Monday, February 05, 2007

Pragmatism Can Explain Alot

While I'm on the subject, maybe Mr. Smith doesn't make enough allowance for the power of pragmatic concerns. The position that he takes in the final couple of chapters of Law's Quandry is that lawyers and judges behave the way they do, focusing on precedent and procedure and the like, because they're still carrying around some of the meta-physical baggage of the pre-Holmesian era. I mean no disrespect to Mr. Smith, but I think he may be suffering from a failure of imagination.

Let's perform a thought experiment, shall we? Suppose that you're a young lawyer and that, during a dream, Mr. Smith appears to you and reveals the nihility that is the metaphysical foundation of your practice. Empowered and emboldened you charge into your next case arguing Mr. Smith's position. How far are you likely to get? Not very, because those aren't the rules of the game.

Mr. Smith never stops to consider whether lawyers and judges behave the way they do because that's the way they've always done things. They may be very consciously aware that they're playing an elaborate game, but feel that they have little choice in the matter. If they want to be an effective lawyer or a respected judge they have certain forms that they are obliged to follow; it simply isn't within the power of a single individual to make the kind of radical break that Mr. Smith is suggesting.

Nor does Mr. Smith ever thing about the issue of self-preservation. What would be the public reaction if judges and lawyers in the US were to suddenly declare en masse that they've been peddling a load of snake oil? More importantly, how many of them would themselves want to face the fact that they'd been basically making shit up?

In a nutshell, one need not posit excess metaphysical baggage when a simpler explanation is that people want to keep their jobs.

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