Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an Oliver Wendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)

An exercise in humour noir, this essay explores relations between the Paris and Prague surrealist groups from André Breton and Paul Éluard's visit to “the magic capital of old Europe” in 1935 to the aborted “Prague Spring” of 1968. It focuses on the famous “starry castle” of Breton's Mad Love — which Czechs know better as Letohrádek Hvězda at Bílá hora, the White Mountain — as a signifier whose wanderings, over the period, encapsulate the mutual myths and misunderstandings that were (...) constitutive of this most poignant of surrealist love affairs. The essay ends by suggesting that what makes the Czech capital a fitting object of the surrealist imagination (and a rich source of surreal art and literature in its own right) is less the “historic charms” that so seduced Breton in 1935 than the “geographical, historical, and economic considerations” of the city's modernity that he blithely put to one side. (shrink)