One can learn an enormous amount about oneself through the issue of abortion.  If one happens to be an American, through the issue of abortion one can theoretically identify one’s moral, political, and jurisprudential leanings.  Perhaps that’s why I find the issue so fascinating.  But it can also be frustrating.

Why frustrating?  Because I’m rarely exposed to someone who seems to grasp exactly what is at stake in the debate.  For example, some believe that abortion is about “choice” versus “life.”  What do these alternatives mean?  Absolute choice, like an hour before a woman’s due date just because she’s changed her mind about the whole affair?  Absolute life, like forbidding a woman the “morning after pill” the morning after she is the victim of rape?  Both views seem to me to be patently unreasonable.  But some people hold them.

Although I do not believe either extreme is reasonable, I’m only going to dismiss outright those who hold the latter view (the “life absolutists” who claim that abortion ought never be permissible) because I don’t take that view seriously, and anybody that does is invited to dismiss this piece immediately anyway.  Nothing I will have to say here will alter such a person’s view, for that person has reached his or her view by mere conviction alone – not any form of reason.  As one my philosophical heroes has put it: “In philosophy, as in any other purely theoretical discipline, it is better to be wrong as the result of inquiry and argument than be right as the result of mere conviction.”  Panayot Butchvarov, The Concept of Knowledge at 5 (Northwestern 1970).  Such folks disagree, which they are of course at liberty to do.  But I am equally at liberty to dismiss such people as hopeless knaves.

Remarkably, the former view actually has a rather hearty band of adherents who believe that nothing of moral significance or relevance occurs between the freely chosen decision to have sexual intercourse and childbirth.  (If you think I just erected a straw-man here, explain why.)  Who are these adherents, and what could they possibly add to the debate surrounding the morality of abortion?

The answer to the first question is “radical feminists.”  And I use the qualifier “radical” to distinguish these feminists from those who believe, quite rightly, that women should be considered as legal equals to men.  Those I simply call “feminists” proper, to which I consider myself an ardent subscriber.  The answer to the second question is, in my view, little or nothing of any degree of intelligibility.  And I’m not just being facetious here.  I literally mean that radical feminists, in the exact same sense as our hopeless knaves above, have little or nothing to add to the debate surrounding the morality of abortion.  My reasoning for my view follows.  But first a bit of background.

During the winter of 2007/08 I spent a great deal of time procrastinating when I should have been studying for the Iowa Bar Exam.  One of the things I did to procrastinate was surf the internet.  And, in looking for a law school classmate friend of mine who described herself as a radical feminist, I wound up viewing a website known as www.feministing.com (your guess is as good as mine where the idea for the name of the site comes from).  To put it as politely albeit as accurately as I possibly can, I was instantly fascinated by how militant and belligerent the contributors to this site are.  I grew so fascinated that I actually attempted to engage some of them in conversation and argument.  Ultimately, my attempts failed, although I was successful in interacting civilly with them.  But it was plain as day that they didn’t want someone like me around, despite their claim to wish to engage people on the merits of their views.  Simply put, I “didn’t get it” because I “don’t have a uterus.”  (I’ve never understood this sentiment.  Since when has one’s genitalia fixed one’s ability to reason?  One would think that feminists, of all people, would reject that one’s genitalia determines one’s ability to reason.)

Disappointed with the contributors’ unwillingness to engage in any serious discussion of their views, I purchased and read the executive editor’s, that is Jessica Valenti, book, Full Frontal Feminism: A Young Woman’s Guide to Why Feminism Matters (Seal 2007).  Fascinated by Valenti’s mindset does not even begin to describe my astonishment as I worked through this strange book, which is specifically styled to “educate” younger women (the back cover of which speaks to all young women: “YOU’RE A FEMINIST.  I SWEAR.”).

No less so was I fascinated by Valenti’s instruction to young women about the issue of abortion.  Valenti writes: “[W]omen’s reproductive rights are under attack… [R]epro[duction] rights are about more than abortion and birth control.  They’re about being able to have sex when we want to.”  (81)

In other words, abortion is not only about contraception, abortion is contraception.  And both are subsumed under the name “reproductive rights,” as if anyone objects to the notion that a woman has the right to choose when she wishes to reproduce.  (Have you ever heard anyone advance the argument that the state should deprive a woman of when she must reproduce?  How would the state decide to force a woman to reproduce?  I don’t even know where to begin with this.)  The second strange feature of Valenti’s opening remarks about abortion is her use of the term “contraception.”  To me, that term denotes a concept that embodies preventing conception – that seems to be the point of the “contra” in “contraception.”  But Valenti’s use of the term includes “aborting that which is already conceived” in her definition.  To me, this is a wholesale mangling of basic language.

In any event, Valenti continues: “At the heart of it all, it’s truly about hating sex, or at least hating that women have sex.  There’s a lot of talk about life and morals, but it’s nonsense.  To the people who want to limit your choices, it’s about slut-punishing.”  I find these claims baffling.

For example, I happen to believe that preserving a life form – any life form, including weeds and spiders – is, at least prima facie, is better than extinguishing it.  And I say prima faciebecause this rule is obviously not absolute, for there are plenty of living things that it is good and proper to extinguish (e.g., cancer).  All things being equal, on my view, one ought not terminate another life form for no good reason, or arbitrarily, if you will.  Call it whatever you wish, but be it a blade of grass, or even a spider (I really don’t like spiders), one ought not destroy it unless one has a reason for doing so, for letting it live is morally better than not.  See, e.g., Panayot Butchvarov, Skepticism in Ethics 88 (Indiana 1989) (“The intrinsic goodness of existence as such is evident in the attractiveness of the claims of certain conservationist and environmentalist movements, as long as we understand their goal of the preservation of the environment, including other species of life, as motivated by the belief that this is an intrinsic good, rather than something [merely] conducive to human interests.”).  It is therefore no surprise that I consider myself a conservationist, an environmentalist, and why I don’t hunt animals anymore (and feel guilty about not being a vegetarian).

As a result, let’s get clear about the following proposal.  I believe the general moral proposition “One ought to do what one can to preserve life where one reasonably can in the circumstances” is prima facie true.  And the reason I believe this to be a prima facie true general moral proposition is because I take it for granted that, all things being equal, in any given universe, preserving any given being’s existence is in some sense “better than” or “superior to” extinguishing it – unless there is a good reason for doing so (which is why we say the proposition is merely prima facie true, not absolutely true).

I take this proposal as the fundamental starting place when examining the problem of abortion.  I also take this proposal as the fundamental basis of the conservationist and environmentalist movements, as Butchvarov notes above, to which – like “feminism” – I consider myself an ardent subscriber.

Do you agree with my proposal as the place to start?  Why or why not?

During the course of a discussion on the nature of reason, which led to a discussion about the a priori and the a posteriori and whether that was a genuine distinction or not, Kevin Currie and I eventually found ourselves at a crossroads about the nature of “facts.”  What is a fact?

Following the early Wittgenstein, I have tended to use the term “fact” as something capable of thought, and therefore capable of representation in speech, that describes an actualstate of affairs or state of reality.  For example, if I were to say “I am typing on my laptop right now,” this utterance would be “factual” because I am typing on my laptop right now, while the uttereance “I am skydiving right now” would not be factual because I am not skydiving right now.  In this sense, then, a “fact” would be that which is or can be represented by a proposition that actually matches reality (or an actual state of affairs).  (See also Richard A. Fumerton, Metaphysical and Epistemological Problems of Perception 8 (1985) (“As I use the use the expression, a fact is a nonlinguistic complex that makes a true sentence or proposition true.  By referring to an entity as nonlinguistic, I mean that the existence of language is no a logically necessary condition for [the fact's] existence.  [Thus, "t]he fact that snow is white” refers to a complex [feature of the world] that makes it true that snow is white.  “The fact that snow is black” does not refer [to any feature of the world].  If a given sentence or proposition is not true, then there is no fact that corresponds to it, there is nothing in the world that makes it true (since it is false).)

