This essay originally appeared in Legal Writing, 3 (1997) 21-50. Copyright © 1997, Peter Suber.
After Post-Modern Critiques of Reason [Note 1]
Peter Suber, Philosophy Department, Earlham College
- Nine Critiques of Reason
- Twentieth Century Logic
- Instrumental Reason in Ethics
- The Threat of Logical Nihilism
- Contemporary Legal Sophistry
- The Primacy of Premises
- Normal and Revolutionary Legal Reasoning
- The Call for a Brooding Omnipresence
- The Case for Global Reason
A series of critiques of reason beginning roughly with David Hume in the Eighteenth Century have raised doubts about the validity and authority of reasoning. If they are not answered, they tend to undermine the practices used to justify conclusions in every field, including law.
These critiques and the ways of thinking made possible in their wake tend to be called post-modern, a term which is vague and even a little irritating. It would be more precise and descriptive to speak instead of post- Enlightenment critiques of reason. Hume is arguably the first post-Enlightenment thinker, and after Hume these critiques of reason developed further in Hegel, Marx, Kierkegaard, and Nietzsche, and were then taken up by many lesser, 20th century thinkers. If the Enlightenment was the age in which human reason in the form of argument and evidence superseded authority in the form of church and state, in the grounding of scientific, philosophical, moral, and political claims, then the critiques of reason I want to talk about are all post-Enlightenment.
After spelling out nine of these post-Enlightenment critiques, I argue that some of their general tendencies are supported, not refuted, by the hard-won sophistication of twentieth century formal logic. This is only one reason why a general refutation of these tendencies may be unattainable. However, a general capitulation is equally unwise, as shown by the naivete and inconsistency of some increasingly popular attitudes toward argument, and by some prominent examples of sophistical legal reasoning. I argue that reasoning from given premises and rules of inference can be rigorous in just the ways established by contemporary logic, but that the justification of our ultimate premises and rules may be ideological or question-begging in just the ways pointed out by the post-Enlightenment critiques. Consequently, when we ask about the trustworthiness or authority of reasoning, we might be asking about its rigor locally to some system or paradigm, or globally in its effort to establish one system over all others. The former sort of reasoning is capable of scientific formulation, testing, and criticism; the latter is not. The reasoning of litigators tends to fall into the former sort, while that used by delegates to a constitutional conventions falls into the latter. The reasoning of judges and legislators falls somewhere in between. Before concluding, I sketch what I take to be the strongest form of global reason compatible with the post-Enlightenment critiques of reason.
II. Nine Critiques of Reason
What are some of these post-Enlightenment critiques of reason? Here is a quick summary of nine that I find important to the problem of legal reasoning. Afterwards I'll slow down, look at a few of them more closely, and examine their effect on legal reasoning.
Remarkably, these nine critiques of reason can be organized into a nine-tier argument in the alternative. A defense lawyer might argue: "My client never laid eyes on the victim of this horrible crime; but even if he did, he was not at the scene of the murder at the time of the killing; but even if he was, he's not the shooter; but even if he was, he was insane; and if he wasn't, then it was clearly self-defense." Similarly, a critic of reason might argue as follows:
- The word "reason" is meaningless but laudatory. It is now only a catchword, and to say that your position is supported by reason is just a conclusory and question-begging way of saying that it's true.
- But even if the word "reason" does mean something, the faculty it points to does not exist as advertised. For it is claimed that reason is transcendent, objective, gender-neutral, class-neutral, culture-neutral, century-neutral, emotionless, independent of the body, and disinterested, yet on close examination it turns out that no form of thinking bears this description.
- But even if it does exist, it cannot be justified without reasoning, hence without vicious circularity. But if circular justifications are adequate, then many other would-be authorities are suddenly on a par with reason. Why not appeal to majority rule instead of reason, since the majority favors it, or wealth, since the wealthy favor it? Of course, the proponents of reason claim it is really justified, while the others are just pretenders. But how would we know this? Through reasoning?
- But even if it can be justified, it is a merely instrumental tool, malleable to human will. For it may draw valid inferences, but only from given premises; and it may discern efficient means, but only to given ends. The conclusions it supports may be false and the ends it serves may be wicked; that only makes the point that every proposition can be supported by valid reasoning and every end can be pursued efficiently.
- But even if it does have a principle, its principle is merely empty and procedural. For it advises nothing more than be careful, proceed slowly, check everything twice, and keep everything open to criticism. This, however, is simple caution which does not deserve the glory (eternality, transcendence, objectivity) imputed to reason.
- But even if its principle is substantive and not merely procedural, its principle is false. For it demands identity without difference, when reality is fluid and dialectical. Or it demands static, eternal truths, when truth is dynamic. Or it demands argument and evidence, when important affirmations are and must be sheer, groundless choices.
- But even if reason is not false, then at least it is rare. For our judgment is usually distorted by emotion, fear, wish, anger, cruelty, spite, habit, convention, authority, ideology, or interest. We repress and deny truths, avoid facing evidence squarely or weighing it fairly, mistake irrelevant for relevant evidence, mistake insufficient for sufficient evidence, hold inconsistent beliefs, hold beliefs unreflectively, insulate our beliefs from the effects of criticism and experience, and settle our disagreements through violence.
- But even if not rare, reason is weak and insufficient. For it is of little or no use in attaining what is most important in life, whether we decide that that is love, friendship, community, wisdom, serenity, justice, courage, faith, salvation, art, or even knowledge.
- But even if reason is strong, it has a dark side. For if we isolate reason and use it without the correcting influence of the other parts of the human being, then it can make weapons of mass destruction or make an industry of exterminating Jews. Because reason is one-sided, taken alone it is dehumanizing.
III. Twentieth Century Logic
The twentieth century has been the greatest century for progress in logic since the century of Aristotle. At first sight, then, this vastly extended and polished logic appears to stand as a bulwark against the post-Enlightenment critiques of reason. Ironically, however, logic's unprecedented progress was made possible by adopting a model of reason that supports these critiques far more than it undermines them.
Twentieth century logic took enormous strides when logicians discovered, or decided, that the subject-matter of logic is not truth but validity. Previously, we might axiomatize geometry, arithmetic, or logic itself, and the chief question would be whether the axioms were true. The long history of attempts to prove Euclid's parallel postulate illustrate this preoccupation. In our century the right question to ask of an axiom system became not whether its axioms are true, but whether its theorems are well-derived from them according to explicit rules of inference. For many scientific purposes, we want the axioms to be true and the rules of inference to be plausible; but for the purposes of logic, both could be eccentric. It was the scrupulosity with which we derived theorems from the axioms according to the rules that mattered from the logical point of view. This meant that axiom systems like Euclid's could themselves become specimens for logical study, and for this purpose their axioms could even be false. Similarly, to axiomatize an existing branch of mathematics, like arithmetic or set theory, one need only find axioms that suffice to entail all the important results of that field, but that entail no false statements and no contradictions. This is far from easy, but it is easier than finding axioms that meet this condition and are self-evident truths.
To study the validity of inference, twentieth century logic abstracts from the content of the propositions involved and from their truth, leaving only their logical form or syntax. A meaningful and perhaps true proposition will be reduced to a string of symbols for the purpose of analysis. Whether another proposition can validly be inferred from it depends on whether the first string of symbols can be transformed into the second string by virtue of stipulated string-transformation rules. What conclusion is proved depends only on what strings of symbols we choose for input, and what rules we choose for conducting the transformation.
