Wednesday, June 04, 2008
Is and Ought's Excellent Adventure (Part 2): Kent Greenfield on Mukasey's BC Speech
A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on Attorney General Michael Mukasey's commencement address at Boston College this year. At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series.
Here's Kent's comment:
[The Attorney General] urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."
So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.
Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.
Once again, "is" butts up against "ought."The interesting twist here is that not to decide is to decide. By acting, in Kent's words, as a technocrat, one effectively concludes that whatever "is" is, it's the same as "ought. What follows the jump is far less down-to-earth than before, and like Rick, I welcome anybody who wants to check it for philosophical malpractice.
Let's return to recitation of the Hume dictum for a minute. Hume's concern was not only a reading of the "is" into the "ought," but the other way around: suggesting something was an empirical fact when it was simply the speaker's reasoned derivation, rather than observation in experience, of what ought to be.
As moral good and evil belong only to the actions of the mind, and are deriv'd from our situation with regard to external objects, the relations, from which these moral distinctions arise, must lie only betwixt internal actions, and external objects, and must not be applicable either to internal actions, compared among themselves, or to external objects, when placed in opposition to other external objects.
Indeed, in Hume's view, not only is there no reasoned moral connection between external events, "there is no connexion of cause and effect, such as this is suppos'd to be, which is discoverable otherwise than by experience, and of which we can pretend to have any security by the simple consideration of the objects."
Kant reacted to Hume by claiming there was a priori synthetic truth, like causation, beyond mere experience, and that reason was capable of deriving moral imperatives, and particularly categorical imperatives, that were universal. Those are "ought," not "is" statements, and they are not assertions of truth or falsity about objects. Hume, on the other hand, rejected the notion that reason could derive moral ends (remember, it's just slave to the passions). So he was making the point that whatever the source of the "ought" might be (to him, custom, not reason), it certainly did not constitute empirical fact.
The problem with Hume leads, in my mind, to Mukasey's thesis. Hume makes it clear saying "it ought to be so" doesn't make it so. He leaves us, however, wandering on the source of the "ought." So the question is whether enough information about the "is" will lead us to the "ought." Mukasey's approach, for lawyers at least, is to punt. Don't worry about the "ought;" tell your clients what the law is (if that's possible, to Kent's point), and let them make the decision. Personally, I'd never hire a lawyer to advise business clients who took that approach, but that's another matter.
I'm an old veteran of the data-intuition wars within the corporation. After years of command-and-control, the quality movement had the insight that many decisions were not based on data, but on corporate executives' intuition, much of which proved to be wrong. So the pendulum swung mightily between the mid-1980s and the turn of the millennium from what we might call corporate rationalism (making decisions on logic and reason) to corporate empiricism (making decisions based on fact). (Whether that "fact" is really fact - Hilary Putnam's critique of the fact/value distinction which Rick refers to in the most recent post - will be the subject of Part III.) I can remember many meetings with the Six Sigma and "operational excellence" gurus, and my suggesting to them that collecting data was all goodness, but inevitably we would get to a point where the question what we ought to do would again require a leap from what we established as the inductive rule within the data to a choice of action.
My friend and co-blogger Bill Henderson and I had an interesting public (albeit buried) exchange on this point a few weeks ago. Bill found a talk given by Charles Munger (founder of the Munger, Tolles law firm and Vice Chairman of Berkshire Hathaway) entitled "The Causes of Human Misjudgment." The substance was a summary of behavioral economic insights (notably those of Kahneman and Tversky) into what we might call "cognitive error." True to his open-mindedness and hunger to learn, Bill said that he was interested in applied behavioral economics as a means of "honing [his] own decisionmaking processes to eliminate bias and susceptibility to manipulation."
It's a noble end, but I sounded a word of caution in thinking that the process of understanding the empirical fact of one's biases would lead to better decisions. It is far easier to do an assessment of somebody else's tendencies than your own. The problem, of course, in assessing your own bias and behavioral tendencies is the infinitive regress as well as the self-recursiveness of the exercise. In short, you assess your own behavior, and decide you have the tendency, and correct it. But was your assessment affected by the tendency (or another one)? And was your assessment of the assessment so affected? And so on.
The empirical dream is to unite "is" and "ought" with a complete understanding of the "is." Kant didn't think that was possible. Your reason wants to follow the infinite regress to the infinite end, and to see the world objectively. It is unrestrained by the empirical world. So reason is capable of positing (or playing) God - that Being that can be both subjective and wholly objective at the same time.
In short, Mukasey's view is unsatisfying to those of us who care about the "ought" beyond the positive law, because it simply leaves out any job for the lawyer other than, as Kent says, the technical job of relating what the law is or might be. But it's equally illusory to think that merely a better understanding of the law, or indeed, any set of empirical data of the law is going to overcome the objective-subjective divide, and tell us how to choose among alternative actions. The inspiring thing about Bill's vision (in contradistinction to Mukasey's) lies in a slight corruption of Robert Louis Stevenson's dictum that it is better to travel hopefully than to arrive. In this regard, it is impossible to arrive on data alone, but it's no reason not to travel hopefully nevertheless.
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Many law students first arrive at the decision they want, and then torture the black letter law to reach that result(or ignore it and argue policy to have it changed). I find this to be intellectually lazy. Feel versus Think. Not uncommon among judges, judging from some opinions.
They would become better lawyers if they learned a little dispassionate analysis first. The law doesn't necessarily result in "ought", but it most certainly encompasses "is". It is an imperfect mechanism of an imperfect species. Deal with it.
Posted by: Jim | Jun 4, 2008 5:25:14 PM