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

The Senseless Law and Policy Debate

(sent to law courts)

Bobby:

.. just a couple of small points:

1. A judge relying upon "political philosophy" to inform a legal opinion may not be a bad thing if the philosophy is considerate. We would have to explore what is meant by "political philosophy" and how admirable the decision constituence was. This might not at all be against what "law" requires.

2. The problem with the discussion is that anytime you put forth a view on this subject, you are silently declaring an allegiance of some kind to what is "not a legal opinion." In other words, you are saying something NORMATIVE (jurisprudential) about "law."  What proponents need to do is tell us that explicitly. For example, in your concern that political philosophy is used, we would need to have an example of how this violates or cheats "law" before one could continue with the critique (that says judges are doing something in Larry's second sense).

My sense is this: in American constitutionalism, there is no such thing as a non-legal opinion. There is only good and bad casuistry. This is what is not understood. What the whole thing reduces to is a form of art appreciation -- which isn't bad of course, so long as the critics are refined or esteemed or whatever. (Or so long as there is an agreed upon protocol in the art community)..

And so, politics (as in winners and loses) occurs no matter whether the casuistry is good or bad. But when it occurs with bad casuistry, it looks especially bad (as in, no longer just about winners and losers -- but cheaters). And so the problem is that we don't understand these language concepts (e.g., "ideology") very well. We don't have a considerate view of what we mean by "ideology" or "policy in a bad sense." It all only leads to either our own biases being declared (being upset that we didn't win) or to whether the art has integrity despite this. The former is an inconsiderate view, the latter is not.

There is nothing else here to find or declare.

Regards.      

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org/
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860
Find Wilson!: http://twitter.com/seanwilsonorg

The "Law and Policy" Mistake

(sent to conlaw and lawcourts)
 
... we have it, because it is a language game. It is the quintessential case where confusion in the act of languaging affects BOTH sides of people who talk about it. In fact, it is the perfect situation that shows why Wittgenstein was correct about apparent disputes coming from "bewitchment of our intelligence by means of language." The key to the dispute is seeing what is being said, leading to peace, not truth, as the final resolution.

Whenever one says that judges do or do not "make policy," one needs to ask what in God's name are they talking about and -- most importantly -- what is being ruled out of consideration if we grant the idea. Two common mistakes are frequently hiding in the nomenclature: (a) that law is a sort of self-contained algebra (the Neanderthal premise); or (b) that, if it is not, that means "policy wins" (political science's favorite mistake from about 1989 through -- what? -- 2006). One would want to avoid BOTH of these pitfalls.

Really, one ought to avoid deploying the language pair "law versus policy" -- most especially when making systemic comments -- because it is a facile sort of grammar that cannot get to the real intellectual work that needs to be done. 

Empathy, culture, gender and politics

(sent to lawcourts)

... I don't know that I would say that "justice is not possible without empathy," because this sounds like an ideology ("I like liberal judging"). Philosophically, one should rather say that "justice" is at great risk of failure without good information -- which, being the way humans are, entails some reliance upon phenomenology. Justice in this sense appears to be comprehensiveness in the intellect, not empathy as its own "thing."

In fact, I'm sure people who have practiced law can give you just as many bad illustrations of "feeling jurisprudence" as they can mindless formalism (positivism).

Judging is no different than comprehending. The goal is not to stage a fight between empathy and analycity. The goal is to find refinement in the mind through all of the ways it "gets at the world" (and existence).

The best judge is still the Solomon or the Hercules in terms of what brains do. But where the mistake occurs is that we sometimes take "Solomon" or "Hercules" to be a cultural form -- usually, male and white. This is where the problem is -- in stereotypes and prejudice, not in wanting a different intellectual ideal. We often see this with cultures. We say, e.g., something is "western" or "Greek" because it happened there first, when we should just say it is behavior X conducive to benefits Y. Stereotypes are broken by people like Obama who show us that "Kennedy" is only a method in politics, not the home of a person or ethnicity. So it is with judging and with "Solomons." We know what good judging is; we needn't change the product. We should only find ones that break the cultural form. Diversity is actually about oneness in this sense.

What I am trying to say to you is that one would want to find a Holmes or a Marshall in a multicultural form. One would never want to say "there are multiple epistemologies" "women judge their way, men theirs" "now it is time for feeling jurisprudence" and so forth. Or to say, "the way we can get our liberal rulings is to use slogans like 'empahy is justice.'

Justice is righteousness. Righteousness is correctness. Correctness is understanding. Understanding is meaning. Meaning is cognition. Cognition is both analytic and synthetic. A good mind can do and interrelate both. A good mind is still the single best criteria one could have both in a judge and in "justice."

The Role of Empathy in Judging

(sent to lawcourts) 

... proof yet again of why Mark Graber is truly our first citizen.

This whole thing reminds me of Richard Rorty and of why his one best idea is still yet incomplete. The idea is this: to make moral judgments, we have to understand one another. To understand one another, we have to be able "to stand in another's shoes," so to speak (to see his or her life as he or she does). But the problem is that once you do this, the process is not over. You have to incorporate that into some sort of mega perspective or mega vantage point. It has to be cognitively synthesized into the intellect. In other words, empathy works ONLY IF it enhances cognition. Another way of saying it: empathy for its own sake is just another mistake.

The key here is to see that the enemy is not formalism for its own sake, it is formalism as a deficient form of thinking (a deficient form of cognition). So the remedy is not "feeling jurisprudence" more than it is superior cognition informed by the processes of BOTH feeling and non-feeling.

Always, there is a mountain to climb, whether Richard Rorty knew it or not.