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Sunday, October 13, 2013

The Law Explained: Oliver Wendell Holmes and the Limits of Concrete Reason

The frightening thing about American law is how dependent it is on strictly individual opinions.  A jury of your peers can be questions to really not be categorically correct.  At the risk of sounding like an elitist, I will venture to ask an important question... Who exactly qualifies as your peer?  Is it people with advanced degrees in philosophy or any other liberal art, or people whose concept of the law comes from watching re-runs of Judge Judy on television?  And what about the judges?  A judge who is up for reelection might be inclined to think of his career first and send an innocent man to prison simply to have a record that is tough on crime.  I am not suggesting that this is the case all of the time, but human nature is a funny squirrel and it open the door for formulating these types of difficult questions.  With some of the decisions made at the Federal level lately, I wouldn't be surprised one bit if a Federal judge renders an opinion one way or the other based on advancement opportunities.  At least I can say that I am not pulling this out of the abyss of my non-exercised academic brain.  Supreme Court Justice Oliver Wendell Holmes held such ideas about the law and went as far as suggesting (rather firmly I might add) "that law is nothing more or less than what judges do."  

"The Path of the Law" was Justice Holmes' most definitive insight into the processes of the law.  In it, Holmes explains the law as a series of experiences, but his concept of experience was riddled with non-concrete categorical imperatives.  For example, Menand points out the problematic: "It is often hard to distinguish, in Holmes's writing, between the descriptive and the prescriptive--between what Holmes believed the law was in practice and what he thought the law ought to be.  Holmes didn't do a lot to help his readers make this distinction, but the reason is that his favorite method of argument was to show that what the law ought to be is what it pretty much already is, only under a wrong description....  Whose experience?  The experience, Holmes said, of 'an intelligent and prudent member of the community.'  He didn't mean by this a particularly prudent and intelligent person--a judge, for instance.  He meant, precisely, a person who is neither particularly prudent nor particularly imprudent, an 'average member of the community"--in other words, a jury.  Could we count on these so-called members of the community to know how to judge, considering the aversion to anything logical and reason-based in today's society?  With political correctness running amok in just about every single region of American life, who could even begin to count with anything resembling a fair trial?

I'm not in any way criticizing the contributions of Oliver Wendell Holmes to American jurisprudence.  What I am trying to advocate here is a departure point for a critical analysis of the American justice system.  This is something that perhaps a few of us actually think about, or would even consider until we're knee-deep into some legal issue that takes us to court.  For many years I never understood the general public's aversion to jury duty, and, not having served on a jury myself, I cannot speak from experience.  Yet the amount of weight that falls on the shoulders of people like you and me (intelligent and prudent members of society) in, say, a criminal case seems to require more than just emotional thought or intelligence and I dare say NOT ALL people are prepared or even equipped to go through such an experience.  Wave a jury of your "peers?"  Then pray the judge assigned to your case is not up for reelection, or on the fast-track to an upper court appointment.

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