Eric Allen Engle, Knight's Gambit to Fool's Mate: Beyond Legal Realism, 41
Val. U. L. Rev. 1633 (2007).
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In chess, a gambit is to
offer a piece to draw an opponent into a worse position. Knights are
often gambited early in the game because they can enter play quickly
and are of low value later in the game. This Article discusses a
different type of gambit: the gambit made by progressives in taking
up the idea of moral relativism in the hope to thereby critique the
failed conservative morality. But that gambit draws the Left into a
fool's mate, a rapid and unexpected reversal of fortunes. By taking
the gambit, the Left becomes trapped and immobilized by the
erroneous belief that normative inferencing is impossible. That
erroneous belief paralyzes any moral critique and transforms all
arguments into economic ones.
Political discourse of the last thirty
years in America has been effectively monopolized by the
political Right. The American Left has, across the board,
failed in its efforts to develop a coherent program 1
to use law as a tool for reform, whether radical or gradual.
Why is that? 3
We can look at any
issue, whether political and defined around interests groups
and criminals), 6
economic and of general interest
(health insurance, 7
unemployment insurance, and poverty relief). 8
In each and every case, the Left agenda, whether
or social, has been
routed. At the same time, the current United States
government has squandered a budget surplus built by
along with the
goodwill of the entire world 11
and the American
counterproductive war in *1635
Yet we see no
presidential impeachment, neither for incompetence nor for
lying and sending Americans to perish in the desert in
search of nonexistent weapons of mass destruction. The
failure of the Left could not be more complete.
This Article traces and explains the
failure of the Left's agenda in legal discourse. 14
Particularly, this Article discusses the failure of the Left
to implement its agenda. Affirmative action? Racial
profiling. Women's rights? Feminazis. Prison reform? Three
strikes. Further, the Left's comprehensive failure due to
its adoption of a failed axiology is explained.
Axiology is the theory of values - the
theory of choice of determinant values. The Left adopted
moral relativism as early as the 1930s in the work of the
legal realists. But relativist axiology has taken the Left
nowhere because it is inaccurate; the Left's erroneous
relativist axiology is the result of an erroneous
Thus, the correct
epistemological foundations needed in order to obtain a
correct theory of moral choice must first be exposed and
clarified. The failed relativist axiology results from a
confused and incoherent relativist epistemology. The
incoherent relativist epistemology is, in turn, the result
of a confused ontology; ontology is the theory of being -
the science of determining the basic nature of existence. A
correct and coherent epistemology is needed *1636
to find a well-founded theory of
moral choice, which is necessary for legal reforms. To
obtain a correct epistemology, a correct ontology is
required. Determine the correct ontology, and the
epistemology basically falls into place. Rectify the
epistemology, and the axiology falls into place. Rectify the
axiology, and legal methodology and political agenda fall
into place. With a correct theory of moral values, the Left
is more likely to implement its substantive policies.
Thus, this Article addresses the goal -
implementing certain ideas - in reverse order. First, the
essential nature of the problem - its ontology - is
diagnosed in Part II. Certain basic propositions of the
theory of knowledge (epistemology) are then determined,
which must be understood in order to move to the next step.
From a correct epistemological perspective, this Article
moves forward to a correct theory of choice of values
(axiology) in Part III. Then, with a basic understanding of
a correct ontology, epistemology, and axiology, it is
possible to properly situate American legal and political
discourse, understand its potential and limits, and
resituate that discourse and its legal methods as part of a
coherent framework for fundamental change. This
contextualization permits one to pose and answer fundamental
questions of legal theory (methods of interpretation) and
political practice (finalities of U.S. foreign policy),
which is the topic of Part IV.
More specifically, a materialist ontology
leads to a monist epistemology, and thus an objective
epistemology. Materialism and monism preclude dualist noetic
theories such as platonism and neo-platonism. Avoiding
platonism also avoids confusion resulting from needless
multiplication of intentional entities. On the basis of the
materialist epistemology, a correct cognitivist axiology can
be attained and an incorrect relativist axiology will be
avoided. Cognitivism is simply the idea that moral values
are knowable, that we can have knowledge of what is meant by
"good" and "bad" acts. Cognitivist axiology allows the Left
to resituate arguments that have been pushed into the
economic arena from the moral arena. But the Left cannot
advance its agenda of equal rights in economic terms. Only
by resituating the discourse of equality back into the field
of morality can the Left hope to implement its views.
The Left's discourse has failed. 16
This was due to errors in assumptions of the nature of
The Left's goals
may have been *1637
unrealistic, but even realistic
goals can only be attained on the basis of correct
understandings of the world as it is. In place of the failed
relativism of the Left, this Article uses a monist,
materialist, holist, and cognitivist method. This method is
applied proceeding from fundamentally prior concepts to
their theoretical consequences. The epistemological basis of
realist legal method is examined in Part II. After
understanding materialist epistemology, Part III examines
the axiological consequences of the chosen theories. In Part
IV, a discourse on legal method flows logically from the
mutually supporting theories of ontology (materialism),
epistemology (monism), and axiology (cognitivism), which
leads to a new theory of natural law with attendant legal
Epistemological Basis of Realist Legal Method
Late modern legal thought often suffers
from confusion stemming from two distinct but similar
concepts: epistemological relativism 18
or skepticism) and axiological relativism 20
If a legal
theorist employs either or both of these related lines of
thought carelessly, the result is the usual post-modern
council, to be careful to make one's presumptions known,
would be met with approval by David Hume. 23
Moral relativism 24
and post-modernism 25
responsible for confusion in legal thinking 26
because of misinterpretations of Hume 27
and Nietzsche. 28
By addressing the
philosophical roots of legal methodology this Article seeks
to clarify some of that confusion to correct the methodology
that flows from it, so that law can work justice.
Hume observes that those who make
prescriptive arguments - arguments about what one ought to
do - generally make the following mistake: 29
the proponent of the argument will begin with a series of
descriptive statements - factual descriptions of
reality as it is 30
- but the
argument's proponent will reach a prescriptive conclusion -
that one *1640
ought to do a certain thing. 31
Hume's critique is that the proponent of the prescriptive
argument has shifted from descriptive statements of what
"is" ("is" statements) to a prescriptive statement of what
"ought" to be done ("ought" statements). 32
Hume implores proponents of prescriptive arguments to
explain how they make this transition from descriptive "is"
statements to prescriptive "ought" statements. 33
That is all Hume says on the subject - nothing more, nothing
less. If one is to mix statements of what is and what ought,
one must make explicit the prescriptive or descriptive
nature of those statements and how one shifts from
description to prescription - for example, the major premise
that "one ought to be kind" and the minor premise that
"torturing people is not kind" with the conclusion that
"thus, one ought not torture people." This is a perfectly
valid syllogism of practical reasoning (phronesis) in the
form of modus ponens, and it is unambiguous because the "is"
and "ought" statements are explicit. One may attack either
the major or minor premise with no risk of confusion of an
"is" statement with an "ought" statement. If both the major
and minor premises were "is" statements with an "ought"
conclusion, that might be per se invalid. However, Hume does
not get that explicit in his critique of enthymematic
"ought" statements. Even if "is" and "ought" statements had
to be distributed such that there was a prescriptive
statement both in the premise and in the conclusion, which
is what Hume was really referring to, that might not be
invalid if one can recast "ought" statements as a particular
kind of "is" statement. However, Hume leaves a lot unsaid.
But here is why: Hume's argument, though
clear on its own terms is, in fact, very modest. Hume is
merely exhorting philosophers to make their "is" and "ought"
statements explicit and to show how they make *1641
the transition from an "is"
statement to an "ought" conclusion. But he might believe
they cannot and, in all events, puts the burden of proof on
he who would infer norms. That move is far more effective
than trying to determine when and whether normative
inferencing is possible.
However, Hume's modest proposal has been
extended well beyond its own terms. 34
Hume has been interpreted to argue that normative
inferencing - deriving "ought" statements - is somehow
does not make that argument. 36
Those who take
overly broad interpretation of Hume
improperly argue that Hume shows that normative inferencing
is impossible, and if that is so, it is also impossible to
make any "ought" statements at all. 37
But this is not Hume's point. 38
inferencing were impossible, then prescriptive argumentation
would also be impossible. And, if prescriptive argumentation
were impossible, then everyone would be relativists,
regardless of their subjective opinions about their
(supposed) objectivity. However, the logical conclusion is
based on a faulty premise. Hume does not argue, let alone
prove, anything about normative inferencing. But this
misinterpretation of Hume as arguing for an impossibility of
normative inferencing is one of the bases of contemporary
moral relativism. 39
as an ideology is a failure, and its failure helps explain
the subsequent failure of the left. 40
Exposing misinterpretations of Hume sets the stage for a
correct reposition of political discourse regarding
inalienable human rights back into the arena of morality and
out of the field of alienable economic goods. By showing
that normative inferencing is possible (distributed
prescriptive major premise and conclusion), it becomes
possible again to argue that (1) one ought to oppose
killing; (2) the war in Iraq kills; and (3) thus one ought
to oppose the war in Iraq. If one asks why one ought to do
anything, the quick answer is "survival of the species."
That is materialism - grounding statements not in ideals
floating in the air, but in the facts of the world as it is.
