September 9, 2008


Herman, Barbara, Moral Literacy (Cambridge: Harvard U. Press, 2007) ("Even if one sees the difficulty for sound judgment, it may still not be obvious why the abilities of a morally intelligent agent should be insufficient for dealing with such problems. While perception and judgment cannot function in full independence of received social content, we also have reflective capacities. We are able to think critically about the values we are given; we have a critical position 'outside' our values. Surely, with care and courage, one can judge contesting claims. This line of thought misses a key point. It is not just that some values resist the efforts of reflection. The point is rather that in order for reflection to be possible, the values we have, as possible subjects of reflection, must be such that they are evaluable. That must be part of their form." "Whether values are evaluable at all and by what standards are both contingent social facts." From "Can Virtue Be Taught", id. at 106, 124. This is a nice collection of thoughtful essays.).

Lakoff, George, The Political Mind: Why You Can't Understand 21st-Century American Politics with an 18th-Century Brain (New York: Viking, 2008) (This is the first reading for the Second Tuesday of the Month Reading Group I have put together. Given that we are in the heart of the presidential politic and election season, this seemed a got book to kick it off. What follows are the passages I will use to focus the group's discussion. "[M]ost of us think we know our minds. This is because we engage in conscious thought, and it fills much of our waking life. But what most people are not aware of, and are sometimes shocked to discover, is that most of our thought--an estimated 98 percent--is not conscious. It is below the level of consciousness. It is what our brains are doing that we cannot see or hear. It is called cognitive unconscious, and the scientific evidence for its existence and for many of its properties is overwhelming. Unconscious thought is reflexive--automatic, uncontrolled. Think of the knee reflex, what your leg does when the doctor taps your knee. Conscious thought is reflective, like looking at yourself in a mirror. If all thought were conscious and reflective, you would know your own mind and be in control of the decisions you make. But since we don't know what our brains are doing in most cases, most thought is reflexive, not reflective, and beyond conscious control. As a result, your brain makes decisions for you that you are not consciously aware of." Id. at 9. "One of the reasons that politics lets us down is that we keep comparing it to our ideal narratives, to politics on TV or in the movies, which is tidier and better fits such structures." Id. at 27. "When you accept a particular narrative, you ignore or hide realities that contradict it." Id. at 37. "Most of what we understand in public discourse is not in the words themselves, but in the unconscious understanding that we bring to the words....[E]ach word is defined relative to at least one conceptual frame. Those frames evoke other frames in the system. Understanding involves drawing out the logic of the frames. In a great many cases, metaphorical thinking is used as well. What cognitive semanticists have found is that we think in terms of systems of concepts, systems that fit together and make sense. In a discourse, our systems of concepts are used to make sense of what is said overtly. Id. at 43. "The left-to-right scale that political pundits love is an inaccurate metaphor--and a dangerous one, for two reasons. First, it posits a political 'mainstream,' a population with a unified political worldview, which does not exist now nor has it ever..... [Second, t]he very use of the left-to-right scale metaphor serves to empower radical conservatives andmarginalize progressives." Id. at 45. "And yet the left-to-right scale metaphor is no concocted hoax. It is real as a metaphor; it is in people's brains. Even though it is grossly inaccurate, many people use it. My job here is to make you think twice about it, and then stop using it. If you can. It won't be easy. Thinking that way is a reflex. You will think in terms of the left-to-right scale. Try to catch yourself and stop. Overcoming misleading metaphors that are physically in your brain is never easy." Id. at 47. "Not only do conservatives not talk about government empowerment of business, they also miss a central truth about deregulation, privatization, and corporations...." "The myth is that the deregulation or privatization of a moral mission of government eliminates government. But it doesn't. Large corporations also govern our lives--often making life-and-death decisions that affect us. Government isn't eliminated. It is just shifted from the public sector , where there is an ethic of protection and public accountability, to the private sector, where there is an ethic of profit and no public accountability. The principle here is the 'conservation of government." Deregulation and privatization do not eliminate government; they only make it unaccountable and take away its moral mission." "But conservatives cannot admit this, because it would fly in the face of the idea of 'free enterprise.' The 'free market' does not free us from government; it just gives us unaccountable government without a moral mission. Id. at 63. "Biconceptualism is often unconscious. Many self-identified 'conservatives' have many, many progressive views without being aware of it. How is this possible? How can contradictory political views go unnoticed?" Id. at 70. "A 'hypocrite' is defined relative to what we will call a value-consitency frame, in which values are supposed to be consistent and all-encompassing, the same ones used in all cases. If you have value consistency, you have 'integrity,' otherwise you are a 'hypocrite.' "Pure progressives and pure conservatives often consider biconceptual political leadesr hypocrites when they apply different worldviews to different issues. But biconceputalism is simply a fact about brains. We are human beings and we had better understand what it means to be one. The 'hypocrite' may not even notice the 'hypocrisy' if his brain automatically and unconsciously switches back and forth depending on context." Id. at 71. "Reflective cognition--thinking about your thoughts--requires a conscious examination. Conscious reflection requires two levels of understanding--not just the conscious level of what you are thinking about, but also an understanding of unconscious thought." "I am suggesting a conscious discussion of the 'war on terror' metaphor as a metaphor--a manipulative metaphor designed for conservative power. Openly discussing the war metaphor as a metaphor would allow the case to be made that terrorism is most effectively treated as a crime--like wiping out a crime syndicate--not as an occasion for sending abroad more than a hundred thousand troops and perpetrating massive bombings that only recruit more terrorists." Id. at 129. "The primary mission of corporations is to maximize profits for their stockholders and executives, not to carry out the moral missions of protecting and empowering citizens. They are accountable to their stockholders, not to the public. It is inevitable that, when conflicts between the public good and corporate profits arise, the public good suffers." "In privateering, the public becomes a captive market. For crucial services, corporations can charge whatever the market will bear. In emergencies, the government itself--that is, the taxpayers--may have to pay exorbitant prices for those services, and many may not be able to afford them." Id. at 135. [A side Note: Since law is political, someone--someone more knowledgeable then I am--should write the book The Legal Mind: Why Our 18th-Century Brains Result the Wrong Laws for Our 21st-Century Lives. Just a thought.]).

