Years of Poems and Spirits

Randomly scanned Politico and found this discussion very engaging: what does Obama mean when he said he’d like the next SCOTUS Justice to have “empathy”?

I was pretty moved when I first heard the report. As a Constitutional Scholar, Obama didn’t get carried away by the cherished detachment of his profession. Instead, his statement reveals a profound appreciation of the relationship between law and society.

Since the modern age, the Law (i.e. the judiciary machine, including enforcement) is supposed to be cold, precise, blind and vigilant. The Law is Modernity. The Law is the State.

Yet, the Law is inherently biased: it always favors its enactors and suppresses those on the margin. A legal bureaucrat may steadfastly deny this, but in my mind, the Law is never an embodiment of the social justice de jure (i.e. natural law), but a moat around the justice de facto.

Should the Law be cold and detached? What the President said reminded me of the arguments Karl Polanyi laid out in The Great Transformation. In the very beginning of this book, Polanyi described the tension between the forces that is pushing economic activity into its own domain and the society’s instinct to regulate it. The Vienna school and its disciples extended Smith’s “invisible hand” into a “invisible hand of (economy) God”, emphasizing the independence and detachment of economic activities from other the society.

Largely based on English labor movement, Polanyi argued that despite the constant efforts to market-ize labor, capital and land, they are in fact the very conduits through which a society impose its will on to the economy.

Similarly, if the ultimate goal of Law is to sustain a society, it has to be embedded in a social political environment, has to learn to adapt, to evolve. Otherwise, the blind pursuit of legal independence (at least in a post-modern era) may result in a tyrannic State and a broken Society.