Nietzsche is the other principal
basis of moral relativism. And, like Hume, he is
misinterpreted often and those misinterpretations paralyze
critical discourse. Nietzsche argues that morality is
subjective in that it is the product of individuals'
Christian morality and repositions morality by putting it on
an individualist and authoritarian basis. 42
Rather than the Christian morality of martyrdom and
self-sacrifice, Nietzsche proposes an individualistic
morality of egoistic self aggrandizement. 43
Nietzsche is not amoral. Rather, he clearly has a
prescriptive agenda, though his morality is not Christian.
Like Hume, Nietzsche is also often taken
too far: Nietzsche might be some kind of a moral
relativist, but his epistemology
is not relativist.
By pointing out Nietzsche's objective epistemology and
correctly understanding his axiology not as nihilism but as
egoism, the abuse of Nietzsche to advance the relativism
which sapped the strength of the Left can be rejected. If
epistemology is objective, which is Nietzsche's view, then
an objective axiology is possible.
By focusing on the bases of moral
relativism, this Article will show how an objective morality
is possible and that, by shifting from a failed relativist
world view toward a materialist morality, the Left can
regain those moral cognitivists it has lost to the Right.
Likewise, an objective materialist view of axiology would
allow the Left to make prescriptions, *1644
and thus enable it to win arguments
that it currently cannot win because of being trapped within
the dead-end that is relativism.
A. Dualism (Plato)
has marked and
marred Western thought virtually since the beginning of
recorded history. The results of dualism are rather clear:
separation (self vs. other), alienation (employer vs.
employee), depression, abuse (parent vs. child), and war
("my" country vs. "your" country). Plato is perhaps the
first recorded example of dualism in Western philosophy 46
and should be contrasted from pre-Socratics, such as
Pythagoras and Heraclites, who were monists. 47
Unfortunately, though Plato's epistemology is largely
rejected, his ontological dualism is not. Plato
distinguishes ideas (eidos
from the material (hule
and believes that
the idea is somehow prior to the material in the sense of
somehow causing it. For Plato, material objects are a
reflection of ideas, 50
and the world is
nothing more than a reflection of the thoughts of God. In
modern terms, he is guilty of magical thinking, he makes a
map of reality and then thinks the map is reality.
Unfortunately for Plato, and fortunately
for science, no one has taken his epistemology very
seriously for at least a millennium. One mark of modernity
is the monopoly of empirical materialism on scientific
debate. For modernity, our ideas are a reflection of the
material world. But the rejection of Plato did not have to
await industrialization. Even Aristotle *1645
was skeptical about Platonic
and Pascal, 53
although themselves dualists, 54
did not attempt
to defend platonic idealism, despite the solipsistic 55
skepticism of Descartes that could admit Plato's purely
noÃ«tic world. 56
In fact, Aquinas
seems to be the most recent person to have taken platonic
idealism seriously. 57
In law, platonism plays out as formalism:
to see the law in rigid terms of eternal and unchanging
forms of action, which themselves are reflections of logical
structure. Plato was wrong: reality is not the reflection of
ideas; ideas are a reflection of reality. However, attempts
to oppose formalism with relativism have not only failed,
they have backfired because, though Plato was wrong, Cicero
was right - law is right reasoning in accord with nature 58
- and consequently Holmes was wrong 59
- the life of law is logic in action; it is phroenesis, 60
the practical *1646
reasoning that looks at the world
as it is and attempts to shape the world as it ought to be.
Holmes did not realize that he was trying to describe
phroenesis because his ideas were influenced by Hume 61
rather than Aristotle, and Hume is interpreted as rejecting
the possibility of practical reasoning because he
(supposedly) does not see that moral prescriptions can be
based on material analysis. 62
One can infer from all this that Platonic
idealism is indefensible. It has been quietly abandoned and
replaced - first by materialism, then by skepticism, and
now, perhaps, by relativism. Both relativism 63
and Platonic idealism 64
because they lack an empirical foundation, which is
definitive of science. 65
world is radically separated from and anterior to the world
of ideas (Plato), or relativised (post-modernism), 66
and so no scientific verification of their propositions is
The task of epistemology is to determine
"what is knowledge." 67
thought often presents relativism as though it were
something new, a radical reaction to the violence and
cynicism of two world wars. In fact, however, truth
skepticism is nothing new. Even among pre-modern
philosophers - notably the cynics, but also the
sophists generally - truth skepticism, even nihilism, could
be found. More recently, the roots of (post-)modern
relativism are generally ascribed, with some degree of
justice and distortion, to Hume 68
and Nietzsche. 69
The post-modernists are riding the crest of a wave of
skepticism, which has indeed grown due to the failure of the
nation-state system to preserve peace in the last century.
However, post-modernism as a system of thought is neither
particularly new nor correct.
Nietzsche is probably the most well-known
modern example of skepticism towards received truth. 70
The idea of progress is a central *1648
defining point of both modernity 71
and Nietzsche's work. Thus, Nietzsche is not a
post-modernist: he is part of the discourse of modernity
because he believes in progress and makes proposals on how
to obtain it. The objective of Nietzsche's work is the
conscious evolution of the human species. However, unlike
his contemporary and fellow modernist Karl Marx, 72
who sees the progress of the species as driving towards new
and better modes of production throughout history, Nietzsche
defines progress as the ability of the species to
genetically surpass itself via Darwinian evolution. 73
Both are modernists, scientists, and materialists, but they
take different perspectives on progress.
Much of what Nietzsche says appears on
first glance to be post-modernist. 74
He is certainly skeptical about the truth. However, *1649
Nietzsche's mocking skepticism of
the received wisdom, as a product of rote repetition of
those in power, does not mean he rejects the possibility of
the existence of truth. Nietzsche is no nihilist; in fact,
he was passionate about truth. For Nietzsche, if
truth can exist and is knowable, then, once determined, he
would defend it with the Wagnerian ardor of Gotterdämerung
"the absolute truth - against itself." 75
It is exactly the love of truth that pushed Nietzsche to ask
the question, "what is truth?"
Aristotle describes virtue generally as
the median between equally opposite and destructive
Aristotle regards the virtue of prudence as a median between
the extremes of rashness and cowardice. 77
Though Aristotle counsels prudence, Nietzsche counsels the
exact opposite. Nietzsche's Hyperborean is a man of
extremes. Nietzsche once said, "I am not a man; I am
(who also influenced Marx on this point), Nietzsche believes
that truth results from conflict. Thus, though skeptical
about existing "truths," Nietzsche believes the truth could
exist and, if it does, is worth fighting for. Some
post-modernists, with their rejection of universal absolutes
and ideology, go beyond Nietzsche: they do not argue for the
clash of the absolute "truth" against itself. 80
Ultimately, they argue that *1650
truth is relative to subjective
proposition eventually collapses into the conclusion that
there can be no objective universal truth, and thus there
can be no science (episteme
), but rather only opinion
). This failure of moral vision, resulting from
an erroneous axiology, is exactly what has crippled the Left
in the United States.
At first glance, the post-modern argument
that "all truth is relative" might seem unproblematic.
However, with reflection, it becomes clear that saying "all
truth is relative" is equivalent to saying "there is no
objective truth." The relativist statement in fact creates a
paradox. That fact should tip us off that something may be
wrong in the world of relativism. This Article refers to
this as the paradox of the "unknowing knower": if truth does
not exist, then how can we know that truth does not exist?
Logically speaking, we cannot. In this way, relativism leads
us to truth nihilism. And truth nihilism, in turn, either
disintegrates on the paradox or degenerates into a pure volonte
de puissance 82
force). Relativist thought thus risks degeneration into
fascism - if truth is unknowable and moral values relative,
then only force exists. And if force is the only real
argument, then why not be fascist? 83
This paradox plagues post-modern thought and dooms it to
irrelevance - or worse. This also explains why the
relativist position must be rejected. Its foundational
presumptions are wrong, and it leads us nowhere we want to
The relativist position is thus easily
dispatched by either the paradox of the unknowing knower or
the reductio ad absurdum
that truth nihilism and
moral relativism can eventually result in fascism. There
are, however, better positions of truth skepticism. Some,
such as Nietzsche's, rise to the level of brilliance. 84
However, most of them will also fail - *1651
albeit not so quickly or nicely as
truth nihilism. In its more refined form, the truth
skeptic's argument against the existence of truth is really
only an argument against the ability to cognize truth. The
truth skeptic argues that truth may (or may not) exist, but
even if truth did exist it may not be cognized (i.e., known,
as such). The "strong" version of this argument, that truth
does not exist, has already been shown to be flawed. This
weaker version, that the truth is unknowable, leads to the
same conclusion - that science would be impossible. It seems
almost as untenable by reductio
. But what about
truth skepticism? What happens if only some truths are
unknowable? Namely, what if we accept the validity of our
sense impressions and use our perceptions of reality as the
basis for objective descriptions of reality? Then some
truths would be knowable - particularly, truths about
material facts - and we would be out of the dark
(relativism) and back into science. That is Nietzsche's
position - at least some truths are knowable.
