[FN125] I do not accept Professor Robert Lipkin's view that rationality requires intersubjective agreement, for reasons including those given by Professor Kress. See Kress, supra note 8, at 140-41 (commenting on Lipkin, Beyond Skepticism, Foundationalism and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory, 75 Cornell L. Rev. 401 (1990)). I think our minds are wired to notice similarities and differences in the environment; this wiring has enabled us to survive as a species. Suppose nine primitive hunters noticed a similarity between a new animal they encountered and a friendly animal of their previous acquaintance, but the tenth hunter noticed what was to him a critical difference that suggested that the newly encountered animal was vicious. If the nine hunters perished and the tenth ran safely away, his gene that passed on to future generations might well be characterized as “don't let people talk you out of a dangerous situation.” Intersubjective agreement, or rule by consensus, would have been fatal in the hunter situation.
[FN126] Of course, the last thing a Pragmatic Indeterminist would concede is the possibility of bifurcating descriptive and normative legal propositions. Cf. R. Rorty, Consequences Of Pragmatism xv-xvii (1982).
[FN127] “Legally right” and “legally correct” are logical notions. They refer to the consistency of formal deductive systems. These terms have a place in the abstract construction of tautological legal systems, such as the black-letter rules of the various Restatements. (Even there, it is not the occasional judicial decision which is “incorrect” but rather the Restatement which has failed to “restate” it properly!) But a term like “legally correct” cannot be used in the empirical criticism of cases without smuggling in a normative element. Dworkin makes precisely this error in his “law as integrity” thesis, where he conflates logical error with empirical error. See Kress & Waldron, Integrity is Our Vulcan (unpublished manuscript). Dworkin's essential positivism fairly compels him to find a value in the consistency of law per se. But as Professors Kress and Waldron point out, once an intrinsic value is attributed to law, then it can override claims of justice—and that is precisely what is perverse about Dworkin's system.
[FN128] “Correctness” is either a term of logic or a term of moral appropriateness. If we exclude morality from law and say that law is simply the words of law on the books (and their “meanings”), it follows that we can only use the term “correctness” as a matter of deductive logic. But except for “tautologically easy cases,” as I argued above (supra note 64 and accompanying text), logic cannot tell us which side should win a particular case. It follows that we make a category mistake in labelling any given decision as “correct.” Either side can legitimately win a case, which is another way of stating the thesis of Pragmatic Indeterminacy.
Professor Kress interprets me as saying that “no matter what argument is given for the plaintiff, there is always a better argument that can be produced for the defendant . . . .” Kress, supra note 8, at 146. I would not use the word “better” that way. Clearly what is “a better argument” is in the eyes of the beholder. There are no standards for “a better argument” just as there is no core meaning of that phrase. In front of a Chicago audience, Professor Kress and I in a debate might alternatively present better and better arguments until one of us collapses from exhaustion, throws in the towel, or is booed off the podium. To an audience in Iowa City, the outcome might be different—not to mention an audience in Tehran.
If I say that one argument is “better” than another, since I am not making a logical claim I can be making either a rhetorical claim (a claim parasitic on logic) or a moral claim. The latter is excluded by definition. However, if we expand our notion of “law” to include morality—something the positivists such as H.L.A. Hart say we cannot do—then I would be the first to say that some arguments are “better” than others. As a moral non-relativist, I would never assert that “no matter what argument is given for the plaintiff, there is always a better argument that can be produced for the defendant.” If the plaintiff is arguing that children should not be tortured or elephants should not be shot for the value of their tusks, I would say that the defendant simply does not have a better argument. But I say this only because of the moral content of the law; stripped of its moral content, if it can be so stripped, the law might well countenance a more persuasive (not “better”) argument for the defendant.
I have of course used the word “legitimacy” in the sense of “legal legitimacy.” The word can also connote, for some people, “moral legitimacy.” In international law, the term tends to be used in the sense of “legal and moral legitimacy.” See T. Franck, The Power of Legitimacy among Nations (1990).
[FN129]See 1 L. Kruger, L.J. Datso & M. Heidelberger, The Probabilistic Revolution 237-60, 295-304 (1987); 2 L. Kruger, L.J. Datso & M. Heidelberger, The Probabilistic Revolution 373-435 (1987); P. Suppes, Probabilistic Metaphysics 85-99 (1984). The mistake that many newcomers to quantum theory make is to assume that it predicts the probability that electrons (or other quanta) can be found at a particular place. This is quite wrong; in fact, the electron itself is a probabilistic phenomenon and not an “entity,” or as Max Born put it, there are “waves of matter.” M. Born, The Restless Universe 151-54 (1951). The Fermi-Einstein statistic suggest “not merely that elementary particles are unlike bodies [but] that there are no such denizens of space-time at all . . . .” W.V. Quine, Pursuit of Truth 35 (1990). In short, the real world we see—the world of matter and space—is itself, in a way that no one can fathom except through the mathematical language of quantum theory—probabilistic and not solidly certain. I think that exactly the same point can be made about law. I am not saying that law is like quantum mechanics, but only that if the universe we live in is a probabilistic and not a determinate one, it is not so strange to argue that law is also just a matter of probabilities. Cf. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Nuclear Physics, 103 Harv. L. Rev. 1 (1989); D'Amato, Quantum Theory and Legal Indeterminacy (workshop paper presented to Northwestern faculty seminar, February 1989) (copy on file with Northwestern Law Review).
