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Monday, September 30, 2013

Protagoras's Paradox (The Paradox of the Court)

Démocrite_et_ProtagorasMy student, Sam Henderson (who blogs here), alerted me to this cartoon which references the Paradox of the Court, of which I was previously unaware.  We have a summary here from Joshua J. Mark on the Ancient History Encyclopedia.  Here are the basics:

The Sophist Protagoras (pictured at left with his homie, Democritus) offered to teach a young man, Euthalos (or Euathlus), to argue in court.  Departing from the Sophists' custom of demanding pay for sharing their wisdom, Protagoras offered the lessons for free, allowing Euthalos to pay him once he won his first case.  Protagoras taught Euthalos, but Euthalos escaped indebtedness by avoiding taking any cases.  Protagoras got fed up and sued Euthalos for his fee, but Euthalos claimed that either way the case came out, he still would not have to pay.  If the court found in Euthalos' favor, the original agreement was unenforceable, and if it found in Protagoras's favor, Euthalos still would not have to pay because he still would not have won a case. 

Sam was curious how a modern court would rule, and I think there is no answer that is clearly correct, and that's why it's such a great paradox.  I think a court could reach different conclusions depending on how it ruled on implied terms and Euthalos's good faith (or lack thereof).  Leaving aside the possibility that Euthalos could hire a Sophist to represent him and avoid any possible debt, I have a few takes:

1. A court could find that the parties assumed that Euthalos would pursue a career in the law and that such a career would entail arguing in court.  If that was a reasonable implied term, Euthalos might have accepted Protagoras's lessons in bad faith (if he never intended to argue a case) and should have to pay the value of the lessons either as a matter of contract or in quantum meruit.

2. But perhaps it is not reasonable to imply the term.  Is it really the case that all who are trained in the law practice?  Some data on industry custom would be useful here.  We in the legal eduaction business have been saying for years that job placement data can be misleading because not all who attend law school do so in order to practice law.  Moreover, it may be arguable that a student of even the great Protagoras may never win a case.  And so, even if both parties expected that one day Euthalos would have to pay for the lessons, Protagoras was assuming some risk.

3. Or perhaps Euthalos did not act in bad faith.  Perhaps he entered into the agreement expecting to have a fabulous career as an advocate.  He had agreed to study with Protagoras in the hopes of overcoming a speech impediment, but he found that trying to speak with pebbles in his mouth (Protagoras's proposed cure) only triggered his gag reflex.  As a result, after completing his studies with Protagoras, Euthalos felt that he had learned nothing of value and owed Protagoras nothing.  Protagoras should have thought twice before making an offer that could take the form: "You'll win a case or you don't have to pay!"  Protagoras should have taken some lessons from Pufferitus.

4. Or a court could find in Euthalos's favor by finding against him as the paradox suggests.  The court could rule that Euthalos will owe Protagoras his fee as soon as Euthalos wins a case, and as he has not yet done so, Euthalos need pay nothing for now.  Of course, all of this turns on what one means by "winning" a case.  If Protagoras seeks only a declaration that the parties have a contract, he loses by winning.  If Protagoras seeks money damages, he wins by losing.  

[JT]

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