Tuesday, January 10, 2006

"The ultimate evil is the ability to make abstract that which is concrete."



Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964), pp. 187-242.
Kent Greenawalt, Conflicts of Law and Morality Oxford: Oxford University Press, 1989), pp. 286-310.
Robert Jay Lifton, "The Nazi Doctors," in Donald L. Niewyk, ed., The Holocaust (New York: Houghton Mifflin, 2003), pp. 60-73.
Geoffrey Galt Harpham, Shadows of Ethics: Criticism and the Just Society (Durham: Duke University Press, 1999), pp. 99-120.


The title to this comment is a quote from the writings of Jean Paul Sartre. I think it helps to bring into focus a major source of unease in our lives. We live in huge societies, where impersonal forces contend not so much for our souls as for our money and our votes. Allegiance is secondary.

We find ourselves dealing with bureaucrats, clerks, "officials" of one sort or another -- usually the petty kind -- all the time. There are always rules, procedures and methods in place. ("The blue copy stays here, the yellow and green go over there, and the white one is for you.")

Efficiency has become the ideal in our public lives. We like to say that we "follow the rules, no matter what." Rationality and rationalization have become the chief virtues of American politics and law. There are problems with this reality. Some may be associated with the critique of Enlightenment values attributed to Horkheimer and Adorno, to the Frankfurt School, and also to other contemporary schools of Continental thought, notably existentialism and postmodernism. The obligatory reference to Max Weber should be made at this point. American lawyers are directed to Professor Gerald Frug's classic article on bureaucratization in the legal system.

Hyperrationalization leads to irrationality, existentialists and Critical theorists contend. "Great," postmodernists and deconstructionists respond, "we love irrationality!" For me, much depends on the occasion and company. I can be irrational, when irrationality is called for (say, on New Year's eve), but I can also do the rationality thing.

Collective rationality often results in individual insanity. Coping with such Kafkaesque nightmares is a big part of a humble legal practioner's life. The classic example is the person who receives a letter from the Social Security Administration informing him that, since he is dead, he will no longer require his pension checks, usually closing with the pleasant wish: "Have a nice afterlife."

After numerous letters, requests for a hearing and so on, a determination is usually made that, as between the computer's "testimony" that Mr. Smith is dead, and Mr. Smith's own doubtful claim that he is not dead, the court will have to rely on the computer's expert testimony, because computers do not lie.

I can't wait for the new "Invasion of the Body Snatchers" movie, since all extras are said to be local attorneys. Evidently, no "pod people" were needed to provide soulless, brutal, amoral killers. One phone call to the American Bar Association and attorneys (billing by the hour) were instantly available.

Those familiar with Charlie Chaplin's movie "Modern Times" will recall Charlie's attempt to move like the machine he's trying to fix, but which seems to be fixing him. Many us feel as he does. Computerization has made things more difficult, even as it provides the underground forces of "madness as liberation" with new tools in the on-going struggle against hyperrationalization. Some of the old tools that work pretty well are: humor, empathy, sensitivity and intelligence, as opposed to this "clerical" understanding of rationality. Sometimes the most intelligent response to a human predicament -- I hope lawyers read this! -- is irrationality. Time to ponder, yet again, Andre Breton's "Surrealist Manifestos."

If Michel Foucault is right that "rationality produces its other as irrationality," then the most appropriate response to legal hypersanity is legal insanity, provided that all procedural requirements are satisfied, naturally. The red copy is for me, the blue one is for you -- but then we'll give all the white copies away to strangers in the form of paper airplanes, along with a pocket size copy of the U.S. Constitution. This may serve as a form of protest against the laws that we deplore, such as the recent refusal to grant legal recognition to same sex unions. New Jersey's Supremes "erred" by actually arriving at a correct decision on this question, but managed to recover by screwing up the issue of what to call these unions, passing the buck to the New Jersey Legislature that is "looking into the matter."

The danger associated with hyperrationality is the withering of our capacity to feel, as opposed to experiencing sensations. Intuition and empathy are too easily dismissed as non-cognitive. Yet recent work in biology echoes the findings of philosophers and other intutionists, who suggest that our best political, legal and ethical thinking inevitably involves feelings or emotions, even at an unconscious or neurological level. I am not sure of what is meant by "pure" cognition, but whatever it means, I am certain that human beings are not capable of it. No, this does not make everything "relative" and not really "true."

