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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.
 

Friday, January 30, 2004

Eugene Volokh on an inanity from the Eighth Circuit.

Bit by bit the legal system is eating its way through what used to be the domain of private disagreement. Government lends its full coercive powers to the service of increasingly outrageous tantrums; the only position it will not back is the adult position that a civilized agreement to disagree ought to be, not only possible, but preferred; that litigation ought to be a last, not a first, resort; that the bench has a positive responsibility to avoid, not to encourage, its own entanglement in the pursuit of private malice. The parties here did not need a serious hearing and solemn adjudication of their dispute; they needed to have their asses summarily paddled and then be turned back out of doors with the stern admonition, "Now you kids play nice, you hear?"

It was just this sort of thing that finally prompted me to wash my hands of the Objectivist movement. No one could just agree to disagree on any topic, no matter how minor or abstruse; disputes would escalate, and escalate, and escalate, until they finally burst in a manner straight out of Lord of the Flies, and for the same reason. The self-proclaimed "voices of reason" turned out to be the ugliest lynch mob I have ever had the misfortune of witnessing in action, not in spite of, but because of, the philosophy they espouse: They have both the command of Ayn Rand, and the personal example she set for them, never to leave a disagreement lie.

Now it should be obvious that a civilized society cannot function this way. And given what the legal profession does for a living, what's coming up shouldn't be news to them at all, but they've forgotten it just the same: Disputation is an ineradicable part of human nature. This point ought to be equally obvious: If the full weight of the law is to be brought to bear on one side or the other of all disagreements whatsoever, the effective consequence is, men are forbidden to disagree. And if disputation is ineradicable, but its expression in words is effectively forbidden, the inevitable consequence will be, it will express itself in violence instead: The difference between a man berating his neighbor, and his popping him in the nose, is then merely one of degree.

Such a pretty goal the profession sets for itself. If it thinks "hostile environment" is good law, it ain't seen nothin' yet. To quote James Woods: "Guys, guys, relax. It's only halftime."

-- posted by Clayton 1/30/2004 03:18:00 AM


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