Wednesday, May 02, 2007


“I find the same divide popping up everywhere.”

Daniel Swanwick

I. The Rational Emotive View of Misery

Of those analyzing the human misery question, one branch holds it to be a matter of irrationality. These rational cognitive therapists will tell you that most sadness is just the result of some deep unreasonable belief, below awareness itself, perhaps. So a friend dies, so a lover stops loving you, and you cry. But there’s no reason to do so—-no cosmic command bids that you must be sad.

Rather, somewhere in your psyche, you’ve got a set of beliefs something like this: “If she stops loving me, I should be very sad. If she stops loving me, the world is over. Life is impossible if she stops loving me.” The cognitive therapist tells you to challenge those beliefs—-put something healthier in their stead: “I can be happy without her. The world is not over.” You tell yourself this until you believe it.

The more grandiose practitioners claim they can eradicate most human misery by fixing these irrationalities. None, however, claim they can fix it all, even in theory, to my knowledge. And surely that’s right: we want to rule out grotesque physical pain as being the result of some irrational cognition, because we just don’t buy that we have the control over physical agony that we have over other grief.

II. The Types of Rational Emotive Views

A. Materialist

But why? On the surface, it’s just as easy to construct some deep-seated irrationality that will explain the physical pain: “If you cut through my leg with that chainsaw, I should be very unhappy.”

Now, it is true, we don’t consciously say this statement to ourselves, but we seldom explicitly state our irrationalities dealing with mental pain either. Most of those beliefs are unconscious, inchoate, but nonetheless potent and, the rational therapist argues, fixable.

So, if the individual can combat and remedy the irrationality: “A friend’s death should make me sad,” why can’t he combat the other?

Maybe you think I’ve performed some sleight of hand by secretly equating two different concepts: physical pain and mental pain. Maybe the cognitive therapist rightly believes all mental pain results from irrationality, and all physical pain just is, no matter the beliefs of the bearer. Thus we answer our original reservation.

That answer is reasonable. Let us call this the materialist doctrine of misery. The misery materialist holds physical pain to be the only cognitively necessary pain, while mental pain can be avoided completely by properly correcting one’s ingrown irrationalities.

B. Critical

We could have answered differently.

It may be ridiculous to hold that physical pain is just as easily curable by simply fixing the belief that causes it. Nonetheless, by exploring the reasons for the ridiculousness, perhaps we can learn something about pain as a whole. For a point of reference then, let us name this opposing stance.

The critical doctrine of misery holds that all pain is a result of irrationality. We call this view the critical view because the easiest way to approach it is by criticizing the prior distinction we drew between physical and emotional pain.

The deconstruction is easy enough to chart: all emotional pain is simply the firing of synapses or the release of hormones. It does not exist apart from its physical cause—-as such emotional pain is nothing more than a species of physical pain. If the two are at root identical, and we’ve presumed that the one is a result of irrationality and thus treatable along with the irrationality, then both physical and emotional pain must be treatable as well. Note this is only a map of the deconstruction-—we could flesh it to different degrees of persuasiveness. We could, for instance, point out that both types of pain are mental events, apart from their physical causes.

C. Mystical

We can derive our third, and last stance (for our purposes), by criticizing the materialist doctrine.

Here, to put my cards on the table, I will try to pump out a particular visceral reaction from the reader. You may find this illegitimate-—it is enough for now to believe that a reasonable person could believe it to be a legitimate counter.

So, suppose that one’s entire family was brutally murdered. Because we are digging for a particular emotion, let’s color the example with the worst sort of gore and depravity. Innocent children, loving parents, whatever.

Now the materialist holds that this individual’s sadness is a matter of irrationality. He simply holds the unreasonable belief: “If my family is brutally murdered, I must be sad.” And thus, the rational man should be able to be cheerful after the incident because the hidden irrationality does not exist in him.

Some will find this unacceptable. From the distaste of the materialist explanation, they conclude that sometimes pain, even purely mental pain as we understand the term, is rational in certain situations. It makes sense to be sad sometimes-—indeed, it is unreasonable to be happy in certain situations.

Let us refer to this as the mystical doctrine of misery. We mark it as ‘mystical’ because it relies on non-material truths: to say “It is reasonable to be sad in this situation and unreasonable to be happy” is to make a statement about the universe that is not compelled by the matter and energy within it. As this is non-material, we dub it "mystical."

