Can I get this down?

OK, this is the first of an undetermined number of posts as I try to wrap my head around my latest conversation with Deutsch. It will be jumbled now, but I hope that I get some clarity from this.

The law part might flow something like this. What is law and how do we consider it. Underneath it all, law is nothing. Money take away Cardozo creates precedent while no one gets it and everyone disagrees with it. Law then is to create a vague enough sense that people think that there is something but really it is anything that you want it to be.

Think about how we have considered law. By enforcer (torts/criminal), by existence or idea (real property v everything else), what kind of relationship (tort, contract), by who is involved (corporate, human rights, family), by how we should sort it out (law and economics/jurisprudence). The weird thing is that we’ve never moved on from any view, we’ve just added new ones.

The most popular today is law and economics. I think that in most ways it is the thinest and most bankrupt. It seems that there was a crisis when thinkers accepted the mechanism of evolution, it eliminated the need for a god when asking how did we get here (it obviously didn’t eliminate the emotional need). When “legal thinkers” threw god out as a rationale for law (very quietly), they also threw out the justice, morality, fairness rationales as the bathwater. They made a mistake in thinking that justice, morality, and fairness require a god. After they dumped the big three, they had to find something to base the mirage on. Legal realists gave the cynics answer, and while there is a lot of truth to what they hold and legal realism does describe the working of the world well enough, it is not enough. It is not enough for at least two classes of reasons. First, it is too cynical, society needs to dress it up in prettier clothes. Second, it isn’t aspirational enough. The same animal that seeks and creates Mozart and Van Gogh can’t be happy with something as simple and “paint by numbers-like” as realism.

So, where is the academy? They decided to worship at the alter of science. However, scientists know that they know very little and that they are seeking. Law gives the answer. So, they took some simple science-looking trappings and use that as a means of resolving problems. They took statistics, they took the work of the actuary.

Look, there is a place for an actuary. It just isn’t dispensing justice. Justice isn’t what is “most economically rational”. Justice is a much more complex idea.

The idea of justice is a human art. Art every bit as beautiful and important as Bartok. We need to recognize that all we see all we sense all we do is done from a ridiculously small perspective. Also we spend almost no time in the world. Almost all of our time is in the past, the future, the imaginary. We are not in touch with reality to any great extent.

Where do we go from here? Seek Buddahood? Seek an understanding of justice? Truth? What is equally disheartening is that people insist on understanding similes as real. Anything that will describe something as indescribable as justice will use examples and similes and the end result is that we will follow the examples and similes as reality and not understand where they were going.


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