Law in Contemporary Society

How Do We Stop Bullshitting?

-- By MichelleLuo - 13 Feb 2012

How I've Bullshitted

On the first day of class, Eben said, “You have all been rewarded for bullshit.” This is so real.

There have been times when I’ve semi-consciously bullshitted and not only gotten away with it, but was heavily rewarded. My freshman year of college, I signed up for a writing elective called "Desire." I thought it was going to be about sex. On the first day of class, I learned that the full title of the course was “Desire of the Arctic Region.”

“So” my professor began, “I hope you have all chosen a topic related to the Arctic for your term-long research and writing project. Let’s begin with you” (me).

I had nothing. “Arctic…Barbies,” I said.

Luckily, Mattel had made three Arctic Barbies, and I spent the next ten weeks drawing tenuous links between “the design and marketing techniques” of these Barbies and “changing American perceptions of the Arctic.” I wound up submitting my paper to the 16th Inuit Studies Conference, the conference people liked it, and my school paid for a week-long trip in Canada for me to give a speech about my “findings” to a hundred Inuit Studies scholars.

The whole thing felt fraudulent to me. But I did do the research and I did write a 100-page paper and I couldn’t have given that speech if I didn’t at all believe in what I was saying, right? Yet when I explain this paper to people who ask about it – when I hear myself saying the ideas out loud – I feel embarrassed.

To illustrate how far I stretched logic and a priori conclusions, here is a synopsis of 20 pages of my paper: 1) In the 1970’s and 80’s, videos surfaced of commercial seal hunters clubbing seal pups to death. 2) Western animal rights advocates successfully campaigned to cease all seal hunting, but they were ignorant of the fact that Inuit hunters did not follow such inhumane practices. 3) The sealing bans destroyed the only sustainable economic option in Inuit communities. 4) In 1982, Mattel released Eskimo Barbie. 5) “Eskimo Barbie is a cultural artifact of a significant conflict between Inuit and Western viewpoints in modern history.” (an actual line from the paper)

This is one of the more desperate attempts I’ve made to produce some reflection of the world, but I didn’t purposely set out to make things up that may have no basis in reality. I had to write something about Arctic Barbies, and I did the best I could to make connections that made some sense. Maybe this focus on logic – this reaching for abstract relationships that existed only in my mind and not in the real world – is how I came to produce pure bullshit.

What is Bullshit?

One way to define bullshit is in terms of what it is not - truth. I like what Eben had to say about Harry G. Frankfurt's "On Bullshit" (an essay I have not yet read), so I will borrow those ideas. Bullshit is not the opposite of truth. Bullshitters don't care about the truth; they care about selling a certain image of themselves. Liars have to know what the truth is in order to lie about it. Bullshitters don't have to know what the truth is to bullshit.

Bullshit in the law is what Felix Cohen calls "transcendental nonsense" – concepts based on logic and nothing else. Transcendental nonsense is precisely a disregard for truth. When we don't tie the "supernatural concepts" to "social fact and ethical value, legal thought "trapez[es] around in cycles and epicycles without coming to rest on the floor of verifiable fact." When unguided by the social forces that ought to mold it, law is bullshit.

What is Not Bullshit?

Holmes argued that logic is a cognitive structure of human beings and that the only way we can think about the world is through logic. If this were true, our cognitive limitations would preclude us from producing any reflection of the world that rises above bullshit. Is this true?

If we're going to think about human cognitive limitations, we should start with biology. We are social animals with the burden of consciousness and this mental process called logic. Before we were human, before we had logic, we were social animals living in a state of relative unconsciousness. The conservative estimate for the origin of human language and other complex cognitive abilities (roughly, logic) is 50,000 years ago. Bednarik, Robert G., A Figurine from the African Acheulian, Current Anthropology, 2003, at 412. Logic cannot be the only way we process information, because 50,000 years is an impossibly short amount of time to "evolve away" the primary mental processes we had before. The unconscious thinking remains.

There is no bullshit in the unconscious. The unconscious thinking of social animals involves the emotional knowing of relationships to other primates and an intrapsychology undistorted by theory of mind. It doesn't frame things in terms of formal relations among ideas/people because it can't, so it can't define the human according to others' judgments. The unconscious, a place where self-representation does not exist, is a place where bullshit cannot exist. The way around the cognitive limitation of logic then is to make conscious efforts to understand reality through our multiple mental processes, to become aware of the way we think about the world in our unconscious.