Ponder this notion for a moment and one will realize that the fact that “snow is white” is something other than the proposition.  In other words, the proposition “I am typing on my laptop right now” is not itself a fact, but that aspect of reality to which the proposition corresponds.  The proposition makes a claim about the world, and then one must examine the world to verify whether the proposition is – or is not – a fact.  Where the proposition corresponds, we say the proposition refers to a fact, and therefore that the proposition is true.  Where the proposition fails to correspond, we say that the proposition does not refer to a fact, and therefore that the proposition is false.  And hence we seem to rely on some notion ofevidence in the world when we go looking for what justifies or warrants our statements of fact.

This all seems fairly straightforward.  But this conception of a fact appears to run into problems when we begin referring to “facts” on a more general level.  For example, does the proposition “All Iowans are Americans” refer to to a feature of the world?  If it does, then it is clear that it refers in a different way than “I am typing on my laptop right now” refers.  Here, it seems, that one who understands what the concepts “Iowan” and “American” need not look anywhere to understand that the proposition “All Iowans are Americans” is true.  But, under our working definition, we need not appeal to any evidence outside the proposition itself to verify the truth of the proposition.  Does it follow from this line of reasoning that “All Iowans are Americans” is not a fact?  Or, perhaps, does it follow that some facts are simply self-evident, that is, facts come in different types or varieties?

I am somewhat jaded in thinking about these questions for three reasons.  One reason is that I’ve been heavily influenced by my teachers at the University of Iowa, most notably among them, Butchvarov and Fumerton.  (Although I’m still trying to understand the nature and degree of the influence!)  The other is that I am a lawyer, and have a fairly rigid concept of what is a “fact” within that context.  For example, when lawyers squabble over whether “the traffic light at time t was red,” we do what we can to marshal evidence before a fact-finder (judge or jury) in an effort to convince the fact-finder what account actually matched reality at time t.  Third, I take the accuracy of the correspondence theory of truth for granted.

I am inclined to restrict “facts” to only those particular features of reality that “make true” our propositions (representations) of them in speech or thought, that is, the “truthmakers” of propositions or thoughts, or the that to which true propostions or thoughts refer.  Thus, my inclination is to come up with some term or description for general true statements that appear to be self-evident, such as “All men or mortal.”  Perhaps “maxim” fits the bill?

What do you think?

This is a question to which I have devoted a rather significant amount of thought over the years, mainly due to my reading (and rereading) my friend and former teacher’spaper,“Towards a Reclamation of Substantive Liberalism.” In the paper, John Rudisill adopts the following two (paraphrased) definitions of equality offered by Ronald Dworkin in his A Matter of Principle:

(D1) The just state must treat all individuals within its domain with equal concern and respect, from which it follows that the just state must remain neutral regarding issues that touch upon what does or does not constitute “the good life.”

(D2) The just state must treat all individuals within its domain with equal concern and respect, but it does not follow from this that the state must remain neutral regarding issues that touch upon what does or does not constitute “the good life” because being treated with equal concern and respect means to treat individuals the way the good or wise person would want to be treated.

Rudisill suggests that the best way to understand Dworkin’s two conceptions of equality is to attribute to the former its embrace of the notion that the good life is the unqualifiedly “freely chosen life,” while the latter rejects the notion on the ground that it a freely chosen life as an absolute is overbroad; that is, the latter takes it for granted that, in some instances, it is necessary for the just state to take a stand (i.e., not remain neutral) in some matters of what does or does not constitute “the good life.”  (Rudsill then continues in his paper to defend (D1).)

(D1) (and its conception of equality) is labeled by Dworkin as a fundamental commitment of (modern) Liberalism, and (D2) (and its conception of equality) is a commitment of Conservatism.  (My use of the qualifier “(modern)” arises out of the fact that (D1) is not, in my view, what Classical Liberalism held, mainly due to the fact that it was either universally held, or nearly universally held, by our “Founding Fathers” that the state would most certainly not remain unqualifiedly neutral on matters concerning what is and is not “the good life.”  I take this assumption as beyond genuine dispute, so let’s not quibble with this assumption here – if one therefore wishes to lodge an objection against the assumption, do so and I’ll supply my “proof” for it in a subsequent post.)

The question I have for discussion is this: Is (D1), with its commitment to the unqualifiedly “freely chosen life” a self-contradictory notion?  Why or why not?

It seems to me that libertarians would have plenty to say on this subject, given the extremely high value we place on freedom.

I was born in Iowa City, Iowa, in 1977 and was raised in what I would describe as a moderately republican nuclear family.  I say “moderate” because, while registered republicans, neither of my parents were particularly religious, and in my opinion many (if not most) self-described “conservative” republicans are fairly religious.  (See, e.g., the Mike Huckabee/Sarah Palin wing of the party.)  My paternal grandparents were recovering Catholics-turned-Unitarian Universalists, and my material grandparents were what I’d describe as moderate Lutherans.  If I was raised anything insofar as religion is concerned, it was Unitarian Universalist – or, as I often call it, the “it’s all good religion.”

From pre-school through the sixth grade, I had the rather interesting experience of being the minority among my two best friends, both of whom were Korean and whose parents had immigrated to the United States either before or shortly after my friends were born.  Of course, in my actual schooling I was within the majority, but in my everyday dealings, school related or not, it spent a lot of my time in what was a very different cultural setting.  I mention this because I think this experience had an enormous impact on what I would later come to learn is something called “race consciousness,” that is, in the sense that I never realized any such consciousness at all (until I entered law school and was exposed, for the first time, to “critical race theory”).

To be candid, I never really considered myself a political person until I began studying at the University of Iowa as an undergraduate.  My first “political” exposure of any serious kind came in a freshman class called “accelerated rhetoric,” where I was inundated by a certain fellow student’s views that can only be described as radically feminist.  In a more general sense I also came to be aware of the general sentiment that republicanism is a very backward and ignorant political stance to hold, although for reasons that were never articulated to me, so I (naturally) changed my voter registration to Democrat – if nothing else to fit in.

It was also during my freshman year that I realized two critical things about myself.  The first was that I had absolutely no serious idea about what “I wanted to do” with my adult life, whenever that dreaded time began.  The second was that I had absolutely no serious grasp of any political or moral positions in any depth or sophistication.  This latter realization (if not the former) struck me at the time as something that ought to be remedied.  Needless to say, I believe these two realizations occurred to me while sitting in a class called “Principles of Reasoning” (to avoid math) taught by then-graduate student John Rudisill (now an Assistant Professor at the College of Wooster),  which is the name for the most basic logic course one can take at the University of Iowa, taught within the philosophy department.  Needless to say, I was absolutely hooked at this point – if not by philosophy, then by the notion of clear thinking and reasoning.  Whatever I wanted to do, I thought, I wanted to do it in a clear and thoughtful way.

Sometime after I switched my official major (for the fifth and final time) to philosophy, inspired by the Socratic claim to fundamental ignorance and the Cartesian program of casting away all components of knowledge that contained any shred of doubt, I scrapped any political allegiance or affiliation, deciding that I would (eventually) construct my own views from scratch based on the lives and works of the wisest of humanity (western philosophers, of course).  And so it began.

Much like my former (albeit brief) affiliation with the Democrat Party, which was for a time complimented with a moderate flirtation with Marxist thought, I also began my intellectual journey as a thoroughgoing atheist, a view that has, over time, softened to some degree of agnostic mysticism, and culminated in my being confirmed in the Episcopalian Church of the United States at the age of 30.  (More about this later, as I have little doubt that some will insist that one cannot be simultaneously an agnostic mystic and a Christian.)