"We are exquisitely social creatures," Dr. Rizzolatti said. "Our survival depends on understanding the actions, intentions and emotions of others."

He continues, "Mirror neurons allow us to grasp the minds of others not through conceptual reasoning but through direct simulation. By feeling, not by thinking." ( The New York Times, January 10, 2006, at p. F4.)

After the sheriff appears at your door to serve a summons, show up at his door to give him a flower. A not-so-funny aspect of all of this is what people allow themselves to do when they put on the "mask" of rational, clerical, anonymous decision-making. A mask which is based on an outdated understanding of rationality. "We decide cases with our heads and not our hearts." I once heard a judge say those words. My thought was and is: "When was the last time that your head left your house without your heart?" Every day, maybe?

There is an inverse ratio between a judge's stupidity and loudness. When a judge yells or pounds his or her fist on the table, then you may safely assume that you are dealing with an incompetent judge, making up in intimidation for what he or she lacks in intellectual ability. A quiet, soft-spoken and thoughtful judge is usually brilliant. Two of the best I ever saw were also in New Jersey, surrounded by hacks and doing superb work, every day. Whatever those two are paid, it is not enough.

Each of us is one person, mind and body, emotions and intellect, unified by purpose and action. We are one society with a single legal system, which is intelligent and efficient (we hope), but also -- and maybe more importantly -- compassionate and just. We are Republican and Democrat, male and female, white, black and brown, gay and straight. We better understand that.

Laws should be efficient and predictable, of course, but this is for reasons that are moral. Law is about the just resolution of disputes and fair balances between power-holders and individuals in an essentially moral enterprise. You can't take morality out of law, just as you can't bake a cake without flower, water, sugar or eggs. (I learned that from Paula Deen on the Cooking Channel. "Y'all are gonna love these cookies!")

Our American Constitution is a magnificent document that is much more intelligent than most law professors or politicians and judges these days seem to be about the dynamic balances required to resolve these inevitable tensions in social life, given the realities of modernity. Considering the century when the document was written, the design of the interaction between the Constitution's various principles is a stunning achievement. Some of the Constitution's provisions (for example: free exercise versus establishment of religion) are in continual tension, so that the underlying structure is best described as pure genius and maybe a little good luck too. It is a dance among principles and values that are in "eternal" (Justice Brennan) creative tension.

Persons elevated to the bench or to other decision-making positions -- and this will never be a problem for Justice Scalia, whatever you may think of his jurisprudence! -- sometimes lose their humanity in a role. The positivist ideal in jurisprudence is precisely an inhuman decision-maker, governed by the logic of the law and unconcerned with values or the moral consequences of results. If Justice Scalia were a base baritone, he would make a terrific "Grand Inquisitor" in Verdi's Opera, "Don Carlo."

Ask your positivist friends "why" we should abide by rules, and eventually they will arrive at a moral judgment about the value of neutrality, or autonomy from imposition of values by others -- all of these are value judgments, revealing a morality underlying their alleged separation of law and morals. There is a slight inconsistency problem, don't you think? I sure do. Hence, Lon Fuller's discussion of the "morality that makes law possible." There is a morality inherent in the processes of law, requiring such things as transparency, notice, consent, respect and dignity of litigants or subjects of legal process, and much more. Without such values, a system of rules lacks the character of true law, becoming nothing more than an organized means of inflicting power on the powerless. New Jersey?

Lawyers are not alone in facing these problems. Behaviorist psychologists design torture techniques efficiently, so as to maximize the harmful impact on "targets" of conditioned responses. The result is Abu Ghraib and Guantanamo. Equal horrors take place, secretly, within the nation's borders. (See "Psychological Torture in the American Legal System.") Economists speak of market solutions based on rational self-interest, scarcity and demand, for everything from babies to love and romance.

Surely, these things are in the wrong order now. Frank Sinatra sang long ago: "First comes love, next comes marriage, then comes baby in a baby carriage." Today, of course, first comes love, then comes lawyer with prenuptial contract, and only then do we speak of in vitro fertilization. And they say romance is dead.

