Who Is IOZ?: Be Mindful of My Mansfield and Do Him; So Shall You Consecrate Yourself to Your God

Thursday, September 02, 2010

Be Mindful of My Mansfield and Do Him; So Shall You Consecrate Yourself to Your God

Harvey Mansfield is a confused man. He's incoherent, totally self-contradictory. Justice is a virtue. No, it's some kind of principle of fair access. No, it's making sure that Wall Street bankers don't make too much money. But it's not economically redistributive. Except sometimes. No, it's democratic institutions. But it's not instititutions. Oh, and by the way, let's not forget that men and women are different. But their separate spheres are of equal value. Justice is obeying the natural order. Except when we cannot perceive the natural order unmediated by consciousness, which is always. Justice is perfection, but you can have too much of it.

38 comments:

¯\(°_0)/¯ said...: This is a wonderful find, IOZ.

"Yes, perhaps the trouble with Obama is that he wants too much justice."

Clearly.

Welcome to law school.; 11:31 AM
Anonymous said...: sounds like neocon bullshit or somebody's really shitty undergraduate term paper?; 12:43 PM
Anonymous said...: IOZ's comment that is. Isn't the point that justice is all those things? Multiplicity etc. For a fag you're pretty fucking straight sometimes.; 12:49 PM
Montag said...: justice is a figment.; 1:32 PM
IOZ said...: Whose point?; 1:41 PM
la Rana said...: Let's use language to presuppose the existence of concepts and then debate their definitions. We'll call it philosophy.

Mansfield wrote Manliness, afterall. I mean, we're not dealing with morons here.; 1:56 PM
Anonymous said...: The little prick is stonewalling me.; 2:05 PM
IOZ said...: Aitz chaim he, as the ex used to say.; 2:49 PM
Picador said...: My favourite line:

It is indisputable that women naturally have a maternal instinct.

It is indisputable that old conservative white dudes are mentally retarded.; 3:23 PM
John said...: If Mansfield keeps this kind of thing up he'll never be a real opera singer.; 4:32 PM
Leonard said...: It is much easier to understand that interview when you know that the left have redefined "justice" from its old meaning ("the correct application of the law"), to mean "social justice", that is, "righteousness", viz.: communism. However, poor Harvey Mansfield seems to think that these are just multiple facets of one thing, instead of mutually contradicting concepts. He needs to get his concepts straight.

But anyway, with the actual modern meaning of "justice" in mind (communism), we can make sense of such gems as "We want a situation where a husband and wife can prefer their own children to other people's children, even though that is unjust -- truly unjust, you cannot deny that." I certainly cannot deny it is uncommunistic. It takes a village to raise a commie! I do deny it is unjust, meaning, related to the incorrect application of the law.; 5:05 PM
la Rana said...: Leonard Mansfield,

What is the correct application of the law?

Sincerely,
Step 2; 5:22 PM
Leonard said...: Frog Mansfield,

It's not a hard concept. The law is known in some form, usually written, these days. It is applied by many people, most obviously by judges. The degree to which the rulings (generally, actions) of a judge (generally, person) match what the law says he can and should do, given the facts of a case, is his correctness in that case.

Sincerely,
Step 1; 5:43 PM
la Rana said...: Although your apparent comprehension of how the law works is hilariously naive, I can't say for sure that I wouldn't have thought the same thing a few years back. For whatever that is worth.

The rulings match what the law says the judge can and should do? Or what the outcome can and should be? How do the facts of the case factor in? Isn't justice blind? How can a judge sentence someone to life for murder, and someone else 10 years? Is that justice? Is it ever justice to sentence someone to life? What if the law said that petty theft carried the death penalty? Would that be justice? What if the government made everything illegal, all punishable by death? Justice?