By the time I received my B.A. from the University of Iowa College of Liberal Arts, majoring in philosophy, I was decidedly libertarian in outlook (although a registered Independent), where “libertarian” refers to particular political philosophy that holds individual humans as the ontological and normative starting point to any just society. As briefly as possible, libertarians insist that the line of demarcation between a just and an unjust society is the point at which individual rights to property, life, liberty, and one’s pursuit of happiness is unduly subordinated to the will of “the state” or “the people.” Though libertarians differ in degree regarding where to draw the line, all libertarians agree that it must be drawn.

In my view, reasonable libertarians generally focus on the right of individuals to act in accordance with their own subjective values, and insist that the coercive actions of the state are often (or even always) an impediment to the efficient realization of those values. As a result, if libertarians had a slogan, “Live and let live” might be a prime candidate. I consider “classical liberals” and “reasonable libertarians” synonyms, and therefore believe the label includes folks like John Locke, Adam Smith, David Hume, Voltaire, Montesquieu, and later,Friedrich Hayek, Milton Freidman. In varying degrees, all of America’s “Founding Fathers” were classical liberals (i.e., libertarians).

My first real application of pragmatic libertarianism came in 1999, after moving to Scottsdale, Arizona, during the run-up to the 2000 presidential election.  And the reason I say “pragmatic” is because (in my view) every serious libertarian most realize that he must also support a genuinely viable candidate, lest one be relegated to “losertarian” status of voting for candidates that have no serious chance of actually winning.  Hence, I supported John McCain, and then collapsed my support of McCain to George W. Bush, viewing my libertarian allegiance as much closer to either of these candidates than Vice President Al Gore.

Upon entering law school, however, my rather loose interest in politics solidified for three reasons.  The first, and most important, was through my exposure to that mysterious body of law known as constitutional law (although it was also due to exposure to law of other categories).  Being someone who considered himself rather extensively trained in the areas of logic, and being someone who believed he had a fairly serious and genuine grasp of the notion of reasonable inference, I quickly realized that I had some rather severe “formalistic tendencies” when it comes to law and legal argument.  (More about this later.)  The second and third reasons were my exposure to two schools of thought, one of which was somewhat familiar, the other less so: radical feminist jurisprudence and critical race theory.  Both schools of thought, because they specifically embrace the notion that “the law” is not an intrinsically valuable institution of reason and wisdom, but rather simply a tool, or a means, to some other end, and which both theories insist have been, and still is, inherently oppressive to women, nonwhites, or both.  (Similarly, concepts such as “logic” and “truth” are also nothing but “purely subjective tools of oppression” (or some such))  It didn’t take long for me to realize that there is an enormous amount of rot in the legal academy, and that many naïve souls find it persuasive.  Nor did it take me long to realize how many genuinely intelligent people become utterly enchanted by such schools of thought, and how powerful the enchantment’s grip is – very much, if not identical, to how some embrace certain religious doctrines.  In any case, these experiences pushed me rightward, and I changed by political affiliation from Independent to Republican.

This began a very politically active phase for me – volunteering for political campaigns, donating money I didn’t have to politicians, and even working for a politician one summer inWashington, D.C. (on defending George W. Bush’s judicial appointments, as luck would have it).  My political philosophy developed enormously, and what I considered to be my jurisprudence solidified.  In the spring of 2003, I was extremely fortunate to work (for law school credit) for a United States District Court Judge in Des Moines, Iowa.  This experience was truly superb, for I learned a great deal from my extremely talented, wise, and extremely humble judge – not only about law, but life.

By the time I received my J.D. in 2003 and then my M.A. in Philosophy in 2004, I’d describe myself as very politically active in the GOP, and rarely missed an issue of the neoconservative Weekly Standard or the conservative National Review for the next four years.

My first job was, perhaps unsurprisingly, as a judicial law clerk for a Minnesota District Court Judge.  He was appointed just a couple months before I was invited to work for him by republican governor Tim Pawlenty, and considered himself a moderate republican as well.  The work – which consisted in the both of us working and reasoning closely together an in a way that considered any hint of “judicial activism” absolutely unthinkable – was exhilarating.  Never were we as a team reversed, and – I like to think, anyway – my judge and I quickly gained a solid and respected reputation for accuracy, fidelity to law, and fairness to litigants.  It was awesome.  In fact, leaving my clerkship for private practice when I did was one of the decisions I regret making most.

After three years in private practice in downtown Minneapolis, during which time I maintained by interest in politics due mostly to my continued interest in constitutional law issues, my wife Dana and I reached the breaking point regarding (what we consider to be) “big city life.”  So we moved back to my hometown, Iowa City, Iowa, at the close of 2007.

By 2008, my interest in politics had waned enormously.  By this point I had grown sufficiently frustrated with what I believed to be many republicans “who don’t get it” and virtually all democrats “who really don’t get it.”  This frustration culminated in my voting, for the first time, for the democrat candidate for POTUS (I voted for Dole in ‘96, and Bush II in ‘00 and ‘04).  (My reasons for voting for Barak Obama will appear in a subsequent post.)  By 2009, I decided to abandon the GOP for the last time, in part because I am simply dejected by politics in general, and the current state of politics in particular.  But while I remain quite libertarian in outlook, my libertarianism is most aptly described, in my view, as neoconservative.

Like Sabio Lantz noted in his “confession” over at Liberty and Skepticism, the Libertarian Party itself consists of a very large variety of people who genuinely believe themselves accurately described by the label, some of whom I would be horrified to be classified as related to in thought.  So I remain leery of libertarianism with an “L.”  Also like Sabio, I am most certainly a proponent of the Austrian School of Economics, although I probably am more socially conservative than Sabio is (and am certainly more socially conservative than Kevin is).

In a future post currently in the drafting stages, I will opine on the problem of abortion in the United States.  I mention this now because I believe one can essentially find exactly where one stands in terms of moral, political, and legal philosophy – all at once – when forming a sophisticated position on this issue.  I look forward to the discussion.

Just a few thoughts I wanted to get out there:

1. Sonia Sotomayor is extremely well qualified to be a member of SCOTUS.

2. POTUS is entitled to nominate, and expect confirmation of, all but unqualified individuals to any federal court.

3. Any Republican opposed to Sotomayor’s nomination is a fool.

4. Any Democrat who complains about Republicans opposing Sotomayor, who remained silent during the sabotage Miguel Estrada, is a disgrace.

5. The current problem took root in 1987, although the argument can be made that pre-1987 practices of both parties showed signs of what was to come.

6. In the politicization of the judicial nomination and confirmation process lay the seeds of what will lead to the disintegration of what was once a great form of government.

7. Anyone who believes that Sonia Sotomayor is more qualified to be a member of POTUS than Robert Bork is a fool.

8. Within (6) and (7) are the reasons why I can’t stand politics anymore, and why I recently abandoned, once again, the GOP in favor of the Libertarian Party.

In Chapter 1 of How Judges Think (“HJT”), Posner states the purpose of the work: to provide a “positive decision theory of judging,” that is, “a cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases.” My thoughts at the very outset, then, are: (1) an approach to judging that is theoretically “eclectic” (i.e., legal pragmatism) is proper; (2) legal pragmatism is “realistic” (i.e., it reflects reality best), and (3) Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules). With those thoughts in mind, I turn to my main objections in this chapter.

