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Friday, December 18, 2009

Why no philosophy of language in Law School?

We are in the business of interpreting words, so it seems odd that prominent philosophers of mind, meaning, and language are virtually invisible in legal scholarship. Aside from Michael Moore (the jurisprude, not the movie maker), I cannot think of any legal academics who have written about the relationship between semantics and moral theory. Citations to the greats of philosophy of language -- Saul Kripke, Hilary Putnam, Donald Davidson, etc -- are rare in the law reviews even when the law reviews discuss philosophy of law. Larry Solum discusses semantic theories in his work on originalism, but there is (to my knowledge) no entry in his Legal Theory Lexicon dealing with reference theory, semantics, or philosophy of language more generally. A collection of essays on Objectivity in Law and Morals edited by Brian Leiter contains a single "cf. citation" to Donald Davidson but otherwise seems to be silent about philosophy of language --an omission that is especially weird since the third volume of Donald Davidson's philosophical papers are devoted to the distinction between the subjective and objective, and Davidson is widely regarded as one of the giants of philosophy in the twentieth century. It is almost as if Leiter and his authors consciously decided to give philosophy of mind and language the cold shoulder.

So why are we lawyers and our fellow traveling legal philosophers so indifferent to philosophy of language? Is it simply a result of a sort of path-dependent sociology of knowledge? Perhaps the agenda set by H.L.A. Hart, Ronald Dworkin, and Joseph Raz dominates legal scholars' agenda, simply because their students predominate among legal philosophers sitting on law faculties. Or is there some other explanation? One prominent legal philosopher who shall remain nameless opined that Davidson, Putnam, & Co. are simply too difficult: It is much easier to argue one more round about Riggs v Palmer than to untangle Tarski's truth definition. But I do not buy this explanation: Law profs grapple with tough empirical methodologies, and law faculties hire rigorous political scientists. Why shy away from the one of field of philosophy that would seem to be most closely related to what lawyers do -- namely, interpret language? Interest in post-modern theories of interpretation (thankfully) seems to be flagging: It would be nice if they were replaced by some interest in the real McCoy.

Posted by Rick Hills on December 18, 2009 at 07:18 PM in Legal Theory | Permalink

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Comments

Patrick O'Donnell sent the following comment, which I thought I'd share, apropos of my claim that "unlike us Americans, the British lawyers really had absorbed the idea that law and morality are independent of each other...."

"I rather think that, strictly speaking, the difference here is better explained by Atiyah and Summers' thesis that "the English legal system is highly 'formal' and the American highly 'substantive.'" See their book, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions (Oxford, UK: Clarendon Press, 1987). Of course the "formal/substantive" difference is not unrelated to questions of legal positivism and morality (although I suspect recent theoretical discussions have made this 'divide' far less dichotomous and thus the boundaries far more permeable than they've ever been)."

Posted by: Rick Hills | Dec 20, 2009 2:41:36 PM

Brian's post reminds me of why I always post in haste and never repent: I always get better feedback by shooting from the hip.

Of course, Brian is right that there are people aside from Michael Moore who apply philosophy of language (writ large or small) to the issue of legal interpretation. (Brink incidentally was the single contributor to Brian's edited collection on objectivity who referred to Davidson). So I did not mean to slight the work of Brink, Moore, Bix, Marmor, Stavropoulos, Solum, or the handful of others who deal in Grice, Kripke, etc. But they are a sideshow compared to the the Austin-Fuller-Hart-Dworkin tradition of scholarship about positivism. (I'd defer to Brian as to whether Waldron's and Raz's work counts as "philosophy of language": That claim seems odd to me, but, as I say, this is not my bailiwick).

So my question was badly put: Taking a cue from Grice, my "speaker's meaning" was not why there is "no" philosophy of language in law schools but why there is not more than a half-dozen or so people doing what everyone else seems to regard as esoteric and peripheral work? Why is not philosophy of language at the very center, given that legal reasoning could be viewed just as the interpretation of a specialized language? Why do not the traditional concerns of philosophy of language (e.g., radical translation of sentences from different languages, preservation of truth values through truth-functional rules of transformation, coherence and correspondence as rival definitions of truth, etc) play the central role in legal philosophy?

Here's a claim: The focus on moral philosophy in law school is an effect of the essentially Realist orientation of American lawyers. The best evidence that we do not really separate law and morality is that we cannot stop talking about morality. If our legal system was truly positivist in its culture, we'd be talking more about proof theory, semantics, etc. and less about the relationship between law and morality.

