*Copyright 1990 Anthony D'Amato, Leighton Professor of Law, Northwestern University. I would like to thank Professor Leonard Jaffee for reading a draft of this Article and giving me the most detailed and helpful critique that I have ever received on any draft manuscript.
**Numbers in the format pg148 etc. refer to the pagination of the original article.
[FN1] Winter, Bull Durham and the Uses of Theory, 42 Stan. L. Rev. 639 (1990).
[FN2] Its impact in Continental Europe may exceed its impact in the United States because of the pervasive tradition of the civil code system which engenders the false popular conviction that cases are actually resolved by the impersonal dictates of the comprehensive codes. Of course the European judges know better, but their own professional standing and socially perceived worth is a function of their playing the game.
[FN3] Winter, supra note 1, at 679. Professor Winter's unconventional title and methodology are further illustrations of Thomas Kuhn's account of crisis and revolution in scientific inquiry: “The proliferation of competing articulations, the willingness to try anything, the expression of explicit discontent, the recourse to philosophy and to debate over fundamentals, all these are symptoms of a transition from normal to extraordinary research.” Id. at 680 (quoting T.S. Kuhn, The Structure Of Scientific Revolutions 91 (2d ed. 1970)).
[FN4] Witness the great popularity of what I call the Reassurance Article—the essay that tells mainstream scholars that what they have been doing all along is, when the smoke clears away, quite sound. Prominent authors of Reassurance Articles include Professors Ken Kress, Kenny Hegland, Frederick Schauer, Lawrence Solum, Steven Burton, and Judge Richard Posner.
[FN5] I have formulated this clause in the way that practicing attorneys might say it. They say, “the law was clearly on my side, yet I lost.” By that they mean that they have an intellectual conviction, based on everything they know and have studied about law, that the law favored their client's position. They are always open to the counter-argument, “but obviously you must have been wrong on the law.” Yet that counter-argument is not a clincher, because the judge, too, could be wrong on the law. Moreover, the same attorneys have told me, “there were cases I should have clearly lost on the law, and yet we won.” But if I were formulating the sentence in the text not to express the way lawyers talk, I would have to replace the strong verb “is” with the more indeterminate verb “seems.”
[FN6] Hegland, Goodbye to 2525, 85 Nw.U.L. Rev. 128, 130 (1990)
[FN7] Benson, Deconstruction’s Critics, the TV Scramble Effect, and the Fajita-Pita Syndrome,
85 Nw.U.L.Rev.119,121 (1990).
[FN8] Kress, A Preface to Epistemological Indeterminacy, 85 Nw. U.L. Rev.134 (1990).
In what might be the world's first case of self-destructing and self-deconstructing text, the quoted language does not appear in the cited article. I quoted Professor Kress's partial manuscript upon which he knew I would rely in preparing this reply. He thus rendered indeterminate his own sentence and in the process pulled the punch I said he did not pull—all, I am sure, for the kindliest of reasons.
[FN9] Kress, Legal Indeterminacy, 77 Calif.L. Rev. 283, 285 (1989).
[FN10] I could reply, but will only do so in a footnote, that their very question plus their resolve not to be convinced by whatever I say, proves my point. They in effect acknowledge that even if my arguments are “rational,” they will remain unconvinced. Thus, they admit that rational arguments no more “constrain” themselves than they constrain judges.
[FN11] For instance, Professor Hegland imagines a teenager elected President arguing to a judge that the constitutional age requirement “was intended to assure that a President did not have teenage acne, and as the judge could see, this candidate has a clear complexion.” Hegland, supra note 6, at 129. Professor Hegland says that this argument “stinks now and it will stink in 2525. A judge, even one desperately wanting to throw out the age requirement, could not, with a straight face, use this rationale to do so.” Id. The only saving grace in Professor Hegland's total misperception of the Indeterminist position is his clever play on the word “rationale” to suggest “rational.” Other than that, no Pragmatic Indeterminist would ever suggest that any argument is as useful as any other argument. One must always adapt one's argument to the listener. If a judge isn't going to like an acne argument, don't argue acne to the judge. Always show the judge a way of presenting a decision in your favor with socially acceptable legal rationales. That is why I presented what Professor Hegland characterizes as my “traditional, mainstream, dull, and indeed, somewhat Republican, argument” in favor of the underaged President. Id. I did this precisely because it is the kind of argument that, given an appropriate context, a judge is likely to accept and use in her written opinion.