Intermezzo I. The Author’s Misery

I used to read books on rational emotive therapy, by psychologists, like Albert Ellis and Aaron Beck. I was entranced. I was an atheist and a skeptic, I believed in science and rationality, and most important, I was miserable and this promised such fantastic control over everything. Simply find the irrational belief, and counter it.

I don’t know when I started to doubt it. A shallow doubt won’t suffice. If you find it hard to combat sadness, well then the irrationality may simply be particularly deep and take more work. No, it takes a paradigm shift to change a theory like that.

I’d like to tell this story: when I was depressed, I just hated the sadness more than life. The idea, the mystical idea, that any sadness could be reasonable was nonsense. Just something the bourgeoisie tell the proletariat. Something the giddy tell the cutters, because to them the emotion is a bauble, while to the dysthymic, it’s a disease.

So maybe the story goes like this. Maybe when I broke out of all that miserable self-loathing, and lived optimistically and happy for a few years, I realized that the pain wasn’t all bad. I’d just been drenched before and didn't realize. But when being sad was an occasional thing, with a reason and a logic, then it filled a life. Pain is poetry. Tears are beautiful.

That’s a gloss on my life. It connects the dots honestly, but there are other ways to string the same data. Still, let that be the story of losing materialism.

Now, without bothering to defend mysticism more, I want to connect these stances to American legal theory. I want to do this because it’ll explain the strands of me. I want to do this because I’m nearly finished law school. And I want to do this because it’s important, because I think the neatness of the mapping is meaningful, and because I doubt I’ll be blogging for a long time afterwards.

III. The Realist Crisis, and the Division of Legal Theory

A corporation is a legal fiction. Once the Supreme Court tried to figure out where a corporation was. This took creative analysis of precedent and underlying principles, and eventually the Court announced it had discovered the answer. This method, the discovery of law by judges, is a staple of classical liberalism.

The then burgeoning legal realist school called this method “transcendental nonsense”—-i.e., it didn’t matter what the principles were: a corporation was wherever the Supreme Court said it was. Following the implications of this, the realists eventually concluded that the law was whatever the judge said the law was. There were no independent rights or doctrines. If the judge says I have a property right, I’ve got one, and if he says the corporation is in the state where it does business, that’s where it is. And if he says otherwise, it's otherwise. In short order, adjudication and legislation collapse into the same category, followed by the public and private spheres.

If the law is whatever the judge says it is, the next question is how the judge should decide what to say. The realists held that public policy concerns should govern.

A deep divide starts. Taking the realists’ advice, the law and economics school arose and created a means of determining what the proper legal regime was, on policy grounds. Following the realists’ critical methods, the critical legal scholars not only criticized legal reasoning as being nonsensical, they criticized policy reasoning as being no different. So the realists' descendants bickered.

We can now begin our mapping.

IV. Cognitive Analogues to Legal Theory

A. Materialist / Realism & Economics

The realists shared a belief with the law and economics movement: policy, not legal principles, should govern. The law and economics movement created a more refined method of determining policy--but the normative thrust of the schools is the same, and so we treat them as a group.

They are our materialists. Just as the misery materialists believed that mental pain was simply a result of belief, and could be changed by simply changing our beliefs, so the realists hold that what is legal is simply a matter of belief. If the judge thinks the corporation is in the state of incorporation, it is in the state of incorporation. If he changes his belief, corporate law changes with it.

But what is good policy (we will take economic efficiency as our definition of good policy) remains independent of what the judge says. He can call something economically efficient, but that doesn’t make it so.

And physical pain is independent of whatever beliefs we hold.

B. Critical / Critical Legal Studies

Just as our critical misery stance consisted of treating both physical and mental pain as equally caused by irrational belief, so does the critical legal scholar treat both legal and policy rationales as a matter of belief.

To arrive here, we deconstruct law and economics. What is economically efficient depends on a particular frame that is, arguably, legally imposed. For example, A has $100, is willing to pay $100 for a widget, and it costs B $50 to make a widget. The efficient outcome is for B to make a widget and sell it to A. The bargaining abilities will determine what share of consumer surplus goes to A and B respectively, but the final price will be between $100 (A’s maximum willingness to pay) and $50 (the price B must be paid to make the widget.)