Here's an analogy: In England until very recently, barristers and solicitors did not study moral philosophy before going to the Inns: Instead, they usually studied Mathematics. Great judges were typically senior wranglers rather than moral philosophers. Why? Maybe because, unlike us Americans, the British lawyers really had absorbed the idea that law and morality are independent of each other, such that the payoff from honing rigorous reasoning skills is much greater than debating whether a patricidal legatee should take under his father's will.

Posted by: Rick Hills | Dec 20, 2009 10:26:52 AM

Brian posted while I was typing my last comment. I'd agree with most of what he says. I'd not mentioned, in particular, the dispute over the so-called "semantic sting" argument and related issues because, it seems to me, that dispute was mostly settled against Dworkin's view several years ago, and what dispute there still is is based on other grounds. (Dworkin doesn't, at least much, make use of this argument in his forthcoming book, for example.)

Posted by: Matt | Dec 19, 2009 3:35:06 PM

I haven't read that book of Hurley's, I must admit (though I like a lot of her other work, both on consciousness and her critique of luck egalitarianism) and I don't have it, so can't look at it myself. My quick thoughts would be that the "reasons for action" literature is at least sometimes only indirectly related to moral philosophy, so this might not be a counter-example. This might be so for another reason as well- Davidson's own work on action theory is not obviously directly related to moral theory (I especially don't think he made the direct connection), and more so, it's not obviously philosophy of language. (Davidson was part of the generation that, to some extent, saw philosophy of language at the core of most philosophy problems*, so there's some over-lap in his work here. But it's not for nothing that his papers on action theory were collected in a separate volume from his more core philosophy of language papers.)

The line of thought I had most in mind when saying that most people now don't think that philosophy of language is directly important to moral theory is that of R.M. Hare, with work like _The Language of Morals_. That's the line that seems to me to be a dead-end, among others. The other important piece to see here is Rawls's important paper from 1975, "The Independence of Moral Theory", where he argued, quite convincingly, to my mind, that, "Much of moral theory is independent from other parts of philosophy. The theory of meaning and epistemology, metaphysics and the philosophy of mind, can often contribute very little. In fact, preoccupation with the problems that define these subjects may get in the way and block the path of advance."

*I think that today very few philosophers think that philosophy of language has the central role that it was taken to have by the early generation of "analytic" philosophers. I think, though I'm less sure, that this is true even of those who work on philosophy of language, who are now more likely to do technical, narrowly focused work. Today very few people would write a paper like Davidson's "The logical structure of action sentences" and would instead just do action theory, rather than doing it via philosophy of language. That's another reason why philosophy of language seems less important to me today. But, others may well disagree with this view of the field and I'd be very happy to hear what they think.

Posted by: Matt | Dec 19, 2009 3:00:16 PM

Someone actually posted a link to this on my Facebook page (I knew Facebook had a purpose!).

It seems to me, Rick, that the underlying factual assumption is false: there is, in fact, substantial interest, and has been substantial interest, in philosophy of language for at least the last 20 years among those working in jurisprudence. You're correct there isn't much use to which Davidson is put, but it's not clear to what use he would be put--whether a formal theory of truth and truth-conditional semantics is the right way to understand meaning in natural language is an interesting question to philosophers of language and linguists, but it's not obvious what we are to do with this research program with respect to a legal or jurisprudential issue--suggestions would be welcome!

By contrast, the following issues from the philosophy of language, broadly construed, have been dealt with at some length in the jurisprudential literature over the last twenty years: the necessary semantics for a natural law or Dworkinian view of legal interpretation, and whether that semantics is supplied by something like the Kripke-Putnam new theory of reference (e.g., Brink, Moore, Stavropoulos); vagueness as a semantic and epistemic phenomenon, and its relevance to the indeterminacy of legal meaning and legal reasoning (e.g., Endicott, Waldron); the underlying semantic assumptions of Hart’s positivism, and their plausibility (e.g., Brink, Stavropoulos); whether the meaning skepticism associated with Kripke’s interpretation of Wittgenstein’s remarks on rule-following has implications for legal interpretation and the determinacy of legal meaning (e.g., Bix, Coleman, Leiter); non-cognitivism about the meaning of normative language and its relationship to Hart’s positivist theory of law (e.g., Raz, Toh); the semantic and metaphysical debates about realism vs. anti-realism, and their relevance to truth and objectivity in law (e.g., Bix, Coleman, Leiter, Moore, Patterson); Wittgenstein’s views on meaning and interpretation, and their relevance to law and legal interpretation (e.g., Bix, Marmor, Patterson). This is off the top of my head, and is probably incomplete. Back before I had to squeeze Jurisprudence into a 9-week quarter, I used to devote a couple of days to discussing the “empiricist” and “new” theories of reference in the context of Hart’s argument about the ‘open texture’ of language. It was challenging, but the students mostly got it quite well.

