Freuhwald teaches at Hofstra University:
EDWIN S. FRUEHWALD, (Law Professor), born Great Lakes, Illinois, April 13, 1955; admitted to bar, 1989, Kentucky. Education: University of North Carolina (M.A., 1979); CUNY (Ph.D., 1984); University of Louisville (J.D., 1989); University of Virginia (LL.M., 1994). COURSES: Legal Research and Writing, Appellate Advocacy.
Reference:
Edwin S. Fruehwald
affiliation not provided to SSRN
February 24, 2011
Abstract:
Postmodernism is a major influence on contemporary jurisprudence. This paper will critique Postmodern Legal Thought using insights from behavioral biology. As this paper will show, Postmodernism is based on the denial of human nature – it is based on ignorance (lack of knowledge), and it has had a pernicious effect on the law.
Part I of this article will examine Postmodern Legal Thought. This Part will include a traditional critique of Postmodernism and its most important element – strong moral relativism. Parts II and III will demonstrate how insights of behavioral biology weaken the foundations of Postmodern Legal Thought. Part II will demonstrate how behavioral biology has destroyed the Blank Slate (social constructionist) theory of human nature upon which Postmodernism is based. Part III will show the existence of neurocognitive (innate) universals in the human mind, which destroys the strong moral relativism underlying Postmodernism. Finally, Part IV will present an alternative to Postmodernism’s radical political theories, based on behavioral biology.
Fruehwald, E.S. (2011, Feb. 24).
When Did Ignorance Become a Point of View?: Postmodern Legal Thought and Behavioral Biology. Available at SSRN: http://ssrn.com/abstract=1769242
He is especially critical of Critical Legal Thought (CLS) which he blames for all manner of ills in contemporary legal theory.
CLS is essentially a leftist critique of traditional liberalism.[63] CLS stresses “cognitive relativism”–“the social and historical contingency of structures of thought.”[64] Rather than examining the value orientation of a particular judge as the Legal Realists did, they study “the premises that mainstream opponents actually share.”[65] In particular, it criticizes the supposed determinacy, objectivity, formalism, and neutrality of the existing legal order.[66]Here is a bit of his argument from near the end of his essay, wherein he presents his own perspective:
A major tenet of CLS is that there is no distinction between law and politics.[67] Concerning this critique, Professor Tushnet has written, “when one understands the moral, epistemological, and empirical assumptions embedded in any particular legal claim, one will see that those assumptions operate in a particular setting in which the legal claim is made to advance the interests of some identifiable political grouping.”[68] Professor Singer has declared, “[w]e have proposed instead that legal reasoning is a way of simultaneously articulating and masking political and moral commitment.”[69] Professor Fiss has stated that CLS believes that “[j]udges
speak the way they do because that is the convention of their profession and is needed to maintain their power, but their rhetoric is a sham.”[70] Many CLS adherents believe the law/politics distinction prevents political change.[71] As Professor Horwitz has written: “Until we are able to transcend the American fixation with sharply separating law from politics, we will continue to fluctuate between the traditional polarities of American legal discourse, as each generation continues frantically to hide behind unhistorical and abstract universalisms in order to deny, even to itself, its own political and moral choices.”[72]
CLS similarly rejects the distinction between public and private spheres.[73] CLS believes that the public/private distinction is a social construct, not a reflection of objective reality.[74] It believes that eliminating this distinction opens up new possibilities for human conduct.[75]
CLS often uses a technique it calls trashing (sometimes called unpacking or deconstruction).[76] Trashing has been defined as: “Take specific arguments very seriously in their own terms; discover they are actually foolish ([tragic]-comic]; and then look for some (external observer’s) order (not the germ of truth) in the internally contradictory, incoherent chaos we’ve exposed.”[77]
CLS employs trashing to expose illegitimate power and hierarchies, which are social constructs.[78] Mark Kellman has argued: “From my vantage point, which is the view of ‘micropractices,’ the primary thrust of the CLS enterprise at an academic level should be to explore, in a very concrete, particular setting, the vital general point that status hierarchies are founded, at least in a significant part, on sham distinctions.”[79] Duncan Kennedy has explored hierarchies in the context of the law school, arguing that law schools provide “ideological training for willing service in the hierarchies of the corporate welfare state.”[80] He has further stated that “teachers convince students that legal reasoning exists, and is different from policy analysis, by bullying then into accepting as valid in particular cases arguments about legal correctness that are circular, question-begging, incoherent, or so vague as to be meaningless.”[81]
A group of scholars have demonstrated that, based on empirical studies, there are shared intuitions of justice “that serious wrongdoing should be punished” and that people “share intuitions about the relative blameworthiness of different transgressions.”[244] These scholars think that shared intuitions of justice are more likely due to evolution, than a universal social learning explanation.[245] Once individuals have an intuition about when they have been wronged (through mirror neurons), they can sense when others have been wronged.[246] Groups that punish gain survival benefits over those that do not because punishment cuts down on cheating.[247]Of course it is not either/or - he is essentially arguing a modified Objectivist (modified in that he recognizes the need to regulate business) perspective vs. a postmodern relativism. The reality is that we need a both/and approach - Hegel and Kant - morality is local very often (Hegel) and there are universal truths (Kant). One does not cancel out the other.
Finally, understanding human morality and the limits of human morality suggest the kinds of things that should not be criminalized. We should not illegalize anything that is based on taboo mentality or that is based on a confusion with conformity, rank, cleanliness, and beauty.[248] For example, since homosexuality is probably the result of biology[249] and laws against it derive from taboo mentality, laws should not forbid homosexuality, explicitly or implicitly.
Behavioral biology can also help determine the political system that is best for mankind, based on human nature. Behavioral biology supports a Kantian-like approach to rights and a modified Libertarian approach to government, both of which are antithetical to the Postmodern political agenda.
Rights have traditionally been based on either a Kantian approach (individual rights) or a utilitarian one.[250] Kantianism “is the view that the rational choice in ethics is always the choice that respects the rights of autonomous persons freely to determine their own destinies, even if this respect is bought at the cost of loss of happiness or well-being.”[251] Kant believed that human beings are morally special because they have the capacity for rational choice and that the freedom of rational beings should be respected.[252] Thus, individuals cannot be used as a means to an ends.[253] In contrast, utilitarianism evaluates human actions and practices “in terms of their general tendencies to advance the human welfare or social good. . . .”[254] Utilitarianism looks to produce the greatest happiness for the greatest number.[255] This approach is based on the theory that something is moral if the majority is benefitted.[256]
Behavioral biology supports an individual rights approach (which is antithetical to Postmodernism because of its emphasis on the individual), and it casts doubt on utilitarianism.[257] That an individual is mainly determined by the inner workings of his or her mind backs up Kant’s notion that humans should be respected because they can make rational choices. Since individuals are not social constructs but rather autonomous beings, using a person as a means to an end, as utilitarianism might do, is abhorrent. What is best for most should not supercede the basic rights of autonomous individuals, who evolved through selfish genes. Moreover, utilitarianism works well only in a small, homogeneous societies, not a diverse one like we presently live in. As Professor Goldsmith has pointed out, “[t]he concept of morality’s producing the greatest good for the greatest number is consistent with evolutionary principles only when the interests of individuals are very similar.”[258]
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This author has developed these ideas further in Edwin Scott Fruehwald, Law and Human Behavior: A Study in Behavioral Biology, Neuroscience, and the Law (Vandeplas 2011).
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