Thus, Nietzsche is faithful to the idea
of truth because he rejects intersubjectivity. 85
Truth may or may not always be knowable, but at least
sometimes it is, and thus science is possible. Nietzsche is
willing to entertain the possibility that truth, or at least
some of the truth, could be generally incapable of cognition
(i.e., formal demonstration). Basically, he admits we might
all be staggering around in the dark, and that might be
inalterable, but he clearly hopes otherwise. If no truth at
all were possible, we would not and could not know it. For
this reason, our praxis
must presume that truth is
possible and then fight for it.
Precisely because Nietzsche defends
truth, he accepts that we should live in a world of
skepticism because it is possible that the truth value of
some statements may be unknowable (which is a different
proposition than that there is no truth). Misapprehension of
this fine distinction is one reason why post-modernism
presents untenable positions. It overstates truth skepticism
and elevates it to intersubjective relativism or nihilism.
Understanding these errors makes it easier to reject them.
Rejecting relativism makes it possible to argue from a moral
viewpoint against economic values as the standard par
excellence of political discourse.
But while Nietzsche admits it is possible
that we cannot know the truth about all objects, he believes
that, if only for the practical reason stated, it is
possible to know the truth about some objects. Just as *1652
Nietzsche recognizes the existence
of darkness (ignorance) in the Platonic cave 86
(the material world, specifically The City), 87
and points out the possible existence of false illumination
(the central fire), 88
he also admits
the Apollonian possibility (but not the necessity) that
there might be the true light of reason 89
(the sun in Zarathustra) and that the only way to find the
light is to ruthlessly question its existence (because of
the false light). It is this sort of a critical attitude
that is needed to pose the questions and find the answers
needed to remedy the breakdown of American political
discourse and its resulting incoherent foreign policy.
The apotheosis of Nietzsche is cognition
of his own ignorance: he knows he does not know. He has
knowledge of his ignorance. That is, proverbially, wisdom. 90
All philosophy may or may not begin in wonder. 91
But all truth begins, often painfully, in the cognition of
own ignorance. Nietzsche's entire
work is defined around his reaction to his own ignorance.
Americans are ignorant of foreign languages, 92
geography, histories, religions, and cultures. 93
One can rightly ask: Are American's deliberately kept
ignorant of foreign cultures and languages to make them more
manipulable? Whether the ignorance is calculated or merely
the result of physical isolation from the rest of the world,
Americans can no longer afford the luxury of monolingualism
and Amero-centrism. Only if Americans become conscious of
their ignorance and take steps to cure it can they avoid the
pain their ignorance causes. Americans do not know and think
they know. 94
They approach a vast complex world with
simplistic universalist ideals, which are generally
perverted and cynically used to advance a corporatist
agenda. Worse, the occasional Left attempt to thwart the
corporatist agenda is crippled by relativism, which is also
an example of knowing not that one knows not. Correcting the
flawed relativism would empower efforts to oppose
corporatism. Understanding the complexities of the world is
a necessary first step to avoid "living in a glass towers
and throwing stones." But an entire reconceptualization not
only of history and geography and language, but also the
proper role of America in the world and of moral choice is
necessary to stop the stone throwing and the counter-stone
In Thus Spake Zarathustra
, we see
Nietzsche, as Zarathustra, reject society and the crowd
(i.e., The City, to seek the "all seeing eye" - the sun,
representing Apollonian truth). 95
after this illumination, when he returns to The City he
discovers he is still
ignorant. For why else would
the crowd reject him? Why else would the risk-takers and
rope-dancers - the innovative catalysts of progress, *1654
his Heroes, forerunners of the next
Man - plummet to their death? Only Nietzsche's/Zarathustra's
ignorance of the limitations of homo sapiens
explain the masses' rejection of enlightenment. Though
Nietzsche is rejected by the masses, he does not himself
reject logical scientific truth. Rather, he believes that he
has perceived an uncomfortable objective truth - that
humanity, as it is, is not capable of perceiving or
accepting all of the truth.
This is also the conclusion of Leo
However, Nietzsche does not share another conclusion of
Strauss and Machiavelli - that one should be economical with
the truth and use it sparingly for tactical advantages.
Instead, Nietzsche takes a radical strategy that, if
correct, perhaps outmaneuvers Marx: if humanity as it exists
on the whole is beneath the standard of rationality,
risk-taking, and facing hard truths, then humanity must
evolve beyond itself. 98
objective is no less than to push the human species into the
next phase of its upward evolutionary spiral. 99
Marx seeks to advance the human species as a collective
methodically through technological progress. Nietzsche, in
contrast, seeks out individuals who are "higher types,"
precursors of the next strain of homo
, to determine
how to cultivate such exceptions to mediocrity so that their
numbers will grow. Like Marx, he is trying to push the
society forward following the logic of modernity,
"progress," but in a very different way. Such projects,
however, are impossible without scientific truth.
Both strategies simply outmaneuver
dishonest tacticians like Leo Strauss or Machiavelli, who
are playing for much lower stakes and are strategically
blinded because of their tactical choice to deploy
dishonesty. It is this sort of tactical "shrewdness" that
leads the Left to wrongly reject moral discourse. Hoping to
outmaneuver conservative moralists, most of the Left has
abandoned the idea of morality. That, *1655
however, shifts all debates to
economic values where the Left is doomed to lose because any
redistributive agenda entails transaction costs and thus is
uneconomical: slavery is profitable. By tactically
sacrificing the idea of morality in vain hopes of evading
conservative moralists, the Left commits a grave strategic
error because the debates are then shifted out of the sphere
of morality (where persons have inalienable value) to the
sphere of the market where all is bought and sold according
to the logic of profit. However, the worst excesses of that
can be avoided with a correct appreciation of Nietzsche.
Nietzsche is not a nihilist; he is not even a relativist.
Rather, Nietzsche is a moralist, but his morality is
anti-Christian. A correct appreciation of Nietzsche's
contribution to a scientific understanding of morality would
allow the Left to diminish, and even escape, its strategic
error (the fool's mate) at the hands of economists, gained
for a tactical advantage over the conservative moralists
(the knight's gambit).
In sum, Nietzsche, though cryptic, is no
liar. He is a truth skeptic and is ultimately a scientist.
His scientificity comes through most clearly in Die
, eulogos - in some sense a eulogy
for Ignorance). 100
He believes in
truth. But his faith in truth is not the blind faith of
religion: his faith in truth is founded on a skeptical
experiential inquiry guided by a teleology only dimly
perceived by most - a conscious effort to force the
evolution of the human species. Post-modernists who see
Nietzsche as their role model simply do not know what
modernity is or what Nietzsche was saying about progress,
truth, and science.
2. Goedel, Quine, Saussure
Roots of post-modernism and relativism
have been seen in Nietzsche, and the reason for their
misapprehension has been explained. Nietzsche is not the
only source of confusion among post-modernists and other
relativists. The most defensible position that seems
relativist is the cognitive skeptic's argument that we
should distrust what we are told is truth and that truth may
not always be knowable. Other defensible roots of
indefensible positions can be seen in the works of Kurt
Goedel, Willard Quine, and Ferdinand de Saussure.
Goedel's famous theorem, that in a
closed formal system all true theorems cannot be proven and
all false theorems cannot be disproven, supports the
cognitive skeptic's argument that truth cannot always be *1656
understood, Goedel's complex idea is a powerful one, but
does not compel relativism in any way. Similarly, Saussure
argues that the sign is an arbitrary value: 102
for Saussure, there is no underlying universal root language
common to all world languages. 103
argues that language is inevitably indeterminate as every
term is mutually defined. 104
sign is arbitrary - anything can stand for anything else. 105
How correct is relativist epistemology?
Though signs are mutually defined, they are not exclusively
so defined. The sign is not completely arbitrary because
certain signs are reflections of material facts and because
some words are indeed onomatopoetic. Linguistic determinacy
is secured by anchoring signs in material objects.
Representations of Quine that argue that his work implies
that legal discourse be indeterminate because all argument
is ultimately tautological miss the point and take Quine too
far. All argument is ultimately founded on axioms and
postulates, and thus is ultimately tautological. However,
maneuvering from axioms and postulates to theorems must
nonetheless result from internally consistent rule
generation methods, which may be valid or invalid. Their
validity is a reflection of material facts and material
processes. Law is like a formal system, an abstract game
with rules of production, axioms, postulates, and theorems.
Truth skepticism - unlike nihilism or
relativism - is defensible. Language may (or may not) be an
intersubjective construct. However, language is only
indeterminate when we engage in the dualist error of seeing
language as pure idea with no connection to the material
objects that it describes and reflects. Most of the flaws in
Western theory arise out of dualism. 106
If the Left were to reject dualism, numerous dependant
issues would fall into place. But so long as the Left
follows dualism, it will be presented with blind alleys and
However, a monist-materialist
perspective allows us to escape from the problem of
linguistic indeterminacy as the sign, even if syntactically
arbitrary, is not semantically arbitrary because the sign is
a reflection of a material object. As the syntax of the sign
is intersubjective and its object is objective, signs are
determinate functions. Language is not semantically
arbitrary because objective knowledge exists. Additionally,
because objective knowledge exists, knowledge, whether an
objective morality, exists and the content of that morality
is possible. Again, resituating the Left's discourse in
moral terms allows the Left to obtain the long absent
traction needed to advance its arguments.