When we predict how a case will come out, we are not predicting what the law “is” at a certain level of confidence the way the meteorologist predicts tomorrow's weather. Rather, our prediction constitutes the law. I have spelled this argument out in A. D'Amato, Jurisprudence, supra note 73, at 18-19.
Of course, such a statement is subject to H.L.A. Hart's immediate rejoinder: “If law is a prediction from the point of view of an attorney, it is not a prediction from the point of view of a judge—a judge decides what the law is, and does not predict the law.” I believe that I successfully countered this argument, and showed that even judges who decide what the law is are engaging in a prediction—in their case, in a retrospective prediction. Id. at 21-30, 35-45.
[FN130] See A. D'Amato, Jurisprudence, supra note 73, at 6-45.
[FN131] See H. Kelsen, Pure Theory of Law 33-37 (Knight trans. 1967); R. Dworkin, Taking Rights Seriously (1977).
[FN132] Ultimately, the subjects of law (you and I) are also as much a part of the law as are judges—an insight of Hegel's. See Jacobson, Hegel's Legal Plenum, 10 Cardozo L. Rev. 877 (1989).
[FN133] See supra note 133 and accompanying text.
[FN134] It is much in the spirit of Richard Rorty's deflationary view of philosophy. See R. Rorty, Consequences of Pragmatism (1982); R. Rorty, Contingency, Irony, and Solidarity(1989).
[FN135] In my view, the legal profession has nothing to do with serving law and everything to do with serving justice. To say that a lawyer is bound by “law” is in effect to enlist lawyers in implementing the state's policies, whether those policies be enlightened or brutal. It is to a dictator's advantage to say that lawyers should be guided by “law.” But “law” is not worth being guided by, except to the extent that it reflects justice. If we don't say that a plumber serves his tools, we should not say that a lawyer serves the law. To the extent that we lawyers are professionals, our allegiance is to justice in society.
[FN136] Looking back over my student days at law school (1958-61), I think that many of the professors were half-realists. They were sufficiently convinced by the American realist movement to put a lot more stress on the facts of the cases we read than do professors today. But the problem was that they spent a great deal of class time telling us the facts of the cases. Although they knew more about the facts of the cases than what was reported in the courts' opinions, what they apparently did not realize well enough was that their own “statement of the facts” was highly selective and personally biased. What they did not tell us was how shaky many of the “facts” were, how much the “facts” depended on what the trial attorneys decided to tell the judge and jury, and how distorted the facts were as a result of judicial rulings on evidence. Beyond that, what they did not tell us was the strategic effect on the “facts” that a good lawyer exerts in advising her client to do things one way rather than another in the event that what the client does results in a lawsuit.
As far as teaching students how to deal with facts is concerned, law schools today are worse than they were when I was a student. In this respect, the Indeterminacy movement is not at all a re-run of legal realism. Rather, it is a call for a degree of “realism” (in accounting for what lawyers actually do) that Legal Realism never attained.
[FN137] I have made this suggestion previously in D'Amato, The Decline and Fall of Law Teaching in the Age of Student Consumerism, 37 J. Legal Educ. 461, 485 (1987).
[FN138] Professor Arthur Jacobson at Cardozo Law School, and I at Northwestern Law School, have been teaching a “Justice” course based on materials that we have been developing over the past six years. But adding one course on justice to the curriculum—even, or especially, if it is ours—falls far short of doing the job I am advocating in this Article.
[FN139] For an example of a case in which an opinion by Judge Frank Easterbrook, writing for a three-judge panel of the Seventh Circuit, misstated the facts of the case in order to couch in acceptable rhetoric the court's refusal to grant habeas corpus relief to a provably innocent man, see Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988), cert. den. 109 S.Ct. 1645 (1989).
For commentary on this case, see D'Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L. Rev. 1323 (1990); D'Amato, supra note 110.
[FN140] If you read this sentence and ask, “but what about legal ability?” you will appreciate what Pragmatic Indeterminacy stands for. The Pragmatic Indeterminist says that no amount of legal ability can produce any of these human qualities. Of course, humanist decision-making is itself subject to satire: witness Judge Richard Posner's rebuttal to essays by Professor Robin West and me. He writes sarcastically that if we just dump the rule of law we could get on with the task of “building a warm, loving, caring, open, hopeful, hugging, unmediated, hierarchy-free, prelinguistic, empathic, affective (but not sentimental—liberals are sentimental), happy, herbivorous, weaponless, wholegrain, solar-powered, polymorphously perverse, classless, Utopian society for the Whole Human Family.” [Posner], Gregor Samsa Replies, 83 Nw. U.L. Rev. 1022, 1025 (1989) Compare Jaffee, Empathic Adjustment—An Alternative to Rules, Policies, and Politics, 58 U. Cinn. L. Rev. 1161 (1990). See also Hirshman, Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges, 137 U. Pa. L. Rev. 177 (1988).
[FN141] This assertion is philosophically warranted as a consequence of Gödel's theorem. There can be no general algorithm or proof of justification. See H. Putnam, Representation and Reality 115 (1988) (“truth does not transcend use”); see also Kress, supra note 9, at 332 (“judgment . . . cannot be fully characterized in an explicit metatheory”).
[FN142] If law-words do not constrain judges, why should justice-words fare any better? If justice were only a matter of words (for example, “principles” of justice) then it would not constrain judges either. But justice is normative, consisting of the judgments that we make all our lives when we consider facts and situations and compare them mentally to other facts and situations that were resolved in the past by other persons whom we consider just. I believe that words may at best reflect justice, but words do not constitute justice and cannot encapsulate justice.
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