Does that mean that my argument convinced the judge and the acne argument would not convince the judge? Not at all. The absolute statement that an acne argument would not convince a judge is, like all other Formalistic statements, subject to contextual deconstruction. Suppose a future context in which most people have come to hate the Constitution. In that context, a judge might demonstrate her own judicial contempt for that document by accepting the acne argument. The acne argument would serve her purpose in that context by trivializing the Constitution.
[FN12] There is at least one fundamental way that my rational is anyone's rational. I believe that any argument must be internally consistent. The reason I believe this is not because I accept a “theory” of coherence, but rather simply because if a person contradicts himself he is not saying anything that we can figure out. Rationality, in this application, is simply a matter of choosing between communication and non-communication. (I omit figurative uses of contradiction as suggested by P. Strawson, Introduction to Logical Theory (1952), such as the answer to the question “Is it raining” consisting of the statement, “It is and it isn't.” These figurative uses of contradiction have communication value, but only because we have learned that the speaker's point in such cases is not logical precision but rather a deliberate indeterminacy.)
[FN13] See Lipkin, Beyond Skepticism, Foundationalism and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory, 75 Cornell L. Rev. 401, 412 n.42 (1990) (suggesting two replies for the skeptic).
[FN14] I do not mean to imply that the sounds we utter and the words we write have no meaning. I contend only that we can never be sure that the meaning we ascribe to a word will be the same meaning that someone else ascribes to the same word.
[FN15] Plato himself is famous for having taken the extreme position that our mental concepts are real, and that the world we see only imperfectly approaches that reality. And yet, in an early dialogue—one that has been almost entirely neglected—Plato dissects a subtle nominalist argument. The labyrinthian difficulties of his dialogue Cratylus suggests the possibility that in his more famous later works, notably The Republic, Plato shifted to idealism either because he despaired of the philosophical barrenness that would result from the anti-metaphysics suggested in Cratylus (a despair also evident in Wittgenstein's Tractatus), or because his later works were really public-relations tracts aimed at laypersons in order to convince them, in terms they were accustomed to hearing, to defer to real philosophers (make them philosopher-kings).
[FN16] At the turn of the century, leading writers who made important inroads into the insidious tautology of the ascription of Platonic meanings to words included Jeremy Bentham; J. Dewey, Reconstruction In Philosophy (1920); J. Dewey, Experience And Nature (1958); G. Frege, Philosophical Writings (M. Black & P.T. Geach eds. 1962); W. James, Pragmatism (1907); and C.S. Peirce, Values In A Universe Of Chance (1958). Frege's frustration with the problem led him to try to find the meanings of words in the sentences that contained them, and then reduce all sentences to analytic propositions; thus he set up a target for later twentieth-century logicians. Bentham said that the meaning of sentences began to be said to be determined by the meaning of the paragraphs in which the sentences were embedded, a method he called “paraphrasis.” See W.V. Quine, Theories and Things 69-70 (1981). The ordinary-language philosophers down through the first half of the twentieth century carried this project further: the meaning of paragraphs depended upon whole texts, and finally the meaning of whole texts was determined by the meaning of the entire culture. This extension either proved determinism writ large or rendered it vacuous, depending on your perspective. Frege's works influenced Bertrand Russell. See, e.g., B. Russell, The Problems Of Philosophy (1912); B. Russell, Our Knowledge of the External World (1914); B. Russell, The Analysis of Mind (1921); B. Russell, An