Posted by Eugene Volokh:
A Lovely Little Legal Realist Rant,
http://volokh.com/archives/archive_2006_02_12-2006_02_18.shtml#1140072535
from Felix Cohen's Transcendental Nonsense and the Functional
Approach, 35 Colum. L. Rev. 809 (1935). In a sense, Justice Holmes's
"Think things, not words" captures it well and tersely, but sometimes
the longer version has its value:
I. The Heaven of Legal Concepts
Some fifty years ago a great German jurist had a curious dream. He
dreamed that he died and was taken to a special heaven reserved for
the theoreticians of the law. In this heaven one met, face to face,
the many concepts of jurisprudence in their absolute purity, freed
from all entangling alliances with human life. Here were the
disembodied spirits of good faith and bad faith, property,
possession, laches, and rights in rem. Here were all the logical
instruments needed to manipulate and transform these legal concepts
and thus to create and to solve the most beautiful of legal
problems.
Here one found a dialectic-hydraulic-interpretation press, which
could press an indefinite number of meanings out of any text or
statute, an apparatus for constructing fictions, and a
hair-splitting machine that could divide a single hair into 999,999
equal parts and, when operated by the most expert jurists, could
split each of these parts again into 999,999 equal parts. The
boundless opportunities of this heaven of legal concepts were open
to all properly qualified jurists, provided only they drank the
Lethean draught which induced forgetfulness of terrestrial human
affairs. But for the most accomplished jurists the Lethean draught
was entirely superfluous. They had nothing to forget. . . .
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