But what does it mean for A to have $100? It simply means that the court is recognizing A’s claim on his $100. But this is merely the same type of transcendental nonsense as asking the location of a corporation: if the judge instead decided that B was the owner of A’s $100 in the first place, the efficient outcome changes. Now A has no money, and thus is willing to pay $0 for a widget. The efficient outcome is for B not to make a widget.

As such the critical legal scholar argues that economics is indeterminate.

The deconstructionist’s argument is of course much richer than this, but this suffices for our purposes.

C. Mystical / Classical Liberalism

As before, we can derive our third doctrine by criticizing the materialist. The materialist argues that legal reasoning is merely whatever the judge says it is.

Perhaps, as before, we can shed doubt on this by creating a suggestive counterexample. The location of a corporation is, perhaps, a borderline case. Let us take something stylized, much easier, clearer. Let us say the law is: “To run for the Presidency, a citizen must be at least thirty-five years old.”

Critical legal scholars are quick to attack this. Their critique goes something like this: “Yes, it seems clear enough. But what if someone was 34 years old? What if they were cryogenically frozen for ten years, and so were only biologically 25 years old, even if technically 35? Maybe the writers of this law merely intended to use age as a proxy for maturity, and so anyone of a sufficient maturity could be allowed in...”

The mystic’s response is this: “Perhaps the law is unclear. But it is not enough to say that there are many possible interpretations of the rule. For the rule to be completely indeterminate, as the realists and critical scholars argue, there must be infinitely many interpretations. For instance, one should be able to say that an equally valid interpretation of the rule was that the moon could run for President. But I find that silly.”

You might agree. Maybe you think there is only one available reading of the law, maybe you think there are several—-but at the very least, you think that there is some reasonable interpretation of the law that is independent of what the judge or anyone else believes.

As such, this view is mystical. Nothing about the matter or energy of this universe dictates what a reasonable interpretation is, and yet you believe that there is an objective reasonable interpretation, and those who disagree are objectively wrong.

The classical liberal believes in such objective, mystical truths. These are what judges are supposed to be discovering. And it is this mysticism that critical legal scholars call religious.

Intermezzo 2. My Legal Beliefs

Libertarians class themselves according to whether or not they are consequentialists or Kantians. Consequentialist is a vague term, but essentially it means utilitarianism, and utilitarianism usually means economic efficiency. I used to be a utilitarian. Before that, I didn’t have a real side in the whole debate, but I did believe in some sort of objective moral truth. As such, I would make arguments that the utilitarian would find distasteful-—I have a right to this, and no one has a right to that, and you are wrong to think otherwise.

But I’ve seen these arguments critiqued-—we all have. Sure, you say I have this right, but why should that be? Nothing about the matter or energy of the universe says that I can’t do this to you, or that I shouldn’t do this to you. In order to hold that belief, you have to hold the rather mystical belief that there are things in this world beyond mere physical laws.

And libertarians are all atheists, so we sure as hell don’t want to be accused of being mystic.

So you turn to utilitarianism, because that let’s you talk about economics, and economics is independent, so the realists say, of all these normative considerations.

But wait. Utilitarianism is no less normative than Kantianism. It says that we should maximize total (or average) utility. But nothing about the universe compels that result either, so the utilitarian must be making a mystical jump as well.

Now, both creeds shown for the normative doctrines they are, they can do battle on the same plane. We’re free to challenge the goals of utilitarianism, and the utilitarian is free to challenge the Kantian’s side-constraints. We both make mystic appeals.

Here this story meets the previous one. I began to doubt happiness was everything-—I began to value sadness. And if happiness wasn’t everything, then utilitarianism couldn’t be right. I went with my first instinct. I chose rights. And I chose freedom.

So I was a classical liberal. But I couldn’t believe in some kind of spooky objective truths floating out in the air—-too mystical. Better find something else to rely on. Law and economics will do—-that has libertarian undertones at least. But, wait, that’s mystical too—-it needs this theory of property rights to save it from the critical legal scholars’ charge of indeterminacy. Maybe it is all indeterminate. But what do I do with the easy cases? Can I really buy that a reasonable interpretation of the Constitution would permit the moon to be President?

Not with a straight face. So it’s between the mysticism of economics and the mysticism of classical liberalism. Economic efficiency treats people like cogs in a massive production machine—-that can’t be right.

So I am the last of the classical liberals. Judges discover law.

V. Morality

Can we abstract some principles from these two sets of groupings-—legal and cognitive theory?