As this Article will show, the axiology
that flows from dualism and relativism is fundamentally
flawed. That flawed axiology, when consciously rejected,
allows the Left to argue coherently for moral positions.
Whenever the Left has taken up the failed relativist
axiology to oppose conservative moralism, it has lost. It
has neither changed the mind of the conservative moralists
nor implemented its alternative vision of reality. Instead,
it has undercut its own moral force. The Left, by taking up
the failed relativist axiology has tried to develop and
implement legal methods that distort discourse and mute
critique of the dominant paradigm in the legal and political
arena. Taking up the failed relativist axiology prevents
effective legal reform. This failed axiology leads to
incoherent political positions and incoherence in
contemporary political discourse. Understanding the source
of these distortions is the first step in ending them.
Ending the distorted and incoherent legal and political
debates by taking up a correct monist and materialist
axiology is a necessary step to rectifying injustice.
C. Constructivism: Popper
We have already seen that, for Plato,
our ideas construct the universe. Constructivism argues that
knowledge is not discovered; rather, it is created socially,
and thus is constructed. For example, Saussure is a
Truth is not
objective for the constructivist, rather it is
intersubjective. However, the constructivist position runs
into the same obstacles as relativism. Some facts clearly
are not socially constructed.
Similar to constructivism, and another
possible root of relativism, is the falsification thesis of
Popper. For Popper, like Nietzsche, all *1658
knowledge is tentative. 108
However, Popper also argues that science is not the
discovery or affirmation of positions, but rather the
falsification and rejection of competing theories. 109
For Popper, it is not that we know that P
but rather that we know that not P
is false. 110
Again, this is similar to Nietzsche because it implies a
sort of epistemological Darwinism, where easily falsified
ideas fail quickly and less easily falsified ones continue
to exist until finally disproved, but the surviving ideas
are still subject to the possibility of falsification.
Popper's position is quite defensible, and it is an example
of what might appear to be relativism, yet is in fact good
Popper is arguing that knowledge is tentative and refutable,
which is a position of classic modern science since Francis
But when we see
that skepticism is a root belief of the scientific method
that leads us to a paradox, which might please Marx, the
scientific method sows the seeds of its own destruction. 113
The skepticism of the scientific method has prepared the
ground for the intersubjectivist thesis that knowledge is
socially constructed out of subjective experience. But that,
if true, would imply the impossibility of objective
knowledge and of science.
According to relativists, all knowledge
is subjective and socially constructed into an
intersubjective reality, except for the knowledge that
knowledge is relative and intersubjective. Thus,
intersubjectivism leads us to nothing other than a slightly
more elaborate variant of the paradox of the unknowing
knower. This regress into paradox can be avoided *1659
only if one admits the possibility
of the objective knowledge of the subjectivity of knowledge.
But if we admit that there is an objective epistemology,
then why should objectivity be limited to epistemology? If
epistemology can be objective, then why could an objective
moral science or physical science not also be possible? So
the regress, if denied by that step, lets us get back into
an objective view of the world. And the material facts of
the objective world contradict the constructivist and
relativist position. It is an objective fact that water
always boils at a certain temperature, regardless what we
think or say about it. Thus, an unqualified non-cognitivist
stance can be cogently defended, if at all, only with great
difficulty, namely by admitting a position that sneaks
objectivity into the supposedly intersubjective universe
through the back door.
Why defend these awkward positions?
Awkward positions such as these are the result of the sort
of tactical gambits of the realists and the truth economies
recommended by Strauss and Machiavelli. In this case, the
supposed Left wing gambit, namely masking a Leftist morality
in the guise of moral relativism or scientific neutrality
after Weber (sometimes even relying on a radical
individualist libertarian argument which is another
strategic error) backfires - which would probably delight
Strauss - and hopefully demonstrates the danger of using the
The Left critique of morality attempts
to undermine moral values with which the Left disagrees,
usually in an attempt to liberate the subject from power. 114
This explains why radical individualism and/or libertarian
arguments are sometimes made in bad defenses of Left wing
agendas. Those arguments ultimately backfire, however,
because capitalism is individualistic and based on money.
This is not the only way that supposed radicals, by taking
opportunistic gambits, err. Undermining moral values
elevates market values 115
as the only
objective scientific value. As most money is controlled by
men, undermining moral values leads to elevating market
values, which, in turn, leads to augmenting the power of
pseudo-Left gambit reinforces patriarchy and reiterates the
hierarchy of the rich as *1660
more valuable than the poor. So
rather than being a clever ruse or tactical advantage, that
move is a clear loser as it twice loops right back into
How would materialist ontology impact
the truth constructivist argument? Basically, the
constructivists argue that knowledge (i.e., verifiable
statements of truth and falsehood) is constructed in an
intersubjective world. However, if truth statements are
objectively verifiable (i.e., if truth is an objective
fact), then truth cannot be created but only discovered. And
if truth is not created, but "merely" discovered, then the
constructivist argument of a pure positive science
collapses. This is wonderful for science, but it is terrible
for moral relativism and explains why the relativist
positions are generally indefensible.
Having seen how post-modern epistemology
collapses due to a subjectivism, which ultimately denies the
possibility of science, this Article now turns to analyzing
how this subjectivism cripples post-modern thought,
preventing it from shaping vigorous normative propositions
about acknowledged social problems and, in fact, reinforces
patriarchy, hierarchy, and inequality by evacuating the
moral sphere of all values other than market values.
Basis of Realist Legal Method
In Part II it was shown that the
epistemological relativism was a non-starter and that a
moral theory was at least possible, as knowledge is
possible. Part III shows that an objective materialist moral
theory is possible. Morality, in materialist terms, is that
which enables the human animal to survive and not merely to
survive, but also to prosper and obtain the good life. With
an objective morality, a normative discourse outside of
economic terms becomes possible, which in turn enables the
Left agenda to be implemented.
Several of the epistemological positions
of relativism and constructivism, if properly qualified,
appear defensible. Aristotle considered social justice as
founded on an axiology, which was not natural, but varied
dependant on the society one examined. 117
What modernity calls social justice is, for Aristotle (who
called it distributive or *1661
geometric justice), 118
not a natural, but a positive function and it varies from
society to society. 119
Thus, it may
not be surprising that the axiological positions of
relativism appear to be less subject to critique than the
epistemological positions. However, the axiological
positions of relativism are nonetheless hard to defend.
Moral relativism, reflected in Weber's
value-free neutrality, 120
asserts that either (1) moral values do not exist, that they
are in fact purely subjective elements of personal taste, 121
or (2) even if moral values do exist, they are not capable
of cognition. Epistemological relativism implies axiological
relativism (though the reverse is not true), which implies
that the existence of moral values is unknowable. However,
some values, such as the inherent value of human life, are
A rough factual
moral standard can be the tendency of an act or acts to
foster the survival of the human species. Such a standard is
not subjective; it is based in the material world. Thus, it
is capable of scientific verification - that is, a
materialist and not a platonic or neo-platonic formal
The reason that moral relativism appears
attractive to those who would critique Western values is
because Western moral theory neither prevented nor
sanctioned witch hunts, 123
and world wars (the most obvious evidence of failure of
Western morality); it actually often encouraged such
brutality and *1662
All too often, the old "moral" values were immoral. However,
rejecting a failed moral system is itself a moral choice.
Moral relativism can neither claim normative power nor
reject other theories of morality - that would require a
value judgment. Relativists regard value judgments as
meaningless or impossible, and thus impermissible.
In fact, however, we can and do have
objective material standards by which we can judge the moral
worth of any society - namely, the life expectancy of its
members and several other indicia as well (e.g., infant
mortality, literacy, homelessness). When radical scholars
wish to reject the failed Western morality, they should not
take the relativist gambits because (1) with no moral ground
to stand on, their own arguments can become relativized, and
thus marginalized; and (2) rejecting moral arguments leads
to an augmentation in the power of the market as arbiter of
male power (because men control most of the money) and
A. Hume and Kelsen
The presupposition that moral values are
statements about facts, and not themselves facts, can be
traced to David Hume, who is the last major root of
erroneous post-modern thought that we will examine. Hume, in
turn, influenced Kelsen to adopt this dualism. For Hume and
Kelsen, there is an essential and ineluctable difference
between statements of fact ("is" statements) and statements
about facts ("ought" statements). 128
For Hume, to state that there is insufficient food in
Ireland to feed the Irish is a statement of fact: either
there are or are not X kilograms of wheat needed to feed Y
persons to avert starvation. A statement, however, that
there is insufficient food to feed the Irish (Somalians),
and thus one ought to donate food to them is, according to
Hume, an "ought" statement. Hume is generally presented as
rejecting the viability of "ought" statements as being
implicit in "is" statements, and thus as rejecting normative
and practical syllogisms. 129
representation, however, is inexact. 130
Hume does infer norms. 131
according to Hume, must be explicitly declared. 133
In fact, *1664
the practical syllogism evident by
the example of a famine is obvious. We must feed the poor
not only for pleasant altruistic reasons, but also for
practical ones: desperate people do desperate things;
therefore, alleviating famine reduces the likelihood of
being attacked or robbed. Positive reasons exist as well. By
aiding the victims of famine, their descendants may be more
favorable to our descendants. Of course, humanity also
provides a practical justification to explain why the fact
of famine implies the act of feeding. We are social animals,
we are not cannibals, and part of what separates us from
sharks is the fact that we have compassion for the weak. All
of this shows the practical measure of morality as that
which ensures species survival seems more or less self
evident and is, in all events, an objectively measurable
universally admitted good.