I could go on, and perhaps you've noticed that the water at your ankles is in fact over your head. But to focus on your perceived shift in the notion of justice, take this fairly realistic example. Poor, uneducated woman buys a bed on layaway so that she can lie down at night. She makes all of her payments, but she misses the second to last one by a day. The purchase agreement said that if you miss a single payment by a single day, the company can retrieve the furniture without refunding the payments, which are essentially lease payments until completed. Company takes back bed, she gets nothing. The law says that the words of the contract govern, unless she was forced at gunpoint or tricked into signing. You are the judge. What do you do? What is justice?; 7:01 PM
Michael said...: This goes along with a point I always like making when the opportunity arises: Michael Sandel is probably the most powerful person in the world. Teaching future world leaders how to view morality is a helluva gig.; 7:32 PM
Rachel said...: la Rana - she loses under contract law, and then sues for fraudulent misrepresentation to regain the money. Or, she alleges the contract is both unconscionable, and adhesionary (she didn't get a chance to negotiate terms) which can break the contract, and probably wins. The law really is designed to be fair....

The massive, glaring black hole problem with this, however, is that your access to the legal system is severely limited by knowledge and money, and hence by class. You only have a right to an attorney if you have been accused of a crime, not if you need to sue or defend yourself from suit. Civil lawyers can charge contingency fees (1/3 of the recovery) and will cover costs up front, but the time and money expended makes it not worth it to chase the smaller cases. Which is why class action suits are so important.; 8:36 PM
la Rana said...: eh, sorta, I don't think I agree, but a good effort in any event.

In reality, because I stole this from a classic real case, she doesn't lose under contract law, which includes the latter legal concepts you cite. There was no fraudulent misrepresentation, as I intended to head off at the pass, and adhesion contracts are not given the suspicion they should in my estimation (if it was up to me, adhesion contracts would be inherently suspect - adhesion contracts, for the non-lawyers, are contracts that you cannot negotiate, like the back of a receipt from Macy's or a downhill ski ticket). The contract was determined unconscionable. Which is the awesome part: it was unconscionable because of the difference in bargaining power. Yet, as several intelligent and necessarily un-influential persons have pointed out, what do we make of the fact that there is a difference in bargaining power in any contract?

Class actions have been taken over by lawyers. We just fight over class certification. Its a game. The important element is using the law as a free market to redress problems (which is what makes small-government/tort reform people so grotesque). In what capacity that should include class actions I don't know.

The law is not fair. Nor was it intended to be. But when I am drunk I think it can be.; 9:07 PM
TGGP said...: I prefer the stupid/incoherent Mansfield to the dangerous one.

The "naive" positive law conception of justice discussed above is what I assumed it meant as a child. Then I found for many it doesn't actually mean anything at all but is just a way of emoting.

"Let's use language to presuppose the existence of concepts and then debate their definitions. We'll call it philosophy."
Among the most dubious being that there is such a thing as right and wrong.

Daniel Larison on social justice here. Modern conceptions of the idea may indeed be closer to Marx than St. Augustine though.; 9:52 PM
Charles F. Oxtrot said...: Yo Froggie,

What would you say are the odds of every single other state's trial court also finding the contract unconscionable?

No judicial variation? No regional variation? No state-by-state variation?

They'd all be pinned to finding it unconscionable?

Isn't the purpose of appellate courts to rectify the problems of judges missing proper precedent, or misunderstanding it? I've watched judges ignore precedent, distort it, and follow it.

I know of judges who would follow the contract cold, and not even consider someone's equitable arguments. Some judges think of equity as a hoary appendage that is for koffee klatch discussion and not judging.; 12:01 AM
Rachel said...: la Rana - I don't quite know what you mean by "class actions have been taken over by lawyers"...it's not like they were ever designed to be run any other way. But the sad truth is, lawyers, like anyone else, are generally horrid people (I should know) and prone to act in their own self interest. Class action suits provide enough of that interest to make it worthwhile to pursue an injustice that otherwise would be far too expensive to fight, but which affects a large number of people. A great example is the suit a few years ago against a supermarket chain that was pricing their goods higher in predominantly Hispanic neighborhoods. Without the process being "taken over by lawyers" there is approximately zero chance this would ever have been remedied. So some suits made a bundle off of it and the plaintiffs (each of whose injury was pretty small) didn't get much. Nonetheless, it's still the best way to carve a large chunk of punitive damages out of a company and so I think it's one of the most important fronts in, as you say, "using the law as a free market to address problems."; 9:43 AM
Leonard said...: la Rana, I've noticed water getting deep, but not over a simple definition of a term. Here I am walking on the dry ground of clear definition, as you flounder in the middle of a quicksand bog, but strangely, you think I am drowning!