Contrary to Professor Boyden’s impression in the comment above, philosophy of language remains a major focus of philosophical research, though now often at the interface with empirical linguistics, and some philosophers working in this vein have become interested in issues about law (vide the first paper by Stephen Neale here: http://web.gc.cuny.edu/Philosophy/faculty/neale/res.html). Marmor and Soames have put together a collection of new essays in this vein, that will be out from OUP, I think next year.

A central obstacle a lot of this work faces is that the “correct” view of meaning, while not irrelevant to legal interpretation, is almost never dispositive, since interpretation in law usually answers to more than norms of semantic correctness, but also norms of moral and political justification. Moore’s work foundered, it seems to me, over this problem, as does some of the recent work in this vein.

Hurley's work in "Natural Reasons", probably due to its densenes and opacity, has had relatively little impact, in philosophy or in legal theory. This may well be unjust, I'm agnostic on that subject.

Matt Lister says, correctly I think, that most moral philosophers pay scant attention to philosophy of language. The exception, of course, is with respect to those interested explicitly in the semantics of moral language, i.e., the metaethical debate about whether moral language should be understood as referential and truthe-valuable, or whether it should be understood instead as primarily expressive and thus not truth-evaluable. Most normative moral and political theory, by contrast, proceeds on the (unjustified, in my view) assumption that there is a cognitive subject-matter there to be discussed and examined, through something like Rawls's method of reflective equilibrium. Ergo, semantic, metaphysics, and epistemic questions are held at arms length.

Finally, and most importantly, “jurisprude” is not a word, but “jurisprudent” is!

Posted by: Brian Leiter | Dec 19, 2009 2:48:19 PM

All of the comments above seem perfectly sensible to me, but I think that I'd like a bit more information from those who know more than I about Matt Lister's comment that "very few moral philosophers think that philosophy of language is directly important to their field. I think they're right about this. The idea that semantics is very important for moral theory played out quite a while ago and came to seem like a dead end."

Is this the consensus of the philosophically inclined lawyers or legally inclined philosophers who lurk on this blog? I ask, because I confess that I rather liked the second and third chapters of the late Susan Hurley's 1992 book, Natural Reasons, in which Hurley used Davidson's theory of interpretation to think about objectivity of reasons for action. Was Hurley's argument very badly received -- "played out," a "dead-end," etc? It seems to me that Hurley was correct to invoke Davidson's argument (i.e., that the requirements of interpretation imply limits on coherent disagreement) as a reason to suggest "objective" resolutions to moral disagreements.

But I am not a philosopher: I'm just a federalism/public law guy. So -- Matt L. or anyone else -- what are the best articles relegating Hurley's arguments to the dustbin of philosophical history?

(By the way, Hurley also discusses Riggs v Palmer and had a law degree, suggesting that it is indeed possible to walk the legal-moral walk and chew semantic gum at the same time).

Posted by: Rick Hills | Dec 19, 2009 2:36:54 PM

Rick,

The high degree of difficulty is a factor (I confess from my own losing struggle to absorb Davidson), but there are plenty of philosophically astute folks working in law. Perhaps the explanation for the neglect you note is that it is not evident what, if anything, the philosophy of language can deliver in retail terms on the issues that occupy legal theorists--issues generated in connection with problems thrown up by legal practices and institutions. If the philosophy of language, which takes up issues of philosophical concern, could shed insight on Riggs-type debates, then more people would make the effort to master it. (Of course, this explanation gives me an excuse for abandoning my own effort.)

Or perhaps the philosophy of langauge has much to offer, but we still await the arrival of the brilliant, original thinker who will demonstrate its crucial revelance (beyond performatives) for legal theory. The eternal dream that philosophy can show us the way...