For this reason, one of the deep truths of twentieth century logic is that proof is computation. To "prove" a proposition from certain premises using certain rules is nothing more than to generate it as output from certain input using certain programming procedures. Axioms and premises correspond to input. Theorems and conclusions correspond to output. Rules of inference correspond to program functions. Limits on what is provable, for example as shown by Gödel's first incompleteness theorem, translate into limits on what is computable, as shown by Turing's halting theorem.
This new approach made especially clear that every proposition can be the conclusion of a valid argument. It depends on which premises and rules we stipulate. Gödel's incompleteness theorem showed only that some propositions were undecidable in certain axiom systems; but no proposition is absolutely undecidable. We can always derive it validly from some premises, at least from itself. But if every proposition can be the conclusion of a valid argument, then logical reason is indifferent to the truth of conclusions. It can as easily prove that evolution is superior to creationism as that creationism is superior to evolution.
In this sense, twentieth century logic owes its enormous progress to an instrumental conception of reason. On this model, reason is the rule-following faculty as opposed to the rule-picking or the rule-judging faculty. Logical reason can follow any rule, just as a computer can run any program. Not only are the premises of an argument unproved in an act of inference, the rules of inference are also unproved. Not only are the premises and rules unproved, they may as well be, as lawyers say, arbitrary and capricious.
Classical rationalists might rejoice that yes, there are valid inferences from stipulated premises according to stipulated rules, and these are not relative to gender, language, class, culture, or century. This is true. But the post-Enlightenment logicians point out these valid inferences depend on their premises and rules, and the acceptability of these premises and rules cannot be established by drawing valid inferences from stipulated premises according to stipulated rules.
Twentieth century logic has also discovered that there are non-standard logics which are to standard logics as non-Euclidean geometries are to Euclidean geometry: equally consistent but negating at least one fundamental tenet. For example, standard logic upholds the principle of excluded middle asserting that between two contradictory propositions, A and not-A, one must be true; it cannot be that neither is true. However, there are several consistent non-standard logics that deny the principle of excluded middle. Since logicians study validity, not truth, the question which of these logics is the "true logic" does not arise among them. Logicians are much less interested in the question whether the principle is really true than in what follows from the principle, and what follows from its denial. But the question of truth does arise for philosophers; and for philosophers it is a most difficult question, for the type of reasoning they use in analyzing the issues is invariably one of those in contention, making any philosophical conclusion self-contradictory or question-begging. (For example, in adjudicating the issues between these rival logics, may we use the principle of excluded middle?) The philosopher's reasoning, regardless of its type, is a party to the suit, and subject to judgment, not an impartial judge.
If logicians don't ask which logic is the true logic, do they at least ask whether there is a "logic to logic" that underlies the proliferation of non-standard logics? I'll return to this question shortly. For now, note that if there is no logic to logic, then we are left adrift in a post-Enlightenment fog of relativity; and if there is, then we return to the "brooding omnipresence" of reason,[Note 2] against which many fields, including law, revolted long ago.
IV. Instrumental Reason in Ethics
Instrumental reason in ethics is what Kant called prudence. If you want to drive from Chicago to New York, save a child trapped in a crushed car, or become a millionaire, reason can help you sort the prudent and efficient means to those ends from the imprudent and inefficient means. However, if reason is only prudent or instrumental, if, as Hume put it, reason "is and ought to be the slave of the passions", then it can work for any master. It can work to red-line city neighborhoods for discriminatory investment, contrive arguments in support of a theory of Hell, or manufacture thumbscrews, nuclear bombs, and gas chambers. As G.K. Chesterton put it, the madman is not one who has lost his reason; the madman is the one who has lost everything except his reason.
Kant knew this and insisted that reason is not merely instrumental, that is, it can rule on ends and not just means. To contemporary philosophers it hardly matters whether Kant's argument was good; it is dated. It is part of the Enlightenment. One of the fundamental doctrines of the post-Enlightenment era holds that when we say that some ends are good and others bad or indifferent, we are not following reason but desire or interest or socialization. We may say we are following reason, but that is either a meaningless decoration of our desire or a rhetorical bludgeon to intimidate our opponents. Reason is merely instrumental, says this critique of reason, even in ethics, and even if this fact is tragic.
There may be strong arguments to defend ethics from this outcome, but they will not come from twentieth-century logic, which has already capitulated to instrumentalism on its own front. At least we ought to note, then, that logicians are among the leaders of the post-Enlightenment critique of reason. Two conclusions follow from this observation. First, if we are classical rationalists at heart, but if we don't know much about contemporary logic, then we should awaken from our dogmatic slumber and not rest too cheerfully on the assumption that logic supports us against the barbarians.[Note 3] Second, we should not mistake post-Enlightenment thinkers for enemies of logic and reasoning, although the movement is broad enough to contain its share of contra-logicians and anti-intellectuals.
When we say that in the Enlightenment, reason replaced authority we mean that it replaced the ex cathedra statements of powerful human beings who represented powerful institutions and sometimes powerless individuals, like scholars in garrets, who thought they were interpreting God. But replaced them as what? It replaced them as the authority for human judgments. Reason did not overturn authority, per se, but became authority. In pre-Enlightenment thinkers, such as Aquinas, reason had authority only because it was supported by God. In Enlightenment thinkers, such as Leibniz, God had authority only because she was supported by reason.[Note 4]
Another important strand of the post-Enlightenment critique, therefore, asserts simply that reason is no longer an authority. As a sociological claim, this critique gathers new evidence every year. As an epistemological claim, it means that once reason is questioned, it cannot defend itself except by circular appeals to reason and rational argument.
This objection is dangerously two-edged, however. All nine of the critiques of reason, in fact, suffer from being reasoned arguments. If critics object that reason cannot defend its own validity except through a vicious circle, then not only do they uphold a standard of good reasoning (namely, non-circular reasoning), they support their objection with a reasoned argument. They reason that self-justified authorities are not authoritative, for example because there are many self-justified authorities that contradict one another. But this reliance on reasoning is a disturbing inconsistency in a critique of reason. The post-Enlightenment critique, therefore, faces a dilemma: either argue the critique, and thereby rely on reasoning and court self-refutation, or leave the critique unargued and offer no reason to accept it.
But even if the critiques are torn asunder on the horns of this dilemma, life is not any easier for the classical reason that is the target of the critique. It faces a dilemma of its own. If it argues for its objectivity, transcendence, and authority, then it shows a question- begging reliance on its own validity. But if it does not argue, then it offers no reason to accept its validity.
We may be tempted to conclude that it is equally paradoxical to enthrone and dethrone reason. And this conclusion may in fact be true. But to say so tends to play into the hands of post-Enlightenment critics, for it is a natural step then to stop playing the game of either enthroning or dethroning reason, and those who do neither fall into an even more corrosive cynicism.[Note 5]
V. The Threat of Logical Nihilism
These post-Enlightenment critiques of reason have trickled down into popular culture to such an extent that many Americans believe that "legal reasoning" is a comical contradiction in terms or perhaps an ominous one. Some of my students, for example, seem to think that the primary lawyering skill is cleverness, and that cleverness can argue any thesis persuasively. If one argument is stronger than another, it is not a sign that the conclusion is more likely to be true, or that the evidence favors one side, but a sign that one advocate is cleverer than the other. It follows that the best lawyer always wins in court, regardless of the law and evidence; and it follows from this that the rich who can afford the best lawyers always win in court. Sometimes I think these students show an understandable cynicism about lawyers given the mass-media stereotypes of lawyers that comprise their knowledge. Other times I think they are clueless about epistemology.
