By Samuel Turner
Who is the most influential American philosopher? William James and John Dewey are among the two more common answers, but in 1926, Supreme Court Justice Oliver Wendell Holmes, Jr. and British philosopher Bertrand Russell proposed a lesser-known name: Morris Raphael Cohen. A student of James and admirer of Dewey, Cohen was a prolific legal scholar who linked pragmatism with logical positivism in a strand of philosophy now largely forgotten. It is nearly impossible to speak of these traditions except in the broadest of strokes, but generally speaking, pragmatism treats knowledge as inseparable from agency and logical positivism draws on scientific, logical analysis to address philosophical issues.
Why should we turn to Cohen now? A reluctance to probe history for legal insight is more than understandable. The Roberts Court has brought history to the forefront of its legal decision-making, with the conservative wing insisting on a rigid interpretation of the U.S. Constitution that adheres to “original understanding” or “history and tradition.” The liberal wing, by contrast, often points to some version of judicial pragmatism to frame the U.S. Constitution as a dynamic document that must evolve with the times. Cohen, too, was a pragmatist, but unlike some judicial pragmatists today, he did his finest work in the historical terrain. He wielded the authority of history to delegitimize deeply rooted and flawed legal theories.
In this spirit, we would be wise to revive Cohen’s long-forgotten, historicist project to dismantle the repressive constructs of yesterday’s jurists and imagine new, emancipatory possibilities for law and its adjacent disciplines.
The brilliance of Cohen’s method lay in his principle of polarity. He explained the principle in his magnum opus Reason and Nature (1931), “Opposites such as immediacy and mediation, unity and plurality, the fixed and the flux, substance and function, ideal and real, actual and possible, etc., like the north (positive) and south (negative) poles of a magnet, all involve each other when applied to any significant entity.” The principle served both metaphysical and methodological purposes, inspiring, in its latter form, Cohen’s piercing analysis of legal theory. He drew on the principle to collapse sometimes unhelpful legal distinctions (e.g., public and private, criminal and civil law) while building up important ones yet to be recognized (e.g., acts harmful and those merely deemed harmful). As an example of the latter case, Cohen pointed to “the history of the martyrs of religion and science [which] amply indicates that acts deemed criminal at a given time in a given community often turn out to be of the greatest value for human life.” His acute attention to false and missing binaries in law deserves, if not our agreement with Holmes and Russell’s assessment, at least our praise—especially in the context of the bad-faith reasoning that lurks in law today.
Cohen derived his principle of polarity from the “logical pragmatism” of another lost titan of American intellectual history, Charles S. Peirce. This founding father of pragmatism proposed that an idea’s meaning follows from all its possible consequences. An inspired Cohen sought to close the gap between the meaning and consequences of legal ideas, an abstract separation that had allowed defective ideas to infect American legal thought and democracy. “It is an error,” he wrote in Reason and Law (1950), “to think of the meaning of a legal proposition as something completely independent of its consequences.” Cohen wielded this powerful Peircean concept to unmask the actual consequences of legal ideas in criminal, contract, property, and constitutional law. By scrutinizing the most entrenched underpinnings of legal theory, Cohen exposed the oppressive normative assumptions and power relations baked into the American legal system.
In his early article “Property and Sovereignty” (1927), Cohen attacked one of the most basic ways the law had been structured: the distinction between public and private law. He started with two seemingly opposite concepts—one in private law (property), the other in public law (sovereignty)—and traced their relationship in actual practice throughout history. Private claims to property, he found, have public consequences, routing power towards a given social group. That is, property is merely a disguised form of sovereignty. Just as sovereignty grants the state a monopoly on the legitimate use of force, so does property empower its owner to exclude people from a given thing. Sovereignty and property are “inseparable,” Cohen wrote, insofar as they both authorize the exercise of “power over the life of others.” The seemingly innocuous concept of property concerns more than individual owners; it upholds injurious power relations in society, conferring “sovereign power on our captains of industry [and] finance.”
