“Logicians sometimes talk as if the only function of language were to convey ideas. But anthropologists know better and assure us that “language is primarily a pre-rational function.” Certain words and phrases are useful for the purpose of releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions and attitudes in a political or a judicial audience. The law is not a science but a practical activity, and myths may impress the imagination and memory where more exact discourse would leave minds cold.” –Felix S. Cohen

It's hard to say that the guy who writes first answers the question of the guy who writes second. How about, "Cohen asks a question Holmes already answered succinctly: law's vital basis is not logic, but experience"?

It is experience that governs the legal decision process. Judges draw from their own ideas of right and wrong, from social context and social activity, to make decisions. Court opinions, written in the key of transcendental nonsense, are merely the justifications for decisions that were made long before a protracted analysis of “Where is a corporation?”

"Justification" and "rationalization" aren't synonyms. It's important which you mean here for everything that follows.

Demonstrated what?

Between mouthfuls of cheap Chinese food, in sentences littered with profanity, he told us the truth.

Saying that Noodle Town sells "cheap Chinese food" is like saying that India manufactures cheap textiles, or that the Metropolitan Museum is a cheap way to look at art. Not everything that is perfect is expensive, but perfect things that are not expensive are not therefore "cheap."

His advice was bereft of the type of language that we respect, and he offended us.

Which us? He delights me.

“Don’t be a dumb fuck…Don’t pig out on cash.” And perhaps, most importantly, don’t be beholden to anyone.

Common Knowledge

Realistic perspectives allow valuable predictions

This wasn't the best sequence of tenses to use, which is why you botched it. You could have used the perfect subjunctive less awkwardly: "Had we talked to more people below, had we taken the time to read their stories, ..." but that would have led to "we might have thought [or "begun thinking"] more realistically about the law."

I've always wondered why people started their property courses with this case, which I myself chose never to teach at all. Understanding both its formalisms and its realisms requires history that few if any property teachers are actually prepared to offer. The impression left with you, that this is an important de novo result, a moment at which "brown people, none of whom were in court" lost something, is utterly comprehensible given the context in which it was presented to you, but is almost entirely false.

Suppose you did not "unconsciously" accept that outcome. What would be the alternative that you would find consciously considerable? Natural right?

I don't know whether that's a Holmesian dismissal of logic, or a statement that INS v. AP seems wrong to you. If you consider it to be wrong because it only seems logical, instead of being logical, what holding would be logical instead? If you consider it to be wrong because it is wrong whether or not it is logical, what is wrong about it?

The Trouble with Becoming Beholden

Transcendental nonsense is only valuable to lawyers and those like us—most of the people on the street know better. Transcendental nonsense makes our job easier, it allows us to pretend that we aren’t doing what we are doing and it makes us feel better about what we’ve done because “…myths may impress the imagination and memory where more exact discourse would leave minds cold.” The trouble with transcendental nonsense, however, is that eventually, we become beholden to our own bullshit. Our belief in it makes us act like dumb fucks and diverts our energies to meaningless inquiries while the real decisions are being made.

This isn't the form of being beholden that Robinson was talking about, so this is a metaphor you've constructed, and it's not clear to me why you think it is doing useful work here. "Trapped" or "misled" seems more to describe how our habits of thought coerce us than the material or moral indebtedness denoted by "being beholden." Ideas or reasoning habits can possess us, but you're not talking about obsessional ideation.

Nor can I say that this conclusion leaves me any further along than I was halfway through Cohen's article. The idea I believe was your animating contribution was the assertion that working-class thinkers are automatically legal and social realists, that only privileged people can afford the self-deception of formalism. I don't know whether the sociology is right (it strikes me that many working-class thinkers are religious formalists, for example), but you don't actually argue for it: it's a rhetorical posture more than a conclusion based in argument or factual demonstration. It strikes me, however, whether right or wrong, as useful or not useful depending on where it can lead us. By leaving us pretty much where Cohen left us, you haven't shown the idea's utility, which is what I think improvement in the next draft should be primarily devoted to showing.

Listen Below.