“[T]he criteria of a good judge are contested[, a]nd even where they are agreed upon, their application to a difficult case is likely to be fraught with subjectivity.” Moreover, “[there] is no even agreement that the test of a judicial decision or doctrine should be the goodness or badness of its consequences[, for s]ome legal thinkers believe that law oriented toward consequences is illegitimate.” Therefore, all of these issues are “unsettled.” A couple thoughts here. Since when does a “contested” issue necessarily lead to the conclusion that it is “unsettled?” The answer, of course, is that it doesn’t, for anyone involved in law is aware that well-settled law is contested all the time. Posner is exaggerating here for purposes of setting up his thesis that, in hard cases, the best way of judging is necessarily eclectic and oriented toward consequences. Setting aside the exaggeration (which means it does not accurately reflect reality), it is difficult to understand how judging that is “oriented toward consequences” is not “consequentialist,” which is what Posner goes to great pains to deny in his Law, Pragmatism, and Democracy, for example, at 337: To say that a pragmatic judge proper “has regard for consequences, because they are important to any practical decision, but is not bound by any norm of consequentialism” is (as Posner often does) to say nothing other than consequences are relevant in decisionmaking, and no reasonable judge would deny that.

In any case, Posner is caught in a logical rip-tide of sorts between insisting that legal pragmatism is not “consequentialist” but “refers [to the practice of] basing judgments [in general] on consequences, rather than on deduction from premises in the manner of a syllogism[, and i]n law, pragmatism refers to basing a judicial decision on the effects the decision is likely to have, rather than on the language of a statute or of a case, or more generally on a preexisting rule. So it is the opposite of legalism – or so it seems.”

“Legalism,” which, Posner admits, “remains the judiciary’s ‘official theory’ of judicial behavior,” “hypothesizes that judicial decisions are determined by ‘the law,’ conceived as a body of preexisting rules found stated in canonical legal materials … or derivable from those materials by logical operations.” So far so good. Posner continues on to say “the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting ‘the law’ rather than by factors that are personal to judges ….” Accordingly, the “ideal legalist decision,” for Posner, is “the product of syllogism” rather than the will of activist judges. Therefore, “Legalism treats law as an autonomous discipline … requiring only [the] reading [of] legal materials and performing logical operations, [and thus] the legalist judge is uninterested professionally in the social sciences, philosophy, or any other possible sources of guidance for making policy judgments, because he is not engaged, or at least he thinks he is not engaged, in making such judgments.” True enough, but then Posner claims that this conclusion “counts against” legalism as an accurate description of what judges actually do, citing to the fact that extra-legal materials are more often cited in judicial opinions now than ever in the past, in addition to the fact that judges are expected to have “good judgment,” an attribute not necessary of a good logician, and therefore legalism purportedly places no virtue in being “wise, experienced, [or] mature.”

Both points are flaccid. The former shows only the increased degree of judicial intemperance in today’s judging (as well as perhaps the fact that we now live in the communication age in which information is accessible to courts in a way never seen before), not that legalism isn’t the proper way to go about judging anymore, while the latter is just nonsense: it may be logically true that the application of logic is mechanical in the sense that it is a form of purely a priori reasoning, but the decision to apply legalistic (e.g., logical) methods themselves requires a baseline degree of wisdom that is seldom possessed by the immature and inexperienced.

Next, Posner spends a considerable effort to exaggerated the “influence of politics” in judging, and in doing so relies to some degree of the “science” of the matter to argue that “law is suffused with ideology.” But this, again, is to say nothing more than that there are good judges and bad ones, the latter being those who allow their politics to cloud their judgment, and the former being those to refuse to, or at least do their level-best to exclude them as much as possible. Therefore, Posner achieves very little in claiming that judges are “influenced” by politics, but that is a far cry from the proposition that all judges decide cases on political or policy grounds rather than legalistic ones. (And Posner himself admits as much on p. 47 where be labels those who fall victim to such judicial intemperance as “just an errant minority.”)

Nor is Posner’s discussion of legalists “acknowledging” that “their methods” “close the deal” 100% of the time persuasive, for again Posner must exaggerate: “legalist methods fail in many cases that reach appellate courts, and those are precisely the cases that most influence the further development of the law.” I disagree, for of all the cases tried or otherwise resolved (e.g., by dismissal or summary judgment), only a small fraction of those are appealed, and perhaps 80-90% of those are affirmed, and of the fraction reversed, some portion of those are reversed again (i.e., the reversal is vacated and the initial decision is affirmed). I don’t have any ready statistics in mind here, but feel comfortable hazarding a guess that in any given jurisdiction the law “develops” in the sense of “changes” (in any direction) in less than 1% of all cases adjudicated. And I suspect my guess is on the high end, to be as charitable to Posner as possible. Hence, Posner’s use of the term “many” is quite misleading in this context.

Posner’s comments regarding legalist “meta-rules” (i.e., rules about rules) are equally unpersuasive. Take, for example, his example: “[N]owhere does the Constitution say that constitutional interpretation be strict. That rule must be posited; it cannot be deduced, [and therefore it is merely] a policy choice.” But this clearly begs the question, for the notion that the constitution be interpreted strictly arose only after the constitution had been interpreted far too loosely, that is, unreasonably (e.g., Roe v. Wade). And this is essentially the same argument made by some leftists that Justices in the mold of Scalia and Thomas and Judges like Bork are themselves “activists” because they believe the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves, and therefore do not give sufficient respect to precedents that disregard text and original intent. In other words, one may only reach this sort of conclusion if one first accepts the notion that bad precedents ought not be disturbed, or that initially “activist” precedents themselves aren’t activist in the first instance.

The last comment I’ll offer on this chapter concerns Posner’s remarks about the “moderate pragmatist,” that is, judges “who believe that the institutional consequences of judicial decisions argue for an approach heavily seasoned with respect for the language of contracts, statutes, and precedents.” Two problems. First, this is just to say that moderate pragmatist judges are not bad judges because they understand that bad judging, which entails not providing “heavily seasoned respect” to text (i.e., “language”) and precedent, will implode the internal logic of our legal system. While “heavily seasoned respect” is characteristically vague, one hopes that it means something like “controls the outcome” in all but the most difficult cases. Otherwise, it is to say nothing meaningful if we assume that good judging entails a close reading of text and precedent, which is to say simply that good judging entails, primarily, traditional legalist methods. Second, the notion that judges respect “the letter of the law” when they judge due to the “institutional consequences” likely to follow from not doing so is itself queer, for I would surmise that it is only a minority of judges who have even thought about this notion. It makes far more sense to say that judges follow “the letter of the law” when they judge because it is the law and their job is to apply it impartially and as neutrally as possible, not out of a fear that not doing so will cause the internal logic of our legal system to implode. And if this is right, then Posner himself has strayed far from the path of described how judges actually think.

2 comments:

Kevin Currie said…

“How Judges Think” is a sticky subject for a book; to my mind, I would expect the book to be mostly an empirical study of the types of factors that we can satistfactorily show judges to use, as well as an empirical account of what judges have written about how they decide cases.

Posner’s book, and the first chapter, does some of this. The first part of chapter 1 goes through some surveys aiming to show that at least some judges tend to rule based on political factors some of the time. As Ben rightly notes, this is far from suprising and can be interpreted in two ways: (a) sometimes, judges make bad (extra-legal) calls, or (b) making decisions on extra-legal grounds is neither good nor bad, but just the way it unavoidably is.

So, this is the first question: which interpretation should we take? Ben takes (a) while I choose (b). Ben writes: “But this, again, is to say nothing more than that there are good judges and bad ones…”

Posner’s point, in this and later chapters, is more nuanced than this. What in the world is the foundation for judging a ‘good’ from a ‘bad’ judge that is NOT arbitrary? As Posner writes: “When we say that a judge’s decision is in confomity with ‘the law,’ we do not mean that we can put his decisions next to something called “law” and see whether the are the same. We mean that the determinants of the decision were things that it is lawful for judges to take into account consciously or unconsciously.” (HJT, p. 45)

The problem is that what is “lawful for judges to take into account” means very different things to those subscribing to different judicial philosophies. For Scalia and Black it is statutory text only; for Renquist and Bork, it is the history of what the writers intended; for Breyer, it may include political factors; for Posner, it may include economic factors.