I know that this is an attitude about reasoning, and not just about lawyers, because about 90% of the students who hold this belief about lawyers hold a similar belief about philosophers, and about 90% of them hold a similar belief about scientists. The view is roughly that the world of ideas has no grain, and that the constraints on argument all arise from the limitations of the arguer, none from the subject matter. While most of the lawyers I know would like to be considered clever, they would not appreciate being seen as practicing a profession in which nothing counts not facts, not law, not justice except cleverness.
Let me call this view logical nihilism. Even though I think logical nihilism is modern, even post-modern, it is not new. It is essentially the view held by the Greek sophists. For example, according to Seneca,[Note 6]Protagoras declares that one can take either side on any question and debate it with equal success even on this very question, whether every subject can be debated from either point of view.
I should add that some lawyers hold the same view and some law schools seem to teach it. In the culture at large this view disappeared under the weight of the Socratic critique of the Sophists until the post-Enlightenment critiques of Socratic rationalism revived it. Nowadays, it is fed in part by the same epistemological rebelliousness we saw in the Greek Sophists, by some headliner cases of legal sophistry, and by a cultural suspicion about reason aroused by excessive claims made on reason's behalf in centuries past.
This cynicism about reasoning in some of my students is of a piece with their diluted notion of toleration. For many of them, to tolerate ideas is either inconsistently to agree with them all or passively to receive them all with acquiescence. For these students, it is a virtue to hear all opinions without selection, and to refrain from evaluating or judging any of them; it may even be an obligation of world citizenship. There is nothing here of Mill's position that we can tolerate an idea we deplore, or that tolerated ideas might still have a hard life in general circulation when they come up against dissenters and counter-evidence. On the contrary, my students are quick to infer intolerance from challenge and disagreement. Consequently, for many of them, reasoning is suspect as an agent of intolerance. Indeed, to have a conclusion is the seed of intolerance, for these students, because it leads one to deny positions inconsistent with it.
After talking to such students for 15 years, I'm fairly sure that most of them are simply mistaking disagreement for intolerance. Why they do this is an interesting question. Perhaps they have never had tolerant, even courteous and friendly, disagreement modeled for them by parents, teachers, priests, or politicians. The reason I suspect simple mistake is that the same students do hold views, often strongly, and they debate them vigorously with their friends. They wouldn't call this activity intolerant, except in artificially formal settings, like a classroom, where they impose upon themselves artificially formal standards of intellectual etiquette. They will disagree with authors in public, and with friends in private, but only rarely with classmates in public as if disagreement were a kind of roughhousing they feel free to undertake only with the consenting.
Student attitudes of this kind are both a cause and an effect of the contemporary ascendancy of post-Enlightenment critiques of reason. By their standards, it is difficult or impossible to distinguish argument as reasoning from argument as intolerant quarreling, or even to distinguish sound from unsound reasoning. To call some reasoning unsound is simply to reveal something about oneself and one's biases and intolerance. But again, students who hold these opinions are among the first to criticize some reasoning, especially legal reasoning, as slimy. I will argue shortly that there is a kernel of truth in the post- Enlightenment critiques which we ought to concede. But giving up the distinction between sound and unsound reasoning is not that concession.
VI. Contemporary Legal Sophistry
Here are some examples of contemporary legal sophistry almost at random, selected only in order to show that legal reasoning sometimes reveals the effects of the post- Enlightenment critiques of reason, and sometimes goes beyond them to logical nihilism.
O.J. Simpson's criminal defense lawyers had some good arguments, but they certainly had some bad ones. One of the worst was the abuse of the word "maybe". Maybe the police planted a bloody glove in O.J.'s back yard. Maybe the police planted Ron Goldman's blood in O.J.'s car. Maybe DNA evidence is worthless. Is there any evidence that the police planted evidence? Well, one cop was a racist. We know that some racist cops plant evidence against some black defendants. Is there any evidence that this racist cop did so against this black defendant? No, but maybe he did anyway.
Yes, maybe. The trouble here is that "maybes" are irrefutable. In student papers over the years I've had such claims as these: Maybe if the colonists had talked longer with the British, the American revolution could have been avoided. Maybe the Jews could have escaped from the death camps, if they had all worked together. Maybe a miraculous discovery tomorrow will cure the patient in a persistent vegetative state today, so we should stop talking about pulling the plug.
"Maybe"-reasoning frees students from all the hard work of unearthing the facts, understanding them, and assessing their weight as evidence. It does the same for lawyers. "Maybes" are irresistible because they are irrefutable. But they ought to be resisted, at least in a criminal trial, because they introduce precisely the kind of doubt that is not reasonable. Yes, maybe the cops planted the glove. But maybe they didn't. If we have no evidence to nudge our judgement closer to one of these positions than the other, then we are playing a game, not creating reasonable doubt.
One student of mine in a seminar on skepticism wrote at the end of his final paper: I know this paper seems pathetically weak, but for all you know alien beings are beaming a special ray into your brain which only makes it seem weak; you can't prove that this isn't happening. This was his way of showing that even though his paper was pathetically weak, he had still learned something about skepticism. I replied: Maybe I really gave this paper a high grade.
A related trend is the abuse of the phrase "in one sense" or "in some sense". In one sense, people are good. In one sense, people are just animals. In one sense, racism is in decline. In one sense, women and men are not equals. What is ironic about this form of thinking is that when used properly, it aids precision, and yet when abused it is deeply misleading and slovenly. There are many senses of equality, for example, and many relations between the sexes. To start to sort them out is to take steps toward precision and deeper understanding. But to rest on one of the many possible one-sided assertions is to give it deceptive prominence or exclusivity. One trait shared by good lawyers and good philosophers is that they relish the task of saying in what sense something is the case and in what sense it is not; they relish articulation and precision, indeed sometimes for its own sake. Lazy lawyers and philosophers, or maybe cunning and dishonest lawyers and philosophers, stop short with one perspective and omit its complementary negations.
When people are clever enough to see that in one sense this, and in another sense that, then they are clever enough for sophisticated inquiry. But cleverness and interest can join forces to produce sophistry. In the April 18, 1994 issue of the Wall Street Journal, we read that some highly paid professionals who had been charged with income tax evasion were considering offering the defense that they suffer from "an overall inability to act in [their] own interest" (quoting an article from the New York Law Journal). A professor of psychiatry says this form of anxiety afflicts "highly ambitious, hypercritical, detail-oriented people." We could call this the incompetency defense for competent people.