Runciman, David, Political Hypocrisy: The Mask of Power, From Hobbes to Orwell and Beyond (Princeton & Oxford: Princeton U. Press, 2008) ("Broadly speaking, then, hypocrisy involves the construction of a persona...that generates some kind of false impression. Thus one consistent way of thinking about hypocrisy, and one that will recur throughout this book, is as the wearing of masks. But the idea of hypocrisy as mask-wearing leaves open the question of what it is that is being masked. It also leaves open the nature of the relationship between hypocrisy and bad behaviour, or vice. The most common way of thinking about hypocrisy is as a vice--that is, to take it for granted that it is always a bad thing to seek to conceal whom one really is. But another way of thinking about hypocrisy is as a coping mechanism for the problem of vice itself, in which case it may be that hypocrisy is not a vice at all. One way to cope with vice is to seek to conceal it, or to dress it up as something it is not. This sort of act--the passing off of vice as virtue makes it possible to consider hypocrisy in two different lights. From one perspective the act of concealment makes things worse-it simply piles vice on top of vice.... But from another perspective the concealment turns out to be a form of amelioration.... Hypocrites who pretend to be better than they really are could also be said to be better than they might be, because they are at least pretending to be good." Id. at 9-10. But did not Tom Wolfe hit the nail on the head in his novel, The Bonfire of the Vanities, when he has one of his character exclaim, "A lie may fool other people, but it tell you the truth. You're weak." In that sense, hypocrisy is certainly a vice, a human weakness. Anyway, Runciman's book is a short, but interesting read.)

A 60's TV Series Worth Rediscovering:
Patrick McGoohan's The Prisoner: No Man is Just a Number (1968).

September 1, 2008


Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven: Yale U. Press, 1975) ("[T]his book is...about Lemuel Shaw and many judges like him. It is the story of earnest, well-meaning pillars of legal respectability and of other collaboration in a system of oppression--Negro slavery. I have chosen to analyze at length only the dilemma of the antislavery judge--the man who would, in some sense, have agreed with my characterization of slavery as oppression. It was he who confronted...the choice between the demands of role and the voice of conscience. And it was he who contributed so much to the force of legitimacy that law may provide, for he plainly acted out of impersonal duty." "In a static and simplistic model of law, the judge caught between law and morality has only four choices. He may apply the law against his conscience. He may apply conscience and be faithless to the law. He may resign. Or he may cheat: He may state that the law is not what he believes it to be and, thus preserve an appearance (to others) of conformity of law and morality. Once we assume a more realistic model of law and of the judicial process, these four positions become only poles setting limits to a complex field of action and motive. For in a dynamic model, law is always becoming. And the judge has a legitimate role in determining what it is that the law will become. The flux in law means also that the law's content is frequently unclear. We must speak of direction and of weight as well as of position. Moreover, this frequent lack of clarity makes possible 'ameliorist' solutions. The judge may introduce his own sense of what 'ought to be' interstitially, where no 'hard' law yet exists. And, he may do so without committing the law to broad doctrinal advances (or retreats). Id. at 6.).

Minow, Martha, Michael Ryan, & Austin Sarat, eds., Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: U. of Michigan Press, 1992).

Sarat, Austin, ed., Law, Violence, and the Possibility of Justice (Princeton & Oxford: Princeton U. Press, 2001) (From Professor Sarat's Introduction: "By failing to confront law's lethal character and the masking of its interpretive violence, legal theory tacitly encourages officials to ignore the bloody consequences of their authoritative acts and the pain that those acts produce. Moreover, by equating the conditions of legitimacy with that masking, much of jurisprudence promotes righteous indifference and, as a result, allows law's violence to continued unabated.... [T]his book seeks to move violence to the center of theorizing about law and to connect it to the question of justice. Does law's violence stand as an impenetrable barrier to the achievement of justice in and through law? Or, alternatively, is violence necessary to the realization of justice?" "These ought to be perennial questions of legal theory, but unfortunately, they are not. Perhaps this is why the work of Robert Cover was, and is, so significant.... At the heart of his work was an effort to think about law in relation to the institutional reality of its intimate engagement with violence while also attending to its normativity and its normative aspirations." Id. at 3-4. On a side note, it would be naive of me to think the typical law student, lawyer, or law professor would be interested in Robert Cover's work given its nature. The typical law student aspires to be a typical well-paid lawyer, so that is what the typical law professor trains him or her to be. Notwithstanding claims that we law professors are not just teaching black letter law, 90% of what we present to law students is black letter law with a touch of grey, but, and more important, 99.999999% of what we teach is a defense of the status quo. Radical (and I don't meant bomb throwers) law professors, the one who truly question law's justice and fairness, do not get tenure. They probably don't get hired. To become and stay a law professor one must demonstrate that one will be a good member of the club. Law is a very conservative institution...and it locks the institutional doors to bar entry to those who would question--let alone shake--the pillars of the law.).