Ben (and anyone else) may strongly feel that one of these accounts of what is “lawful” is the correct one, but Posner’s point is that there is no self-evident (and, I would add, non-circular or self-refferential) way to justify any legal philosophy over any other. When Ben advocates, as he does, that “the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” he is making what he feels to be an obvious point that strict constructionism is the only right way to go. To Stephen Breyer, Ruth Ginsburg, Sandra Day O’Connor, Felix Frankfurter, and scores of other jurists, this is not an obvious default. Posner’s point is that from the “view from nowhere,” there is no obvious or necessary judicial methodology to take.

Ben, I think, falls into the trap of mistaking his “view from somewhere” with the “view from nowhere.” He may feel very strongly that Posner’s insistence that there is no best criteria for judging (in an absolute sense) is wrong because he knows that the one he prefers is correct. But as Posner says, there is nothing written in the Constitution that tells us how we are supposed to interpret it, or what judges may or may not consider when deciding cases.

Now, I do want to get into what I sense is a commonality between Ben and I. For all that I agree with Posner on, I cannot help but see legal pragmatism as an ‘anything goes’ method of the type Posner says it is not. And the danger in this is that Posner’s absolute lack of any standard of what is and is not pragmatism means that he can label as “pragmatism” anything at all! There are times when he suggests that legalism is pragmatic at times, because the result wanted is consistency and appearance of formalism. There are other times when he suggests that looking at the political consequences of a ruling are pragmatic because doing so leads to expedient consequences. So if Posner says on the one hand that judges tend to be pragmatic (whether they know it or not), and on the other leaves “pragmatism” so illy-defined that it can mean anything, then he is saying nothing at all (other than that judges rule the way they feel best as defined by them. Duh!)

Another point that Ben brought up that I want to retouch (as it is mighty relevant to future chapters) is: “Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules).” I think Ben is right to note this. It would be folly to suggest that many, many cases in the legal system consist of somewhat “easier cases” where the best answer CAN be derived from a formalistic approach (generally, looking at the text and precedent, and deciding via syllogism). In detailing “how judges think,” one would think Posner would focus much of his time looking at these cases and devote a proportionately small amount of time to “How Judges Decide Hard Cases.” I am as disappointed as Ben to find that Posner’s book should, but does not, bear this latter title.

In a later comment (to a later chapter) I will bring up how this acknowledgement (that judges are most likely formalists most of the time and only ‘grasp at straws’ when formalism is not enough,) to fellow pragmatist William James’s “Will to Believe.” There, James advocates that while the majority of questions can be answered by appealing to which answer has the most evidence behind it, IN RARE CASES where the evidence is inconclusive, one may need to take a “leap of faith” for the sake of expediency. It seems like Posner probably means to say something like this about judges but never really does so. First, judges try to decide cases fomalistically, which works much of the time. Only then do judges go outside of formalistic bounds, and only when they need to – in Jamesian “rare cases.” Unfortunately, Posner doesn’t say this, and we are left with the wrong impression that judges make most of their decisions “by any means necesseary.”

Still, I agree with the main thrust of Posner’s arguments: that there really is no “right” way to decide cases in an objective sense. Judicial philosophies are aplenty, and judges choose them based on many different conscious and/or unconscious factors; (later chapters get into various explanations of why certain judicial methodologies are chosen, and none involve deciding which one was decreed from the mysterious On High.) Any attempt to argue otherwise must find some objective grounds to argue why a particular philosophy is not simply a preference, but an objective mandate. I have no idea what such an argument would look like.

December 31, 2008 11:26 AM

Benjamin Hayek said…

As usual, Kevin makes a series of comments that are quite insightful, thoughtful, and with which I largely agree. For example, I agree that a book written by a federal appellate judge entitled “HJT” would be strange if it did not contain some discussion of the factors that go into judicial decisionmaking. That said, Kevin’s use of the phrase “that we can satisfactorily show” makes me a little uncomfortable, for I’m not certain any given statistic is capable of showing us how judges really do think. But this is a small quibble, and not a particularly interesting one, so I’ll just leave it be, for there is a far larger quibble to spend time on below.

And that is the notion that judging in the alleged open areas is by definition “neither good nor bad, but just the way it unavoidably is.” This is one of Posner’s essential points, and one that Posner’s legal pragmatism is supposed to provide an adequate method for addressing, and why at various places Posner beats the diversity drum (for if all judicial philosophies are created equal, then the more the merrier, because diversity in judgment, for Posner, is evidently itself an intrinsic good). For Posner’s pragmatism, however, the “method” is more of a mood or attitude that judges simply give it their best to do what is most reasonable in their own minds and without any rigid fidelity to prior institutions, such as past political decisions and precedents.

For me, Posner’s explanation is inaccurate for four very basic reasons. First, and perhaps foremost, this just isn’t what judges do. It may be what Posner does, of course, but even Posner would admit that most judges would disagree that this is what they do (he’d just reply that they’re deluding themselves, of course, but that is another matter). Second, the very notion that our legal system isn’t premised on the notion that judges aren’t constrained by something, even in the open areas, is just nonsense. Posner seeks to avoid this criticism of the legal pragmatist, however, where he as his does about the “moderate pragmatist,” which is to say, the non-crazy one. Third, not all judicial philosophies are created equal. Some are wise, other are not. Hence, some judges adhere (or purport to adhere) to judicial philosophies that are unwise, which is to say there are good judges and bad judges. Fourth, virtually every seasoned litigator knows what judges are good and what judges are not in his or her given jurisdiction. And the primary criterion lawyers apply when making this judgment is whether the lawyer has confidence that the correct decision will be made by any given judge, which is to say that wherever the rule of law is clear in view of the facts, the right decision will result.

Perhaps an example is in order. I once first-chaired a case (i.e., I was not the “headliner” but the co-pilot) involving an elderly woman plaintiff who slipped and fell on snow and ice outside our client’s business. (And as the co-pilot, my role largely consisted in handling most pretrial discovery and through summary judgment – the stage at which many cases are disposed.) The plaintiff had sued both my client, the lessee of commercial premises, and the lessor, the owner of the mall in which my client’s business was located. The facts where clear in that my client’s lease provided that the lessor was responsible for snow and ice removal outside the entire mall common area, including in front of my client’s business. Nevertheless, my client’s staff would often assist in any snow and ice removal by throwing ice-melt down whenever it could do so during business hours before the owner’s people could “get to it,” so to speak.

So, one snowy day, plaintiff patronizes my client’s business. And before she had arrived my client had thrown down ice-melt on snow and ice that had accumulated during the business hours and before the owner’s people could get to it. On her way towards the door, plaintiff slips and falls on snow and ice. Plaintiff’s lawyer, as plaintiff’s lawyers do, sued everyone related in any way to the business. After conducting minimal discovery, my client moved for summary judgment asking that it be dismissed from the case because the contract (i.e., the lease) between my client and owner provided that the duty to clear all snow and ice was owner’s alone, and therefore any injuries arising out of a failure to fulfill that duty were owner’s problem – not my client’s.

The rule of law as applied to my client couldn’t have been more crystal: good Samaritan third-parties to voluntarily assist one who owes a duty to perform to abate a risk do not thereby expose themselves to liability for injuries arising out of the failure to adequately perform unless the assistance rendered in some way exacerbates the risk. Because discovery had revealed that my client did nothing to exacerbate the risk, it was entitled to summary judgment as a matter of law.

The problem my client faced was that it was assigned to a “bad” judge. And when I mean “bad” I mean that, instead of advising the client that its chances for dismissal were 99%, we advised the client that its chances for dismissal were instead 80%. For, even thought the rule of law was clear in light of our facts, this particular judge often denied summary judgment as a matter of course in situations such as ours to increase the chances of settlement, which would occur because there were more defendants from which the plaintiff might extract enough money in exchange for a full and final release of her claim. Which is exactly what occurred after our motion for summary judgment was denied.