It is fairly common in our legal culture for competent adults to see that certain excuses are accepted for the incompetent, and to argue their own incompetency with all the force they can muster. A North Carolina police office named Bernard Bagley shot and killed his wife with his service revolver, and then sued his police department for three million dollars, claiming that it should not have issued a gun to a person with his anxieties.[Note 7] A University of Idaho student named Jason Wilkins climbed a radiator next to a third story dorm window in order to moon a group students on the ground below. He fell out of the window, injured himself badly, and then sued the university for $940,000 for failing to post warnings.[Note 8] I believe both these plaintiffs lost, but I am not sure. However, when lawyer Paul Ebbs was appointed to a patronage job by the Canadian Parliament at an annual salary of $70,000, he took his salary for three years, performed no function, and then sued Parliament for "wrongful hiring" and won an undisclosed amount.[Note 9] In this case, I hope, he only won anything because the Canadian Parliament was too ashamed to defend itself in court.
Plaintiffs with like arguments win their lawsuits often enough to feed public cynicism about law. But most are told that if they voluntarily perform an act, then they may not later claim that it was involuntary when this convenient change of position works to the detriment of another person.
At the same time, our legal system allows defendants to claim certain excuses, and it is officially and patiently willing to listen to any defendant's story. This is clearly a harmless and praiseworthy combination. But when we add human weakness of will to the mix, we find that the combination invites excuse-making sophistry. Our weakness of will leads us to argue excuses that we do not deserve, and our legal system willingly listens, and even provides us with a menu of possible excuses in case we didn't know why we were innocent. In the heart of the Enlightenment, Kant was already bemoaning the temptation to be legally incompetent. "It is so easy not to be of age," he wrote in his 1784 essay, What is Enlightenment?[Note 10]
Our legal system is not inconsistent for blocking this sort of sophistry on the one hand, and inviting it on the other through its recognition of excuses and willingness to listen to everybody's story. Our ability to argue in favor of excuses from one side of the table, and against them from the other, does not show an inconsistency either. In fact, it may be a point of wisdom that our legal system supports both arguments so that the fact-finder may hear both sides before coming to a resolution.
However, this point of wisdom is a very grown-up sort of wisdom, easily abused by the weak of will. This grown-up wisdom acknowledges the unavoidability of perspective, and therefore demands that we listen to the defendant even after the prosecutor has amassed evidence of guilt. This grown-up wisdom also acknowledges the complexity of responsibility, and therefore demands that we hear novel excuses even after the prosecutor has proved that the defendant's act was the sort prohibited by the legislature. When we must acquit ourselves, or a client, then we exploit and corrupt this wisdom, turning it into an invitation to dissimulation and bad faith.
Our adversary system invites two well-argued stories in every case, as if every case could support two well-argued stories. Even if it is objectionable in other ways, the adversary system rests on this grown-up wisdom here, and has no trouble coping with dissimulation and bad faith. The fact-finder listens to both stories and makes a decision. And afterwards, in theory anyway, not even the dissimulators can pretend that they were not heard.
My brother, a former litigator, called certain of his cases "brown-bag" cases. A brown-bag case is one in which he wished to be wearing a brown bag over his head in court as he made his argument. In brown-bag cases, lawyers are dissimulating but from obligation. Their client, who might be the state, deserves its day in court, and the private reservations of the advocate are not relevant to a fair and lawful verdict. If the brown-bag argument is made professionally, then judge and jury have what they need to decide the case in light the strongest arguments on each side.
Lawyers and law students rightly wonder whether our duty to represent the client is not sometimes superseded by a higher duty not to dissimulate, or not to violate our own consciences as advocates, or, in short, not to take brown-bag cases. I won't enter this debate here. But I would note that the grown-up wisdom of the adversary system, to hear both sides whether we can sympathize with both sides or not, requires us (or at least someone) to take the brown-bag cases.
The post-Enlightenment critique which asserts that reason is malleable and can be made to serve any passion or cause has strong support in our adversary system of justice. Our adversary system builds on this malleability by assuming that there is always a reasoned case to be made on each side. At the same time, it exploits this malleability by inviting the rationalization of interest.
What is remarkable is that in our legal system most cases do support well-argued stories on both sides. We ought to pause a moment and ask why this should be so. After all, it is not the case that the physical universe supports well-argued stories on both sides of arbitrary propositions of physical chemistry. But not only does this happen in law, we are so confident in its regularity that we put lawyers under a professional obligation of zealous representation without even asking whether the client's case has a leg for zeal to stand on. Why do most legal cases support well-argued stories on both sides? Is it due to the nature of human conduct? Is it due to the ambiguity of virtue and responsibility? Is it due to the flexibility of interpretation? Is every deed somehow intrinsically subject to morally polar interpretations? Or is it due to the content of our laws? Is it due to the ways that deeds, interpretations, and laws interact?
I don't know the answer. But try this thought-experiment. Imagine a leaner and meaner legal system that prohibited only a few acts and permitted the rest. For simplicity let us limit ourselves to the criminal law. Imagine that it allowed no excuses to be offered in mitigation of guilt. Imagine that it described the prohibited acts briefly, and arranged burdens of proof so that in doubtful cases it simply convicted. It seems clear that such a system would not, nearly as often as ours, support well-argued stories on both sides of a case.
Yet virtue and responsibility would be as complex or ambiguous under that system as in ours at least morally. And human cleverness in interpretation would be as extensive in that system as in ours. Consequently, what the thought-experiment proves is that at least one decisive part of the reason why most cases in our legal system do support well-argued stories on both sides is that the content of our laws gives support to all these parties.[Note 11] It can do so through breadth, through vagueness, or through inconsistency, or some combination of these. But we cannot say that the whole answer is human cleverness, and therefore we need not concede that point to the post-Enlightenment critiques.
VII. The Primacy of Premises
When we have a conclusion in mind, as in ordinary litigation and brief-writing, we can usually find strong arguments to support it. The reason is not that bad arguments serve as well as good ones, or that the validity of arguments is somehow relative. The reason is that our legal system is so abundantly endowed with premises in the form of constitutional provisions, statutes, regulations, and case holdings, that we can usually find a set of premises that supports our conclusion using only impeccable inferences. This is one conclusion of our thought experiment.
If we want to argue for sexual privacy, we appeal to precedents like Eisenstadt v. Baird and Roe v. Wade. If we want to argue against sexual privacy, we appeal to precedents like Webster v. Reproductive Health Services and Bowers v. Hardwick. If we want to argue for excuses, we look to excuse-recognizing precedents. If we want to argue against them, we look to the precedents that reject them and hold fast to assumption of risk or a low floor for competency. It is this super-abundance of legal premises that makes distinguishing one of the central arts of civil litigation.
I say we can usually find the premises we need. I won't stick my neck out and say that we can always find them if we are sufficiently diligent. I don't know how we could ever decide that question. But I am not embarrassed by the possibility that my thesis implies that our legal system contains inconsistent premises. There is a school of thought holding that all apparent contradictions in law are merely apparent, but I have argued elsewhere that this is wishful thinking and mistakes a logical ideal for an historical fact. [Note 12]
Finding the premises we need is partly a matter of hard work, partly cleverness in exploiting novel analogies, and partly erudition. If you lack the erudition, you can at least nose out where to look for helpful premises almost a priori. One place where lawyers get their premises is the "in one sense / in another sense" horn of plenty. In one sense the constitution protects privacy. In another sense, it doesn't. We needn't know much law to suspect that this duality will be supported by the case law. Then here we are: premises, or pointers to premises, for opposing briefs in a new privacy case.
