Monday Muse v.1 n.4
October 18, 1999

My Dearest Gentlefolk,

Hurricane Irene has brought our fair city a warm slow rain to brighten this Monday morning. To its incandescent air, I offer the following muse, drawn from Felix Cohen.

A truly great mind, Felix Cohen devoted a great deal of thought to the phenomenon of legal discourse, and to the sorts of claims made therein. He was particularly interested in the curious inventions of legal speech that somehow passed practitioners as intelligible. The practitioner asks, "Where is the corporation?" and expects to have a clear answer. Cohen called the bluff: for the corporation is a creature of law, and the fiction of its geography is even more attenuated than the fiction of its personality. He named the resulting dialectic "transcendental nonsense," no more "real" than the hypothetical debate among medieval scholars as to the maximum density of angels upon the head of a pin. It is in this spirit that the following passage is drawn.

"Valuable as is the language of transcendental nonsense for many practical legal purposes, it is entirely useless when we come to study, describe, predict, and criticize legal phenomena. And although judges and lawyers need not be legal scientists, it is of some practical importance that they should recognize that the traditional language of argument and opinion neither explains nor justifies court decisions. When the vivid fictions and metaphors if traditional jurisprudence are thought of as reasons for decisions, rather than polemical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideas by which the law is to be judged. Thus is it that the most intelligent judges in America can deal with a concrete practical problem of procedural law and corporate responsibility without any appreciation of the economic, social, and ethical issues which it involves."

Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, --- (1935).

Does this suggestion make any sense? It seems to me that language is the yarn with which much of the social fabric is woven. Inferential structures, terminology, deferential stratagems, and the like, all form an essential part of how the discourse functions. Are we to leave these "social facts" at the door when we go looking for the "real" motivations for judicial decision making? If we believe that argument is beside the point, there is a very real danger that we will render argument moot. If argument (in its legal and philosophical sense) is rendered moot, then there is no obvious reason that a judge (or any authoritative mind) should settle disputes on any basis other than mere whim. A social or "scientific" argument is no less linguistic because it is couched in the language of empirical observation or inductive reasoning.

Indeed, it would seem that insisting that legal arguments do decide cases will increase the likelihood that judges will fulfill the nobility of our expectations. It is a complex path that takes us from one to the other, but our roles in daily life are shaped in considerable degree by the expectations articulated by the discourses in which we invest ourselves. As paradoxical as the fiction of corporate life sounded to Cohen in the first half of this century, we have come to "realize" its many faces. The very idea has been cemented to the public mind, and will not likely fall from "common sense" any time soon.

The corporation remains a paradox of legal inventiveness, and the charge of transcendental nonsense is worth remembering, particularly when we recall that the language of law is powerfully self fulfilling. And yet, the corporation is no less real than the "patient" or the "client" for that fact.

David Robert Foss

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© 1999 David Robert Foss

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Muse v.1 n.4 David Robert Foss 10/18/1999

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