For Hume and Kelsen, the difference
between "is" and "ought" is ineluctable and essential. Hume
presents this dualistic difference as a postulate: he does
not seek to prove the existence of that difference; he sees
it as fundamental (i.e., axiomatic). Hume thus does not
raise or refute the idea that "ought" statements might also
be fact - an alternative possibility this Article presents.
The idea that Hume's "law" holds that statements of "is" and
"ought" are fundamentally different and that the one cannot
be derived from the other is an interpolation of Hume based
on a presumption that he did not necessarily make. It is
certainly not the only possible interpretation of Hume. 134
Further, Hume's dualism is not a necessary (i.e.,
inevitable, position, and generates theoretical *1665
inconsistency). Moreover, courts
infer from facts to norms (induction) 135
and from norms to facts (deduction) all the time.
Those who interpolate Hume as arguing
that "ought" can never be deduced 136
from "is" overstate Hume. 137
He does not say
that the derivation of "ought" from "is" is impossible. 138
He certainly does not *1666
say there is no connection between
them. Hume says that whoever wishes to make the transition
from "is" to "ought" must explicitly enumerate exactly how
they make that transition. 139
In other words,
Hume presents a prudential council: 140
it is wise for a philosopher to explicitly show the
connection between his normative and factual statements, 141
as this clarifies thinking both for the philosopher and his
Thus, Hume's "law" is not a "law." It
appears, on closer examination, to be a mere prudential
council. However, a critical examination will also show that
Hume's "law" is in fact a trap for the unwary. 142
Hume does not say that moral values do not exist or cannot
be cognized. Rather, Hume's critique is a much more subtle 143
challenge to all who wish to present moral choices as
objective values to explicitly do so. In other words, Hume
merely and properly places the burden of proof upon the
movant to show that moral values exist objectively as fact.
As he presupposes a fundamental difference between "is" and
"ought," this burden of proof
cannot in fact be met, at least not within Hume's dualistic
The only way
out of Hume's trap is to recognize it as dualism 145
and reject the presumption of dualism. It seems to me that
Hume has not proven the existence of "is" versus "ought,"
but rather presumes it. Therefore, just as Hume can rightly
insist that the practical syllogism be founded on explicitly
declared presumptions, we can also insist that Hume prove
his dualist position.
From a monist perspective, moral
statements are simply statements of facts - another
"is" statement. 146
just as it is a fact that the sun rises, it is also a fact
that certain persons believe that others ought not kill.
Dualism runs throughout Western thought and is at the root
of alienation, division, separation, and suffering. Plato's
) "matter" (hule
) distinction may
be the first recorded example of dualism in Western thought.
It is not the last. Plato essentially presumes the existence
of the eidos
as a postulate and never proves it,
much as Hume assumes a dualism which he does not prove. 147
In fact, Plato's dualism cannot be proven, as material
objects would not be the measure of proof of mental forms.
Thus, platonic formalism does not admit to proof by
materialist standards of science. Christianity makes a
similar god/man *1668
duality. We also see dualism in
Descartes, who separates mind and body, human and animal.
Aristotle would, however, disagree with
Descartes' man/animal duality. For Aristotle, man is an
animal - a rational talking animal. Cartesian dualism,
however, is very convenient for scientific experimentation
(vivisection), factory farming, and other abuse: if an
animal has no soul and is, as Descartes argues, a mere
automaton, then it cannot suffer. Those are the types of
errors that dualism generates: distinctions between "self"
and "other," which allow dehumanization and destruction of
the other leading ultimately to a Weberian technocratic
nightmare of bureaucratic specialization wherein each
individual - from the worker in the munitions plant,
to the pilot, to the bombardier - can ignore and deny that
they are killing and maiming other humans.
If dualism and (neo-)platonic idealism
are fatally flawed, what about monism and materialism? For
the consistent empiricist, ideas do not exist apart from the
people who think them. Thus, to say that moral values exist
or not is senseless. What can be said is that the vast
majority of persons in all times and places hold certain
fundamental values. It can also be said that ideas have
certain objective consequences. In both senses ideas (and
moral values are one type of idea) exist, but they have no
existence independent from the people who hold them. Ideas
are reflections of objects. After all, our bodies are made
of matter and our ideas, which are not congruent to material
reality, are soon corrected, whether we like it or not, by
materiality. For the monist-materialist, "is" and "ought"
are not distinct and irreconcilable. Rather, "is" swallows
"ought" whole: "ought" statements are just another form of
"is" statements. 148
critiques of post-modern epistemological and moral theory
influence law is the topic of the next section.
IV. Legal Method
In Parts I through III, the ontological,
epistemological, and axiological bases of a theory for
fundamental critique of American legal-political discourse
were set out. A monist materialist ontology sets an
irrefutable base for the possibility of objective truth as
measured by correspondence between descriptions of reality
and observations of reality. 149
platonic and neo-platonic noetic formalism are
leads to a rejection of platonic forms. 151
Further, Materialism leads one to reject epistemological
relativism - things do not become true simply because large
numbers of people believe them. Rather the truth is "out
there" in the real world. Truth is possible and is measured
as a correspondence between objective reality in the
material world and descriptions of that reality in human
language. Human language too escapes irrelevancy because of
its connection to empirical reality. Thus, an objective
morality is theoretically possible. Morality took on an
objective sense when it, consequent to the materialist
method proposed, is grounded not in erroneous formal noetic
views, but rather as a dispassionate materialist calculus of
what improves the life expectancy and caloric intake of
humans. With an objective measure of morality, we can make
moral arguments that circumvent economism, as they look at
something more fundamental than money: inalienable human
dignity. Thus, the method proposed leads us out of the cold
world of cash and into the world of humanitarianism. Human
dignity is not fungible. Basic human rights are inalienable.
Thus, they cannot be comprehended in economic terms.
How does this understanding of ontology
(materialist and monist), epistemology (not nihilism or
relativism, but skepticism), and axiology (cognitivism not
relativism) influence legal methods of argumentation?
Summarily, the realists' rejection of formal logic was as
much an error as their rejection of morality as a category.
By rehabilitating philosophical (Aristotelian and
scholastic) logic on a materialist
basis, in place
of its usual noetic formalist basis, it is possible to apply
objective morality to the law. Thus, a unique and, in fact,
new form of natural law reasoning is proposed. A written law
may conflict with customary moral law. *1670
However, unlike traditional views
of natural law, the existence and resolution of conflict
points between written law and unwritten law is determined
by a materialist analysis - a contextualized examination of
objective reality - and not by an idealistic deduction from
amorphous ill defined pure concepts. This argument is
vectored through the failed conceptual challenges posed by
legal realism as the logical conclusion of Parts I through
III. By reviewing legal realism's failure, the necessity of
a new way of thinking about the law becomes clear. Both
formalism and realism were partial and imperfect solutions
to the problem of legal interpretation. The theory of
materialist natural 'law proposed is the dialectical
synthesis resulting from the opposition of formalism versus
realism, a relative opposition occurring within the
super-structural justifications of a given mode of
production namely, late capitalism (which is also called
fast capitalism or casino capitalism). 152
Epistemological and axiological choices
shape method. Legal realism was more or less the direct
outcome of these various epistemological and axiological
currents. Legal realism dominated United States legal
thought from the 1930s to the 1980s, at which point it was
first challenged. 153
It has now been
overtaken by economic theories of the law. 154
However, so great was the influence of the realists - in
fact they set the stage for law and economics 155
- that their methodology continues to heavily mark the law.
A. Legal Realism vs. Formalism
Epistemologically, legal realism 156
opposed psychology, 157
and hints of class conflict against classical logic. The
realists quite successfully introduced a new terminology,
substituting negative words to describe institutions they
wished to replace and positive words to describe proposed
replacements. Thus, classical logic was relabeled formalism.
Binary reasoning was relabeled, at best, bright-line
and, in all
events, as rigid 161
In contrast, the realists were flexibly 162
balancing 163 *1672
competing interests. 164
Rules were replaced with standards 165
and laws were replaced with norms. 166
Methodologically, the legal realists
advocated flexible multi-factor balancing tests, 167
which could and did consider interests not only of the
plaintiff and defendant, but also of society and third
the (supposedly) rigid, deterministic, formally valid, but
substantively empty logic of classical legal scholarship.