Lawyers who cannot find the premises they need may be forced to argue their conclusions invalidly from the premises they can find. Of course this invalidity needn't be deliberate. But most lawyers most of the time are free from forced invalidity, and can argue validly from bona fide principles of law. The abundance of premises in our legal system means that slimy lawyers need not use slimy reasoning; they need only dig a little deeper for the premises needed to support their cause.[Note 13] Only in a lean and mean legal system would slimy reasoning be necessary.
If I'm right, then litigators have an easier job than scientists in composing the arguments that fill their professional lives. Litigators may draw their premises from a vast domain of premises, so vast that it runs over in the sense that it contains inconsistent propositions. Scientists may draw their premises from a domain that is definitely vast, but not so vast that it runs over with inconsistencies.[Note 14] Scientists cannot support a random theory with evidence, except through the cleverness that is the mainstay of logical nihilism. Litigators, however, are paid to champion the random causes of their clients and can usually (again, not necessarily always) find ways to do so that are logically valid even if not legally compelling.[Note 15]
The pursuit of relevant and sufficient premises is something like a game. The stakes may be high, but the pursuit is an intellectual challenge, circumscribed by formal and informal rules, with a fairly well-defined notion of success. (Success is not necessarily to win; it is to produce what lawyers call a colorable argument.) It is worth repeating that the game is not to bend logic as elegantly and persuasively as possible; it is to support one's conclusion with relevant legal premises without bending logic at all. If logical rigor were not part of the game, or if we could infer anything from anything with equal validity, then there would be neither art nor science to legal reasoning. The game is not cramped by logical rigor so much as constituted by it, just as sonnet-writing is constituted by certain metrical constraints, not impeded by them.
It feels less like a game when we change roles from brief-writer to brief-reader, or from litigators who hunt for useful premises to judges who must finally choose between the competing premises found by the litigators. Our legal reasoning is more game-like the more we simply borrow our premises from the storehouse of law, and use them because they serve our ends. It is less game-like the more we are put upon to use only those premises we can accept and live with. In this sense the seriousness of legal reasoning is closer to the surface in adjudication than in litigation, and even more in legislative debate,[Note 16] and most of all in the debates of a constitutional convention.
And it is no accident that this is when the critiques of reason are also most serious. These critiques assert, for example, that judges, legislators, and convention delegates have little to reason from except interest and ideology. Their premises may be widely shared in their communities, but that is a political fact, not a glimmer of their intrinsic rationality. These critiques assert that reason is still utterly instrumental, and equally ready to work for the opposition.
The Legal Realists of the 1920's, and the contemporary Critical Legal Studies movement, both press the post-Enlightenment critique asserting that the reasoning of judges and legislators is largely the rationalization of interest and ideology. This charge is backed by a disturbing amount of empirical evidence. For example, in a 1961 study, Republican judges were found significantly more likely than Democrat judges to opposethe defense in criminal cases . . . administrative agencies in business regulation cases . . . the claimant in unemployment compensation cases . . . the finding of constitutional violation in criminal cases...the government in tax cases . . . the tenant in landlord-tenant disputes . . . the consumer in sales of goods cases . . . the injured party in motor vehicle accident cases, and the employee in injury cases.[Note 17]
There are two quite different ways to interpret data like these. First, we may say that there are fairly firm standards in law, but we are doing a poor job of getting judges of different political persuasions to enforce those standards in the same way. This may be a tractable political problem in the way we make judicial appointments, or it may be the intractable epistemological problem of politically constituted perception and judgment. Second, the data might mean that there really are not firm standards in law. Legal scholars may debate these two readings of the data intramurally, but for our purposes here we need not decide between them. The first says essentially that, because the law has fairly firm standards, to win at the game of building a bridge of plausible inferences from bona fide legal premises to one's favorite conclusions takes a good deal of cleverness or erudition; the other says it takes less.
VIII. Normal and Revolutionary Legal Reasoning
I think you understand what I mean by "game" here. But the term, even if illuminating, is only metaphorical. We can be more precise if we use the terms introduced by Thomas Kuhn when describing physical science. Legal reasoning is not so much a "game" as it is "puzzle-solving". For Kuhn, scientific research that mops up a paradigm is "normal" science. Research that works to topple an old paradigm, establish a new one, or decide between competing paradigms, is "revolutionary" science. Normal science consists of puzzle- solving. Revolutionary science creates the frameworks within which puzzles and puzzle- solutions exist. Normal science starts from the assumption that the existing paradigm can answer all questions that arise in the field; the challenge is to work out just how.
The game I've been talking about could be called "normal" legal reasoning. It works within a particular legal paradigm for example, the view that the constitution protects privacy. It starts from the assumption that the paradigm has consequences for the case at hand, and works out those consequences. It builds the bridge between the ultimate premises of the paradigm and the conclusion sought in the litigation. The bridge is built of rigorous, or plausible, inferences. [Note 18]
It helps to recall that for Kuhn physical science has small as well as large paradigms, and some paradigms nest inside others.[Note 19] Applying this theory to law, then, means that a paradigm need not be limited to grand orienting visions, like the common law as opposed to the Napoleonic code, or federalism as opposed to nationalism, but can be a smaller vision inside a larger one, such as the view that the constitution protects sexual privacy and the view that it doesn't.
Kuhn does not use the distinction between normal and revolutionary science to favor one type over the other, and I intend no disrespect for normal legal reasoning by importing the distinction to law. Most scientists most of the time are engaged in normal science, just as most lawyers most of the time are engaged in normal, not revolutionary, legal reasoning. Fields where normal, puzzle-solving reasoning is comparatively rare, and revolutionary thinking comparatively common I think philosophy may be such a field never have the luxury of taking deep methodological and metaphysical assumptions for granted so that their consequences can be worked out to a fine level of detail. In general, it is only the precision and coherence of those details, the rigor and mutual compatibility of the puzzle solutions, that justify us in calling a field a discipline.
Litigators who must champion the random causes that walk in the door must shift from one paradigm to another to suit their purposes. So I don't mean that legal paradigms are defined by the acceptance of all those who use them professionally. Litigators can succeed most of the time in representing random clients, without constructing invalid arguments, because they can choose their premises at will from the storehouse of law. This freedom to choose premises, or to jump from one small legal paradigm to another within the larger paradigms of our legal system, is an essential part of the legal reasoning of litigators, and a critical difference from the reasoning of, say, chemists or astronomers. If the freedom of litigators to choose premises is constrained, at least it is not constrained by logic or by law or by physical evidence.
The judge who must choose between two well-written briefs, or two well-argued precedents, is forced to decide between two paradigms and to that extent operates one large step beyond "normal" legal reasoning toward "revolutionary" legal reasoning. But the judge is still working within a legal paradigm, still choosing premises from within the system, and in that sense is not fully revolutionary. (Insofar as we fear judicial usurpation of the legislative function, we wouldn't want it any other way.)
Let us say that reasoning inside a paradigm is "local" to that paradigm, and that reasoning about the adequacy of a paradigm is "global". Litigators use strictly local reasoning. Indeed, they are anxious to show that their client's argument falls entirely within the four corners of an existing, legitimate paradigm of the law. Delegates to a constitutional convention transcend these constraints, and reason globally with respect to legal paradigms, although perhaps locally with respect to moral and political paradigms. Judges and legislators are somewhere in between.