Outline of Philosophy (1927); B. Russell, An Inquiry into Meaning and Truth (1940). Russell's bibliography alone runs seventy-nine pages. See The Philosophy of Bertrand Russell 746-825 (P.A. Schilpp ed. 1944). Russell and Alfred North Whitehead attempted their own systematization of logic, B. Russell & A.N. Whitehead, Principia Mathematica (1913). Perhaps the best critique is Godel, Russell's Mathematical Logic, in The Philosophy of Bertrand Russell 125-53 (P.A. Schilpp ed. 1944). Russell's pupil, Ludwig Wittgenstein, proved that all metaphysical statements were intrinsically meaningless. L. Wittgenstein, Tractatus Logico-Philosophicus (1922). Important contributions were made by the logicians of the Vienna Circle, notably John L. Austin, see J.L. Austin, Philosophical Papers (3d ed. 1979), and Rudolf Carnap, see, e.g., R. Carnap, The Logical Structure Of The World & Pseudoproblems In Philosophy (R.A. George trans. 1967);R. Carnap, Meaning And Necessity (2d ed. 1956); R. Carnap, The Logical Syntax Of Language (1937). In his later years Carnap became critical of the phenomenological approach he had used in The Logical Structure of the World. See The Philosophy Of Rudolf Carnap 16-20, 944-47 (P.A. Schilpp ed. 1963) (autobiography—reply to Nelson Goodman). The logical positivists added important elements to the critique of the Frege-Russell-Whitehead program, while Kurt Godel used that program to prove the indeterminacy of well-formed propositions within what had previously been considered to be logically tight systematizations. The standard exposition of Godel's 1931 paper, “On Formally Undecidable Propositions of Principia Mathematica and Related Systems,” is E. Nagel & J.R. Newman, Godel's Proof (1958); see also D.R. Hofstadter, Godel, Escher, Bach: An Eternal Golden Braid (1979). Alfred Tarski's disquotational theory of truth appeared to reduce problems of meaning to common sense (Tarski's disquotational formula says, for example, “snow is white’ is true if snow is white'), Tarski, The Semantic Conception of Truth, 4 Phil. & Phenom. Res. 341 (1944); see M. Black, Language and Philosophy: Studies in Method 91-107 (1949); M. Dummett, Truth and Other Enigmas (1978); D. Davidson, Truth and Interpretation 23-54, 125-54 (1985). But C.I. Lewis undermined the common notion that a word “corresponds” to something in the real world by showing that locating or even pointing to any object presupposes a frame of reference. C.I. Lewis, An Analysis of Knowledge and Valuation 50-55 (1946). Since no frame of reference can be bounded, but rather must include the entire universe, every true statement must refer to the same thing, namely, the universe. Like the previously mentioned extension of meaning to include the entire culture, Lewis's extension of truth to include, vacuously, the universe, shows the inherent indeterminacy of words (whether or not they are embedded in texts).
The most significant work, in my view, was contributed in the second half of the twentieth century with the publication of (a) Wittgenstein's empiricist investigations into the utility of language; see L. Wittgenstein, Philosophical Investigations (Anscombe trans. 1953), plus Saul Kripke's important gloss on those views, see S.A. Kripke, Wittgenstein on Rules and Private Language (1982); (b) Nelson Goodman's analysis of induction and counterfactuals, see N. Goodman, Fact, Fiction and Forecast (4th ed. 1983); N. Goodman, The Structure of Appearance (3d ed. 1977) (contains extended analysis of Carnap's The Logical Structure of the World); and (c) Willard Van Orman Quine's demonstration of the impossibility of radical translation and (by implication) the impossibility of being certain about all translation and interpersonal “meanings”; see W.V. Quine, Word and Object (1960); W.V. Quine, From A Logical Point Of View (1964); W.V. Quine, Ontological Relativity and Other Essays (1969); W.V. Quine & J.S. Ullian, The Web of Belief (1970); W.V. Quine, Theories and Things (1981); W.V. Quine, Pursuit of Truth (1990); see also L.E. Hahn & P.A. Schilpp, The Philosophy of W.V. Quine (1986) (contains twenty-four critical essays on Quine and his reply to each).