Formalism, rigid, inflexible, and (supposedly)
teleologically blind, could not defend itself in its own
terms against the flexible, visionary, balanced realists
because realism, unlike classical logic, pretended to
understand and deploy psychology and to ignore the form of
reasoning and look to the mechanics of the practical
workings of power. Thus, realism could claim to perceive
issues that formalism (in the interest of objectivity)
ignored, and thus be a more accurate and persuasive world
The realists argued that rigid formal
logic generally led to substantive injustice. 169
In its place, they argued for flexible guidelines, which
risk indeterminacy. 170
flexibility, while it permits the court to decide cases on
their individual merits, can also be criticized as
and open to abuse. The legal methods of the realists, though
flexible or supple, are also indeterminate. The legal
realists reject binary bright-line categorical analysis in
favor of multivariate balancing tests. 172
That rejection is not generally well-founded. Though the
realists' epistemology leads to an erroneous general
methodological rejection of categorical analyses, the
alternative methodology they propose is not necessarily more
objective. Indeed, *1673
how could it be given the
subjectivism of the realists' epistemological and
axiological assumptions? Both balancing tests and
bright-line categorical analyses are not necessarily well
founded, but they can be if their terms are certain. Terms
are certain if they are empirically verifiable. However,
empirical verifiability, in a world of subjective moral
values, leaves but one standard - cash money. Thus, any
attempt to use legal realism to impel necessary fundamental
reform to an ossified constitutional structure is doomed
from its inception. For realism ultimately compels us,
perhaps surprisingly, to the marketplace.
Contemporary legal epistemology follows
the realists' lead and tends (incorrectly) to reject
bright-line categorical tests and other methods derived from
formal logic on the following grounds:
categorical analyses are unambiguous, they are, at best,
teleologically blind and, at worst, teleologically vicious.
(a) When teleologically vicious,
formal manipulations are nothing more or less than the
mask of class dominance. 173
(b) When teleologically blind, formal
manipulations ignore whether substantive outcomes are just
and elevate the procedural form over the substantive
The realists' conclusion - laws of
formal logic, such as tertium non-datur
, the law of
or not A
," and categorical
bright-line analysis - must be rejected in the name of
substantive justice. In their place, flexible (or
manipulable) balancing tests should be adopted. 175
The rejection of formal logic is, however, ill founded.
While some realists pretend to be post-modernists, applying
value neutral language, they do in fact make moral choices.
However, their moral values are not *1674
those of feudalism or even
liberalism. Critical scholars reject patriarchy and
capitalism, which is a normative
why radical critique should not be quick to reject morality
or normativity, as radical discourse is also normative and
must be if it wishes to effectuate change.
Categorical analysis, a formalist
method, requires an exact methodology (i.e., terminological
and empirical certitude and strict application of formal
logic). Recall, however, the linguistic critiques of
Saussure and Quine, which explain why categorical logic was
rejected by the realists. Since the realist revolution of
the 1930s, categorical formal methods are criticized and
generally rejected as rigid, inflexible, and formalism.
However, early realists' rejection of formal logic, which
they characterize as rationalization, is simplistic: the
realists ignore that formal logic and empiricism are
perfectly compatible as methodological tools in the search
for truth. If balancing tests, favored by the teleological
interpretation realism prescribes, can be evaluated and
determined according to objective empirical evidence, then
so too can bright-line categorical analyses. There is no
empirical difference between determining the weight to be
assigned to a factor in a multi-variant balancing test and
determining whether a bright-line threshold has been
crossed. The realist argument that flexible "balancing
tests" are better than formalist, bright-line tests is thus
This Article has just shown why the
realist critique is overly-simplistic; that critique also
goes too far. The realists argue that formal logic is at
least abused, if not misused. Logic can, of course, be
abused. However, the realists ignore that formal logic is
only contingently, and not necessarily, manipulable. 177
The manipulability of formal logic is contingent upon a
combination of terminological inexactitude - which can exist
- and intellectual dishonesty: it is not inevitable. If all
formal logic were merely a manipulation designed to mask the
raw exercise of power, then logical argument would be
would force us into fascism's volonte de puissance
For the strong, that is not a problem, but supposedly
radical critique claims to want to advance the *1675
interests of the poor, the
downtrodden, and the suffering. Consequently, radical
critique will never be arguing from a powerful position
where it can simply force its objectives on the agenda.
Rather, all altruistic efforts at bettering the lot of those
less fortunate must ultimately argue persuasively from
compassion because the dispossessed lack the instruments of
Not only does regarding formal logic as
mere manipulation - the mask of power - lead us to
voluntarism and the fascist reductio
, it also is
self-contradictory and leads to a conclusion which, like the
paradox of the unknowing knower, voids most nihilist
discourse. Logical contradictions thus undermine most
relativist theses, whether such discourse is presented as
legal realism or post-modernism. Members of both schools of
thought assert that there is no truth or that all truth is
relative. That position leads to an antinomy. It is
illogical to use logic to argue that one cannot use logic.
If there were no truth, or if all truth were relative (to
what?), then statements such as "there is no truth" or "all
truth is relative" would be logically empty of meaning. But
if such statements are logically empty, they cannot be the
foundation of an argument for the result is infinite
regress. The antinomic conclusion is the inevitable
conclusion which most post-modern and realist epistemology
leads to and must lead to if one takes their assertions of
truth nihilism or relativism seriously, and not as a mere
sensationalist foil for a healthy truth skepticism which
they generally are.
Although post-modernism taken to its
logical conclusion leads to an impermissible antinomy, a
qualified realism is admissible. The statement "the abuse of
formal logic leads to some injustice" is perfectly
admissible (i.e., that statement is formally valid,
empirically true, and possibly even necessarily true). This
qualified realism is admissible and does not overstate the
realist critique. Truth sceptics and realists have some
points - logic can be, and sometimes is, manipulated. But
truth sceptics and realists should be careful not to take
their points too far lest nihilism annihilate their own
discourse. That annihilation - the negation of the negation,
so to speak - necessarily occurs whenever realists or
post-modernists assert a truth statement purporting to
negate the existence of truth statements. This annihilation
happens, for example, when they attempt to simultaneously
assert that "all moral values are relative" and "no truth
exists." Those two statements are, in fact, logically
incompatible. They cannot be asserted simultaneously in *1676
logical discourse. They are
antinomic, the former, heterologically and, the latter,
This leads to the conclusion that the
realists overestimated the difficulties of linguistic
indeterminacy and formalism's elevation of form over
substance. Thus, substituting interest balancing tests for
bright-line categorical tests may not have been necessary.
Furthermore, interest balancing tests are generally
ambiguous. What factors are chosen? What weight are the
factors given? How is that weight measured? Thus, realism is
an imperfect solution to an ill-defined problem, as interest
balancing is just as manipulable as bright-line, categorical
B. Realism Set the Stage for Law and Economics
Legal realism has given judges the
necessary tools to allow the deployment of their subjective
will - in the search for substantive justice - without
any moral telos
(final design) to guide that will.
Despite flaws in the relativists' positions, their arguments
have been so successful that contemporary values generally
are only considered in market terms. 180
Moral values are generally ignored as being subjective
and/or indemonstrable and/or unscientific in contemporary
legal discourse. 181
As a result,
economic analysis is ascendant. This is because economic
analysis can claim to be objective, and thus scientific.
Economic arguments appear to be objective because they
appear to be empirically quantifiable, therefore verifiable,
and thus objective. Of course, a searching critical regard
shows that economic analysis carries *1677
its own biases and that some
objects do allow economic analysis - markets with very few
or even no actors, for an easy example. Externalities 182
and the question of fungibility also explain why skepticism
towards the universality of market values is justified.
Economic agents are not always rational profit maximizers. 183
Goods are not always fungible or alienable, nor should they
The teleological critique of formalism
presented by realism depends upon an objectivist axiology,
which realism helped to destroy. 184
inability to elaborate a viable axiology is one more reason
why the realist critique of legal methodology, which is
ultimately a critique of formalism's supposedly absent
If all moral values are merely
subjective, then only economic values are scientifically
objective (i.e. quantifiable and verifiable). Thus, the
judicial willpower realism unleashed is now exercised to
serve the interests of the wealthy because only economic
values can claim to be objective in a world that holds moral
values are intersubjective. Moral values have been eclipsed
by economic values because contemporary epistemology is
generally skeptical toward the existence of truth and
rejects the existence, or at least the cognizability, of
objective moral values. If "no truth exists" or "all values
are relative" - statements that were shown to be illogical
but were nonetheless in vogue because they are shocking
(thus getting media attention), and their less extreme
versions, are well-founded - then economic empiricism is the
only remaining scientific argument. Taking the gambit of
moral relativism in an attempt to change failed values is a
dead end. It prevents elucidating any new values to replace
the failed old ones. This vacuum is then filled by
"objective" economic values, which merely ensure the
continuation and even exacerbation of income inequality,
patriarchy, and social injustice.
C. Critique of Realist Legal
Rather than arguing within the
presumption that economic value is the only value, or the
only objective value, methodological critiques of economic
analyses are more effective when they question the
epistemology upon which balancing tests are founded. An
epistemological critique of the realists and post-modernists
is possible because truth negationist epistemology is
incorrect. True statements do in fact exist. It is true that
not all arguments are verifiable and that not all arguments
are falsifiable. It is also true, however, that some
arguments may be verified, or at least falsified, and that
not all arguments that are falsifiable necessarily imply a
verifiable contrary position. Thus, the critiques of
formalism may not be as strong as commonly believed.
Further, we can use formal logic to question the validity of
balancing tests. Are balancing tests objective or
predictable? If they are not, are they manipulable? What
does that imply for the rule of law?
Limiting the inquiry here to the
mechanics of legal balancing tests, the first question is
whether the balancing tests proposed by realists are, or can
be, on solid empirical foundations. When balancing tests are
applied by relativists, they lose their material foundation.