Similarly, if a formal system consists of axioms and rules of inference, then mathematicians who deduce theorems from axioms according to rules are reasoning locally to that formal system. Mathematicians who inquire into the adequacy of certain axiom sets or rule sets are reasoning globally with respect to those formal systems, although perhaps locally to larger systems yet to be formulated or locally to paradigms in physics or philosophy.
With the distinction between local and global reasoning, we are now in a position to judge some of the post-Enlightenment critiques of reason and their manifestations in law. Classical reason had global pretensions, and the post-Enlightenment critiques are united in insisting that its authority or validity is merely local to this or that system, paradigm, language-game, gender, culture, class, or historical period. The post-Enlightenment critiques are a valuable corrective here. Much, perhaps most, of our reasoning is local and we tend to forget this. The reminder humbles us.
But if the critiques take a step further and hold that no reasoning is global, and if they argue this claim, then they become self-refuting, for that would be a global claim. If all reasoning is local, then we cannot produce an argument for any global claim, including claims about "all reasoning" or "reasoning per se" regardless of paradigm.[Note 20]
So we cannot say without self-refutation that all rationality is local. Apart from self-refutation, such a bald claim overstates the case; it must be qualified by the case to be made for an appropriately qualified and modest global rationality which I will try to sketch in just a moment. But we can say without paradox or implausibility that much rationality is local, and that local rationality is rigorous, as rigorous and authoritative within that locality or paradigm as classical global rationality pretended to be globally. For example, give me Newton's Principia and I can rigorously compute to many decimal places the force that the Earth exerts on the moon. Give me Euclid's axioms and rules of inference, and I can infer the Pythagorean theorem with the utmost of rigor and rationality. Give me the constitution, statutes, and case law of any mature legal system, and I can reason about their consequences for a novel case with the kind of rigor and rationality appropriate to law, which we should never confuse with those available in mathematics. But ask me whether I ought to accept Euclid's axioms or Lobachevsky's, and my puzzle-solving mathematical rationality is suddenly at a loss. Ask me which constitution I ought to approve, and my puzzle-solving legal rationality has no answer.[Note 21]
Locally, there is rigor and rationality. That is the kernel of truth in classical or Enlightenment rationalism. It is also Thomas Kuhn's great insight. Globally, there may be something deserving the name of rationality, but it will not be the same kind we know and use locally to some system or other. On the other hand, globally, there may be nothing but interest and ideology, or choice and policy. In any case, global reasoning will not manifest the sort of rigor which belongs to local reasoning. That is the insight of the post-Enlightenment critiques.
Paradigms provide standards for building arguments and using evidence that bind all those who use that paradigm. We may say that these standards transcend the individuals using that paradigm and are in that sense 'objective' standards. Or we may say that they are nevertheless relative to the paradigm, and so only 'locally objective'. These two predicates are not inconsistent, and I want to assert both. It is important to me to assert both because I want to show the consistent simultaneous truth of appropriately pruned and modest variations on classical reason and the post-Enlightenment critiques of reason.
An important technique in the post-Enlightenment deconstruction of excessively grand or global claims is (in Karl Mannheim's term) to "particularize" the claims by showing to which system or paradigm they are local.[Note 22] Let this work proceed; it can only help us understand the nature and strength of our claims. On the other hand, efforts to particularize other people's claims are themselves local to some system or paradigm or other, subject to particularization. So we should beware of the tendency of some legal deconstruction and Critical Legal Studies proponents to think they are more knowing than their opponents, or to delight in unmasking or deconstructing as if they had a privileged standpoint, or to charge naive interest-driven reasoning as if they were objective. Much of the deconstructionist literature avoids this problem by avoiding the pretense of objectivity, but of course this is a high price to pay. But the remaining literature naively particularizes the opponent without looking over its own shoulder; it implies a kind of relativism and has no idea how to avoid self-refutation.[Note 23]
IX. The Call for a Brooding Omnipresence
The claims made on behalf of classical, Enlightenment reason were so often excessive and obscure that a post-Enlightenment of corrective counter-claims was inevitable and justified. However, the post-Enlightenment counter-claims have also been excessive and obscure. While we cannot return to the Enlightenment's naive confidence in a transcendent faculty called reason possessed of superhuman authority, neither can we follow its incautious critiques into self-refutation.
When we try to discern what is legitimate in the critiques of reason, we find, perhaps ironically, that the most significant of them are supported by the experience of twentieth century formal logic. In the twentieth century, logic has progressed by becoming syntactical. Axioms have been demoted from self-evident truths to stipulated strings of syntax. We cannot favor one set of axioms over another on the ground of self-evident truth, but only on the ground of productivity in relation to theorems we desire, and this is to take a strictly instrumental view of logical reason. Modern mathematics in pursuit of rigor has adopted a formalism that has purchased certainty at the expense of truth, syntactic rigor and computability at the expense of semantic content and truth.
The proliferation of non-standard logics has relativized what it means to "be logical". If there are many logics, traditionalists want to ask, is there a "logic to logic"? Are the logics that include the principle of excluded middle (as an axiom or theorem) somehow better, or worse, than those that do not? Or are they like chocolate and vanilla, equally present as options to serve the tastes of people with different tastes? If there are chocolate and vanilla logics, then why do we call them logics? Does it make sense any longer to ask whether there is a logic that ought to constrain all sound thinking? Or are there just formal models of various ways of thinking that seemed worth formalizing for some purpose (usually technical mathematical purposes) to some professor somewhere? Do the various incompatible systems of logic compete for truth, or are they just formal toys, specimens in a mathematical bestiary?
Note how we've stumbled on to the problem of the brooding omnipresence of reason, a problem that is virtually identical in logic, philosophy, and law. What Holmes called the brooding omnipresence of reason I am calling global rationality. When I survey the profusion of non-standard logics, I wonder why they are all called "logics" and sense that there is a commonality there waiting to be explicated. But this sense may not be an incipient observation so much as a demand that logic not be relativized and left to the judgment of different users with different standards and purposes. When we survey the empirical data on how Republican and Democrat judges decide cases, we sense that they disagree not only with each other, but that they disagree on the law, which suggests a standard by which they might both be willing to be judged. But again, this may be less an observation on our part than a demand that there not be separate Republican and Democrat laws with no legal basis for choosing between them.
Since the early nineteenth century, our legal culture has turned increasingly away from natural law toward the positivism that holds law to be an utterly human artifact. This view is profoundly incompatible with the brooding omnipresence of reason, at least as it was conceived in the natural law tradition as a criterion of law. For positivists, law is what human lawmakers make, and therefore is relative to times and places where lawmakers have different standards and purposes. But when two lawmakers in the same time and place (in the same nation and generation) have different standards and purposes, then the relativism of legal standards moves within legal systems, from its previous position between and among legal systems. At that point the positivist principle joins the post-Enlightenment critiques of reason. For proponents of the Critical Legal Studies movement, this is the moment of truth, when the ultimacy of interest and ideology is exposed. But for more traditional positivists, it is the dialectical turn that makes them see the point of the ancient talk of the brooding omnipresence of reason.
Positivism, legal realism, and Critical Legal Studies all try in their own ways to live without the brooding omnipresence, or global rationality, and try to uphold the principle that all rationality is local. But in doing so they run up against the global character of that claim and its self-referential inconsistency.
