Friday, July 10, 2009
Walking the Fine Line Between "Wide-Ranging" and "Shallow"
I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing.
Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers). What Dave's wise mentor advised certainly (and anecdotally) strikes me as the conventional wisdom, because that's exactly what an old friend (law school classmate and former elite school dean) told me when I showed him the first piece I published. My intuition is that this conventional wisdom is akin to the conventional wisdom on cross-examination techniques: don't ever ask a question to which you don't know the answer. That is advice designed to ensure that you never make a mistake, but the downside is that there are, indeed, times when experienced cross-examiners can ask questions whose answers they don't know, and following the conventional wisdom means you lose a great opportunity. (For example, you can ask a question in which either possible answer works for you.)
My other intuition is that conventional wisdom generally arises out of community norms, which may or may not have anything to do with "truth-seeking" of pure inquiry. Dave suggested maybe it was naive to strive for the ideal of pure inquiry, but I don't think it is (in a qualified way). The distinction between regulative processes and constitutive processes is helpful here. (My inner Kant is showing through.) What we can recognize is, in terms of what we are ever going to know substantively (that is, "constitutive knowledge"), that we are hung somewhere between foundational truths and pure skepticism, and having to observe the objective world from a subjective standpoint. Substantively, you can swing to the dogmatic side of things, and accept "normative" principles as TRUE foundationally, and you have to deal with the fact that others are going to take your assertions as faith-based or brute or unprovable or unreasoned. Or you can swing all the way to the other side, and refuse to accept any normativity as TRUE foundationally, in which case you qualify as a Crit or maybe a pragmatic skeptic (that's how Richard Posner describes himself), but you still have to account for the intuitions of foundational truth.
I know that my own thinking and writing has been described back to me as "wide-ranging," "wild," "layered rather than drilled," to which my response is that I try to walk the fine line between "wide-ranging" and "shallow." It just doesn't strike me that what I really want to figure out about the world (being, as I am, an introspective sort) is defined by the norms a particular academic or professional community has put in place (notwithstanding the impact this has on an academic career, which is another factor in all of this, and something I'm somewhat less affected by). I mean, think about Kuhnian paradigm, or the Luhmann critique of law as autopoietic (i.e. self-contained and self-generating). This is, of course, the problem with cross- or inter-disciplinary work. Is it wide-ranging or shallow? Do you have to have an advanced degree in both disciplines to be qualified? But if you have the advanced degrees, aren't you co-opted by the community norms and hence really not inter-disciplinary?
Pure inquiry of the kind to which Dave aspires strikes me as a concept not of pragmatic skepticism, but of pragmatic idealism, which tries to mediate between the fact that some things seem to be incapable of resolution except by brute acceptance and sinking into utter indeterminacy. The best response I can come up with is some form of regulative process - reflective equilibrium (Rawls), reasoned argument, discourse (Habermas), or some such.
NORMATIVE, PRESCRIPTIVE CODA: The world would be a better place, lawyers would be happier, human flourishing would be enhanced, and better and more ideas would be generated if the legal academy reflected on the community norms that suggest law review articles have normative, prescriptive codas.
