Facts, Truth, Positivism, Instrumentalism and Law Practice

Posted by Jeff Lipshaw

There are a couple of very, very interesting posts over at PrawfsBlawg this morning.  On the surface, they appear to be on wholly different subjects, but I see a common theme.

First, Paul Horwitz has post on a speech given by Linda Greenhouse, the New York Times Supreme Court reporter.  The central issue in Paul's post and the ensuing comments is not the substance of her speech (her disappointment with the moral stands of "our generation" resulting in things like prisoner abuse, Abu Ghraib, etc.) but the reaction of some that her comments were "easily" statements of fact.  Paul cleverly recasts the speech to pose the question - how can these conflicting views both be fact?

Second, Miriam Cherry talks about remarks of Justice Anthony Kennedy at the Lawyers Club of San Francisco.  Justice Kennedy's anecdote is of his days in practice, and the distinctions between a particular result that the law might allow, and the "honorable" result.  In this instance, Justice Kennedy persuades his client (by having him read King Lear) not to favor a particular child in his estate.  The point is that the law would allow that result, but that result was not right.

Connecting these two posts, and relating the common theme to the practice of law, below the fold.

The common thread here is the relationship of facts, truth, values, the good, the right, and the instrumental versus the constitutive view of the law (as characterized by Austin Sarat and Thomas Kearns in Law in Everyday Life).

Some of what follows is a repeat of an argument I made during my stint over at PrawfsBlawg.  I think you can simultaneously be a positivist, believing that law can be law as a mundane or inglorious or even evil (like Nuremberg Laws) social structure, and not give up on the belief that there are some moral universals out there.  As I have argued in articles, the recent Dworkin tries to import those moral universals into the law as a matter of objective truth.  In an article entitled "Objectivity and Truth:  You Better Believe It" (25 Phil. & Pub. Affairs 87 (1996)), Dworkin tried to tackle post-modern relativism, a project to which I am wholly sympathetic, by arguing there were objective moral facts, but that we (read: Dworkin) just know what they are in a quotidian way without having to resort to metaphysics.  Again, for a good Kantian, whether a moral proposition is objectively true is not even part of the game; that's the difference between using reason to access knowledge, and using reason to access a moral imperative.  There is no need to prove the latter is true.  But that seems to bother Dworkin immensely. So what he does is to posit a not-fully-post-modern thinker who believes in a  first order proposition like "murder is wicked"  but is skeptical  you can make a statement like "it is objectively and always the case that murder is wrong."  In the effort to establish the objectivity of the moral truth without resorting to metaphysics, it seemed to me Dworkin engaged in another fallacy:  to collapse the two propositions together, contending that because any moral proposition is making a claim that it is ipso facto an objective truth.  (This sounds reminiscent of the ontological proof of God - perfection implies existence - that Kant refuted.)  He doesn't so much refute the skepticism of the second proposition as much as simply to announce an alternative:  morality is so deeply imbued in us we ought to just accept it.  Essentially he is saying: accept a metaphysical reality without the bother of metaphysics.

I think that is the underlying philosophical debate going on here, and it is age-old.  We can have "facts" about the natural world and we want to believe there is "truth" underlying our values.  The problem is the conflation of the two (a la Dworkin).  Statements about the physical world that are true are facts.  They can be necessary truths or contingent truths, but they are facts.  Values that seem so basic as to be universal feel like facts, but they are not facts.  They are normative "ought" statements as to which truth, and therefore "factness" is wholly irrelevant.

Now how does this relate to Justice Kennedy's remarks?  There is "truth" and "factness" in the legal conclusion that if you write a will in which only one child takes the estate, then the decedent's clearly expressed intent will be honored.  You can have an instrumental view of the law - removed from morality - that see the role of law and lawyers only to do what clients want.  You can have a constitutive view of the law - that the existence of this legal right actually shapes what we ought to do.  What Sarat and Kearns argue is that both are a "law first" perspective - that "scholarship on law in everyday life should abandon the law-first perspective and should proceed, paradoxically, with its eye not on law, but on events or practices that seem on the face of things, removed from law, or at least not dominated by law from the outset."

I worry all the time about reducto-empiricism as the underlying world view of young lawyers being sent out into the world.  The pure instrumentalists become red-meat litigators (see the recent ads on Fox for the show "Justice" in which Victor Garber opines on the relationship of law and truth); the pure constitutivists become law and economics professors.  I think the anecdote Miriam related is the way Sarat and Kearns would see law in everyday life - an instrumental tool perhaps, but not constitutive of the way we should see the world.  Instead, like Justice Kennedy's anecdote, it is a world, in which the lawyer's advice is, perhaps ironically, not law-first.