The Lawyer Who Bullshits

My Arctic Barbies experience reflects the tragedy of lawyers. Lawyers must write, make something happen with words. The some thang could be truth, but most lawyers would rather not go there. The writing of legal bullshit doesn't require the difficult task of exploring forms of knowing that go to actual relations among people; it doesn't require knowing anything at all. The lawyer that goes with legal bullshit wakes up in what Martha Tharaud calls "a 'what-is-life-really-about?' stupor" (Lawyerland 128) and he splits.


-- MichelleLuo - 19 Apr 2012

Michelle, as you know, I really enjoyed both the first draft of this essay, as well as your re-write in progress.

Correct me if I'm wrong, or mischaracterizing your ideas, but I feel like this essay goes to the very heart of what makes it so difficult to be a lawyer- and why people who aren't lawyers regard the profession and its practitioners with wary disdain. As I was telling you earlier, I think "bullshit" is symptomatic of a lot of specialized disciplines that have their own vocabulary, framework, and modes of thought that one must be inducted into- which is pretty much what our entire 1L year has been about. It sounds like what struck you most about the class in which you wrote on Arctic Barbies was how easy it was to not only learn the discipline, but to excel in it, primarily through mimicry and adopting jargon. There is a fear that this the only thing law school teaches us to do, and if we choose, we can walk away from this experience with only that to show for it.

Eben said in one of our classes that as we go through life, we'll come to recognize that the vast majority of people suffer from a dullness of the mind. It's not a lack of intellect or an inability to learn and assimilate information. It's the failure to recognize that there is more to being a great legal practitioner than learning the language, because all you're really allowing yourself to engage with are complex layers of signifiers without any regard to what's actually being signified (to use Saussurian terms).

On the other hand, the unconscious is an incredibly scary and powerful place- and there is a real sense that to recognize that much of what informs what happens in the world comes from there, and not man-made logic, doesn't seem to leave us with much ground to stand on. Perhaps the lesson I would take away from your paper is that it's important for our humanity as lawyers, regardless of what work we end up doing, to be deeply cognizant of just how limited, fragile, and incoherent legal logic is rather than futilely trying to grasp at some "strong" measure of "truth." I don't see a way out of bullshit, but in recognizing and deeply understanding what it is and how we use it, we can best harness it to meet our goals.

-- RumbidzaiMaweni - 19 Apr 2012

Rumbi, thank you for your thoughtful comments. I think your first paragraph is an excellent characterization of my fear - given how easily and successfully I can bullshit, I am afraid that if I am complacent about the kind of work I do in the future, bullshit will be the only thing I'll learn to do well.

I agree with you that the unconscious is a freaky place to dip in, but I'm not sure I understand what you mean by "[the unconscious] doesn't seem to leave us with much ground to stand on." The unconscious doesn't seem to me to be less abstract of a concept than logic. The difference is that we've been socialized to think logically, but we haven't trained ourselves to "harness" the unconscious. The unconscious is what moves us; people remember things emotionally. I think the challenge is training ourselves to be not only "deeply cognizant of just how limited, fragile, and incoherent legal logic is," as you say, but also to be cognizant of how the unconscious drives us. I am only beginning to grasp what this means for us on a personal level as lawyers, who happen to be humans. But I'm not quite sure how to apply these ideas to the institution of law, where bullshit seems to be a particularly strong force.

-- MichelleLuo - 21 Apr 2012

Omg this is blowing my mind! As you know, I'm all about applying objective scales to things/people ("the objective reality" as I see it), while being horribly delusional about my own desires/characteristics/experiences, so this totally totally resonates with me!

Frankfurt is right on that "there is nothing in theory, and certainly nothing in experience, to support the extraordinary judgment that it is the truth about himself that is the easiest for a person to know." I contradict my self-representations so often (and get called out for it by people close to me, like you, so often) that I no longer have delusions about any successful pursuit of this "alternative ideal of sincerity."

I don't think logical reasoning itself is problematic. The problem is when legal decisionmaking is based solely on logic, when it should be based on desired social outcomes ("The life of the law has not been logic but experience" -Holmes). "As conscious beings, we exist only in response to other things, and we cannot know ourselves at all without knowing them." I think this parallels the relationship between law and society. Law is like the conscious being, which is closer to the truth and further from bullshit when it tries to be true to social facts. As Eben said, judicial decisions lie at the intersection of a collection of social forces and all interpretation requires additional social information. Accessing the objective reality means getting to the social forces outside of the "conscious being," perhaps through unconscious mental processes.

Gotta think about this more...

-- MichelleLuo - 21 Apr 2012


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r13 - 22 Jan 2013 - 20:10:44 - IanSullivan
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