Robert Jay Lifton has commented on the ways Nazi doctors dissociated themselves from their actions in concentration camps, from their killing of inmates in horrible ways. I would not describe those Nazi physicians as medical doctors any longer -- if they ever were -- when they performed those tortures or murders. I think they became only torturers:

The Auschwitz self depended on radically diminished feeling, upon one's not experiencing psychologically what one was doing. I have called the state "psychic numbing," a general category of diminished capacity or inclination to feel. Psychic numbing involves an interruption in psychic action -- in the continuous creation and recreation of images and forms that constitutes the symbolizing or "formative process" characteristic of human mental life. Psychic numbing varies greatly in degree, from everyday blocking of excessive stimuli to extreme manifestations in response to death-saturated environments.

I am not excluding myself from this phenomenon. I have been there. It is all too easy to neglect the humanity of others when it stands in the way of making money -- legally, of course. It is also easy to neglect the feelings of others when one is experiencing great emotional turmoil or pain. Life in a torture chamber. For many people this process of "numbing" the moral faculties can reach the level at which they commit crimes in their efficiency or out of blindness to the feelings of others. Workers in the sex industry, which is analogous to the legal profession in many ways, are prone to this condition. I never reached that level, fortunately. There are people -- sometimes judges, politicians or their friends in "business" -- who have reached such a state of self-alienation and anomie.

I certainly was capable of a loss of my own sense of integrity and purpose in dismal circumstances, conditions of torture and violation, though never of deliberately desiring or intending to cause harm. When one finds oneself in a social setting in which rules are part of a hypocritical pretense at compliance and cynicism presides over all, it is difficult to retain any sense of value. There are places in America where institutions are so corrupt that talk of law or politics becomes a gruesome joke. Total inhumanity is something rare, luckily, and can only be called evil. Callousness and indifference are much easier, and none of us escapes such attitudes entirely. Also, like everyone I have known -- especially powerful people -- I was often insensitive and morally stupid. I hope I am less prone to such conduct now. For one thing, I try to be on guard against any objectifying tendencies, try never to use banalities, psychobabble or social science jargon to refer to others. I try to focus always on the humanity of persons. I try to see you, so that you will see me.

Law is not engineering or software design, so that technical correctness may often produce morally horrendous and unacceptable results that undermine the purposes of legality itself. Moral stupidity may accompany high levels of legal rationality. Technical correctness is not enough to call someone a good judge, much less a great one. Thus, Nazi judges who decided cases in accordance with rules and explained that, it was not their personal opinions that mattered but adherence to the "rule of law," deserved their prison sentences ... because the institutions that they served had become criminal enterprises and no longer deserved to be described as law courts, long before they realized it.

My suggestion to judges everywhere is that, before you decide any case, be mindful of Sartre's maxim and make "concrete" that which is "abstract." Do not determine that: "Plaintiff's claim against the Defendant Insurer suffers from fatal procedural defects due to a failure to comply with timeliness provisions required under the claims and notice procedures section of the policy contract, at sections A37-39." Ask yourself: "Am I really going to screw this old lady because she did not read the insurance policy she signed to figure out how much time she had to notify the insurance company?"

After all, knowledge of the real world tells us that a team of expensive lawyers wrote the text of that policy in such a way that it would take the Harvard Law School faculty to figure out how much time the insured has to provide notice for each aspect of a claim in a complex case. Or as one of the major insurance companies responded when it received the first claims after the hurricane in New Orleans, "What hurricane?"