The fact of the matter is that this judge did not feel sufficient fidelity to the rule of law because he believed that other concerned overrode the rule in favor of settlement, be it to spread out the damages among more defendants, to increase the chances that plaintiff was paid (she was, after all, quite injured), or whatever. But the point here is that, I presume, Posner would strain to explain why some of these pragmatic concerns where justified even at the expense of (1) the rule of law being clear and (2) the certainty that results in law when it is applied strictly. Now, obviously, the plaintiff’s lawyer might argue that this is a great thing, and that this judge is, as a result, a great and wise judge. And Kevin might cite to this lawyer’s view as proving that there really isn’t such a thing as good vs. bad judges, just different ways of judging.

That’s fine, but it would in my view conflate the distinction between the political and the judicial to the point of the difference being nominal only. And this, of course, is why Posner goes to this and that argument the purpose of which is to show that there isn’t a sharp distinction between the political and the judicial in the first place.

Posner, and Kevin’s, argument is that there is no self-evident way to justify any legal philosophy over another, which is a version of the larger claim that there is no self-evident way to justify any philosophical propositions at all over another. (Except, of course, that proposition is somehow supposed to be self-evident, one presumes.) Hence, for me, when I say that “the constitution should be interpreted in accordance with a close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” I view this proposition as no different from that of “mathematics should be performed in accordance with the rules of addition, subtraction, multiplication, division, etc.” (I’m no mathematician), I am stating an obvious, self-evident truth. And, obviously, there is nothing in math that tells us how we’re supposed to follow the rules, just like there is nothing in logic that tells us how we’re supposed to follow the rules. The rules are implicit in the concept and cannot be shown outside of simply performing the mathematical operation (e.g., 2 + 2 = 4 or modus ponens).

Which is to say, are there rules implicit in the concept of law, or more specifically, in the concept of American Constitutional Law? At some level, Posner (and Kevin) will be forced to agree that there are (e.g., rules of grammar and syntax). But if they go that far, then there is no stopping my point: that there are rules implicit in good judging and bad judging, rules implicit in constitutional interpretation, etc. Thus, even if which way of constitutional interpretation (or judicial philosophy) is a matter of serious debate, that some are better than others can’t be. But if that is true, then there necessarily must be a “right answer” to which way is best, even if I were to grant Posner (and Kevin), for the sake of argument, the proposition that we cannot know what it is (which I deny).

To sum up, then, I insist that there is a certain logic implicit in law in general, and a certain logic implicit in American Constitutional Law in particular, that necessarily means that there is a right way and a wrong way of judging. Enough bloviating about this topic however.

As Kevin suggests, I completely agree with the problem that Posner faces regarding legal pragmatism’s at least appearing to be an “empty” method, a method without a methodology, so to speak.

And I also should note that Kevin right to agree with Posner’s view that in hard cases formalists may at least appear to be “grasping at straws” to justify their decisions. But on my view this isn’t a flaw with formalism – this is what formalists ought to be doing when their formalism doesn’t lead to a clear right answer. In other words, formalists ought to grasp at whatever straws they can get their hands on if that’s all that can be done to avoid looking elsewhere to justify decisions. And that’s simply because it is a virtue of justice that past political decisions are supposed to justify legal outcomes, not new ones that descend down upon litigants from the bench.

January 7, 2009 9:17 PM

In How Judges Think (“HJT”) Posner wastes little time setting up the jurisprudential pins his indends to knock down, namely, the many forms of “legalism” (he no longer likes the traditional “formalism” term) that “traditional legal thinkers” have adopted over time, be it textualism (Scalia), originalism (Bork), some form of historicism (Rhenquist), “active liberty-ism”(Breyer), or what have you. Posner is not simply attacking the notion of a particular “judicial philosophy” in HJT (and elsewhere), he is attacking the notion of any judicial philosophy at all as the end-all-be-all right way of judging, i.e., the notion that judges decide hard cases by “applying pre-existing rules … do not legislate [from the bench], do not exercise discretion, have no truck with policy, and do not look outside conventional legal texts … for guidance in deciding new cases.”

In a trivial sense, Posner is correct: no one single judicial philosophy is always going to lead to the right answer in hard cases, or always be workable as a way of judging a particularly hard case. But I don’t believe that is Posner’s primary claim; rather, I take Posner’s primary claim to be that, because no single judicial philosophy is always going to lead to the right answer or always be workable as a way of judging, any judicial philosophy as way of judging is as good as another so long as it produces the best result, and, therefore, all the judicial philosophies of the world are most properly conceived as one of the many tools from which the enlightened judge may select when the circumstances so dictate. Therefore, Posner argues, we must transcend the intractable debate of which judicial philosophy is correct to the holy land of legal pragmatism which, as one commentator has called it (I think rightly), “The Legal Theory of No Legal Theory.” In a very real sense Posner means to say that jurisprudes should cease arguing about which tool is proper in favor of a toolbelt open to utilizing all of them depending on the demands of the particular case. Clearly, this notion has some initial attraction and ought not be taken lightly.

The first argument worth noting – in my view anyway – is derived from the perception that there is “considerable dissatisfaction with our legal system,” according to Posner, at least in part because it is “too prone to error” and “too uncertain.” “If all that judges do is [mechanically] apply rules made by legislatures or the framers of the Constitution,” after all, would not the blame lay properly at the feet of the legislators and framers? Perhaps, Posner muses, but “suppose that most rules laid down by legislative bodies are [sound] and the problem is willful judges–judges who make up their own rules, or perhaps ignore rules altogether.” Worse yet, what if our legal system of government actually compelled judges to – gasp – “make law,” that is, “legislate from the bench?” The horror!

This is how Posner frames the dilemma: either judges are “well on the road to being superseded by digitized artificial intelligence programs” that “do nothing more than apply clear rules of law … without bias or preconceptions,” or they, at least sometimes, must exercise discretion – that is, they make law. For Posner, this is the essence of judging; this is what judges do; this is what judging means. And as such, Posner insists that his project in HJT is primarily a descriptive (or “positive” one in – I believe – the sense and tenor of logical and legal positivism), as opposed to a normative one.

I think Posner is (rather obiously) exaggerating the options available to a judge in hard cases by drawing a rather unattractive set of alternatives, namely, a choice between total discretion or none at all. He admits, of course, that in most cases legalism “drives” outcomes, by which I interpret Posner as conceding that legalism renders the correct result. But his minimizes this fact by relegating the majority of legal disputes to the realm of the “less important … for the development of legal doctrine or the impact on society.” For Posner, therefore, the jurisprudential fray lay not in the rule, but the exception: the comparatively rare instances in which the right or best answer is “indetermanent.” In this “open area” (or “gap”) the idols of legalism are useless, like a rudderless ship in a stormy sea. It is here that, according to Posner, where “the correctness of outcome is impossible to verify,” and therefore judges are forced to judge as best they can in full view of their prejudices and biases.

Thus, Posner asks: “So what are judges doing when they are judging in the open area?” They are not, he insists, implementing “a consistent judicial philosophy,” and any claims to the contrary are either “rationalizations of decisions based on other grounds or rhetorical weapons,” for no judicial philosophy “is a politically neutral lodestar guiding judges’ decisions.” Is Posner correct?

