James Cozzens On The Supposed Theater Of The Law

In The Just and the Unjust (Harcourt Brace Jovanovich, New York, 1942, p. 9) James Gould Cozzens writes:

It might be argued that providing spectacles was not now, or ever, the office of a court of law. Good in theory, in practice these arguments overlooked the fact that spectators made anything they watched a spectacle, and those who performed public duties before an audience became willingly or unwillingly actors, and what they did, whether they wanted it or not, became drama. Involuntarily an actor, Abner could not be unconscious of his audience’s expectations, nor unaware that his audience was finding the performance, of which he was part, a poor show compared to what true drama, the art of the theater or the motion picture, had taught them to expect.

Art would not take all day Monday to get a jury. Art never dreamed of asking its patrons to sit hour after hour over an impossible-to-hear lawyers’ colloquy, with no action but the self-conscious walking down of person after person from the panel of petit jurors as the names were called.

Law is commonly described as drama, spectacle, and performance art. As Cozzens notes, one part of this identification is relatively facile: legal affairs are conducted and enacted in public spaces by its agents; they, in turn, keenly aware of the spectators’ gaze involuntarily play to these galleries; and so we have a public, dramatic performance of matters of–sometimes–life and death. In these passages, Cozzens makes note of this common suggestion and dismisses it. His rejection of this identification relies on a commonly noted feature of the law: it can be exceedingly and pointlessly tedious and inefficient.

Law’s spaces–its courts–are indeed dramatic venues as are its trappings: the robes of the judges, the declamations of the bailiffs; the solemn swearings in. But the procedures of law, the specifications of legal business can and is to be conducted, while setting up constraints for the behavior of legal actors both include and exclude too much. They make possible too much interference by legal actors with ‘directors’ cues’; they allow for all manner of interruption of the ‘main act.’ Sometimes all is pantomime as prosecutor and defense spar with the judge in a sidebar conference; sometimes procedural constraint blocks the introduction of dramatic new evidence; there is all too much sand that may be thrown in the wheels of a legal drama. Imagine, by way of an analogy, that a theater performance or a poetry reading is interrupted frequently to adjust the lighting or the sound: technicians rush on stage, the actors cease speaking and wait patiently, the poet halts mid-stanza. Too many of these and the spectators may well head for the exits.

But perhaps legal drama is distinct in that its interruptions and inefficiencies are only imagined as such; they are part of the drama and must be viewed as such. They are not bugs; they are a feature. If so, the nature of the legal drama has been perhaps misunderstood by Cozzens above.  Not all drama or theater or all motion pictures entertain and edify in precisely the same way; some, in order to make us experience a distinctive qualitative aspect of life must incorporate those features. Perhaps law’s dramatic purpose in these tedious inefficiencies is to bring us face to face with their undying presence in our lives, to make us aware of just how much of our lives is lived in precisely that same fashion as the law conducts itself.

Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

I taught Antonin Scalia‘s writings–as found in his court opinions–on three occasions in my philosophy of law class. His theory of constitutional interpretation–originalism–was incoherent. His aggressive rhetoric, directed at those who would dare petition the highest court of the land for redress, was tasteless. He was a bully, and a blowhard. Like Christopher Hitchens, he will be revered by many whose taste runs to the skillful deployment of language for the belittling of others. Among the most frequent targets of scorn were his colleagues on the Supreme Court, who were always unfailingly polite to him, and were rewarded with ample sarcasm and invective. His judgments frequently crushed the weak, denied hope to the condemned (I suspect nothing made Scalia quite as tumescent as denying a stay of execution for someone on death row), and scorned the cries for justice issuing from those who had found themselves on the wrong side of the power equations Scalia found written into the US Constitution.

Because that, in a nutshell, mostly, was Scalia’s theory of constitutional interpretation. Originalism, “the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution,” relies on a wholly imaginary “original understanding”–the attempt to determine and ascertain it convinces, all too soon, those who would so try, that the effort is futile. The best analysis of the futility of such a determination may be found in Paul Brest‘s analysis in  The Misconceived Quest for the Original Understanding. Hint: Whose understanding? Do ratification votes capture ‘understanding’ or do they point to clumsy off-stage power negotiations? And so on.