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On the points of the second para.:
Philosophically speaking, it seems the backdrop here is one shaped by seemingly interminable debates about the relativity of truth, the nature of pluralism and the meaning of realism/non-realism, and thus where one falls out on the normativity question is typically an index of avowed, or presuppositions and assumptions involving, commitments associated with those debates (I happen to think these questions have been most forthrightly and suggestively dealt with in the philosophy of science, but some Wittgensteinian-inspired and philosophically pragmatist 'epistemologies' [e.g., from a Putnam or Rescher] are useful as well. And I happen to believe that much of the substance of these debates are in principle capable of epistemic resolution and thus, for instance, one can be a pluralist or perspectivalist of a kind and yet still adhere to some minimalist conception of realism with regard to truth. In other words, one might be a perspectivalist or a pluralist and yet not believe the concept of truth is a relative concept, in which case, as Michael Lynch has explained, our notion of truth will remain stable *across* (perspectivally motivated or empirically pluralistic) conceptual schemes. In short, "just because every truth is relative to a scheme, this does not imply that our *concept* of truth is 'truth-for-C.' All truths are relative, yes, but our concept of truth needn't be a relative concept." Therefore,
"the conditions under which a proposition is true are partly determined by the conceptual scheme in which the proposition is expressed. But what makes a proposition true is not its relation to the scheme but whether or not the conditions in question obtain. For a claim to be true (or false), the conditions must be relative to a scheme. Yet the truth of a proposition need not *consist* in its being relative to a scheme. Minimally speaking, the reason that a claim is trute is not because it is relative to a scheme (as the truth relativist must hold); it is true because *it is the case.*"
As Lynch argues, metaphysical pluralism can therefore be compatible with a realism about truth and thus we can, by implication (or parity of reasoning), embrace the both the "foundationalist" and the "pragmatic skeptic" although not on terms that privilege one side over the other or that either side will necessarily or enthusiastically embrace. In philosophy of science this amounts to a modest or minimalist (or 'critical') form of realism and accounts for the value of the notion of scientific theories as identical or akin to maps (e.g., Kitcher or Ziman) and the indispensability of scientific language reliant on metaphors, models, and figurative language generally, a fact exploited in extremis by anti-realists (as John Ziman notes, 'even the most austerely "scientific" models operate through analogy and metaphor').
On the third para.:
As a result of a process of academic socialization determined largely by the intellectual specialization intrinsic to the professional nature of our disciplines of inquiry there will always be those threatened or intimidated by any attempts to sketch, let alone think about (the inter- or trans-disciplinary) "big picture." Academic disciplines in both the natural and social sciences are increasingly specialized and fragmented in spite of the oft-expressed sentiment on behalf of the necessity or value of transdisciplinary work. In any case, to go outside one's area of training typically requires uncommon talent in tandem with the freedom of tenure and the combination of the two may be rare indeed. Exceptions are of course folks like Jeff who, owing perhaps to a sufficient time outside the academy, have not grown overly attached to or hypnotized by the community's norms and thus are able to reflect more critically on their meaning or scope. In other words, given the nature of the existing institutional constraints and the manner in which we pursue intellectual inquiry, truly transdisciplinary work will be rather rare and those with the requisite ability to assess its worth will be equally few and far between. The paradox or irony of course is that the "context of application" is invariably of a piece with the nature of social reality, which is increasingly more complex and many-sided (not unlike the recent exponential growth in technologies), as it were, yet we lack the cognitive cultivation conducive to the best appreciation of such a reality.
In addition, and in the end, insofar as we want to place law itself in that proverbial bigger picture (as in 'Law and Humanities'), we're faced with the fact that
"We learn most of what we know about what makes life worth living, and how to live it well, from non-scientific [or, if you prefer, non-legal] sources--biography, narrative history, serious journalism, and religious texts [I would add 'philosophy'], not to mention novels, poetry, drama and the visual arts. For Europeans at least, there is more insight to be got from a single volume by Jane Austen or Gustave Flaubert than a whole shelf of treatises on the social psychology of bourgeois love and marriage." (John Ziman)
Posted by: Patrick S. O'Donnell | Jul 10, 2009 11:54:27 AM
Only in legal academia would someone have to defend themselves against charges of wildness or wide-rangingness for being concerned with "is" as well as "ought."
Posted by: Paul Gowder | Jul 10, 2009 1:45:33 PM
Wow. I seem to have unwittingly unlocked the door to a metaphysical debate that is deeper than I'd imagined. Two quick points. First, I think there are plenty of folks in the legal academy who do work that seeks simply to resolve puzzles rather than make normative prescriptions, but my sense is that this kind of work is much less prevalent than standard normative fare.
Second, in my response to the comments on my original post, I may have been a bit unclear about my use of the term "pure inquiry". One meaning of this term would be "uninfluenced by ideology or other priors", and I think that kind of work is pretty much impossible to achieve (though it's an honorable enough goal). Another meaning of the term would be "without normative prescription", and that's closer to what I meant. This is obviously not an unreasonable aspiration (people write these kinds of papers all the time), but it may overstate the case to suggest that such work is without any "ought" at all--often puzzle papers are (as Dan pointed out below) driven by ideological or methodological preconceptions or linked to normative prescriptions.
Posted by: Dave | Jul 10, 2009 7:23:46 PM
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