-- By GechiNzewi - 16 Feb 2012

“Logicians sometimes talk as if the only function of language were to convey ideas. But anthropologists know better and assure us that “language is primarily a pre-rational function.” Certain words and phrases are useful for the purpose of releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions and attitudes in a political or a judicial audience. The law is not a science but a practical activity, and myths may impress the imagination and memory where more exact discourse would leave minds cold.” –Felix S. Cohen

Advice about the courts from three great men

Courts talk about one thing while doing another

From our windowless ivory tower, Felix Cohen seems controversial. He informs us that courts use supernatural language while making practical decisions. Speaking in terms that he knew we would respect, Cohen reduced the language of the courts to “transcendental nonsense.” He cautions that, when we buy into this nonsense, we are likely to forget about “the social forces that mold the law and the social ideals by which the law is to be judged.” According to Cohen, transcendental nonsense exists because of our belief in it. When we make decisions based on the ability of abstract concepts to encompass values that are produced, not merely protected, by the law, we stop asking the real questions, like: how are cases decided? And perhaps more importantly, how should they be decided?

Courts write about one thing while deciding another

Oliver Wendell Holmes answers Cohen’s first question succinctly: experience. It is experience that governs the legal decision process. Judges draw from their own ideas of right and wrong, from social context and social activity, to make decisions. Court opinions, written in the key of transcendental nonsense, are merely the justifications for decisions that were made long before a protracted analysis of “Where is a corporation?”

Courts are corrupt, don’t be a dumb fuck

Finally, Robinson from Lawyerland demonstrated in painful, poignant color. Between mouthfuls of cheap Chinese food, in sentences littered with profanity, he told us the truth. His advice was bereft of the type of language that we respect, and he offended us. “Don’t be a dumb fuck…Don’t pig out on cash.” And perhaps, most importantly, don’t be beholden to anyone.

Everybody knows this except us

It is only in such a place as Columbia that the perspectives of any of these men are revolutionary, or even mildly novel. Perhaps, if any of us, at some time, had taken the time to listen, their words would only have brought the conscious knowing of an established intuition. Transcendental nonsense supports a myth that only we believe. It is an idea that can only be sustained in a windowless tower, one that doesn’t overlook a low-income street, where it’s common knowledge, and someone would tell us in fewer words than Cohen and Holmes, that judicial opinions are bullshit.

Common Knowledge

Past 125th street, most people know, or at least feel, that if law were really the result of abstract concepts interacting according to the indiscriminate rules of logic, black people would not, on average, receive 60% longer jail sentences than white people for the same crimes. They would say, in language that most of us would never respect, that transcendental nonsense is simply a smokescreen for something that we, as lawyers, do not want to confront.

Realistic perspectives allow valuable predictions

If we had talked to more people below, or took the time to read about their stories, we would have begun to think about the law more realistically. As a result, the holding of Johnson v. M’Intosh, which could not have been decided otherwise in the early 1800’s, would have surprised few. Most of us would have anticipated that America, a new nation, would quickly tire of negotiating with a subjugated people group, if transcendental nonsense--language that we respect--hadn’t lulled us to sleep. If we had known, we would not have been surprised when a dispute between two white men over a piece of land lead to the divestment of the property rights of thousands of brown people, none of whom were in court. The only uncertainty would have centered around how. Which words would be used? Which concepts would be summoned to interact?

Unrealistic attitudes divert valuable conversation and dull minds

Up here, at Columbia, rather than examining the practical reasons for America’s choice, and examining their merit, we dove into a discussion of “sovereignty” that ended with our unconscious acceptance of the idea that our government has the exclusive power to decide property ownership. And it was a good thing that we did, because this tacit acceptance made International News Service v. Associated Press seem perfectly logical the next day in class.

The Trouble with Becoming Beholden

Transcendental nonsense is only valuable to lawyers and those like us—most of the people on the street know better. Transcendental nonsense makes our job easier, it allows us to pretend that we aren’t doing what we are doing and it makes us feel better about what we’ve done because “…myths may impress the imagination and memory where more exact discourse would leave minds cold.” The trouble with transcendental nonsense, however, is that eventually, we become beholden to our own bullshit. Our belief in it makes us act like dumb fucks and diverts our energies to meaningless inquiries while the real decisions are being made.

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