More recently, work in artificial intelligence has exemplified the theories of Quine, and in the process undermined the inherent-meaning ideas of Noam Chomsky; see, e.g., N. Chomsky, Cartesian Linguistics (1966). Chomsky, of course, held that there are deep rules of grammar, and not necessarily “meaning.” Yet every example of forms of sentences he gives depends upon the meaning of the words in the sentence, and so I think that it is a very short step from claiming that there is an inherent grammar imprinted on our brains to saying that there are inherent meanings to words. Important writers in this vein are Marvin Minsky, Herbert Simon, and John Searle. See M. Minsky, The Society of Mind (1986); H. Simon, The Sciences of the Artificial (1969). John Searle offers a corrective to any easy equation of minds with machines, but the best AI researchers themselves eschew any such equation; see J. Searle, Minds, Brains And Science (1984). An instructive demonstration of how new insights of artificial intelligence changed an author's own theories of language can be found in Hilary Putnam's succession of books and articles on the “meaning of meaning.” See H. Putnam, Mind, Language and Reality 215-71, 362-85 (1975) (mental states are micro states of the brain); H. Putnam, Meaning and the Moral Sciences (1978); H. Putnam, Reason, Truth and History (1981); H. Putnam, The Many Faces Of Realism (1987) (criticizing his former view that mental states are the functional states of an abstract digital computer); H. Putnam, Representation and Reality (1988).
Finally, rounding out the circle is a sophisticated return to the Peirce-Dewey pragmatic view of language contained in scattered form in the writings of Richard Rorty. See, e.g., R. Rorty, Philosophy and the Mirror of Nature 70-127 (1979) (extending Putnam's functionalism to a description of mental states); R. Rorty, Consequences of Pragmatism 72-89 (1982) (Dewey's metaphysics); R. Rorty, Contingency, Irony and Solidarity 3-22 (1989) (accepting Davidson's view that language does not intervene between self and reality). Reflective of many of these philosophical developments, and provocative in its own right, are the literary and legal criticisms of Stanley Fish. See S. Fish, Is There a Text in This Class? (1980); S. Fish, Doing What Comes Naturally (1989).
[FN17] L. Wittgenstein, Philosophical Investigations § 109 (1953).
[FN18] American Legal Realism finally petered out in the 1960s because, in my view, the realists failed to bequeath to us a viable legal research program. After a few decades of rather spare analysis, the academic law field was ripe for a new approach. Ronald Dworkin supplied it: theorizing with a vengeance! We have now had three decades of theory; nothing succeeds like excess. But theory has peaked and is rapidly plummeting. Fun though it is, it cannot solve any individual case—a proposition I believe I have shown in D'Amato, Can Any Legal Theory Constrain Any Judicial Decision? 43 U. Miami L. Rev. 513 (1989).
But why should Indeterminacy last any longer? Why won't Indeterminacy simply have its day in the sun and then, like Legal Realism, fade away? I suggest that Indeterminacy is here to stay because there is now a viable research program—one that focuses on justice rather than on law. I deal with this matter briefly at the end of the present Essay.
Furthermore, Legal Realism itself may not have gone far enough in its heyday; it may not have had the courage of its own convictions when it came to dealing with the facts of cases. See infra notes 135-36.
[FN19] Professor Benson appears to believe that Indeterminacy is a passing phenomenon. His characterization of the Indeterminacy debate as the “TV Scramble Effect” is amusing even though it has no biographical application to me. I was brought up on “radio” (i.e., a TV set with a permanently broken picture tube). The worlds I visualized as I listened every weekday after school to Jack Armstrong, Captain Midnight, and Tom Mix (“Shredded Rawlston for yore breakfast gives ya cowboy en-er-gy”) were worlds unconstrained by pictures. I had no way then of knowing how different my visualization of these worlds was from those of other kids across the country listening to the same words. Occasional feedback was possible in those days. I remember my amazement once when I sent in two boxtops and twenty-five cents for Captain Midnight's Secret Compartment Ring. It had been billed as the most fantastic, magical ring in the known universe, capable of storing any message you desired. When I received it, I saw a pretty ordinary plastic ring with a really tiny secret compartment. The mind's recuperative power of reconceptualization, however, is strong. My initial deflationary experience was replaced by reinterpretation: the ring was pretty fantastic after all, and if it wasn't quite everything for me that it was for Captain Midnight, my ring was, after all, only a copy of his.