We can believe that all rationality is local without converting the belief into a principle with global pretensions. There are probably many ways to do this, but two of the most common are to do it by default of never having thought about global objectivity, and to do it by default of never having found a convincing method for attaining global objectivity. This is more a mood than a philosophical position. In this mood we sense the pervasiveness of ideological division and illusion, and we see no standard for adjudicating our differences or correcting our biases perhaps because we are not looking. We admit that all or most of our beliefs are systematically distorted (perhaps including this belief), and we have given up hope of attaining classical objectivity if we ever had that hope. Peter Sloterdijk in The Critique of Cynical Reason, makes three illuminating claims about this mood. First, he calls it cynicism. Second, he says it is the characteristic mood of recent times, immediately making him the most specific writer who has tried to characterize what the post-modern sensibility might be. Third, he defines cynicism with wonderful conciseness as enlightened false consciousness.[Note 24]
It is enlightened false consciousness that I detect in my students who believe that all positions should be received with acquiescence and without judgment. To enlightened false consciousness, proof and certainty are simply occasions for intolerance, and argumentation reduces to cleverness and manipulation. It doesn't matter much whether an argument is good or bad anyway, since to be persuaded of anything is simply to trade in one "bias" for another. It is an essential part of enlightened false consciousness to find bias inescapable again, not necessarily as the result of any serious inquiry. If bias is inescapable and certainty undesirable, then reasoning is comical for attempting the impossible and contemptible for cultivating intolerance. Teachers are ideological drones who force students to attempt the impossible and then reward them for pretending to play along.
In the last analysis, the mistake these students are making is to assume that the critiques of global reason apply to local reason, or to assume that what they see as the fall of classical global reason implies that local reason is similarly obscure, circular, malleable, or ideological. But this is clearly an error, one that the local/global distinction helps us state and avoid. If we are unsure how to choose between Euclidean and non-Euclidean geometry, or if we think that rigorous mathematics alone will not enable us to choose, it does not follow that Euclidean geometry is not, locally to its own axioms, the consistent, compelling, and logically rigorous mathematical theory it seemed to be before non-Euclidean theories ever came on the scene.
X. The Case for Global Reason
Can we ask any more what is the criterion of good, global reasoning, as opposed to reasoning that is local to this or that theory, system, or paradigm? I don't think we are stuck in logical nihilism or enlightened false consciousness, although I think the post-Enlightenment critiques of reason, by their nature, will justify doubts about any solution we might propose. I think the critiques of reason I have outlined make classical claims to objectivity impossible to support except on faith, which, of course, contradicts the classical claims. Nevertheless there is a path from the swamp to the high ground, and we can take at least a few steps along it. Here is my attempt to sketch the strongest form of global reason which is compatible with the concessions we owe to the post-Enlightenment critiques of reason.
I would like to suggest that global reason is ultimately nothing more than the dialogue of free people over time. The left wing version of this idea today is associated with Paul Feyerabend, the right wing version with Karl Popper, and a moderately liberal version with Jürgen Habermas. But in my view, all three versions derive from John Stuart Mill's 1859 book, On Liberty. On this view, reason is not a faculty created by God, or a transcendental source of authority. It is the disputatious and passionate dialogue of free people. What view does reason favor? To find out, don't merely introspect or meditate. Let free people publish their divergent views; let them criticize each other's views mercilessly; let the debate continue as long as there are partisans who care to continue it. Reason favors the view, if any, that emerges from this dialogue as the consensus view.
This model of reason is compatible with the post-Enlightenment critiques because it posits no transcendent authority, and it conceives human beings, including their intellectual labor, as entirely products of history and nature. It is a model of reason, not merely of chaotic quarreling, because it sees in this dialogue a filter that tends over time to discard ideas that cannot answer objections and to preserve ideas that can. It is a filter just as peer review is a filter, and an appropriate one if there is no standard beyond the informed judgment of the community of other fallible human beings engaged in the same enterprise.
This filter or criterion is more effective in free societies than in unfree societies. Free societies maximize the probability that a good solution to a puzzle will be published without inquisitorial impediments or distortion, and the chances that a decisive objection to a prevailing solution will be published even where dissent is stigmatized. We are here using the diversity in a free population to advantage. Dissent and disagreement are the fuel of this engine, not obstructing grit or signs of failure. Only when an idea can answer dissenters from whatever quarter they may arise, and answer them by the standards of the same diverse marketplace of thinkers, have we created a milieu in which false ideas are more likely to be falsified by criticism than supported by ideology, and hence a milieu in which long-term survivors are more likely to be true than false.[Note 25]
How do we know what the verdict of the dialogue of free people is? For example, is it more rational to hold that the constitution protects sexual privacy or that it does not? Or to take just one example beyond law, is it more rational to believe in evolution or creationism? In each of these examples, both sides are living strands of the contemporary dialogue. This duality means that consensus has not been reached, not that reason cannot be a dialogue. The proper verdict of the public discussion is itself one of the topics of public discussion, perhaps a topic on which there is strong disagreement. Consensus may take a long time, or it may never come. The kind of objectivity possible on this model is asymptotic: we approximate it more and more closely the longer an idea withstands criticism in a free society. But it is never perfect; that is its concession to the problem of ideology.
I have tried to vindicate an appropriately trimmed and modest classical reason in two senses. First, there is rigor locally. Second, there is something deserving the name of global reason, namely, the free public dialogue. But conversely, this is to vindicate the post- Enlightenment critiques of reason in two corresponding ways. First, local rigor is only local. It can always be particularized. Second, the dialogical global reason is slow, uncertain, and imprecise lacking in rigor, asymptotic at best, and not at all transcendental, less a resolution of our disagreements than a vector of them.[Note 26]
What does this conclusion mean for the day-to-day legal reasoning of litigators? It does not pull the ground out from under them, nor does it require a new model of sound and unsound reasoning. In fact, it should confirm what most litigators already know from experience, that you are most persuasive in court when you argue within the paradigm shared with the judge or jury. The only new element I would insist on is that we recognize that the validity of this reasoning is only local.
If the criterion of reason is long-term, free public dialogue, then no individual possesses this criterion. Hence, as Oliver Wendell Holmes put it, certitude is not certainty. Or as we might say: local proof is not global proof. You may be ever so free of doubt, passionate, and self-righteous, but unless your arguments can survive the scrutiny and criticism of public discussion, they are not to be trusted.[Note 27]
The criteria of truth and certainty, therefore, are not individual but public, even institutional. Law is clearly a product of reason in this sense, that is, a product of long-term, free public dialogue. But just as clearly, law is a producer of reason, one among many cultural forms that preserves the institution of long-term, free public dialogue. In short, law is both a cause and effect of reason at least among a free people.
The ultimate criticism of sophistical legal reasoning is that it diminishes respect for legal reasoning and thereby affects the "state of the dialogue" that is reason. It is a local failure, for the argument is unlikely to be persuasive; but it is also a global injury to reason, though perhaps a small one, insofar as it makes the free public dialogue a less effective filter or criterion.
We ought to criticize and correct our students when they reason badly because, locally, they are violating the norms of the paradigm in which they are striving to excel, and because, globally, they are weakening one of the institutions that preserves the public dialogue that constitutes reason itself. Although it has taken us a while to get here, this not a terribly subtle point. It is just what the airlines do when they prohibit smoking as well as tampering with the smoke detectors trying in one act to preserve a clean environment and an uncorrupted channel of correction.