Originalism, as a political theory of legal interpretation, is generally chosen by those who would like to preserve very particular power relations, those present at the time of the drafting of the US constitution. An ‘originalist’ is a fancy term used to describe those who would prefer the world of 1787, and all the limited political and moral understandings that underwrote its legal arrangements. Those original relations, which did not acknowledge or recognize slavery or the political rights of women, eminently suit the continued maintenance and perpetuation of very particular hierarchies of power.

Those are the ones Antonin Scalia wanted to preserve. He was a true-blue conservative, a hierarchy-loving reactionary who shivered when he contemplated the masses rising up –in any shape, form, or fashion. He was no champion of the people; his writings reeked with contempt for them. (I can remember him caring about the voice of the people when pro-life protesters tried to infringe on the constitutional rights of those who wanted to have an abortion.) When all the fancy dressing of the elaborate rhetoric that Scalia deployed was stripped away–in cases that most starkly brought the legally dispossessed into conflict with those well entrenched in power, corporate or state-what always stood revealed was a veneration of power and fury at those who had dared challenge it.

It’s perfectly alright to speak ill of the dead when they were public figures. Scalia sent many to their deaths, he scorned the struggles of those claiming their legal and political rights; I am not upset his tenure on this earth is over.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

Teaching Self-Evaluation For The Semester That Was (Almost)

Classes for the fall semester ended last week; finals and grading lie ahead of me. It’s time for another self-evaluation of my teaching. As usual, I find myself earning a mixed grade for my efforts.

This semester I taught three classes: Philosophy of Law, Political Philosophy, and Introduction to Philosophy. (Interestingly enough, this is the first time in my thirteen years at Brooklyn College that I’ve taught Introduction to Philosophy.)

Let me get the bad news out of the way. I do not think I did a good job in my Philosophy of Law. I was unable to make headway on the oldest problem of all: getting students to do the assigned readings. And neither was I, by sheer dint of effort and pointed interactions with my students, able to get a robust discussion going in class. I was also too easily distracted and put off by some of the body language on display–bored expressions, slumped posture. It was all too clear to me I was not being able to make the material interesting or engaging and as the semester wore on, my sense of futility grew; I could sense my interest in the class lessening. My students and I were not helped by a classroom that was alternately too hot and too noisy. In an effort to shake things up, I changed the seating arrangement in class, going from the traditional ‘teacher-in-front’ to a square configuration with me sitting down with my students. It did not work. Perhaps I gave up too easily; I should have been more unconventional, and I should have tried individual interventions–by email, or in my office hours–with some of the students most clearly in need of one.

In my Introduction to Philosophy class, I adopted an unconventional tactic to introduce students to philosophy: I would do so via the Stoics. My syllabus consisted of Epictetus, Seneca, and Marcus Aurelius; through their writings I would introduce students to metaphysics, epistemology, ethics, aesthetics, and social and political philosophy. I would begin each class by asking my students to write a brief reaction to a verse/chapter/section from the assigned reading; we would then use their responses as the foundation for the class discussion. I had mixed results in this project. I was teaching at night, in one of those terrible 150-minute slots, which are a pedagogical disaster. My students were tired, and sometimes unable to summon up the energy to participate in class discussion. They did, however, find plenty to provoke and intrigue them in the Stoics, and by virtue of connecting Stoic nostrums for a good life to their own personal experiences, I was often able to evoke vigorous responses from, and interactions with, them. Many students spoke with a great deal of feeling about how Stoic insights resonated with them; these responses would, in turn, provoke other students to speak up. Thanks to the Stoics, I was also able to introduce the students to Buddhism (they found the Buddha‘s ‘no-self’ theory of self utterly fascinating.) In retrospect, I would say that I could have dropped one of Seneca or Epictetus and brought in some other readings to supplement this unrelenting diet of the Stoics. I look forward to conducting a class like this again with a modified syllabus.

My Political Philosophy class was greatly aided by a classroom which featured a seminar table, thus automatically introducing a more informal, less hierarchical spatial structure to the class discussion. I was also aided by interesting and provocative readings, by the idiocy on display this election season, and by many students being diligent about the assigned readings. I stayed very close to the texts, and read aloud many passages in class, stopping again and again to discuss them with my students. These class discussions were easily the best I had all semester in any of my classes.