Posted by: Brian Tamanaha | Dec 19, 2009 1:34:10 PM

I agree there is great potential for overlap, in particular for interpretation issues, although convincing non-philosopher law professors of that might involve a fair amount of work. There might also be a bit of a supply problem, namely, how many philosophers do philosophy of language now? My sketchy impression is that it is not one of the more populated specialties in philosophy these days.

Posted by: Bruce Boyden | Dec 19, 2009 12:48:57 PM

Leaving some words out made my last sentence incoherent. It should have said, about philosophy of language, that I think, "the pay-off for most students will be too small to think it should be a staple of law schools."

Posted by: Matt | Dec 19, 2009 12:35:50 PM

You might look across the river. Brooklyn has a center for law and language and a linguist on the faculty.

Posted by: anon | Dec 19, 2009 12:31:42 PM

FWIW, Jessie Hill of Case has done a piece or two drawing on Austin and speech-act theory for con law/religion stuff. Caleb Mason at SW is working on the relevance of speech-act work for figuring out true-threats. I suspect there are many more.

Posted by: anon | Dec 19, 2009 12:03:44 PM

Thanks Rick- I'd picked up on semantics and moral philosophy because of your mention of Michael Moore.

On perfomatives- there's a fair amount of interesting work by philosophers who are not normally thought of as legal philosophers such as Rea Langton, Jennifer Hornsby, and some others to try and understand Catherine MacKinnon's work on pornography along those lines. I don't know that MacKinnon has ever responded to it (maybe it's mentioned in a fn in "Only Words", but I don't have my copy with me) but my impression is that most people working on free speech have ignored this work, and that the philosophers haven't directly dealt with the legal doctrine. (Neither Langton nor Hornsby are American and Hornsby teaches in the UK, so it's understandable that they are not overly concerned with US 1st Am. doctrine.) On other issues, not related to moral theory, the work of people like Marmor, Bix, and Endicott are very good examples. But it's also pretty hard going. If you want to know about vagueness and the law you can't do much better than Endicott's book, but working through the differences between three-valued logic, supervaluationist, epistemic, and contextual approaches to vagueness is pretty hard work, especially if you don't have a background in the relevant fields, and is pretty unlikely to be of much use when writing a brief arguing that a statute is vague or that a law should be "void for vagueness." And though I like Davidson a lot, it's hard to understand what's going on in him unless you've read a lot of Quine (and Carnap, and Tarski, etc.) By then, one is devoting a lot of time to what might, for most students, be a very minor pay-off. None of this is to say that legal scholars ought not be interested in philosophy of language- Bix, Endicott, Marmor, etc. do very good and important work. I just think that the pay-off for most students will be too think it should be a staple of law schools.

Posted by: Matt | Dec 19, 2009 10:23:08 AM

A good answer, Matt. But it assumes that law ought to be focused on moral theory rather than interpretative theory. A good positivist might think that law and morality are distinct to some extent and that interpretation of words is the proper focus of law. So why do American law schools look to moralists rather than linguists to be their philosophers in residence? Perhaps, as you say, philosophy of language is just too hard.

(I also would not limit philosophy of language to semantics. J.L. Austin drew many examples of performatives from law, and one might think that the debates about the referents of statutory terms might be informed by the philosophy of ordinary language).

Posted by: Rick Hills | Dec 19, 2009 9:49:09 AM

Two points that, together, answer the question, I think. First, not many people who work in law schools are competent to teach philosophy of language. Marmor is, as is Brian Bix and Timothy Endicott at Oxford. Martin Stone would probably do well, too, and I might be forgetting one or two. Some others could do a fair job, though it would be the job of non-specialist. It's a hard subject and would be especially hard for non-specialists to teach to students who largely don't have a philosophical background. Perhaps more importantly, though, very few moral philosophers think that philosophy of language is directly important to their field. I think they're right about this. The idea that semantics is very important for moral theory played out quite a while ago and came to seem like a dead end. Even the legal philosophers/philosophers of language listed above are working on specialized topics- vagueness, general theories of interpretation, etc., and not, usually, on the relationship between semantics and morality. Most moral philosophers don't think there is a very important one. (One related question might be about the truth-aptness of moral claims. Paul Horwich has done interesting work on this, but the up-shot of his approach, one I'm quite favorable to, is that there's no special relationship between the philosophy of language and moral theory.)

Posted by: Matt | Dec 19, 2009 12:17:15 AM

Andrei Marmor at USC has done and is doing interesting work around Gricean implicature and philosophy of language generally.

Posted by: MG | Dec 18, 2009 11:44:28 PM

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