1. This article is a slightly revised version of the keynote address at the legal reasoning section of the July 1996 conference of the Legal Writing Institute. I was invited to speak as a philosopher on the subject of legal reasoning. In most of its disciplinary markings, therefore, it belongs more to philosophy than to law. By moving to this journal largely intact, it occupies a place normally held by works of legal scholarship, an indulgence of the editors for which I am grateful. [Resume]
2. "The common law is not a brooding omnipresence in the sky...," Oliver Wendell Holmes in Southern Pacific v. Jensen, 244 U.S. 205, 222 (1917). [Resume]
3. Nor can we any longer simply exhort our students to "be logical", least of all our students who are sophisticated in logic. For they will say (if they are smart), "According to which logic?" [Resume]
4. And in many religious post-Enlightenment thinkers, like Kierkegaard, reason does not support God and God does not support reason. [Resume]
5. To paraphrase Pascal: to remain neutral between reason and its critiques is above all to be a skeptic. Ties always go to the skeptic. (Pascal spoke of dogmatism and skepticism, not reason and its critiques.) Pensées, Trans. A.J. Krailsheimer, Penguin Books, 1966, ¶131, pp. 63-64. [Resume]
6. Seneca, Seneca ad Lucilium Epistulae Morales, Vol. II, trans. Richard M. Gummere, Loeb Classical Library, Harvard University Press, 1953, Epistle 88.43 at p. 375. [Resume]
7. Durham Herald-Sun, July 28, 1994. [Resume]
8. San Luis Obispo Telegram-Tribune, August 23, 1994. [Resume]
9. Reuters, January 1, 1995. [Resume]
10. Immanuel Kant, "What Is Enlightenment?" trans. Lewis White Beck, in Beck (ed.), Kant On History, Bobbs-Merrill, 1963, p. 3.
I've spoken only about defense sophistry, but I wouldn't want to leave the impression that it is more common than prosecution sophistry. I don't know whether excuse-making is more common than excuse- denying. If weakness of will and other forms of self-interest lead defendants to sophistical excuse-making, then vengeance and vanity, as well as deep ignorance about a defendant's life and pressures, can certainly lead prosecutors to sophistical denials of valid excuses. [Resume]
11. Some other time it would be interesting to spell out what else the thought-experiment proves. For example, if virtue and responsibility were very complex, ambiguous, or obscure, then not much interpretive flexibility would be needed by lawyers for most cases to support well-argued stories on both sides. Conversely, if human beings were devilishly clever, making their interpretive flexibility nearly infinite, then the complexity (or ambiguity or obscurity) of virtue and responsibility need not be at all large for most cases to support well-argued stories on both sides. Unfortunately for those seeking simple laws and swift justice, we seem to live in a world in which all three variables are tuned high: great complexity of virtue and responsibility, great interpretive flexibility, and great breadth of law. [Resume]
12. I consider these issues in The Paradox of Self-Amendment, Peter Lang Publishing, 1990, at pp. xiii, 167-176, and esp. 293-303. [Resume]
13. If "slimy reasoning" means invalid reasoning, then it is usually unnecessary. If it means insincere reasoning as in brown-bag cases then it may be necessary more often. [Resume]
14. Nicholas Rescher and Robert Brandom, in their book The Logic of Inconsistency, Rowman and Littlefield, 1979, argue that consistent logics can describe inconsistent worlds. If the physical universe is a consistent world, the legal universe seems to be an inconsistent one. In Rescher and Brandom's terms, the legal universe would be "overdetermined" but not "impossible" (pp. 3-5). [Resume]
15. Litigators have the advantage that virtually all their premises are already expressed in English, in books which are present in any law library, books which are better and better indexed every year. Scientists have the converse advantage that their premises are embodied without the clutter of scholarly apparatus in a universe open to inspection by all parties at all times. Albert Einstein had some of these differences in mind when he said that the U.S. Internal Revenue Code was more difficult to understand than the universe. [Resume]
16. Of course I mean legislative debate when the TV cameras are sufficiently conspicuous to suppress overt log-rolling, and sufficiently inconspicuous to suppress grandstanding. [Resume]
17. Joel B. Grossman, "Social Backgrounds and Judicial Decision-Making," Harvard Law Review, 79 (1966) 1551-64. [Resume]
18. I do not mean to suggest that all these inferences are deductive. Some of the most important are analogical. [Resume]
19. Thomas Kuhn, The Structure of Scientific Revolutions, University of Chicago Press, second ed., 1970, pp. 49, 92, 139, 180-81.[Resume]
20. I should add here that Kuhn himself makes global claims about paradigms even though some of his most plausible theses require him to speak only locally to some paradigm or other. In this sense he does not present an adequate theory of global rationality, only a strong invitation to make one to accompany his compelling theory of local rationality. [Resume]
21. Mathematicians do have ways of evaluating axiom sets; these are sometimes called metamathematical. Lawyers and citizens have ways of judging constitutions, which are sometimes called jurisprudential, as opposed to the narrowly legal. But these global ways of thinking are not the sorts taught in most mathematics or law courses. The standard curriculum concentrates on reasoning locally to paradigms widely accepted in the discipline. Resting in that way on the assumptions of the paradigm, the local reasoning can be rigorous, detailed, and technical. [Resume]
22. Karl Mannheim, Ideology and Utopia, trans. Louis Wirth and Edward Shils, Harvest Books, 1936, pp. 283-285. [Resume]
23. I am here ignoring, as beyond my topic, those attempts to diagnose the ideological delusions of others while claiming something like classical objectivity for themselves. We see such attempts in dialectical materialism, psychoanalysis, the sociology of knowledge, and critical theory. Only the latter two movements show a proper appreciation of the self- referential difficulties of the problem, and both, in my view, cope with those difficulties in the end by disclaiming true, global objectivity. [Resume]
24. Peter Sloterdijk, Critique of Cynical Reason, trans. Michael Eldred, University of Minnesota Press, 1987, pp. 5-8. [Resume]
25. Before Feyerabend, Popper, Habermas, and Mill, this position was anticipated by Thomas Aquinas. Aquinas wanted to argue that custom could be law, but this conclusion was apparently contradicted his view that law is a pronouncement of reason. His solution was to propose that custom is the pronouncement of reason in actions rather than in words. But then, realizing what post-modern thinkers call the problem of ideology, he qualified his claim. The customs of free people are the pronouncements of reason in action, for the customs of unfree people may reflect the teachings, interests, or commands of a tyrant more than reason. See the Summa Theologica, First Part of the Second Part, Treatise on Law, Question 97, Third Article.
It is no objection to point out that the dialogue requires free people as participants, and that the dialogue is one of the major forces at work in the creation of free people. In a forthcoming essay, I defend this bootstrapping model of liberation as non-paradoxical. [Resume]
26. Another way to see that this model of global reason has made concessions to the post-Enlightenment critiques is to point out that critique #5 in the opening section applies directly to this model. [Resume]
27. Quakers have found a way to make religion rational in this sense. They believe that individuals carry a divine presence within them, but can still err. Individuals can tell when they are right and when they are wrong, not through the intensity of private certitude, but only through a process of seeking consensus with others, a process that is essentially a free public dialogue governed by respect and not rules. [Resume]
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
firstname.lastname@example.org. Copyright © 1997, Peter Suber.