My main reason for believing that Indeterminacy is here to stay is that, this time around, we have a research program. (American Legal Realism led to some good empirical sociological research, but the large questions of law were not addressed.) Pragmatic Indeterminacy will begin its research program, I believe, by investigating how law is taught, how judges are selected, and what normative (moral, justice) arguments are the most persuasive.
[FN20] D'Amato, Aspects of Deconstruction: The Failure of the Word “Bird,” 84 Nw.U.L. Rev. 536 (1990)
[FN21] D'Amato, Aspects of Deconstruction: The “Easy Case” of the Under-Aged President, 84 Nw. U.L. Rev. 250 (1989) It is possible that Professor Kress used a similar technique in defending his article on Legal Indeterminacy: he now says that he was focusing primarily on metaphysical indeterminacy and not epistemological indeterminacy, thus appearing to make a move similar to the bifurcation I invented in the text between formally rational and substantively rational. See Kress, supra note 8, at 138-39. But see Kress, supra note 9, at 332-33.
[FN22] For a real-world instance of the same temporal contextual shift, see D'Amato, Harmful Speech and the Culture of Indeterminacy, 32 Wm. & Mary L. Rev. 329 (1991)(no one thirty years ago argued that pornography was political speech; today, radical feminists have convinced us that it is a core instance of political speech).
[FN23] D'Amato, supra note 18.
[FN24] Newman, Between Legal Realism and Neutral Principles: The Legitimacy of Institutional Values, 72 Calif. L. Rev. 200, 204 (1984) (all federal courts for the year ending June 30, 1983).
[FN25] See Kress, supra note 8, at 136.
[FN26] Professor Kress concludes by saying “even if a dissenting argument fails to persuade in this case, it might well, with other factors, be decisive in some later case.” Kress, supra note 8, at 136. Surely if the dissent is “decisive” in a later case, it is because the later court says that it is “decisive.” The later court could equally well have said that, given the prior court's awareness of such a persuasive dissent, its decision to reject that dissent is a decision we must honor here in following the majority opinion.
[FN27] Even if a Justice believes she was persuaded by Holmes's dissent, it does not mean that she is an accurate reporter of her own mental processes. Because of the elusive way our minds work, it is possible for us to believe that we are persuaded by an argument when, in fact, the argument only served as an ex post facto rationalization of a decision we already had made. And if the “ex post facto rationalization” explanation is too strong, a weaker but roughly equivalent version of the same thing is the possibility that the Justice was already mentally predisposed to the view contrary to the precedent case, and when she read the Holmes dissent she discovered a “convincing” piece of rhetoric that she could cite in support of her mental predisposition.
[FN28] It is never necessary to change the decisional rule. The rule itself can always be restated to accommodate any new “application.” See S. Kripke, Wittgenstein on Rules and Private Language (1982).
[FN29] Of course, a great deal of legal scholarship is devoted to criticizing judicial opinions on the basis that they departed from the law. One revolutionary aspect of Pragmatic Indeterminacy is the conclusion that all such scholarship is futile. It's just words chasing words.
This is not to say that judicial decisions can't be criticized. Criticism from the standpoints of fairness, justice and morality is precisely what legal scholars ought to do. The criticism ideally should show that the judge had a choice between two interpretations of existing law, but proceeded to make the choice that was more unfair to the losing side than it was fair to the winning side.
[FN30] Of course, even if the judge recognizes that whim enters into it, the litigants may not. Hence the judge, to avoid friction, delivers to the litigants the magisterially impartial opinion which they expect and want to hear, and which will tend to keep the losing party from complaining too much. In fact, litigants never get impartiality; they only get whim. The real task of the legal system is to place judges on the bench whose whim is reflexively attuned to considerations of justice.
[FN31] Even deep psychoanalysis may not uncover the sources of foundational attitudes. According to my colleague Arthur Jacobson, Freud was not seeking the explanation of human behavior but rather sought the kind of “explanation” that was startlingly new to the patient. The therapist could then use this apparent “explanation” as a tool in reorienting the patient. Freud was teaching the technique of psychoanalysis, rather than searching for the true motivations of human behavior. Yet Freud's own effectiveness as a teacher depended on creating the appearance of searching for objective behavioral truth.