But let me answer your many questions, in order of appearance, with a sentence for each:

Yes. No. The facts are the primary input to the decision. "Justice is blind" is a metaphor designed to illuminate the old meaning of justice, not the new. There are many ways. It may be justice if that is what the law dictates. Yes. The content of the law is not at issue (in the old meaning of justice). Yes. Then judgment itself would be illegal, and we'd be in a contradictory and revolutionary situation. But yes: all would get death (if justice was being done somehow anyway), and it would be justice (old meaning).

As for your final two questions: if I am the judge, I uphold the law, namely, poor woman gets the screw. That is justice (old meaning), but not justice (new meaning, namely righteousness). And just to head off your righteous indignation: I freely admit that I find justice in this case unrighteous. Again, it is my position that justice is not, and should not be, conflated with righteousness.

You confused as Mansfield is about justice. You think righteousness is the only meaning of justice. But nonetheless, you are attempting to have things both ways, as your invocation of "justice is blind" shows. The accurate application of the law is, to you, something so trivial as to be meaningless, or something so impossible as to be ridiculous. And yet you live in a society which is still, mostly, under the rule of law, not righteousness. You rely on it, and benefit from it, every single day! Unknowingly, I am sure. The rule of law is an invisible to you as water to a fish. You so very want to take the law into your own righteous hands and take that bed from its lawful owner to give to the woman! (That poooor woman!) And if justice (old meaning) forbids you, well: so much for justice! You long to "cut a great road through the law to get after the Devil"!; 10:10 AM
mds said...: Unfortunately for Leonard, the left have redefined "dry ground" from its old meaning ("What was left behind when God gathered the waters together") to mean "ground not having a lot of water in it," that is, "a concrete patio," viz.: a marsh. Glub. Can someone throw the poor boy a line, or shall we wait until a government entity spells out rope-throwing techniques in unambiguous terms?; 10:27 AM
davidly said...: Well, first of all, y'all, justice in the "righteousness" sense predates its Anglo derivation in the legal sense. And as to whether or not the meaning has been further altered: Well, we do change or amend laws sometimes, don't we? Why? In the name of justice (real or imaginary intention notwithstanding).

What I want to know is: Will the lawyerly fella who gets that poor lady's bed back get to sleep with her in it? Fair is fair, after all. Justice is all a matter of perspective.

Still, that Mansfield cat is just loopy.; 10:40 AM
IOZ said...: Tikkun olam, motherfuckers!; 10:42 AM
la Rana said...: Leonard - I think you'd have come off better howling at the moon. I don't even know where to start. Your knowledge and conception of justice ignores Plato, Locke, Hobbes, Mill, Kant, Rawls, and every other person who has ever thought about it. Your ideas appear to have been derived from a fifth grade textbook and reinforced by late 20th century legal dramas. Turn off the teevee and read book man, good god.

You keep refusing to think about what "the accurate application of the law" means, but I'll give you one more chance to digest it: the judge ruled for the woman because he deemed the contract unconscionable. He did this because the common law derives from judicial decisions - it is literally judge-made law that changes from decision to decision. So while the judge was obligated to follow decisions that preceded his - all of which said that the contract was determinative - he was equally "upholding the law" by extending the concept of unconscionability to his unique case. And now, all subsequent decisions had to follow his decision.

What do you make of the rule of law now?; 11:16 AM
la Rana said...: Charles - precedent only extends as far as jurisdiction. And "unconscionability" has been painted into a corner because it threatens the foundations of "law."

