The cosmological question: a response to Milner S. Ball's 'All the Company of Heaven.' (response to article by Milner S. Ball in this issue, p. 2016)

• Author: Vining, Joseph

We do not disagree, and I do not doubt, that legal processes are sources of injustice, violent oppression, crushing of the spirit, destruction of lives, actual death. I have only to look at The Trial(1) again. Nor do we disagree that there are strings of words, statements, put out by officials, lawyers, and lawyer-academics, often called "rules," that cannot be taken into oneself and that by their very nature evoke manipulation in response, avoidance if they cannot be ignored. In their name violent imposition of pure will occurs all the time, and power is exercised by those who can secure for the moment some obedience.

Though we have different words for the poles and the possibilities, I know we do not disagree about this. For me, this is the authoritarian -- there is much in the phrase "in the name of the law" with which I began my last book. The authoritarian is dead, not in the sense of not being there, but in the sense of being merely material for manipulation, just there and no more than there. Perhaps because of the difference between the areas of law in which we work, you see the oppression, the deadening, the success of efforts to use and control. I tend to see, in organizational law, successful evasion of them, reduction of them to dead letter, escape.

Even when we are in good faith, there eventually rises in us all a tired reach for something solid and fated, so solid and fated that we have no part in creating it and therefore bear no responsibility for it. All of us recognize a tired sinking back from any reach, to the sense that the appearance of the moment is all that is real. All of us seek at some time to deny what makes law possible.

But this book is not so much addressing the question of the authoritarian, our own failure, which is a question internal to law. From Newton's Sleep takes up rather the question raised by looking out from law to what the world might be like if there were no law, and more importantly, what the mental world would be like without even the possibility of law. I say "more importantly" following William James, who prefaced his Pragmatism with Chesterton's observation that "the most practical and important thing about a man is still his view of the universe.... [T]he question is not whether the theory of the cosmos affects matters, but whether, in the long run, anything else affects them."(2)

Our own Holmes echoed the point, and may be an example of it. You may remember his conclusion in his manifesto...