The Either/Or Dilemma

This, from Marc's last post, is a lovely statement:

Neither group believes in anything "perfect" about these scholarly categories.  Or if they do, they've allowed their allegiance to these abstractions to get the better of the way the world actually runs (find me a judge who is either a mechanical jurisprude or thinks he can do whatever he wants, no matter what the law says).

That's a thesis argued at length by Steven Winter in A Clearing in the Forest: the attempt to find solutions to the law's hard cases in the form of "either-or" propositions, concepts, or categories will always frustrate us, because there are no propositions by way of formal or rational or logical thinking that "cut reality at the joints."  Rather, human beings are hardwired to make and extend meaning in a socially constrained, non-formalistic, yet non-indeterminate, way.  We think not in fixed categories, but by way of evolutionary and culturally developed basic schema - "idealized cognitive models" - complete with prototype effects (i.e. the thing that is most representative of the category that has evolved). 

With some qualifications too arcane to talk about here, I've relied heavily on Professor Winter's work in my own musings on business judgment, which involves similar issues of inter-mediation between fixed rules and indeterminacy. 

 To put my far more mundane issue in the terminology of the preceding posts, fixed rules or protocols invariably under-determine most judgments that business people or business lawyers have to make, and yet it's not the case that throwing darts is a satisfactory methodology for decision making.  If there's no formula or algorithm that gives the answer, and yet it's also clear that we aren't just making it up as we go along, what is guiding our judgment?   I like Steven Pinker's characterization of the problem:  "[Our concepts] are digital where the world is analogue, austere and schematic where the world is rich and textured, vague even we crave precision, and parochial to human goals and interests even when we ought to seek the view from nowhere." (The Stuff of Thought, p. 233.)  That sounds a lot like Larry Solum's description of the antinomy between instrumentalism and formalism in legal cultures. 

Does the transitive principle apply here?  Since I agree with Marc, and Larry Solum agrees with Marc (per an update to his post), that must mean that I agree with Larry.  What I do know is that I'm sympathetic to Larry's attempt to resolve the antinomy; I'm far less sure about whether a conscious cognitive process by which one cabins areas of under-determinacy actually works.  The key qualifier in Larry's proposal, then, is "attempt," which means that a good faith commitment to the process is probably more important than the particular result.

In any event, I've excerpted below the break a passage from a paper I'm working on in which I compare these problems of indeterminacy:

Here's the excerpt:

I am inclined to think that judgment is irreducible, and always will be, precisely because it is a subjective take on an objective world.The person undertaking the judgment can never be objective about herself, and that is a conceptual problem, not an empirical one capable someday of resolution.  Indeed, to get at this issue, we do not need to tackle the overlap of prospective law and business judgment.  We can see it in debates about one of the most fundamental issues in legal theory:  is a judge making a judgment somehow constrained by the formal system of rules and principles constituting the law, or is the result of the judging exercise wholly indeterminate (or even if determinate still so unpredictable as to be unknowable)?  This is the formalism-realism debate that has been going on among legal theorists for a hundred years.  Formalists think law is a coherent and rational matrix of doctrine (i.e., a "formal" system, though not formal in the deductive sense) that largely guides the decision-maker.   Legal realists believe that the so-called coherent web of doctrine does not guide anything: results are wholly indeterminate based on the judge's individual predilections.  There is no middle ground. This is a meta-issue that goes to the tensions between orthodoxy and reform in any tradition or institution, whether it be a religion like Judaism or Catholicism, constitutional interpretation, or faculty governance.  As I listen to the positions of the very Orthodox, like followers of the Lubavitcher Rebbe, versus the very liberal, say like most graduates of Reconstructionist Rabbinical College or the Hebrew Union College, I hear echoes of the originalism debates between Justices Scalia and Breyer.

* * *

Professor Steven Winter's deconstruction and reconstruction of "thinking like a lawyer" is instructive here.  He employs recent developments in cognitive theory to eliminate what he refers to as "antinomial capture."  To oversimplify his point, is there a way to anchor how we make sense of the world without resorting to the extremes of either "p or ~p" thinking, on one hand, or complete indeterminacy on the other?  No, he says, judgments are not reducible, but that very irreducibility can be explained in a way that is "scientific" or "non-transcendental."  We are free (as Kant would suggest), not because our minds are disembodied, but because our embodied brains give us irreducible capacity for imagination. Nevertheless, our embodied brains import social norms from which we can expect a certain amount of congruence. That is to say, our brains are irreducibly imaginative but, paradoxically, in systematic and regular ways.  The law seems to radiate both aspects of this paradox - a desire to ground or bind decisions to the past, yet the apparent freedom of any individual judge to bend the law to his or her apparent indeterminate ends.

To put it otherwise, the antinomy that pulses through Professor Winter's work is the one between:

(a) Rationalist, reductivist thinking - something is or is not within a category; something fits the proposition or not; semantic meaning requires objective reference to something – and

(b) An enlightened understanding that human beings are hardwired to make and extend meaning in a socially constrained, non-formalistic, yet non-indeterminate, way.  We think not in fixed categories, but by way of evolutionary and culturally developed basic schema - "idealized cognitive models" - complete with prototype effects.

This makes intuitive sense as a way of dealing with common issues of tension between definitions and examples in statutory interpretation. In a doctrinal subject I teach, I see this most explicitly in the "what is a security?" cases like SEC v. W.J. Howey.  Rational, reductivist legal thinking wants a p or ~p definition: "a security is a contract under which a person invests money in a common enterprise with the expectation of a return on the investment through the efforts of others."  Yet at the margins we find ourselves throwing out the propositional, linguistic model, and returning to analogies or metaphors to the prototype of the idealized cognitive model:  how much does this instrument look and feel like a share of common stock?