I continued to struggle with grading writing assignments but was happy to note that at least on a couple of occasions students took advantage of my offer of resubmission opportunities and came to see me with revised papers, after working on which they secured higher grades. Some of these personal interactions were very rewarding as I could sense students were able to learn something about the difficulty and the pleasures of the writing process by working with me.

Thus endeth another semester of teaching. (Grading remains though.) More mixed results; more food for thought for the future.

Critical Theory And The Nature Of Law

My graduate seminar on ‘The Nature of Law‘ read and discussed critical race theory this past week. I’ve–along with my students–been thinking about the relationship of critical material like this–along with the critical legal studies readings we did over the last two weeks–to the definitional and foundational debates that so occupied us in the beginning of the semester. Certainly, we seemed to be distant, in our concerns and preoccupations, from the question of what law is ‘–at least in the way that, for instance, the folks engrossed in the natural lawpositivism debate were. In one dimension. For instance, precisely because critique seizes upon normative failings, we were often discussing what the law ought to be as opposed to what it is. But in another, we aren’t.

For note that in providing the sort of critique critical race theory and critical legal studies are advancing,  the kind that informs us it is an agent of social construction and reification, an instrument of ideological control, a diversion away from radical political and social change, toward change more palatable to the established orders, we are also being told a great deal about what the law is not. It is not an impartial dispenser of justice, and neither is it a reliable instrument of social change. The critical race theorist is able to remind us of law’s limitations and circumscriptions: the inability of its remedies to redress some kinds of particularly pernicious wrongs, its helplessness in the face of entrenched, ‘internal’ racism, the kind which deeply implicates every social, political, and economic reality it interacts with, its being frozen into accepted trajectories of reasoning and categorization that prevent it from playing the kind of role most optimistically envisaged for it by a certain species of liberal theorizing. For instance, the critical race theorist’s advancement of an argument for reparation shows how current legal reasoning and analysis is inflexibly locked into presumptive modes of inquiry and understanding about guilt, responsibility, and even the ontology of groups and persons, that lead to a reflexive rejection of such claims. Law constructs many social facts, and there are many others that construct it in turn.

The critical theorist also–most crucially–adds color and depth to the earlier bloodless debates about whether law is understood as a system of rules, the command of a sovereign or the imperfect realization of a social morality. Critical theory informs us that the identity, the placement within social and political orderings and hierarchies, of legal actors–and those subject to them–is a crucial determinant of the content of law; it is a crucial force in determining the trajectories and workings out of a legal system. (Feminist legal theorists, who we will begin reading in two weeks time, will obviously bolster such identification.)

The nature of law remains crucially undertheorized unless its definitions are bolstered by critique. For it is only by means of the latter that the history of law can be seen and examined. And that, of course, is how we bring its coherence and incoherence to light.

A Bad Teaching Day

Yesterday, I had a bad teaching day.

First, I was scattered and disorganized in my Twentieth Century Philosophy class; I repeated a great deal of material we had already covered; I offered only superficial explanations of some important portions of the assigned reading; I did not answer questions from students satisfactorily. (It was pretty clear to me by the end of the class that I did not know how to explain Wittgenstein’s argument against private languages to a novice.)

Then, fifteen minutes later, I walked into my Philosophical Issues in Literature class-where we were scheduled to discuss Jose Saramago‘s Blindness–and floundered again. (Though not as badly.) Here, I largely failed to satisfy myself that I had covered all the bases I wanted to. For instance, I was unable bring the class discussion around to a consideration of Saramago’s satirical tone, his view of humanity, the novel’s take on technology and the reaction of the state to sudden catastrophe–all important in studying Blindness. Instead, the discussion ran in several different directions and I felt entirely unsure that I had done a good job in keeping it coherent.

Later, after a break of a couple of hours, I traveled to Manhattan to teach my graduate Nature of Law seminar. Now, I struggled because of faulty syllabus design. My fifth and sixth weeks of the class were ostensibly to be devoted to studying legal realism. For the first of these two weeks, I assigned three essays by Justice Oliver Wendell Holmes; for the second, a selection of articles from an edited anthology. There were two problems with this choice. First, the readings were disproportionately assigned to the two weeks–the first required the students to read a mere forty-five pages, the second, approximately two hundred and twenty. Second, and more seriously, some of the readings for the second week should really have been assigned as companions to the Holmes essays. This poor design almost immediately manifested itself in the class discussion.

