Quo vadis, jurisprudentia?

The last couple of posts, and their associated comments, have tried to deal with the very basic issues of how a judge/justice justifies their decisions and decision-making process. And God knows this sort of transcendental nonsense is what we all cut our legal teeth on as first-years.

Before we go much further down that road and drive each other nuts, I'd like to note a couple of things. First, I'm bemused that in two days we've essentially rehashed out the same debate that has gone on since at least the pre-Socratics and has been summarized most deftly by Hans Albert as the Munchhausen Trilemma, named for a story in which the famous Baron pulled himself out of a swamp by his own hair:

The Trilemma asserts that no theory of justification can avoid falling back on one of three impossibly frustrating fallacies:

1. an infinite regression, which appears because of the necessity to go ever further back, but isn’t practically feasible and doesn’t, therefore, provide a certain foundation;
2. a logical circle in the deduction, which is caused by the fact that one, in the need to found, falls back on statements which had already appeared before as requiring a foundation, and which circle does not lead to any certain foundation either; and finally:
3. a break of searching at a certain point, which indeed appears principally feasible, but would mean a random suspension of the principle of sufficient reason.

--Albert, H., Traktat über kritische Vernunft, p. 15 (Tübingen: J.C.B. Mohr, 1991).) [Shamelessly cribbed from Wikipedia, fount of all knowledge.]

The first prong is, of course, Jeff's "pigeons all the way down" infinite regression. The second is the standard crit / Realist argument against any given theory from the Classical Legal Thought era -- or, for that matter, against most Originalist arguments today. The third prong is reminiscent of the Legal Process school -- and of Vern's (nee Roberts's) claim that the best we can do is employ a good set of rules-of-thumb (aka methods of interpretation aka heuristics) to try to reach a set of shared values.

This third solution to the justification problem is probably the best (and, for what it's worth, is Albert's preferred solution), but is certainly unsatisfying if we still look to the law to provide some level of consistency. The New Problem is that people apply different heuristics according to their personal beliefs about how well a given heuristic describes the world. Law as Politics, q.e.d.

So here's my second point, and a challenge. In the past century, we've floated through CLT, Realism, Legal Process, CLS, and L&E -- and currently we're in a sort of limbo, where the primary goal for any legal theorist is to come up with a new good set of rules-of-thumb (Originalism, for example). But nothing has really, truly, emerged as the dominant philosophy since the late 1970s saw the heyday of L&E and CLS, both of which are theories in the European critical tradition (though they often come out in opposite directions). What theory should come next in the dialectical progression? How the hell do we evaluate rules of thumb in any allegedly "neutral" fashion? Where is jurisprudence headed next?

My own vote is for some form of virtue ethics, that irritatingly hard-to-pin-down form of philosophy that's been around since before Aristotle. One central tenet of modern virtue ethics asserts that the Enlightenment obsession with the scientific method went horribly astray when it branched out into the ethical and judicial arenas. Instead of employing the critical method when analyzing a given heuristic, a modern advocate of virtue ethics might instead suggest something like this:

"...cultivat[e] a benign acceptance -- perhaps temporary and tentative, but real -- of any belief that can pass two tests: you have no particular, concrete grounds to doubt it (as distinct from the abstract principle to doubt what cannot be proved); and you have good reason to think all men who understand the problem share your belief." W. Booth, Modern Dogma and the Rhetoric of Assent, at 39-40 (1974).

The virtue ethics perspective is rightly criticized for relying too heavily on the assumption above that experiences can be held in common in sufficient numbers to create a formal ethical/legal structure. But every moral theory of justifying law relies on intuitive heuristics in one sense or another, because no body of thought can legitimately prove its own principles. Why don't we pick a version of ethical principles that at least admits its own fallibility at the outset?

Anyway, there are a few random thoughts on the subject. I'm done playing the CLS devil on Vern's posts, because while I find that CLS is the natural (for me, anyway) result of the Enlightenment's critical world-view, I'm much more interested in where we go next.

Postscript - my apologies to Vern for my botched Latin and to Isaac for any botched philosophy.

F*CK THIS SH*T

The constitutional law professor Michael Seidman likes to tell this story to his first year students:

"There was a man in DC a couple of decades ago who was up on trial for armed robbery. His lawyer put him on the stand, and the prosecutor put him through an excruciating cross-examination. He was really tearing this guy apart, making him contradict himself, just making him look as guilty as hell. Finally, the guy got sick of it.

"And so he stood up, said "Fuck this shit," and left the witness stand.

"Now," says Seidman, "that didn't work out so well for him. But, in a very important way, in that moment he was a free man."

Why am I repeating this story?

I respect the law more than most people. To be honest, I revere it. I believe that the rule of law is vastly important. And, if I sometimes fear that the concepts of "rights" and "duties" are merely noble lies, I believe those noble lies are at least the work of humanity's better angels.

But I also believe that, when it comes to the law, everyone has a limit. You might call it "natural law," or "higher principles." Or you might call it a sort of weighted utilitarianism. Whatever the name, it's the point at which you can no longer follow the law, or its constraints and procedures, and remain a human being.

Here's an example. Most people don't think we should torture people. But most people can only take that so far. What if it's a terrorist who knows the location of the bomb that's going to take out NYC? What if a mad dictator will torture 1000 people if we don't torture this one person? What if our family's lives are on the line?

Another example. You don't think people should steal. But should Jean ValJean really be punished for stealing a loaf of bread, when his sister's family was starving?

In the law, we often use this kind of extreme argument to discredit interpretive rules. And, when presented with such arguments, people inevitably try to distinguish the situation presented from their argument--they weasel out of it by saying "it's different," or "that would never happen."

But most of the time, the real answer is this: Neutral principles only take you so far. Eventually, your principles will run against something they can't deal with, and you just have to make an exception.

Or, more succinctly, "Fuck this shit."

I am not a legal realist by inclination. I don't think judges should use their political preferences when deciding cases, and (unlike the cls crowd) I don't think they have to, most of the time. Easy cases are the rule. And in the hard cases, we should follow the law to the best of our ability to discern it.

But, whether it's "the constitution is not a suicide pact" or Brown v. Board, even the justices of the Supreme Court have limits. We should realize that, and accept it, and maybe even embrace it. It isn't a failing, unless it's a universal human failing. And maybe we wouldn't want them to be any other way.

After all, the law exists, first and foremost, to serve humanity's needs. And, yes, it should be noble, and consistent, and true to its first principles. But it should also be human.