Language, Dworkin & Pragamtism

(sent to law courts)
 
Lief:

... a couple of points about "the decorations:"

1. Pragmatism exists in two forms: (a) as "placecard philosophy" (what we do just to get the job done for now); and (b) as non-philosophy ("I quit"). I would say the former is very much part of "scholastics" (properly understood) but not the latter (in the distinction you proposed).

2. English professors and literary figures are not really the keepers of language, they are only its lexicographers, enjoyers, teachers and celebrators. When we get down to the question of how language refers and what it means, we are dealing with questions of cognitive linguistics and neuroscience on the one hand, and philosophy of language on the other. The claim that people determine what words mean is only true in a Wittgensteinian sense -- that language is use -- not in the radical proposition of "anything goes." No person is at liberty to invent meanings in language. They are only at liberty to make plays in language game (the cultural activity). If one chooses to be silly with language, one would be playing the game of silly, not language.

3. I was thinking today during the proctoring of an exam exactly what you said about Dworkin's chain novel example. In fact, I read that part of the book while kids took exams. I think it is a mistake to treat that as analogy rather than metaphor. I think the general idea is that even creativity has grounds and, as such, involves an epistemic process of some kind. I do think, however, that one could probably study serial novelists and find that what is actually going on is not what, in retrospect, Dworkin might have wanted to convey. In other words, I would take the idea as a vehicle for his thoughts -- i.e., take it as what he was thinking about serial novelists. (Serial novelists in theory?). It's only a vehicle.  

Law, Policy and Idiocy

(sent to law courts)

... you can't take the position that trial judges don't "make policy" because they do not create rules in the system. The trial judge has a set of applicatory choices to make over and over again, very frequently protected by discretionary appellate doctrines (e.g., abuse of discretion, clearly erroneous and harmless error). When trial judges decide how to wield this power, they are making "policy choices." For example: whether to accept binding pleas. Whether to "lean" on a case. There are all sorts of decisions the trial judge makes which are solely committed to his or her discretion, and which lawyers always want to know about so they can effectively market their services.

I continue to believe that this whole discussion is false. Whenever you say a judge does or does not "make policy," you have to ask yourself two simple questions: (a) what do you mean; and (b) so what?  It is the second part that needs more attention these days. People often do not realize that they are saying something normative about law when they speak this way. Once that premise is flushed out and plugged into philosophy of law, that's where the trouble arises with many of the views. Political scientists routinely have had this problem in the past. They don't realize in saying something about judges and "policy making" that they are also saying something normative and often indefensible in philosophy of law.

Here is what I want to say: one should avoid juxtaposing policy against "law" altogether. The language pair is awkward. One would no more ask whether judges "make policy" than they would ask whether they make cookies. It has no bearing on anything whatsoever. The only real normative issue is whether they have produced good casuistry. 

Asking whether an appellate judge "followed law" is a language game not unlike asking an academic whether he or she "followed intelligence." Or whether a parent made the right decision. One can only ever look at these things sort of in the way a good art critic does. To really see "politics" in judging, one has to read biographies and be in a position to recreate judicial psychology and state of mind. One has to have a sort of theater with the peson's life. Whether a judge makes appropriate decisions is really a same sort of question of whether the script in a drama is appropriate from the vantage point of one especially learned in such things.   

Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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What is a policy choice to Dworkinians?

(sent to law courts)
 
... sorry. My last post. (I've posted too much). Last thought:

If judging is like being a good art critic, when does the art critic "violate what he or she does?" The answer quite clearly is found in Wittgenstein's remarks about aesthetics. The art CRITIC is bad whenever her or she criticizes without knowing the learned rules that constitute the activity of the art as understood by those who know it best (has to be a little elitist, because it is "art").

There is no difference between when we say that the literary professor is poor than when we say the judge is. No difference whatsoever.  In fact, let's take that further. Bad judges and bad professors are the same thing. (So are bad officials, but probably for trial court judges).

What is a policy choice to Dworkinians?

