Friday, July 28, 2006
Being Right and Radical Skepticism
This may be sucking up to my hosts, but I wanted to explain why I so much like the PrawfsBlawg "one line bio": "Just some friends trying to get the arguments right."
I will post something later in my guest tenure on being right (based on a talk I gave once, the sub-title of which was "Being Right is Not All It's Cracked Up to Be.") There's clearly something unnerving about an encounter with someone who knows without question, to a God-like certainty, with no doubt whatsoever, precisely what is right. (I believe some things are right almost to a certainty, but I don't know them; but that's epistemology for another day.) The opposite extreme is the kind of post-modern radical skepticism of a Richard Rorty or, as Frank Snyder skewered in his wonderful essay on blogging, Duncan Kennedy. I liked Charles Fried's response to the radical skepticism or cynicism of Posner's pragmatics, which linked it back to rightness: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." ("Philosophy Matters," 111 Harv. L. Rev. 1739, 1750 (1998)).
My recommendation to Kim's reading list request reminded me that I prefer to take the example of another Harvard-educated lawyer who lived through turbulent and heady times of change, revolution and learning, here in an excerpt from David McCullough's biography. John Adams believed he lived in "the greatest of times...the eighteenth century." But:
Human nature had not changed, however, for all the improvements. Nor would it, he was sure. Nor did he love life any the less for its pain and terrible uncertainties. He remained as he had been, clear-eyed about the paradoxes of life and in his own nature. Once, in a letter to his old friend Francis van der Kemp, he had written, 'Griefs upon griefs! Disappointments upon disappointments. What then? This is a gay, merry world notwithstanding.'"
It is a world in which Adams would have, I think, treasured the democratization of information through the Internet. At the same time he would have understood the paradox - that the wisdom, not randomly distributed, to sort through it all, or to teach others how, was an even more valuable commodity on account of it. And that the right way to approach the task is somewhere between radical certainty and radical skepticism ("trying to get the arguments right") with a touch of humility ("just") and in a mode of civil, or more than civil, discourse ("some friends").
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Can I rudely shoehorn this into a connection to my post on the royal "We" in legal scholarship and judicial opinions? Trying to get the argument right presupposes that that's exactly what you're trying to do -- that there are various arguments out there, that some may be clearly wrong and should be rejected, but that getting as asymptotically close to the truth as you can requires some act of thoughtful argument. For some reason the law, which in practice is often an argumentative activity, recoils from this sense, preferring to speak as if the question is just settled, as if the answer just is right. I'm more sympathetic to the Pos than you, perhaps, but I think he is right, give or take some exaggeration, to suggest in his Foreword that many of the cases decided by the Supreme Court reasonably could go either way; yet it is passing rare that the Court's own opinions acknowledge this. We have the luxury of accepting this point at Prawfsblawg and trying, in an imperfect world, to do our best to get the arguments right as we see them. There's a place for "I" in this world, since we are developing our thoughts, not announcing holy writ. Of course, courts and legal scholars writing in law reviews have the same luxury, but for whatever reason often prefer not to exercise it. They prefer to speak with the voice of authority rather than the voice of argument.
Posted by: Paul Horwitz | Jul 28, 2006 12:22:11 PM
Not rude at all. "For some reason the law, which in practice is often an argumentative activity, recoils from this sense, preferring to speak as if the question is just settled, as if the answer just is right." That's the problem statement in Steven D. Smith's (Univ. of San Diego) Law's Quandary, and you've nailed the dilemma: when he is not an economist, Judge Posner is a legal realist in the tradition of Holmes, and would, I think, accept that the Court could go either way - the desired outcome most often dictates the means by which the opinion gets there. But why is the language of the law one that continues to speak as though the "law" were always there, just waiting to be discovered? (When I was in law school, Lawrence Friedman referred to this as the law being delivered, and the stork was Cardozo.)
P.S. Whenever I use that Fried quote, I feel a little guilty. I think Judge Posner's Socratic bark is significantly worse than his collegial bite. In my limited and humbling experience with him, he has been gracious in the spirit of my original post.
Posted by: Jeff Lipshaw | Jul 28, 2006 12:48:38 PM
Well, the law needs to be right in a way that other intellectual pursuits do not. Nobody is going to suffer because Kaplow and Shavell went out on a limb and said some silly things about deontology, but any number of people are going to suffer because Kennedy went out on a limb and said some silly things about the First Amendment. Consequently, I think there is a cultural and practical pressure to at least appear certain in the law.
Posted by: Paul Gowder | Jul 28, 2006 1:11:27 PM
(Anthony Kennedy, that is. Not Funky Dunc. Funky Dunc is never wrong.)
Posted by: Paul Gowder | Jul 28, 2006 2:01:20 PM
Wasn't it Stanley Fish who said that in academia it was "better to be interesting than to be right," or something like that?
Posted by: Joseph Slater | Jul 28, 2006 4:11:58 PM
I dislike Fish's work for many reasons (well, his work on Milton is good, but his stuff on the First Amendment can start fist fights, and even liberal literary crits split over his work on interpretive communities and authorial intended meaning), but your quote is a bit imprecise.
Fish said that deconstructionism "relieves me of the obligation to be right and demands only that I be interesting." You would think that to be a critique of deconstructionism, but it was more a description of the theory's consequences. Fish has a complicated relationship with deconstructionism, but I consider his work on individual freedom of interpretation and how it is influenced by the cultural aspects of one's interpretive communities to be deconstructionist. Charles Murray responded that it is "a silly thing for a grown man to say and a criminal thing for a teacher to say." But Fish actually says that "being right" is the highest obligation of academia." How this squares with deconstructionism, where there are multiple meanings and no authoritative meaning (and thus, "rightness") except the hegemonical reading confounds me (and I am a former fan of post-colonial deconstructionism who attended THE university for deconstructionism--as in, Derrida taught there).
All very weird and confusing. This is partly why I didn't go onto English lit grad school. That, and I got into a good law school.
Posted by: Belle Lettre | Jul 28, 2006 6:15:55 PM
Jeff, I should let you know by way of provenance the inspiration for the one line bio comes in part from Michael Walzer--a menschy thinker and writer if ever one existed.
Posted by: Dan Markel | Jul 28, 2006 7:13:31 PM
Thanks for the explanation; I feel a bit guilty for (apparently) getting the bottom line of Fish's sentiments wrong.
Posted by: Joseph Slater | Jul 31, 2006 10:38:59 AM
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