Even with a proper material foundation, however, balancing
tests are still questionable. Are balancing tests truly
objective? Do they lead to foreseeable, predictable
outcomes? The manipulability even of empirically justified
balancing tests arises in the answers to two questions: (1)
Which factors are chosen to be balanced? (Note that a pure
economic analysis will exclude certain factors and privilege
others); and (2) What weight are the chosen factors given? 185
The strength of economic analysis is its ability to provide
an objective standard by which to weigh various factors in
balancing tests - if we assume that markets exist and clear,
goods are fungible, and there are no significant
externalities, all of which are large assumptions. However,
sometimes some or all of those assumptions are true. But
more often than not, one or more of those criteria will be
lacking in any market analysis.
The answers to the questions "which
factors" and "what weight" are ultimately determined not by
democratic process (which at least would support
intersubjectivism), but rather by judicial decision. One of
the principled reasons for judicial reluctance to intervene
in political issues *1679
prior to 1937 was that judicial
decisions are un-democratic. Court judgments were seen as
legitimate prior to the realists because they were the
product of logic. But if logic and judicial decision-making
are unconnected or unconnectable, then judicial
decision-making is just an undemocratic exercise of raw
power. If judicial willpower (as opposed to objective
reasoning) determines "which factors" and "what weight,"
then we are brought out of the pseudo-objective world of
intersubjectivism into exactly the legal world the realists
predicted and criticized - one in which reason is
rationalization. Realism thus scores at least two own-goals:
first, it opens the door to law and economics, and, second,
it is a self-fulfilling prophecy and reduces legal decision
to mere rationalization. However, while legal realism's
prophecies may appear self-fulfilling, they are not. A
monist materialism approach would lead to objectively
verifiable and foreseeable outcomes.
Another methodological critique of
realism and its progeny looks within realism to compare
"vague," "manipulable," and "teleologically blind" outcomes,
generated by supposedly flawed formalism and categorical
analysis that (supposedly) ignore substantive justice, with
the outcomes generated by balancing tests. 186
In fact, we can see that balancing tests are no less vague
and, in fact, more manipulable than so-called "bright-line
tests" and "talismans." Balancing tests imply multiple poles
of interest and more terms of analysis, and thus provide
greater room for the exercise of de facto
legislative power - by judges. Realism represents no
progress toward objectivity.
realists' epistemology can be defended, though only in a
qualified manner. Truth negationism is inadmissible, but
truth skepticism is permissible.
realists' preferred methodology, balancing tests, can be
just as objective as categorical bright-line analyses if,
and only if, factors are specified and objectively weighed.
(3) The realists' methodology is no
more capricious than categorical analyses because it is
empirically grounded upon data which are often, though not
necessarily, quantifiable and verifiable.
This explains why so much
super-structural foment has had so little actual affect on
relations of production within the United States. In the
1930s, America faced an economic crisis that, with the
exception of hyperinflation, was just as serious as that
facing Germany at that time. 187
response to the economic crisis was less effective than the
fascist response. The war fought and won, trends already
begun in 1917 - the feminization of the workplace 188
and the civil rights movement - intensified. Yet,
these massive social movements had only little influence on
the law. Likewise, the counterculture protests of the 1960s
were also a radical change in sexual and race relations -
with few formal legal impacts, especially when viewed in the
long term. 189
beautiful," "affirmative action," and "women's liberation"
have all been contained and defanged as bases for radical
critique of the American empire, which is bad for Americans
because the only critique possible is the critique of the
gun carried out by the Intifadah, by Hamas, the insurgents,
and those labeled terrorists. Is a boy throwing stones at a
tank in his neighborhood a terrorist? What about the jet
jock 10,000 feet up raining death down on him and his
relatives? Today we see the same types of radical protest
gathering that rocked the world in the 1960s. If *1681
they are to have any impact on the
legal system, then they require a correct theoretical base
on which to found arguments and make demands of the system
that profits from oil wars.
Under the right circumstances, these
subsurface waves of conflict break out into tempests in the
"real world" of praxis
. The war in Iraq and the
abject failure of the United States government to do
anything but squander resources may provide those
circumstances. Conditions are aligning, which are going to
force people into asking radical questions. Why is the
United States fighting wars for oil? Why does it not
consider alternatives, such as ethanol, bicycles, and
trains? The real question of 9/11 is not who knocked down
the towers, but rather why
the towers were knocked
down. The real question in Iraq is not how to win an
unwinnable war. The real question is why is the United
States fighting a war in a country that not only did not
regard bin Laden as an ally, but also saw him as an enemy
and did not fund him? An even tougher question that deserves
to be asked is why the C.I.A. funded bin Laden in the first
place? These facts show that the United States military
industrial complex is beyond civilian control and must be
reined in, which requires fundamental reordering of American
intellectual discourse around the idea of natural law. This
Article has attempted to show just how that can be done.
Beyond Legal Realism
This Article explains some of the
foundations of contemporary legal method and shows how
post-modernism tends to take these theories too far. It also
shows that contemporary understandings of Hume go too far in
attributing positions to him that he did not enunciate. Hume
never refutes the existence or possible existence of
morality, either as a concept or an object of cognition.
Rather, Hume "merely" seeks to place the burden on whoever
seeks to express moral choice to show the connection between
normative and positive statements. However, that is a trap
because the transition cannot be proven in Hume's dualistic
universe. Hume's trap, while devastatingly subtle, is
founded on a false dualistic postulate, which he presents as
self-evident, that there be a fundamental difference between
statements of fact and statements about fact (i.e., between
"is" and "ought"). Hume is one more example of dualism
creating false dichotomies, "man/woman," "master/slave,"
"man/animal," "self/other," etc. Hume's dualist ontology and
("is"/ "ought") parallels Descartes' ontological dualism
(god:man::man:animal) and Plato's epistemological dualism
The bitter irony is that the very people
who claim to recognize and wish to end the problem of
suffering arising out of dualism are doing exactly what they
should not. Post-modernism and legal realism, instead of
concentrating on the dualism that is the source of the
problem of alienation and oppression, contents itself with
ineffective and self-defeating gambits that backfire by
unknowingly replacing moral values with economical ones.
The cognition of moral values as
statements of social fact (i.e., that X persons in Y region
believe in the truth of statement Z) is a better explanation
of how statements such as "there is insufficient food in
Ireland" and "thus we must donate food" can escape from
enthymeme and become well formed practical syllogisms. Hume
does not overtly reject Aristotle's practical reasoning (phroenesis
and the practical syllogism that embodies it. Instead, Hume
sets a trap for the unwary: he places the burden of proof
that a normative or practical syllogism is well-formed
squarely on the shoulders of he who presents it - where it
belongs - and leaves open the relativist possibility as a
gambit. Post-modernism took that gambit and falls into his
trap. This explains why the heir to legal realism, Critical
Legal Studies, is going nowhere. 191
The implication of these theoretical
positions for legal methodology is that legal methods
predicated upon overly-broad interpretations of Nietzsche
and Hume, such as legal realism and post-modernism, must be
reconsidered. The post-war rise of legal balancing and the
pejorative characterization of objective logic as
"formalism" are errors in legal methodology, which rob law
of objectivity and open it to accusations of perpetrating
systemic injustice. Such accusations are often well-founded.
But to identify a problem correctly (unfair laws) does not
necessarily mean that one has also identified the correct
solution (rejection of formal logic). Such was the case of
the legal realists and the *1683
post-modernists. Without the
correct tools to combat injustice, no progress would be
To develop correct legal methods tools
we must first understand and reject dualism and
philosophical idealism (platonic formalism and its eidos
Platonism is the usual root of natural law thinking, but not
a necessary one. We must develop an objective axiology based
on a monist-materialist foundation. With correct
epistemology and axiology, we can then examine legal
methodology as it manifests in cases and constellations of
cases to determine the best methods to attain both
transactional (arithmetic) and social (geometric) justice.
Undoubtedly, new legal methods will arise and old ones are
reformed or rejected. Consequently, theory will be put into
practice in the interests of justice. That is a much greater
task than could be outlined in this Article, but it is a
first step to attaining that goal.
1. Paul H. Brietzke,
Urban Development and Human Development, 25 Ind. L. Rev. 741,
755 n.46 (1991).
2. See Jack M.
Balkin & Sanford
Levinson, Understanding the Constitutional Revolution,
87 Va. L. Rev.
1045, 1083 (2001). See generally Dennis W. Arrow,
Pomobabble: Postmodern Newspeak and Constitutional "Meaning"
for the Uninitiated, 96 Mich. L. Rev. 461 (1997).
3. One suggestion is that
the failure is due to alternative proposals by the Left. I
disagree. Alternatives were proposed, attempts were made at
implementation, yet proposed projects were not in fact implemented
or immediately rolled back. See, e.g., Martha
Minow, School Reform Outside Laboratory Conditions, 28 N.Y.U. Rev. L. & Soc.
Change 333, 335 (2003) (supposed lack of
4. An example is the
failure of the federal Equal Rights Amendment. William
P. Gunnar, The Fundamental Law that Shapes the
United States Health Care System: Is Universal Health Care
Realistic Within the Established Paradigm?, 15 Annals Health L.
151, 178 n.226 (2006).
5. See, e.g.,
Katherine M. Franke,
The Politics of Same-Sex Marriage Politics, 15 Colum. J. Gender & L.