.. it seems to me that, properly understood, a "policy choice" in a Dworkinian universe only means cheating your own considerate decision constituence. If the "right answer" in a case is how your coherent views about law come to compel the best choice that is a function of those views, then "violating law" simply means violating your own considerate decision constituence (being internally contradictory) -- or, perhaps, not having a "constituence" to begin with.

Properly understood, Dworkin is a structuralist. And a Kantian one at that. For one to "cheat law," one would have to either cheat one's own considerate views, not have such views, not be genuine when declaring the conclusion of those views -- or, perhaps, just have a bad day at work.

I think it is a mistake to read Dworkin as saying that Hercules represents anything more than (a) considerate views; (b) coherence and structure in the actions upon them; (c) necessarily compelled answers as a result of (a) plus (b). Hercules does NOT represent one true answer in a case for all possible judges. That's a sloganized reading. He represents his OWN best CONCLUSION derived from his legitimate system of thought about what "law" requires. Here is a good passage that compares quite nicely to Wittgenstein's views on aesthetics:

"We can usefully compare the judge deciding what the law is on some issue not only with citizens of courtesy deciding what that tradition requires, but with the literary critic teasing out the various dimensions of value in a complex play or poem." p. 228, LE.

So we have to ask: What is Posner talking about? This is a snag in the language game. "Voting policy" or "voting ideology" where those terms mean "violating law" -- where that means "not judging correctly" -- only means violating your own considerate system of thought, or not having a considerate system. I doubt Posner says this is what he does.

Dworkin, Right Answers & Politics

(sent to law courts in response to one mark graber)

Lord Graber.

1. The "right answer" thesis is more complicated. It involves structured discretion. Dworkin said that right answers exist for judges to THEMSELVES --  meaning, in essence, that they were the product of their own considerate decision constituence. The idea is this: you develop a considerate way that the puzzle should be pieced, and this "thing" directs where the next piece goes, even when it is "hard." (Hence, writing the next chapter in the novel).

2.  It is true that "any dolt" can see that judges cannot make certain choices because of the existing state of affairs (both culturally, politically, and intellectually), but it is not true that, should those choices be made, that they would be "illegal" in the American system. They might provoke outrage, sanction, amendment, violence, a convention or even civil war -- but precisely this idea is due to the fact that they cannot be "overruled" by any other means. Hence, the loophole here is that even "wrong answers" in the Dworkin lexicon are not "illegal." (One would have to be a Blackstonian to say that a wrong answer was never a law).  

3. In this sense, whether "law" has correct answers is a language game. It does only in a sense of talking. Only where the idea means a better example of judging. All that one can ever say about Supreme Court decisions, really, is whether the casuistry is good. Whether it's a good fit in the line of succession.This is the same sort of epistemic task, I think, as asking whether the movie or novel has a proper ending. (Not by the "dolts" of course, but by the academy of the art in question. See Wittgenstein's remarks about aesthetics). [Important note: what Wittgenstein does to aesthetics is somewhat parallel to what moral philosophers like Dworkin due to morality. Neither sees the topic as "subjective" in a willy-nilly sort of way]. 

All that politics has ever been is the drama of history. One is either going to participate in it and have scholarship be for something or someone, or one is simply going to sit back and watch it.  One might be humane and the other cold. But one is also invested while the other accurate.

Regards.

P.S. Enjoyed your conference presentation.
 
________________________________
From: "Graber, Mark"
To: LAWCOURT-L@tulane.edu
Sent: Monday, June 1, 2009 8:04:04 PM
Subject: Re: "where policy is made"

A few notes on whether judges make policy.

If one is a certain kind of Dworkian, one believes that hard constitutional (and moral) questions have right answers and that justices have obligations to get constitutional questions right.  Thus, even if one assumes a moral reading of the constitution, justices in this sense have no discretion.

Many members of thepublic believe that few constitutional questions are truly hard.  Any dolt, in this view, would know that the constitutional clearly grants women the right to an abortion or obviously does not protect the right to gay marriage.  In this this, justices have no discretion, because the questions before than are usually easy to any good faith legal reasoner.

MAG