• 'm not sure that phrase does the work you want it to do. What Frank and Cohen each mean may not be properly captured in a parallel construction, and I'm not positive that logic is fabricated out of transcendental nonsense when you get right down to it. Or the other thing either. In short maybe you want to avoid mechanism altogether, and say that Frank and Cohen, in your view, show how the legal system is deformed by the need to make narrative in order to disguise uncertainty, or something similar.

• Not because fraught with logic, but because not fraught with assessment of actual real-world consequences.

• I don't understand why the "social forces" idea, which is about the importance of real-world consequences, is understood to be about "legal logic provid[ing] a relatively useful framework." Cohen would say that sentence expressed the antithesis of transcendental nonsense.

• I think this was a quite successful edit. You took a draft that had a meaningful central idea and expressed that idea in a clearer and more cogent way, with due respect for the author's language and intention. You could have moved further from the language, I think, and in one or two places you left unclear or made more unclear what was a weak point in the draft from which you started, but overall I think you served well the purposes of editing and the author of the initial draft.

The Importance of Rationalization

-- By CarolineElkin - 19 Apr 2009

An edit of Michael Dignan’s paper, “Self Narrative and Legal Narrative”

I. Introduction

Often things happen in life which at first appear to defy human logic. In an effort to make sense of these events, we tend to rationalize them – seeking a way to understand the situation in such a way that we are able to move forward. Explanatory devices like narratives provide a means of articulating the rationalized answers we use to gain this peace of mind. Felix Cohen’s “Transcendental Nonsense and the Functional Approach” and Jerome Frank’s “Modern Legal Magic” of Courts on Trial discuss two devices that people have invented for explaining and justifying operations in the legal system. While these devices may be fraught with their own problems of sometimes obscuring reality, they do promote a means of rendering intelligible our own emotional landscape.

II. The Therapeutic Effect of Narrative

A. Ongoing Rumination

Ruminating on past events tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation. Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” (Wilson, pp. 175) Suppression of the repetitive thoughts rarely works. It can even backfire and lead to further rumination.

B. Finding Closure

Construction of a meaningful narrative provides some objective distance from the subject. Clarity develops through the process of rationalizing the situation, which effectively short-circuits the ongoing rumination. Going through the process of thinking, rationalizing, and then articulating our thoughts and feelings (logical or otherwise), yields a sense of closure. Resolution of the events then improves one’s mood and mental well-being.

III. Rationalization in the Legal World

Given the uncertainty of the external world, it benefits people collectively to create meaningful narratives about the way they and their institutions act in order to better understand them. In the legal system, Cohen and Frank have argued that logic has been fabricated out of transcendental nonsense and modern legal magic, as a means of creating legal narratives that makes sense of the uncertainties in the world. While this may lead to obstructed views of reality, it demonstrates the power of rationalization in leading to resolution.

A. Transcendental Nonsense

Cohen states that “the traditional language of argument and opinion neither explains nor justifies court decisions,” and defines such language as “the vivid fictions and metaphors of traditional jurisprudence…thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds….” (pp. 812) His point is that most of what the written decisions tell us is simply nonsense, insofar as the statements within the judicial decisions are fully without meaning because they are fraught with so-called legal logic.

However, the transcendental nonsense of legal logic provides a relatively useful framework for human social understanding of legal disputes. “[A] judicial decision is an intersection of social forces: Behind the decision are social forces that play upon it to give it a resultant momentum and direction; beyond the decision are human activities affected by it” (pp.843). This manner of understanding legal narrative inevitably leads to the obstruction of the real forces at play, but serves a human purpose of rationalizing uncertainties. While the concepts may be invented forms of transcendental nonsense (like the personhood of corporations), they go a long way towards providing a concrete, relatively smooth ground for navigating complex cases where justice and uncertainty may lie on both sides of the dispute.

B. Modern Legal Magic

Frank points to another issue, attempting to ascertain the facts of a legal dispute, as a place where uncertainty within the legal system leads to the creation of an explanatory device to resolve it: legal magic. Typically the facts of the case come from human testimony, and yet humans are fallible and biased. Frank declares: “Leave to the inadequate judgments of mere human judges the testing of the truth-telling of witnesses, when life or property are at stake? By no means. There the human techniques fail. Then call in magic, the mystic power of fire, water, poison, the scales – summon that invisible force, by appropriate spells, to find out the truth mechanically. Magic, and nothing else, is needed in the difficult and dangerous task of discovering the guilty, of getting at the truth.” (pp. 44)

Rules of evidence then are the legal magic that can gloss over the complexities and uncertainties involved in ascertaining the truth. The legal magic ties together cause and effect where they may be disconnected. The problem is that this can lead to a certain amount of wishful thinking. Therefore, since our process of knowing the facts is inadequate, we create this legal magic to cover the gaps, thereby providing a stable structure for deciding cases and resolving our emotional misgivings about an inherently fallible process.

IV. Conclusion

When we create our own narratives, our goal is emotional closure and not a fully truthful account of the situation – thus the account will invariably be colored one way or another. When legal logic becomes a crutch upon which to base decisions rather than an aid, it creates meaningless debate that obscures the real reasons that cases come out one way rather than another. When evidence comes through witness testimony, the very real problem of human bias and subjective observation can even create injustice. Nonetheless, these “logical” devices perform legitimate functions in helping us to come to terms with complexities in justice. The necessities of narrative, transcendental nonsense, and legal magic all stem from the very human benefit derived through explanation of complex and sometimes negative events: the peace of mind that comes from a logically-perceived resolution.