Cohen’s work on contract law further ruptured the public-private barrier. In “The Basis of Contract” (1933), he reviewed the history of contractualism and assessed theories of the nature of contract based on their consequences. He concluded that contracts grant individuals the capacity to initiate private litigation with the sanction of state force. Cohen wrote, “That the courts should enforce all contracts made ‘freely’ […] merely brings the power of the state into action on the side of the stronger party.” A so-called “cult of contractualism” had legitimized “contract transactions in which there is no negotiation, bargain, or genuinely voluntary agreement,” such as labor contracts. In other words, private contracts were not a fair agreement between two individuals but an unwitting vehicle for the conferral of public power. That was the real meaning of contract law. Cohen’s treatment of the law as a tool of oppression and economic ills respectively anticipated two later leftist movements in legal thought, critical legal studies and Law and Political Economy.
By weakening long-standing theoretical divisions, Cohen unmasked the genuine consequences of legal arguments. He did not leave unprobed even our most fundamental assumptions, couched in seemingly uninvolved academic terminology, because peoples’ lives and livelihoods were at stake. Cohen’s analysis of the criminal-civil law distinction was particularly attentive to this reality. In “Moral Aspects of Criminal Law” (1940), he argued that “the criminal law cannot be distinguished from the rest by any difference of moral principle.” For example, the fact that both civil and criminal law could treat theft indicated that the real distinction between the two types of law was merely a matter of procedure and custom. To be sure, Cohen did not deny “some differences between civil and criminal procedure” or that “legislatures and courts can, do, and should call certain acts criminal.” But rather, he wished to show that “criminal law is an integral part of the legal system and is subject to the same considerations which do and should influence the whole.” Orthodox legal scholarship tended to neatly compartmentalize phenomena and judge them only in reference to legal traditions, but the most determinative forces in society—power and inequality, to name two—pervade every area of law.
Cohen’s attention to idealized, if flawed, conceptual polarities extended to the very notion of law itself. Long has the public revered the “rule of law” as the cornerstone of civilized society. But even this seemingly unquestionable fact of modern life did not escape Cohen’s principle of polarity. As he saw it, any discussion of law must include its opposite: those who make and enforce the law. In his essay “Moral Aspects,” Cohen observed that “acts are criminal not because they are harmful [to social interests], but because they are deemed harmful by those who make or interpret the law.” Embedded in his scrutiny of the criminal-civil distinction prowled a deeper, potentially more destabilizing criticism: the false separation between law and lawyer. Cohen subscribed to the not unpopular view that law should weigh social consequences. To him, individual legislators and judges were mere proxies, often imperfect ones, for the collective sentiments and logic of society.
To be sure, Cohen did not claim to have all the moral answers either. In discussing the ethical problems of criminal law, he urged his readers to “realize the inadequacy of the maxim that the good or ill of any act is to be judged by its consequences only. For this does not determine which consequences are to be deemed good and which are to be regarded as bad.” Cohen, like Peirce, did not answer his own call for an ethical procedural system to measure consequences. The lack of an ethical complement to Cohen’s analytic legwork has long been viewed as a failure, and that may be a valid conclusion to draw. But it may also be the case that Cohen disrobed the jurists of old for the very purpose of allowing a new generation, one conscientious of the repercussions of legal reasoning, to decide how to dress anew.
The stakes were high in American society. The law facilitated, among other things, segregation, patriarchy, and imperialism. Cohen’s skepticism of conventional legal distinctions shaped his skepticism of law altogether, including the U.S. Constitution. In an unpublished essay, “The Sanctity of Law: A Critique,” he noted that the law has long been tied to religion and thus imbued with moral sanctity. But, Cohen said, it is the “duty of thoughtful people to examine the law of their land critically and to test whether it does or does not promote human welfare.” This continual testing of beliefs in terms of their consequences (here, welfare) is a mark of Cohen’s pragmatism. However, his recommended attitude towards the law (skepticism) was obstructed by what he rightly perceived as an unhealthy level of constitutional veneration. The cause was again hidden in an apparently harmless theoretical distinction—between self-evident principles and contextual facts.
