Saturday, October 21, 2006

"Being Right Is Not All It's Cracked Up to Be": A Reply to Professor McGowan (with a nod to Professor Schneider)

Posted by Jeff Lipshaw

David McGowan (San Diego) over at Legal Ethics Forum has a thoughtful response to my earlier post on law and morality - in particular, my cryptic concern over the impact of what I called "reducto-empiricism" as the underlying world view of young lawyers going out into the world.  If I may fairly summarize it, David contests whether there are in fact any articulable moral universals that are useful in resolving legal-ethical dilemmas.  Indeed, as the human race has not been able to agree on any moral universals (except maybe one or two like "don't kill so many of your society that your existence is threatened") in all of recorded history, appealing to them constitutes a "crutch substituting for analysis."

David, of course, hits at the very heart of my dilemma - which is that I like the concept of Kantian derived universalisms, but I can't justify any of them, except the concept itself, which seems to me to invoke some kind of first principle, even if I don't know what it is.  (For that reason, people call it God, but that's way too concrete for me.  See my Yom Kippur post.)

One of the great benefits of Kantian schizophrenia is that I can critique undue empiricism, but I can also beware of fanaticism or dogmatism, and call it transcendental illusion - the mistake of belief for truth. (In my view, even Kant erred if he thought he had derived "Truth," say about lying, from the categorical imperative.  Reason can give you an ought but that is beyond or apart from truth or falsity.)

David called himself a Humean empiricist, and I'd certainly agree on form.  If you have read Professor McGowan's work, you know that, like Hume, he has a charming and witty skepticism about there being any right answer, so at least he feel pretty good about the law not necessarily giving us one.   (Recall that it was Hume's skepticism that shook Kant from his "dogmatic slumbers.")  His pragmatism is a fair successor to Hume's congeniality as the standard by which we conduct ourselves.  I think it gets to the same place Larry Solum would get in his aretaic philosophy - no sense worrying about the metaphysics, but trust that virtuous people (virtues being derived inductively from what has generally been considered good) make virtuous decisions.

More below the fold.

Indeed, if I thought reducto-empiricism led to the kind of thoughtful wrestling with ethical issues employed by Professor McGowan, I wouldn't worry about the world too much.  I'd be happy that there was modesty about asserting universal truths.  Indeed, Law as Rationalization was about exactly that:  how is it that we distinguish the power of our own self-justification from a genuine searching for the right thing to do?   I think we are both trying to walk the line between polarities - David just over there on the empirical side, and I just over here on the transcendental side. (If he were really that pragmatic, he wouldn't be a philosopher.) 

But if there can be too much universalizing (dogmatism or transcendental illusion), can there be too much reducto-empiricism? Yes, (1) if it is an analog to strident atheism over civil agnosticism, or (2) if it reduces completely to valueless cynicism and despair.

I referred to legal instrumentalists as becoming red-meat litigators; it turns out they are red-meat negotiators.  I happened to get Bill Henderson's SSRN Law & Society Journal e-mail a little bit ago, and the paper by Andrea K. Schneider (right, Marquette) and Nancy Mills entitled What Family Lawyers areAndreaschneider Really Doing When They Negotiate caught my attention (forthcoming in the Family Law Review).  While the focus of this paper is on the behavior of family lawyers, even the more general conclusions about lawyer-negotiators are striking.  The data indicate that in twenty-five years (1976 to 2000), the number of lawyers perceived as being adversarial/competitive versus problem-solving/cooperative has risen from 27% to 36% as a percentage of the total bar, and the number of perceived ineffective lawyers has risen from 12% to 22%.  Moreover, the aggressive lawyers are getting "more negative and nastier.  Twenty-five years ago, the effective competitive lawyers still had plenty of positive adjectives describing them, including convincing and experienced.  Today, that situation is quite different - the top seven adjectives describing adversarial lawyers are stubborn, headstrong, arrogant, assertive, irritating, argumentative and egotistical."

I want to propose that there is a shrinking middle ground between "values as truth" to the extreme, on one hand, and consequentialism to the extreme, on the other.  While undue regard for "values as truth" may have marked the legal academy and the profession at one time (certainly before Holmes' The Path of the Law and the Legal Realists), it is certainly also a fair to observe that law as reductive social science has been the dominant approach over the period of the data in the Schneider & Mills paper.  David suggests one should "be prepared to defend one's views on the ground of one's own judgment," employing analytical tools like decision theory, instead of "laying it off on some universal you have no choice but to follow." While we may be humble about our ability to state the universals, we sense at least the notion of a first principle that by definition has to be universal.  Recall Ivan Karamazov's insight into first principles or universals:  if there is no God, everything is permitted.  That, I think, is consistent with a view that it is permissible to be stubborn, headstrong, arrogant, assertive, irritating, argumentative and egotistical, all in the cause . . . of being right.

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