Rachel - you are right to the extent that class actions sometimes operate that way. But more often they are just used by intrepid plaintiff's attorneys to get past class certification. Even if there is no real case, if you can get a corporation past class cert, it makes more sense for them to settle than continue the massive litigation costs. My point is just that while class actions are a tool for using the law as a free market to address problems, the parameters of the tool are not functioning particularly well. CAFA was an attempt to remedy this.; 11:29 AM
Charles F. Oxtrot said...: Froggie,

If you knew how the 1970s - 1990s NJ Supreme Court loved the CA courts' decisions on product liability, you'd probably rethink your position on jurisdiction.

Are you saying you went to a law school that studied only state-specific law? Must've been an interesting set of casebooks y'all used. Which state's laws and cases did you confine yourselves to?

I'm hoping the answer is Arkansas.; 11:47 AM
la Rana said...: You are confusing influence with precedent.; 11:52 AM
Charles F. Oxtrot said...: I'm not confusing anything, little amphibian.

Human minds work on influence, not on extra-mental categorization. Don't confuse nomenclature and impetus.; 12:17 PM
Charles F. Oxtrot said...: Response to Froggy, version 2:

I'm well aware of Choice of Laws issues on jurisdictinal power, precedential power.

What I'm saying is, a judge can adopt wholesale the rationale of another judge from another jurisdiction, and treat it as "precedential," if he finds it convincing enough, or useful enough toward the end he wants to reach in his decision.

The superficial confines of Choice of Laws, they're interesting to law students and law professors and the people who make legal encyclopaedias, but the manner in which judges write their opinions and think about those opinions before writing them, that's a wholly different category of notional comparison.

Did you clerk for a judge, Froggie?; 12:21 PM
mds said...: "Don't confuse nomenclature and impetus."

That's what she said.; 1:22 PM
Anonymous said...: I love that in a discussion about justice, CFO starts babbling about jurisdiction.; 2:55 PM
la Rana said...: You are confusing influence with precedent.; 3:51 PM
Inkberrow said...: For the mod-progs, procedural due process folds back upon "substantive" due process just as for them equality of opportunity folds back upon equality of outcome. Big Biz tried to incorporate "substantive" due process (basically, "It's unfair what just happened") for its own nefarious ends in the short-lived days of the Lochner doctrine, and the paleo-progs squealed like stuck pigs.

Now substantive due process works quite well as a versatile catch-all provision underpinning results-oriented argumentation in favor of "social justice" (read: mod-prog political sensibilities writ large). It's an engineering miracle! Common law versus code law traditions is another relevant distinction in this connection.; 3:31 PM
la Rana said...: Pretending that substantive due process is a coherent doctrine of anything is what we call a tell. Nice try.; 9:42 PM
NutellaonToast said...: I'm confusing "OBJECTION" with "habeus corpus."; 9:37 AM
Inkberrow said...: La Rana---

My use of quotation marks and my characterization of so-called "substantive" due process reveal my views on its subjectivized nature and use, in either the twenties Lochner doctrine until its recent regentrification among "social justice" advocates. In terms of your reading comprehension, then, I cannot reciprocate with a "nice try".; 12:41 PM
Charles F. Oxtrot said...: Yikes.

I thought I left a comment to Froggie about influence vs precedent, but...

...here it is.

Judges choose, within their own noggins, what they consider "precedent" and in so doing, they give influence to that which they consider precedentially significant. And who tells a trial judge what is precedent? The judge's law clerk, most times. And if there's one thing a freshly-minted law school grad knows, it's obeisance to precedent, without fully grasping what makes a thing "precedential," really.

And what was that thing about precedent in the realm of equity? Wasn't it something like "no stare decisis in equity"? You know, the case-specific nature of equitable matters, something like that?

Oh never mind already. Nonny's got another ripper of a "put-down" uttered in my direction, running at full tilt away from what makes sense. Lovin' nonny's cracked crystal ball, as always!; 4:16 PM

Thursday, September 02, 2010

Be Mindful of My Mansfield and Do Him; So Shall You Consecrate Yourself to Your God

38 comments:

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