Cohen unveiled the not-so-logical logical proclivities that inclined early American elites to elevate a single document, the U.S. Constitution, as the source of all legal answers. The eighteenth-century elite education in “Euclid’s Geometry, in which everything seemed to follow from a few self-evident principles […] made plausible the analogous idea of a simple code of nature containing self-evident principles of natural right from which the solution of all possible problems as to just law could be rigorously deduced,” he wrote in “Constitutional and Natural Rights in 1789 and Since” (1938). Admittedly, Cohen also attributed constitutional veneration to American exceptionalism, writing that “what is psychologically the most important element, namely, sentiment and the need for some objects of worship to strengthen the authority of government.” But his principle of polarity unlocked the additional, biting insight that ideal logic, if not tempered by real facts, ushered in an unhealthy glorification of law.
To Cohen, the cults of the Constitution, property, and contractualism formed the chief elements of American conservatism. He endeavored to expose and eliminate all three and, in doing so, remove the obstacles to liberal democracy in the United States. Cohen’s skepticism of seemingly unimportant polarities drew attention to long-disguised unequal power structures (from the Electoral College to the U.S. Senate) that still exist today.
Peirce undoubtedly inspired Cohen’s relentless application of scientific logic to law. Still, Cohen, faithful to the principle of polarity, clung to a nuanced view of legal science that did not reduce the law to science. Here was a theoretical distinction that should remain. As law dealt in more ambiguity than science, Cohen never presumed his conclusions, no matter their political resonance, were the objective truth. Despite his belief in the power of rigorous, scientific exploration, his early papers conveyed his refusal to reduce human activities, law among them, to simple facts. The ideal legal procedure balanced the “the appeal to self-evident principles and the appeal to the obvious demands of the specific situation before us.” Cohen remained suspicious of a growing liberal gravitation towards scientism and would later attack what the next generation would call the excesses of positivism. His preferred “rational liberalism” admittedly shared with science “a critical examination of the content of all our beliefs,” but the liberal temper differed from science in arising from faith in the possibilities of human enlightenment rather than the close-minded pursuit of a “new set of dogmas.” The latter mindset had undermined the progressive, self-critical nature of social thought and action by prizing individual “material productivity” over “ultimate human values.” In an age of data-driven public policy, contemporary American liberalism seems to have continued along the trend Cohen feared, treating politics as a purely practical affair and technocracy as the key to governing. The modern embrace of technocracy is evident in the growing reach of the administrative state’s “informal” rulemaking and the growing power of other parts of government staffed by experts, including the Supreme Court.
The principle of polarity led Cohen to view the legal system as a function of power relations, not the triumph of ethical ideals. While grounding his own analysis of law in history, Cohen’s pragmatic spirit was still attuned to the reality and value of change. Even if history were to dominate legal analysis (as it does today), we must not “abdicate the truly evaluative role to history itself,” he wrote in Reason and Nature. The principle of polarity insisted on a balance of “the values of order and stability with the values of change and progress.” It provided some structure to a philosophical and political tradition (pragmatism) that theorized the “changing” sometimes at the cost of ignoring the “constant.” And perhaps more importantly, it provided the philosophical firepower for political action.
Many commentators have unsurprisingly noted the lack of a unifying factor or even field of Cohen’s scholarship. His star student Sidney Hook said of him, “Although he preferred to call himself a logician, Morris Cohen was primarily a critic and moralist.” It is true that Cohen’s scholarship sprawled in all directions. Perhaps Cohen’s legacy has been unfairly neglected because we, Hook included, draw too sharp a line between law and its cognate disciplines—science, philosophy, history and literary criticism, among others. To break free from the inflexible clutches of legal reasoning, we must apply the severest pressure to our most fundamental notions of law. The choice between an originalism of the past and living constitutionalism of the present is a false one. We must rethink the rigid distinctions we make between concepts that are all too blurred: criminal and civil law, public and private law, constitutional sanctity and change, science and law, history and philosophy, and above all, an idea’s meaning and its consequences.
Samuel Turner is an incoming graduate student in history at Yale University, where he earned his B.A. in Ethics, Politics, and Economics and wrote his senior essay on the life and ideas of Morris R. Cohen.
Edited by Tom Furse
Featured Image: Photo of Cohen from 1900