Gilbert: A Thin Veneer Of Reason And Law

Nov 7, 2016

Felix Frankfurter was a close advisor and friend to President Franklin Roosevelt, who, in 1939, appointed him to the Supreme Court, where he served for 23 years. A brilliant jurist, Frankfurter was a founder of the American Civil Liberties Union and a strong advocate of judicial restraint.

Before joining the Court, Frankfurter taught at Harvard Law School. One point he made repeatedly in class made a lasting impression on one of his students from the late ‘thirties - Frederick P. Smith, who went on to be a prominent banker, legislator, and civic leader in Burlington in the middle of the last century.

The late thirties was an “angry” time of great political, economic, and international conflict and uncertainty. Decades later, Smith used to recall how Frankfurter emphasized the fragility of peaceful and civilized society, noting that beneath a thin veneer of reason and law lie forces of emotion and human will of volcanic power.

Frankfurter wrote, “Fragile as reason is and limited as law is as the institutionalized medium of reason, that's all we have between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feelings.”

There’s a lot in that sentence. Frankfurter’s saying that in society reason, as opposed to emotion, is fragile and easily undercut. Law, he says, is the way that society institutionalizes reason so that society can function. But, he says, just as reason is fragile, the power of the rule of law is limited.

And here’s the scary part: Frankfurter argues that fragile reason and the limited power of the law are the only things that protect us from powerful eruptions of human emotion and lawless brute power. Where humans’ will is unmoderated by thoughtfulness, and emotions are not held in check, cruelty thrives and tyranny reigns.

Frankfurter impressed on his students the dangers that arise in society when reason is subordinated to pernicious emotions – like anger, hatred, pride, envy, fear, and cynicism. That’s why he viewed law with such reverence, not because the law is powerful, but because its power is limited and yet so vitally important.

A peaceful, smooth-functioning society relies not on law alone, but on social consensus to act in a reasonable, self-disciplined way that enables us to get along. That’s why everyone in society, not just lawyers and legislators, needs to be on guard against things that undermine reason or appeal to people’s base emotions.