I don’t believe so. People who are familiar with my political views are aware that I sincerely hold them due to my jurisprudential views. And people who are aware of my jurisprudence are aware that I emphatically deny that my jurisprudence is in any way influenced by sources outside what Posner would deem “legalistic.” Thus, while many find it humorous (or even deranged), I insist that most – if not all – of the positions I hold on political matters are not really political at all, at least in the usual sense of the term “political.” Instead, I routinely refer to them as simply “correct.” And here I’m usually accused of being flippant or even arrogant, which I quite deny. Rather, I believe that one may easily arrive at the same views I hold quite formally if one proceeds to consider every American political issue through the prism of the following two fundamental assumptions: (i) every ethical theory other than moral realism is false, and (ii) the Constitution of the United States of America presupposes a thoroughgoing Judeo-Christian brand of moral realism.

All of which lead to the following point as-applied to hard cases: Even in the most difficult of hard or “close” cases, the chance of a pure conceptual “tie,” while logically possible, is practically so unlikely that the possibility of actually encountering one in law is virtually meaningless. And, by “virtually meaningless” I mean the logical possibility has, even by a pragmatist’s standards, little to no “cash value” as a concept. And if all of that is true, then in virtually all cases there will be one outcome that is either right or better than all the rest, and necessarily so. Therefore, in virtually every case there is one, and only one, best – if not right – answer. (And this is a form of Ronald Dworkin’s “Right Answer Thesis,” lest anyone think I purport to be making this argument for the first time.)

I think Posner would agree with that last proposition to the extent that the “right” qualifier is abandoned, and we add that what is “best” will always be “unverifiable” and therefore a matter of faith. But we would disagree about the methods of how one gets there and the significance of said methodology. For example, I am convinced that there is a “hierarchy” of sorts with respect to how a judge ought to deploy judicial philosophy, textualism necessarily being the first and most trusted weapon in the judge’s arsenal (and originalism being the second), and I believe how a judge’s hierarchy is arranged matters. Posner, I think, would reject any hierarchy and in doing so eliminates the need to arrange it.

Instead, Posner offers us his conception of ideal judging: a variety of legal pragmatism that he in HJT admits is constrained in some sense (this is how he has decided to deal with the “anything goes” criticism). Posner’s ideal judge, then, is constrained by some judicial norms, such as impartiality, an awareness of the importance of predictability in law, and “a due regard for the integrity of the written word” (this last of which sounds a lot like a tip of the cap to textualism). Thus, Posner concludes the introduction to HJT with the following:

“[M]ost of this book is about what judges [actually] do when they are not just applying rules. It is an effor to develop a positive decision-theoretic account of judicial behavior in … the open area [of law] – the area in which a judge is a legislator.” (And earlier: “How [judges] fill in the open area is the fundamental question that this book addresses, though lurking in the background and occasionally coming to the fore is the question [of] how [judges] should fill it in.”) For Posner, we must face the fact that judges do “legislate from the bench,” period, for the “falsest of false dawns is the belief that our [legal] system can be placed on the path to reform by a judicial commitment to legalism – to conceiving the judicial role as exhausted in [merely] applying rules laid down by statutes and constitutions or in using [only] analytic methods that enable judges to confine their attention to orthodox legal materials and have no truck with policy.” That’s the project, at any rate.

I am fascinated by how strongly I disagree with Posner regarding this “false dawn,” although I do agree with his fundamental belief that the American Legal System could certainly use some reform. But where we depart on is not only what we belief is the proper remedy; we presumably disagree about the root cause of the problem, for I believe that it is precisely due to the decline in “legalistic faith and fealty” that has led to the current state of affairs. Very much indeed, on my view, of the blame for the “messy” state of American law has been caused by judges giving in to the temptation of beliefs such as Posners, namely, the belief that, where the law is arguably unclear, legislate.

At the heart of our disagreement, then, lies the following, truly remarkable proposition: “[Just a]s there are no fixed, incontestble criteria of artistic excellence, so there are no fixed, uncontestible criteria of judicial excellence.” I could not possibily disagree more with Posner on this fundamental point. Indeed, I believe that it is almost always an easy task to weigh one peice of art against another, such as deciding the value of Jacques-Lious David’s The Death of Socrates (1787) (which is one of my very favorites) vs. Andres Serrano’s award-winning Piss Christ (1987), or comparing the complete works of Smetana to those of Snoop-Dogg. There is good art and bad art, just like there are good judges and bad ones.

3 comments:

Kevin Currie said…

I do want to reserve a separate post to review that last paragraph of your review of chapter 1.

You write:

“ At the heart of our disagreement, then, lies the following, truly remarkable proposition: ‘[Just a]s there are no fixed, incontestble criteria of artistic excellence, so there are no fixed, uncontestible criteria of judicial excellence.’ I could not possibily disagree more with Posner on this fundamental point. Indeed, I believe that it is almost always an easy task to weight one peice of art against another… There is good art and bad art, just like there are good judges and bad ones.”

I want to tackle this in a separate post because it is something that both you and I feel very strongly about. As you doubtless know, we also strongly disagree.

I am a relativist in many things (ethics, aesthetics, law) not because I want to be, but because I can’t make intellectual sense of any other position. To state my position succinctly (this will be a first for me!):

We are a first-person world in that we cannot have direct access to anything but out own mental states. Thus, the best we can say about a norm, rule, or preference is that it is inter-subjective in that the claim (“unprovoked killing is wrong,”) is one agreed upon by the majority.

The next problem with “weighing one piece of art against another” – not such an “easy task” – is deciding what criteria will be used. To take an obvious example, it would be strange to measure a piece of music from Western Europe (that uses a tempered 7 note scale) with another form Zimbabwe (which can use a few different scales, including a 13 note scale that sounds painfully dissonant to western ears), with each other to see which “sounds better.” What we mean by “better” will be influenced by OUR OWN preference in music.

The same goes for judging Smetana against Snoop Dog. Is the critieria for “betterness” orchestration, use of modulation in composition, or counterpoint between the strings and winds? (If so, then Smetana wins.) Or is the criteria use of rhythm, singability, or worldwide popularity? (If so, Snoop wins.) The point is that to judge two things to see which is better involves deciding on what criteria to use, which is irreducibly a first-person judgment. (For any conceivable criteria to be objective, one must convince all objectors why the criteria is THE TRUE standard over all other claims – I fail to see how that is not an impossible task.

It so happens that many people – i.e., the philosophers that you like – make the mistake that “error theorists” in ethics point out: they mistake the feeling of a strongly held preference and their lack of ability to believe that any right-minded person would dissent, with the notion that the preference must be “objective” rather than MERELY a preference. Strong feelings feel like they are obvious, right, and true, and we all have difficulty seeing that in our first-person world, preferences are simply preferences. (Ethical “realists” simply remind me of Fundamentalist religious people, who hold to similar lunacies as their opponents and while they recognize that their opponents lunacies are just preferences, they fail to be so rational when it comes to their own beliefs, which they believe are actually true.)

So, I ask: how did you go about the “easy task” of showing the complete and obvious superiority of Smetana over the much-better selling and infinitely more popular Snoop Dog? And after giving me the criteria that you used, how will you demonstrate to me that your criteria is the written-in-the-stars superior criteria to any of the others that I could use?

December 20, 2008 10:52 AM

Benjamin Hayek said…

I respond to Kevin’s criticism here:

http://spedphilosopher.blogspot.com/2008/12/are-there-objective-criteria-for.html

December 22, 2008 8:20 AM

Kevin Currie said…

I sent another post responding to the body of Ben’s critique of Posner (even before I sent the reply published above). It must have gotten lost somewhere. Needless to say, it was brilliant, devastating, and first-rate philosophy! (No really, it was.)

If I have to go back and type it from scratch, I suppose I will, but don’t expect it for a little while.

Meanwhile, we will go on and read Posner’s obligatory chapter applying whatever he happens to be writing about to the principles of economics. I am waiting to read that chapter until I have the luxury of doing so with the company of some Cote d’Rhone.