It was quite difficult to discuss Holmes essays without the surrounding context–historical and legal–that the additional readings would have provided. As a result, my students and I found ourselves either listening to me lecturing about that missing component, or returning, again and again, to discuss threadbare, the same central theses of Holmes that had begun the class session. (Indeed, I found myself repeating some points ad nauseam.) As the class wore on, I could not fail to notice that my students were losing interest; perhaps the assigned readings hadn’t been substantive or provocative enough. Perhaps.

That expression, of students fading out, is a killer. I almost ended the class early–one normally scheduled to run for two hours–but not wanting to admit surrender, hung on for dear life. With ten minutes to go, my students were packing up. I desperately sought to show them the reading at hand had more depth in it, looking for a money quote that would illustrate, brilliantly, a point I had just been trying to make. I didn’t find the one I was looking for, and had to settle for a lame substitute.

Which is how the class ended, lamely.

Hours later, after I had reached home, had dinner, and begun to settle down for the night I was still fuming. This morning, it continued. And here I am, writing a blog post about the whole day.

Teaching can be a wonderfully invigorating experience; it can also be painfully demoralizing.

Geertz on Comparative Anthropology and the Law-Fact Distinction

(Continuing my series of notes on Clifford Geertz’s Local Knowledge: Further Essays in Interpretive Anthropology, Basic Books, New York, 1983; earlier notes appear here and here.)

Geertz’s Local Knowledge: Fact and Law in Comparative Perspective (first presented as the Storrs Lectures for 1981 at Yale Law School; an online version is available) should be essential reading for philosophers of law. In it, Geertz explores the relationship between law and anthropology by way of examining how comparative anthropology–especially that concerned with legal systems in different cultures–provides us a means of examining how our legal categories and assumptions could be reconfigured. To confront a legal mind from another culture is to not only examine a new legal sensibility but to have ours made more aware of its particular qualities: how has it sliced up the world and established its categories, how has it come to this particular ontology? There is a whiff of relativism and incommensurability in the air but,

[I]t is one that neither argues for nihilism, eclecticism, and anything goes, nor that contents itself with pointing out yet once again that across the Pyrenees truth is upside down. It is, rather, one that welds the processes of self-knowledge, self-perception, self-understanding to those of other-knowledge, other-perception, other-understanding; that identifies, or very nearly, sorting out who we are and sorting out whom we are among. And as such, it can help both to free us from misleading representations of our own way of rendering matters judiciable (the radical dissociation of fact and law, for example) and to force into our reluctant consciousness disaccordant views of how this is to be done (those of the Balinese, for example) which, if no less dogmatical than ours, are no less logical either.

Geertz holds out this possibility of transformation because of the view of law that he holds, one which assimilates it to:

[N]ot… to a sort of social mechanics, a physics of judgment, but to a sort of cultural hermeneutics, a semantics of action. What Frank O’Hara said of poetry, that it makes life’s nebulous events tangible and restores their detail, may be true as well, and no less variously accomplished, of law.

Such an understanding of law has immense potential to inform philosophical debates on the nature of law, on whether natural law, positivist, legal realist or critical legal theories best describe it. Central to Geertz’s intervention in this debate–via his empirical attention to the three alternative systems that he considers–is his critique of the fact-law distinction:

The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. I will come back to the paradoxes this way of putting things seems to generate; the point here is that the “law” side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real. At base, it is not what happened, but what happens, that law sees; and if law differs, from this place to that, this time to that, this people to that, what it sees does as well…..

If one looks at law this way, as a view of the way things are, like, say, science or religion or ideology or art–together, in this case, with a set of practical attitudes toward the management of controversy such a view seems to entail to those wedded to it–then the whole fact/law problem appears in an altered light. The dialectic that seemed to be between brute fact and considered judgment, between what is so and what is right, turns out to be between…a language, however vague and unintegral, of general coherence and one, however opportunistic and unmethodical, of specific consequence.

Geertz’s essay makes for essential reading, not just because it abounds in marvelous insights like these, but because of the richly informed comparative study it provides of what Geertz terms the ‘Islamic, Indic, and Malaysian” legal systems. It should be read by anyone interested in the conceptual foundations of the law.