity of the individual consciousness with the preservation of his "necessary fictions," which are Felix Cohen's transcendental nonsense. Among my other questions about Theo's analysis, I took leave to doubt that the attribute he was considering it urgent to preserve ever existed in the first place. That led us to consider other consequences of relaxing the assumption of the integrated self.

  • Someone should refactor this page into two pages, one for each of the essentially independent questions originally asked, so that they won't be unnecessarily interdependent. To restate them more concisely:

  1. What does a lawyer do differently depending on the variations in the "self psychology" portion of her consilient stack of ideas about the roots of human behavior? How does relaxing the assumption of personality integrity in particular affect her professional activities?
  2. If judges refuse (as we can assume they will) to view their own opinions as rationalizations, how can legal change be predicated on the insight?

"Among my other questions about Theo's analysis, I took leave to doubt that the attribute he was considering it urgent to preserve ever existed in the first place. That led us to consider other consequences of relaxing the assumption of the integrated self."

- Indeed they don't exist! That is why they are fictions. Necessary fictions however. There is no more a unitary human being than there is an autonomous one. Yet I consider these illusions as vital for us.

-- TheodorBruening - 27 Jan 2009

Thanks for your response Daniel. Assessing the functional implications of the unitary/non-unitary is exactly the undertaking I am interested in and find challenging. As to the second question, I am not interested in proving Cohen correct or incorrect (I accept the limits of framing the inquiry in that way) but in probing the difficulties of the idea's application so as to problem solve around them in an effort to figure out the dimensions of what a successful implementation might look like.

-- JasonLissy - 27 Jan 2009

The next step would be to try to figure out what it would actually mean, in terms of concrete experience, to actually shake that habit, and to start thinking about myself and others as multiple when it is useful to do so.

You might find you already do so quite naturally with phrases like "he wasn't himself" or saying "part of me wants to do X, but part of me wants to do Y" or "my conscience is forcing me to do this" or something like that. People say these things all the time.

However, I don't think there's a need to completely shake the habit and worry about using that language because thinking of people, especially people you don't know well (and therefore don't know about their inner conflicts and thought processes), as unitary is often much more useful. I think the view of the unitary self isn't a necessary illusion but a necessary perspective. It's one way of looking at things, usually the most practical way (because ultimately, your "plural" selves are stuck in the same body and brain and this limits just how much they can be looked at as different entities). I think the important thing is to remember it's not the only way. Whenever you decide a thing, animate or inanimate, is "unitary" or "plural" you're making a value judgment and choosing a point of view. For instance, a leaf can be looked at as a singular object, or as a part of a tree, or as an arrangement of molecules--depending on what question you're interested in investigating about that leaf.

-- AnjaliBhat - 04 Feb 2009



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r11 - 07 Jan 2010 - 22:14:31 - IanSullivan
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