Our data points for cognitive theory are, roughly: 1. all pain depends on belief, 2. mental pain depends on belief, physical pain does not, 3. physical and mental pain are independent of belief.

For legal theory, our data points are, roughly: 1. what is law and what is good policy depend on belief, 2. what is law depends on belief, good policy does not, 3. law and good policy are independent of belief.

Perhaps the arrow goes from skepticism to mysticism with the critical legal scholar doubting all legalism, and the misery critic doubting the necessity of all pain. A better fit is a sliding scale of subjectivity to objectivity. The critical legal scholar beliefs in no objective truth (approximately), whereas the classical liberal not only believes in objective physical truth, but objective legal truth as well.

Now we have a somewhat deeper pattern, maybe one that Swanwick sees popping up everywhere.

Take the issue of morality, for example. We can easily draw a similar ordering: 1. the moral and physical skeptic believes that morality and the reality are both a matter of subjective belief; 2. the moral skeptic believes in objective reality, but doubts objective morality; 3. the moral realist believes in both.

VI. Truth

My groupings are only relatively placed, not absolutely. The misery materialist can be a classical liberal. The realist can believe that mental anguish exists independently. Indeed, I’ve left out one possible combination in all my examples, though it’s logically possible to be a person 1. who believes physical pain is a mental construct, whereas mental pain is objectively real, 2. who believes that legality is objective, whereas policy is not, and/or 3. who believes that moral reality exists, but physical reality does not.

But these positions are rare, because typically one of the concepts is harder to believe than the other. If that’s true, the basic set-up of all orderings is this:

A. Easy to believe thing isn’t real, Hard to believe thing isn’t real; B. Easy to believe thing is real, Hard to believe thing isn’t real. C. Easy to believe thing is real, Hard to believe thing is real.

Nonetheless, relative as they are, there is in my experience a correlation between subjectivism in one field and subjectivism in another. Indeed, it is the desire to be consistent throughout fields that led to me tweaking my positions on these various scales. It’s uncomfortable to be a misery subjectivist but a legal objectivist—-and so, after Quine, something gives, and the web shifts. And indeed, this is how I argue my beliefs with others: “If you believe in objectivism here, you should believe it here.”

Now in theory, if we know what is epistemologically proper, we can determine what things we can validly believe in. But Gettier’s attack on Plato was powerful, and epistemology is now in flux. Perhaps when a valid theory of knowledge is derived, we can apply it accordingly and sort all of this out. But I have my doubts now. For one thing, even the skeptic has to take some axioms as true--and an axiom is just a mystical, floating truth. The materialist takes some more axioms, and the mystic even more. This makes it seem more a matter of degree than kind, and that gives me the feeling there's no clear answer to where to stop taking things for granted. Rather something you feel out, carefully.

And I have my beliefs about where the truth lies. I communicate this with others with metaphors and analogies, and they do the same, and sometimes my beliefs change and sometimes they do not.

I know the postmodern arguments, and I feel them everywhere, always right at the edge of what we learn, and then I see the easy cases-—here is a hand-—they are my proof of truth.

VII. Life

Of those analyzing the human misery question, one branch holds it to be a matter of irrationality. And so they say, don’t be sad when something bad happens. So you embarrassed yourself, so you forgot the words of the song, so your grade wasn’t what you hoped, and so she told you that you really hurt her.

Where is it written in the universe that you have to be sad about those things? Surely, you’ve only internalized some irrational belief that says you must be a certain way or you will never be happy-—but that’s scarcely rational. Be rational.

…so you’re rational. And it doesn’t matter that you embarrassed yourself. And it doesn’t matter that you forgot the words. Your grade is immaterial. And really, who cares if you hurt her?

This is it. This is how disappointment disappears. Simply pull back your beliefs to match whatever you do. Gorge on esteem. You can do no wrong. And, if it works, you won’t cry anymore.

And then, one day, you’re perfectly witty. One day, you sing every word perfectly. You ace the exam. And she tells you she loves you.

But what does it matter? You couldn’t have failed anyway.


In the end, there were certain things I couldn’t rationalize away. Surely, some pain is the result of irrationality. We cling to things too long. We agonize more than we should.

But you can’t make it all disappear. Sometimes the reason you feel sad is because you should be sad, and sometimes the reason you’re happy is because you should be, and those truths hang out there in the sky. No doubt will disturb them.

Christ, what a day.