Saturday, March 19, 2011

Things I Did Today
  • Went to Motorino Pizza (in Manhattan) for the first time. Had a margherita. Delicious.
3 Recommended Links
Thoughts -- The Practical Value Of "Going Meta"

The following is a slightly edited version of an essay I posted on my old blog a few years ago (hey, it's much better than anything I could spit out in the time I have today):

Some highly theoretical readings in my Culture and Law seminar unexpectedly impressed upon me the practical benefits of consciously attempting to scrutinize our social institutions from an outsider's perspective. Needless to say, the Western academic tradition has done a great deal of good by enabling and encouraging honest inquiry within our culture and practices. If anything, as frequent charges of relativism attest to, the problem is that there are too many acceptable answers; some sectors of academia seem dogmatic in their repudiation of dogmatism, seeing their enemy everywhere but within. But it's far better for a society to err on the side of generating too much criticism. The same goes for theory: at worst, critical distance results in opacity or incoherence; at best -- despite disavowing a reformist agenda -- it engenders reforms that would not otherwise have been embraced or even contemplated. At least, this seems like a strong possibility to me. (Perhaps most Western legal and ethical paradigm shifts are really primarily the result of something else, such as the correction of factual mistakes -- e.g., unlike Descartes we know that animals feel pain -- or changes in material circumstances -- e.g., the women's suffrage movement in the U.S. caught on when women became instrumental to the World War I effort.) I will discuss two ways in which an external examination of our legal culture can lead us both to better understand, and to better, ourselves and our society.

First, taking the perspective of a cultural outsider can enable us to better discern the values that our institutions and practices are actually serving. Often we overemphasize the symbolic meaning of traditions that retain significant functional force. In turn, our unreflectiveness enables these traditions to have greater sway over us. For instance, I suspect that most people, legal professionals included, take for granted the pervasive ritualization of judicial practice. They may simply accept or dismiss most instances of it as historical holdovers, mere evidence of law's fundamental inertia or stodginess. After all, doesn't a Latin maxim say the same thing as its English translation? Aren't judges' robes just a formality, like wearing a suit? The problem with such presumptions is that they only tell part of the story. In order to fully understand the purpose of our rituals, it helps to make an effort to view them through an acultural lens. The idea is to dispel their ordinariness by analogizing them to practices that are alien to us, as Oscar Chase does by imagining the American fact-finding process as oracular. This makes it easier for us to subject our evidentiary system to the same analysis as, say, the benge oracle used by the Azande of central Africa. In doing so we can discover counterintuitive parallels between the procedures and appreciate the cultural contingency of the distinctions -- however real -- between them. For example, I suspect that most laypeople believe that the overriding purpose of the adversarial jury trial is to get at the truth, given the primacy of rationality and empiricism in our secular culture. This is not to say that the average person isn't at least somewhat cynical about whether trials live up to this ideal; the point is that people are conditioned to emphasize this dimension of the trial and judge it exclusively on these terms. Because people are inclined to have faith in their traditional, celebrated institutions, we probably overstate the accuracy of jury trials and underappreciate the fact that they serve other important values. Accordingly, most proposals for trial reform probably suffer from a myopic failure to explicitly weigh increased accuracy against the potential disservice to other, less apparent goals. (At college debate tournaments, one of the proposals that I liked to argue for was that the American justice system would be better off if jurors were trained, vetted civil servants instead of random citizens. Most of my opponents also rested their case on truth-seeking; the only "cultural" argument that they commonly made is that jury duty is educational.) Cultural analysis facilitates the consideration of these other goals. I was struck by Chase's example that "the introduction of the jury in a society in transition from totalitarianism would be profoundly expressive of a new era of popular participation in government. It would symbolize the relocation of authority and could even change the way individuals conceptualize their relationship to authority." In short, the cultural study of law seems to me to be a step beyond legal realism. Legal realism reveals that judicial adherence to precedent is often illusory; cultural analysis explains why this is so.

Second, we can ask whether, and to what extent, the principles implicit in our legal culture are worth upholding. Consider David Kertzer's claim: "Successful ritual . . . creates an emotional state that makes the message uncontestable because it is framed in such a way as to be seen as inherent in the way things are . . . beyond debate." Similarly, Chase argues that even judicial dissents reaffirm the oracular status of law because, like majority opinions, they claim to speak with the true voice of the law, as opposed to that of their author; they claim that the majority failed to divine the real meaning of the law in question. Paul Kahn also explores this theme: "[The] myth of recovery operates in every overruling of a precedent: without a conceptual space for novelty, every new act must be made to seem a recovery. . . . To interpret the law is to make explicit what has been there all along." Reformers have criticized these conventions as rendering law too arcane, artificial, and abusable. Cultural analysis sharpens such critiques by highlighting the underlying purpose of these conventions, which is to legitimize the law in the eyes of its primary audience: the people, not the practitioners. We can then question whether this purpose is being served. One source of doubt is that people seem to increasingly feel as if the esoteric and formalized (and resource-intensive) nature of legal practice is a barrier to redress, not a basis for reverence. As Jerome Bruner suggests, legal proceedings that sanitize and stylize people's stories in order to assuredly fit them into legal categories alienate people who want to have their voices heard; appellate courts' dry and laconic recitations of facts are an obvious example. Thus Bruner maintains that the practice of pleading civil complaints in narrative form "remains Everyman's portal into the arcane realm of law," a bastion of "the common sense of justice." Along the same lines, Chase argues: “Doubt about the accuracy and hence the validity of modern dispute resolution oracles helps explain the rise of alternative dispute-resolution techniques, particularly mediation, that promote agreement as preferable to judgment." Maybe the short version of the story is that modern media have exposed more people to legal proceedings, people haven't liked what they've seen (gamesmanship, technicalities, formalism, "wrong" outcomes, veiled politics), and they've lost faith in the oracle; they no longer want to subject themselves to it. This is in line with Kahn's speculation that "it is quite possible that the rule of law is already a dying practice." Cultural analysis, despite being a purely descriptive enterprise, can help us save it.

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