Geoffrey Galt Harpham's recent book of essays Shadows of Ethics: Criticism and the Just Society is a witty and well-written collection that seeks to restore ethics to its central place in our deliberations on cultural and aesthetic matters. Harpham's comments about Professor Nussbaum's writings on philosophy and literature are especially good. I wish to focus on one passage in Professor Harpham's essay dealing with Robert Nozick's response to Ian Hacking's criticisms concerning the scope of rationality:

Oliver Sacks sheds unexpected light on rationality. His primary example, a biologist and engineer named Temple Grandin, is exceptionally well organized, efficient, logically precise, and distinguished in her field, but has a number of obvious limitations. Music and poetry, and even the metaphors of everyday life, baffle her. Often she finds herself lost in a world of signals and stimuli others find transparent. She cannot understand what people feel when they see natural beauty or fall in love; sublimity does not exist for her. "I never knew what they were up to," she says about Romeo and Juliet. In addition to "a sort of moral intellectual intensity or purity," autistic people, Sacks concludes, have "no true concept of, or feeling for, other minds, or even of their own" ... They are deprived not of affect as such -- Temple Grandin feels very strongly for animals -- but of affect in relation to complex human experiences.

American society is in danger of developing a kind of "social autism." Our legal culture is already afflicted with this malady, blunting and numbing our moral faculties, a chosen blindness and willed stupidity to our mutual dependence and need for compassion from our institutions, especially the Supreme Court.

I suspect that this bizarre cultural illness explains the impasse between the two sides of America's political culture. Social autism goes a long way towards clarifying the opposed national perspectives on religion. Crucial to the set of issues I am describing is the struggle over the meaning of key terms in politicial theory, such as objective and subjective, also liberty and community.

Much of the difficulty in which feminism finds itself has to do with the invasion by sexism of feminist philosophical responses to unjust social conditions. Sexism is a much more subtle and insidious adverary than many feminist thinkers realize. You will find it even in the theoretical discourse of feminists.

With some notable exceptions, Judith Butler for example, feminists have assumed an overly masculine (in the worst sense) understanding of objectivity and rationality, one that neglects the importance of feeling and the cognitive component in social empathy. Feminism and communitarian politics are highly compatible with the best scientific understandings of humanity's current "situation." Yet these connections and the effort to be clear about philosophical concepts is missing from a great deal of feminist writing. I recommend Professor Kimberly Hutchins, Hegel and Feminist Philosophy (Oxford: Polity, 2003).

Feminism is the most rational and ethical response to what we know about human beings and society, but this truth is obscured behind a smoke-screen of psychobabble and trendy nonsense, giving fundamentalists and others an edge in a policy debates -- which they have already lost on the merits -- through their ability to caricature and demonize the opposition. In the debates concerning feminist policy and principle, the worst arguments and not the richest arguments and theories are advanced on behalf of feminism.

If she were a lawyer, would you wish to appoint Temple Grandin to the U.S. Supreme Court? Why or why not? Suppose she had graduated at the top of her class? Suppose that you have no doubt about her personal decency? What would disqualify her in your mind? What essential ingredient of a good justice is she missing? Do feminists mistakenly believe that to be successful they must become like Temple Grandin? Why? Isn't the better goal to change society so that no human being must be deformed emotionally to be considered "rational"? Rather than having women become more like men ("masculine" in some of the worst ways), why not persuade a troubled society that it is time for men to recognize their need for a feminine component in their identities?

Some of the spirit of the Warren Court for our time would not hurt. However, I am not referring to a liberal or conservative value, but to a mood in the public square of hostility and animosity towards our neighbors and fellow citizens -- especially when they disagree with us -- resulting in alienation from the very notion of community. Supreme Court decisions have a role in shaping that climate of public discourse and the nature of community in American society. We are one people, most especially in our recognition of the equal right to freedom, respect and dignity of each citizen. An important part of the responsibility for making this clear to everyone belongs to the courts. Now that is scary, given some of the people I have seen wielding power in the legal system. As Judge Samuel Alito's confirmation hearings begin, I would suggest this question for the prospective justice:

"If it is true, as Justice Brennan wrote, that the United States Constitution contains a vision of relations between individuals and the State in which dignity of persons is primary over deference to power, where the primary concern of the judiciary is vindication of the rights of persons, especially the humblest persons, from unwarranted intrusions by the State into matters of conscience and self-determination -- if this dignity exists under our Constitution, do you recognize any zone of privacy or autonomy as to sexuality and spiritual life, for men and women, that includes the EQUAL right to govern one's body and to choose one's intimate associations, FREE of governmental involvement, FREE of torture or enslavement at the hands of State agents, despite any paternalistic 'rationale' that may be offered by the State for such interference?"

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