Law in Contemporary Society
Repression and its Effect on the American Legal System

Army officer Al Lorentz’s first of four main reasons for “why we can’t win” in Iraq is that there was “a refusal [by Americans] to deal in reality.” Lorentz was speaking of the effects of political repression saying “we are in a guerrilla war, but because of politics, we… must label the increasingly effective guerrilla forces arrayed against us as ‘terrorists, criminals, and dead-enders.’” (Lorenz, Al “Why We Can’t Win” Lew Rockwell September 20: 2004 m/orig5/lorentz1.html (February, 22 2009).) Americans’ repression also affects us economically. In Frank Rich’s New York Times’ Article “What We Don’t Know Will Hurt Us” he argues that even though “the cruel ambush of 9/11 supposedly slapp[ed] us into reality…one of our most persistent cultural tics of the early 21st century is Americans’ reluctance to absorb…bad news” and that this “denial won’t fix the economy any more than it won the war in Iraq.” (New York Times Vol. CLVIII..NO 54,594 (February 22, 2009)). What, then, is repression? and how does it affect other areas of American policy, specifically our legal system?”

Repression has many meanings, but the particular repression I wish to discuss is that popularized by Sigmund Freud and defined by the Oxford English Dictionary as: “the action, process, or result of suppressing into the unconsciousness or keeping out of the conscious mind unacceptable memories or desires.” ("repression, n.2" The Oxford English Dictionary. 2nd ed Volume XIII Clarendon Press (1989)). I do not argue that we are repressing sexual desire or unwanted memories, rather I argue that we repress our unconscious recognition of the truth. Having been away from the United States for over 2 years, I began to interpret American society from another culture rather than observe it from within. (Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, Inc., Publishers 1973). From this perspective, I saw that generally, as Americans, we are afraid of dealing with what things truly are. We fear this not only in politics and economics but in all aspects of our lives: in love, in friendship, in sex, in daily interaction, in our social hierarchy, and even in the sector of America where they say the Truth is found; our legal system.

There are three important ways in which the American legal system is affected by our repression. Firstly, we fail to see that judges decide cases based on nonsense and “magic” because we wish to believe there is logic behind their results. Secondly, many lawyers find it easier not to face the difficult reality of many people’s situations and therefore a large class of people is left without proper legal representation. And thirdly, many lawyers repress recognition of their role in the capitalist system around them and therefore ignore where their skills could be put to better use.

Oliver Wendell Holmes defines law in “The Path of Law” as “what the courts will do in fact” (P.3) and suggests that what the courts will do, depends on various factors such as unconscious judgments, tradition, and other human limitations. Regardless, we are taught in law school that “transcendental nonsense” and magic words are the actual “logic” of the court. (Cohen,Felix S. "Transcendental Nonsense and the Functional Approach"). We consequently believe this because we are uncomfortable with uncertainty and therefore prefer magic (Frank, Jerome. "Modern Legal Magic Courts on Trial." Princeton University Press, 1973.) This repression however, makes us unable to predict “what the courts will do in fact,” and in turn makes us less likely to succeed for our clients.

Acknowledging the truth would mean we would have to face the dire situation that many people needing legal representation are facing, as this is unacceptable,we repress recognition of them. C. Oliver Robinson is an exception to the rule. He boasts being able to chose his own clients, and he chooses to defend people in grave legal situations that others ignore. In Lawyerland: Robinson’s Metamorphosis Robinson recognizes the unfortunate effects of denying this class of people legal representation when he fantasizes about a situation in which lawyers are forced to face them. After mentioning that the number of prisoners is much higher than lawyers in the country he suggests that “lawyer becom[ing] prisoner, prisoner [becoming] lawyer… [is] no more than a form of exacting justice.” However, because lawyers do NOT have to be the “prisoner” or recognize what the “prisoner” faces, a large number of people are left to be represented by unmotivated and lesser-skilled lawyers.

Similarly, because “men become bound by loyalties to existing organizations [and] if they are successful in…these organizations, they come to regard them as the ultimate in spiritual and moral perfection” lawyers tend to repress where their skills could best be put to use. (Arnold, Thurman. The Folklore of Capitalism Beard Books (1937)). Many lawyers are content working to continue the organizations of wealth that have developed here, and are, as Professor Moglen states, “pawning their law degrees.” Consequently, two main results have developed: new organizations and ways of practicing law have not been developed, and many lawyers are unhappy in their jobs. As the world changes the types of legal representation must progress. If we face the truth of what we want instead of simply following the beaten path ahead of us, we can build new organizations, become satisfied, and in turn improve our legal system.

Culture, like law, is constantly metamorphosing. We therefore can make a positive change on our legal system by changing our cultural tendency to repress. If we don’t we will be stuck in a system in which we are unable to recognize how judges make their decisions or predict how a judge will decide, huge numbers of people will be without proper legal representation, and we all will be working for a system that doesn’t progress and at the same time makes us unhappy. Progression can happen. It must start with recognition.

  • This revision addressed the primary issues raised by my comments on the first draft, which were the "Spanish candor" idea of Iberian unrepression, and the elusive definition of repression. The primary stylistic cost incurred was an additional inflexibility that seemed to come from tying the language more tightly to the references. Every sentence seems to drive pretty straight at the keys words that glue it to a citation. The primary substantive issue remaining now is the peculiarity of saying you're using "repression" in the Freudian sense, to denote a universal intrapsychic process, while actually using it in a social sense that is still said to be culturally distinctive to US Americans. Maybe US Americans are thoroughly less realistic than people from other cultures, or maybe the social scotomae you're associating with individual repression vary from culture to culture.

  • The sense that politics in particular are unrealistic is by no means limited to the United States. Most of the wealthy electoral democracies, however corrupt, where television broadcasting constitutes the primary mode of political discourse hide unpalatable truths in an avalanche of dreck. The precise form of the dreck and the precise unpalatable truths vary from place to place, And to speak of the obscurantist role of law in the United States as distinctive, or even more prominent than elsewhere, would require considering elsewhere. Wouldn't one, in such an inquiry, want to consider the level of realism expressed in legal analysis? Once one asks that question, and realizes that American legal realism is actually distinctive, and that other legal regimes around the world, without exception, talk about and analyze legal phenomenon with less realism than in the US, one has at least an interesting intellectual problem to confront in order to make progress with your main thesis.


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r6 - 08 Jan 2010 - 21:35:41 - IanSullivan
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