Imagine someone who wants to have a purely realistic and Aristotelian outlook and metaphysic and wants to avoid thinking of how some of the radical insights of Gödel, Wittgenstein, Davidson, Derrida and Deleuze might chip away
at his system. The complexity of language and its nature of being contradictory and deconstructing are there all the time. Sooner or later this person’s world view will have major problems.
That’s a lawyer, for fuck’s sake, in correspondence with David Foster Wallace. (NYT Book Review) A tax lawyer.
Our tax system wants to be a ‘modernist’ enterprise in an increasingly ‘postmodernist’ world… [It tries to] eliminate all metaphysics and deal with bare-bones facts. But the system is constantly being undermined by other social forces, by the economy, by politics. The more we try to simplify things, the more complex it gets.
And that’s why I enjoy law school. (There, I said it.)
Law is this totally orthodox field, and lawyers are these totally orthodox people, or so it seems from the outside. But it turns out that the practice of law is deeply postmodern. Law was postmodern before postmodernism was cool. Seriously: the collapse of the metanarrative, the indeterminacy of textual meaning, the inherent subjectivity of experience, all these things that the anthropologists and English majors thought they discovered alongside Jean-François Lyotard in the 1970s, Roscoe Pound had that down in 1920. And it is still the central problem of law: to reconcile the inherently categorical nature of norms with the inherent messiness of real life and of real understanding.
The classic free jazz song is called “Law Years”: coincidence or irony? For the purposes of this post, we’ll call it a coincidence.
DiA offers at least two reasons why that tension will never go away. One, to echo the accountant, is that language is inherently indeterminate. No matter how much a norm gets refined, as long as it is expressed in language there will be some confusion about its content. A second is that meaning may be ‘knowable’, but life is so infinitely complex that there will always be questions about where different experiences fall on those crisp but complicated lines. To stretch some metaphors, the first says that meaning is fuzzy, the second says that meaning is noisy. The first is quantum mechanics (the cat is both dead and alive) the second is chaos theory (every shoreline is infinitely long).
What makes law interesting is that it does not walk away from this problem.* OK, the law says, we’ve recognized that the job of sorting human experience according to crude norms is inherently fraught. But the fact is that people have “cases or controversies”, so we can’t just sit here and wring our hands. The postmodern problem has to be engaged with. And every interesting legal question boils down to some version of it: what does this mean, and who means it, and how are we going to choose one meaning over the others? In law the problem of postmodernism was not merely discovered, it gets rediscovered over and over again.
And it gets rediscovered everywhere, it turns out. Even in tax law.**
But the task of matching categorical norms with uncategorial experience doesn’t have to be done. And even if it is done, one doesn’t have to be part of it. Categorical thinking is a
product of administration-at-a-distance, so states create courts and courts create lawyers. Lawyers are products of states, not of life. People can just walk away from that whole business. Take China Miéville. I recently read his novel “The City and the City” and thought that it was a great reflection on the absurdities of categorical thinking about society. And then just this week I learned that the father of the “weird fiction”
genre is also an international law scholar. (h/t Tor) It blows my mind. But he’s a rejectionist — or, as he says, a “rejectamentalist“. His book, subtitled “A Marxist Theory of International Law“, has this zinger:
The attempt to replace war and inequality with law is not merely utopian but is precisely self-defeating. A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law.
Trying to match norms with human behavior isn’t a messy but necessary job that someone has to do; it’s a jamming of round pegs into square holes that we should do less of. (Also known as “Minor-Celebrity Death Match: Covar v. Minow“) I’m not sure I agree with Miéville. But it’s nice to be reminded of what I take for granted.
* Originalism, currently in vogue, is, of course, an effort to walk away from that problem. But it just kicks it further down the road: trying to divine what a certain term means is not a very different task than trying to divine what that term meant to dead people. It’s just a bit easier since there’s a limited set of information to work with. The fact that originalists insist on taking the easy way out of this problem makes me wonder why they applied for the job in the first place.
** Tax law is reported to be one of the most interesting classes at law school, and tax lawyers are reported to be the second happiest kind of lawyer (after prosecutors, who are happy because they always win). I believe this, but not enough to actually want to take tax law. My unlikely curiosity is in corporate law, but same diff.