December 22, 2008 2:46 PM

What follows will be a series of posts on United States Seventh Circuit Court of Appeals Judge Richard A. Posner’s latest book by my friend Kevin S. Currie and I. In addition to the fact that Kevin and I will enjoy this exchange immensely, I believe it will also be a unique look into two very different approaches to jurisprudence. For, while Kevin and I to a great degree agree on governmental and political issues, how we each get to where we’re going is quite different. Kevin, you see, is very heavily influenced (in my view) by the empiricist tradition of David Hume and the American Pragmatists (Charles Sanders Pierce, William James, and John Dewey), as well as Sir Carl Popper (Kevin will doubless clarify and qualify this statement). I, on the other hand, am still under the influence of philosophers of the Platonist and Kantian traditions, and therefore hold jurisprudes such as Ronald Dworkin in the highest regard. One might aptly describe me as the “soft minded, metaphysically sympathetic philosopher,” while Kevin is more of a “hard minded, scientific anti-philosopher,” if you will. In any event, the discussion will also be interesting for the fact that Kevin is a professional educator, while I am practicing lawyer and former judicial law clerk (first as a judicial extern as a student to U.S. District Court Judge Ronald E. Longstaff and later as the real thing to Minnesota District Court Judge Michael R. Savre).

Kevin and I have been friends for over six years now, which is rather amusing for the fact that we’ve never met face-to-face. Instead, we’ve enjoyed numerous debates and discussions thanks to the modern marvel of electronic mail, all of which arose out of what was then our mutual affection for writing amazon.com book reviews (Kevin has since gone on to amazon.com super-stardom, while I withdrew from the fun entirely). In sum, we are both unabashed (and unapologetic) dorks.

To get back on-topic, I’m going to begin our conversation on Posner’s How Judges Think (“HJT”) by briefly summarizing Posner’s arguments (as I understand them) and then criticizing them mercilessly. Kevin will then – I have no doubt – rehabilitate Posner entirely by demonstrating that my criticisms are unjustified due at least in part to my faith in a variety of unverifieable metaphysical and epistemelogical propositions. The hope is that our conversation will flesh out even deeper insights, but what is certain is that we’ll both be in dork heaven even if we don’t unearth anything of substantial worth.

Kevin Currie said…

it will be fun indeed, Ben. It is always fun to talk over a book of this sort with those you are pretty sure you will respectfully disagree with.

I should point out another difference. While we are both philosophically-minded (yes) dorks, we come at this from two different backgrounds.

Ben is a lawyer who has clerked for a Federal judge. I am a high-school teacher who, while I teach mostly science and “study skills” classes, also have a political science masters. The closest I get to a court-room these days is when I coach New Town High’s mock trial team.

Thus, when Ben and I disagree, I strongly urge the objective observer to refer to the lawyer, not the special educator. (Just kidding!)

December 19, 2008 3:45 PM

Benjamin Hayek said…

And I should point out that Kevin is far too kind. And while I may be the lawyer who has worked for a couple of judges, this will be 2 on 1 (Posner and Currie vs. Hayek).

December 19, 2008 5:35 PM

Justice Stevens concurred in part and dissented in part. The concurrence consisted in joining the plurality in holding that stare decisis required upholding the “central holding” of Roe, even if in name only. Like the remainder of the plurality, Justice Stevens decreed the belief that “The societal costs of overruling Roe at this late date would be enormous,” thus buying into the novel extra-Constitutional theory that a Constitutionally wrong decision must never be overturned if doing so will somehow come at a “societal cost” (whatever that means). Also like the plurality, Justice Stevens reaffirmed that the State may protect a fetus from being aborted after viability, and therefore may prohibit post-viability abortions so long as in circumstances when such an abortion is necessary to preserve the “life or health” of the mother. But Justice Stevens goes a bit further than anyone else in explaining the moral philosophy underlying his position, which is worth a hard look.

Like the plurality, Justice Stevens agrees that a fetus is not a “person” within the meaning of the Fourteenth Amendment. As I have already shown, declaring a fetus a nonperson means that anyone can deprive it of its life under the Fourteenth Amendment (i.e., a fetus is not entitled to any Constitutional protection). Likewise, since a mother obviously is a “person,” since a State’s depriving a woman her “right” to abort her pregnancy at any time prior to childbirth would be to deprive her of a “fundamental liberty” (with or without due process of law), the Constitution forbids as much. Second, and in case we don’t fully get it, Justice Stevens makes it clear: “the unborn have never been recognized in the law as persons,” the concept “person” “has application only postnatally,” aborting a fetus at any stage of the pregnancy is “not the termination of life,” and a fetus “does not have what is sometimes described as a ‘right to life.’” Setting aside the question of how the State can legitimately have any interest in protecting “fetal life” even though terminating it really isn’t terminating “life” at all, I want to get right into the really interesting portions of Justice Stevens’s moral philosophy.

The first tenant of that moral philosophy is that the State’s interest in protecting “fetal life” must be “secular” – “the State may not promote a theological or sectarian” interest in “life.” This is an interesting decree for two reasons. First, virtually all State laws prohibiting or criminalizing any given practice have done so usually from a Judeo-Christian perspective that the given practice is immoral. And this posed no problem for any of the Founders simply because “prohibiting x” from such a perspective was (obviously) not “establishing” an official church, which was of course the primary purpose of the First Amendment. In other words, outlawing murder because “thou shall not kill” was not understood to be the “establishment” of religion, it was considered to be a very basic moral principle worthy of criminalization.

Second, recall that Justice Blackmun argued in Roe that his entire enterprise of creating a fundamental right to abort one’s fetus was necessary because neither “medicine, philosophy, [nor] theology” were in any state of “consensus” on the morality of abortion. In other words, while consulting “theology” was perfectly permissible for Justice Blackmun and six other lawyers on the Supreme Court in 1973, it was clearly no longer permissible by 1992 according to Justice Stevens.

Next, Justice Stevens declares that the State’s interest in “fetal life” is “not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns.” These two propositions are interesting for a couple reasons. First, of course, Roe’s holding has no Constitutional “grounding” either. Second, Justice Stevens does not spend much effort defining what he means by “humanitarian and pragmatic concerns,” but he does admit that the State has a legitimate interest in “minimizing” “third-trimester abortions” because “many find [them] particularly offensive,” and conceding that the State has a legitimate interest in population growth. In other words, the repugnance with which many view late term abortions flows from a “humanitarian” sentiment, which is legitimate (so long, of course, as one’s humanitarian sentiment has nothing to do with one’s theology), and the desire to grow the population flows from a “pragmatic” sentiment, which is legitimate as well (so long, one must assume, one’s pragmatism isn’t one’s “religion”).

But later on, Justice Stevens goes much further than any I’ve read before on this subject, for he states that the State’s interest in protecting “fetal life” must not flow from “the belief that the decision to terminate a pregnancy is presumptively wrong,” no matter if this belief flows from humanitarian, pragmatic, or any other perspective. In other words, the moral view that it is better to refrain from aborting than aborting “is illegitimate” by judicial fiat (i.e., by simple decree and without principle). This is a fascinating claim, because by asserting it Justice Stevens holds the view that this particular moral judgment is absolutely Constitutionally off-limits. This is the very first time I have ever seen such a view advocated by the Court. For reasons I will get into later, it is quite a significant – albeit subtle – modification of abortion law jurisprudence, but one that will have a staggering impact upon contemporary abortion dialogue.

To summarize the situation after Casey: 4 Supreme Court Justices believe that Roe was wrongly decided, would reverse it, and send the issue of if and when abortion should be permitted back to the American people; 2 Supreme Court Justices believe that Roe was right and should be reaffirmed in full, and 3 Supreme Court Justices who do not necessary believe that Roe was right but that stare decisis (among other things) justifies reaffirming Roe (but conceptually revamping everything Roe stood for). A most intriguing state of the law, indeed.