Legal Concepts in Our Very Own Wonderland

-- By AnneFox - 14 Feb 2012

Eben, I would like to continue editing this paper over the summer. Thank you.

Introduction

Much of what we talk about in class makes me question the stability of the world around me. The oldest I have ever been is still young and in trying to apprehend what people mean by the phrase “grown up,” I find that the wisdom that comes with age is less about increased vocabulary, places traveled or some other such things, and more about relationships and understanding the world in which we live. At the point of being in the first year of an academic program designed to change how I think, I often find myself searching for meaning.

I ask myself: What do laws mean? What does a lawyer really do? What can I really do as a lawyer?

I spent the bulk of last year researching Lewis Carroll’s literature—looking mainly at the successes and limitations of logic in providing meaning to an individual. I see many of the same issues arising with the idea of “the law” and often find myself reflecting on the conclusions I drew while working on my thesis.

“Certainty Generally is Illusion”

The idea of necessary faith in axioms makes me unsettled. Holmes states that “certainty generally is illusion, and repose is not the destiny of man…you can give any conclusion a logical form.” In order to feel safe, we assume that we think about law in a way that provides us with certain consequences, but it’s simply not true—it’s all just a rationalization to keep the system from collapsing.

(Upon your suggestion, Eben), I’ve looked further into the application of Wittgenstein’s philosophies to legal theory. Where Carroll lavishes in nonsense as a storytelling technique, Wittgenstein sees a belief in the mutable status of words as a great threat to philosophers and human understanding. As Carroll scholar George Pitcher states, “the Philosopher’s mind, on Wittgenstein’s view, is just Alice’s mad world internalized” (Pitcher, 611). A philosopher is much like a child—both grapple with new and troubling environments and only succeed in understanding when they find a system that functions logically.

Even if we accept that Wittgenstein does not support an linguistic indeterminacy argument—that he rather suggests that “language is safe and that it is not particularly malleable” because there is no need to justify the application of words, do we not still face problems with understanding meaning?

Skeptics find even rule-based accounts of language suspicious—that rules cannot guide new applications of words because they are “merely generalizations about observed regularities in the past,” with the expectation that the future will be the same (Moglen/Zapf, 492). While Wittgenstein might say that these inquiries about rules do not apply to the meanings of words, they could easily apply to the meaning of legal precedent and judicial decisions.

Legal Consequences

Cohen says legal decisions operate on various factors to do what they do. Cohen believes in context—he is skeptical about meaning of laws, but rests on his “function of social forces” as the closest interpretation he can find to what the law means. Jerome Frank is skeptical about the meaning of facts and questions that, if even at the basest level facts determined by a fact-finder cannot be axiomatically held as true, then on what does the concept of law even rest?

I am not sure how Wittgenstein would address these problems. Law is different than language. Carroll’s characters alone show that words can be interpreted or misunderstood in an infinite number of ways. When at a trial, Alice sees a guinea pig “immediately suppressed by the officers of the court,” which, in her inexperienced mind meant that he was shoved in a sack and sat on by the officers. Perhaps bringing one’s mind into accord with society is too just a part of maturing—as I mentioned earlier, maybe vocabulary itself is not nearly as important as understanding the value of words to the masses.

The “Interpretive Community Account,” (the common consensus of how a word should be used defines it’s meaning) runs somewhat parallel to Cohen. An article co-written by Professor Moglen ("Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein") examines possible problems with this theory: 1) It requires a community consensus, which there is inherently not in many legal actions; and 2) The theory is still a rule that rests on previous meaning. Cohen’s theory seems not so different, as it just incorporates more factors and consequences that require more social information and values. This approach is not nearly as “rules” based, but it’s also unwieldy. How far down the consequences line are judges required to see?

What, then, is Law?

We said when discussing Cohen that law is a weak form of social control—that law does not determine, but reflects. And it must be weak because the law does not even control itself, at least under Cohen’s social values-based approach.

So when I ask myself now, after ten months of law school, what the law is, or what it means, I cannot truly say. I suppose in trying to lessen the anxiety about the world, the law is not really the best place to turn to find truth. It is itself a rabbit hole, at least from what I’ve seen of legal theory so far.

When I ask myself what a lawyer is, I think of him as a moderator, or negotiator, like a coach directing players in court where the judge is the (sometimes biased) referee. Only this game is recorded in detail and even the smallest changes can affect precedent.

Additionally, what most of this thinking has really helped me realize is that I could never be first and foremost a lawyer. One of our guest speakers in Legal Methods said: “Even if you lose your job, you’ll always have your profession. You’ll always be a lawyer.”

But learning law, and knowing that I will someday practice law do not define who I am. I’m starting to see more that law is not a pair of goggles that I have to wear for the rest of my life, but that it’s just another life experience that I can choose to utilize in a way that means something to me.