236, 248 (2006).
6. E.g., Lucy C. Ferguson,
The Implications of Developmental Cognitive Research
on "Evolving Standards of Decency" and the Imposition of the
Death Penalty on Juveniles, 54 Am. U. L. Rev. 441,
442 (2004) (reconstitutionalization of the death penalty).
7. Bruce Spitz & John
Abramson, When Health Policy Is the Problem: A Report from
the Field, 30 J.
Health Pol. Pol'y & L. 327, 338 (2005).
8. Daniel B. Klaff,
Evaluating Work: Enforcing Occupational Safety and Health
Standards in the United States, Canada and Sweden, 7 U. Pa. J. Lab. & Emp. L.
613, 617 (2005) (failure of President Johnson's Great
9. Thomas D. Rowe, Jr.,
on Paths to a "Better Way": Litigation, Alternatives, and
Paper, 1989 Duke
L.J. 824, 835.
10. Nancy-Ann DeParle,
Medicare at 40: A Mid-Life Crisis?, 7 J. Health Care L. &
Pol'y 70, 96 (2004).
Bush Administration took office in January 2001, the
Congressional Budget Office projected a $5.6 trillion surplus
over the next ten years. Now the surplus is gone - thanks in no
small part to a $1.7 trillion tax cut - and the government faces
deficits as far as the CBO computers can calculate.
a brief and powerful moment, most of the rest of the world
genuinely shared our loss. Most were prepared to support us in
almost every conceivable way to win the war on terrorism.
Needlessly and senselessly, we have squandered that good will.
How? In part, by employing bullying rhetoric (as President
Bush did in his address to Congress on September 20, 2001,
when he said, "either you are with us, or you are with the
terrorists"), by reinforcing perceptions of American bias in
the Israeli-Palestinian conflict, and by demanding the world
fall in line, on our schedule and on the basis of shifting
rationales, to depose Saddam Hussein.
have to renew the spirit of national purpose, unity, and resolve
we showed after September 11th - and which George W. Bush has
squandered since." In
Their Own Words: The 2004 U.S. Presidential Candidates on
Foreign Policy, Joseph I. Lieberman,
Fletcher F. World Aff,
Winter 2004, at 5, 21.
13. "[W]hatever legal and
political capital that the United States and its military campaign
fuelled in the run up to 'Operation Enduring Freedom' was
effectively squandered away in the rash and ill-advised 'Operation
Iraqi Freedom."' Jackson
Nyamuya Maogoto, Countering Terrorism: From Wigged Judges to
Helmeted Soldiers - Legal Perspectives on America's
Counter-Terrorism Responses, 6 San Diego Int'l L.J.
243, 293 (2005). "Indeed, instead of working for progress
toward a rule of law, ... the Bush Administration [is] lurching
toward a rule of scofflaw." John W.
Head, Responding to 9/11: Lurching Toward a Rule of Scofflaw,
Kan. J.L. & Pub.
Pol'y, Fall 2005, at 4.
14. Ackerman seems to
blame the failure of the Left on psychological and mass
psychological grounds. Bruce Ackerman,
A Generation of Betrayal?, 65 Fordham L. Rev.
1519, 1528 (1997) (new Left failed due to psychological
grounds); Bruce Ackerman, Constitutional
Politics/Constitutional Law, 99 Yale L.J. 453,
489-90 (1989) (new Left failed due to mass psychology). If
the Left just needed a good therapist, it would have been in power
ages ago. Others also think the failure of the Left is due to
"Ironically, it turns out that the American intellectual left
failed in large part because they somehow mistakenly assumed
that everyone, at base, was like them." David M. Smolin,
The Dilemmas and Methodologies of Academic
Political Liberalism: An Analysis of Professor Lawrence
Friedman's Response to the Problem of Violent Crime, 27 Cumb. L. Rev. 959,
972 (1996-97). But, in fact, most people are like each
other. Psychology does not explain the failure of the Left. The
Reagans and Bushes are every bit as dysfunctional as the Clintons.
Although this Article rejects the psychological failure thesis,
the fact that intellectuals are so off base that they are looking
at psychology, as if politics were a talk show or a sitcom, shows
the shallowness of contemporary United States political discourse.
15. Epistemology is the
theory of knowledge.
16. See, e.g.,
Dennis H. Wrong,
The Last Intellectuals: American Culture in the Age of
Academe, 17 Contemp.
Soc. 381-83 (1988) (book review).
17. See Richard
Flacks, Reflections on Strategy in a Dark Time: Radical
Democracy - A Relic of the 60s, or an Idea Whose Time has Come?,
Boston Rev. (Dec.
1995/Jan. 1996), available at http://bostonreview.net/BR20.6/flacks.html.
in the new left assumed that the corporate-liberal model was
the only viable framework for sustaining modern capitalism. We
assumed that laissez-faire capitalism was a thing of the past,
that economic growth could now be permanently engineered by
the corporate state, and that a sense of social responsibility
was prevalent among corporate managers. And so, we tended to
believe, the welfare state did not need defence from the left
- our job was to present its conservative functions in
dampening social unrest, expanding consumer markets, and
undermining class consciousness. The benefits of corporate
liberalism for the wider population were assumed by new
leftists to be well-established. Our goal was to undertake its
critique and try to create alternatives. Over the past 25
years, however, this radical-democratic impulse of the New
left has been lost. The explanation of that loss begins in the
early 1970s, when the fiscal crisis of the state turned
corporate elite consensus against The Model. With corporate
profits shrinking under the pressure of global economic
competition, elite consensus shifted toward the need to free
capital for global opportunities. That meant a lowering of
living standards and expectations for American workers, as
well as a reduction in state efforts to channel investment for
domestic purposes. It was the corporate-liberal state - not
laissez-faire - that was obsolete.
whole texture of twentieth century philosophical thought, which
has produced an epistemological relativism often said (with some
justice) to underlie contemporary liberalism." Kevin
F. Ryan, Lex et Ratio, Vt. B.J., Apr. 2003, at 5, 12.
19. For a sense of the
depth of the split in U.S. legal discourse, see, e.g., Harry
V. Jaffa, Graglia's Quarrel with God: Atheism and Nihilism
Masquerading as Constitutional Argument, 4 S. Cal. Interdisc. L.J.
715, 716 (1995) (commingling nihilism and relativism).
20. Axiology is merely
the theory of choice of values. Some authors appear to confound
axiology and relativism. "Schmitt proposes a conceptual and
historical analogy between axiology (the theory of values as
ethical relativism) and total war." Jorge
E. Dotti, Schmitt Reads Marx, 21 Cardozo L. Rev.
1473, 1483-84 (2000). An objectivist axiology is also
21. See, e.g.,
Paul R. Tremblay,
Shared Norms, Bad Lawyers, and the Virtues of Casuistry,
36 U.S.F. L. Rev.
659, 677 (2002).
22. See Katherine
Caring For Deconstruction, 12 Yale J.L. & Feminism
85, 95-96 (2000).
its connections as well as all other attributes it may be
thought to possess, are accidental, contingent, or random, and
furthermore, they are so essentially. This is not an
empirical, descriptive, tentative claim about our modern
nature, it is a transcendental claim about the nature of
nature.... [T]he postmodern self so dear to the heart of
postmodern theorists is ... as changing, unstable, and
unpredictable as the wind.... To repeat, that inessential self
is ... not a hypothetical description, subject to modification
or amendment as new evidence presents itself. It is a
metaphysically transcendent truth. It is very difficult to see
what sort of idea West is describing here. At times West seems
to regard this postmodern self, like the liberal self, as a
description of an empirical entity - a claim about "the nature
of nature," albeit one that the postmodernists dogmatically
refuse to allow to be contested or corrected by contrary
evidence. Confusingly, West depicts the postmodern self as
"unstable, and unpredictable as the wind," implying that, like
the weather, the postmodern self has a real existence in the
world, if one that is sometimes hard to keep track of. West's
declaration that the postmodern self is essentially
inessential is the sort of glib verbal manipulation feminists
have always had to endure in arguments with the patriarchy.
Id. (quoting Robin West, Caring for
Justice (1997)). The problem is not with West or with
Feminism. The problem is with postmodernism. West is correct.
The postmodern sense of self - and anything else for that matter
- is mutable because it is founded not on objective empirical
facts but subjective internal feelings. Postmodernism is one
step short of solipsism. West is just one example.
23. But see
Alterum Non Laedere: An Intellectual History of Civil
Liability, 39 Am.
J. Juris. 317, 338 (1994).
emergence of moral relativism in Western thought, in which it is
believed that there are no objective truths and that morals are
relative and subjective, has led contemporary legal theories to
reject natural law and other normative concepts." Erin
Englebrecht, Three Fallacies of the Contemporary Legal
Concept of Environmental Injury: An Appeal to Enhance
"One-Eyed Reason" with a Normative Consciousness, 18 Tul. Envtl. L.J. 1,
deconstructed the self, and argued that the self was simply a
bundle of perceptions. The postmodernist conception can jokingly
but pretty accurately be characterized as 'Hume plus
Jamieson, The Poverty of Postmodernist Theory,
62 U. Colo. L. Rev.
577, 585-86 (1991).
26. E.g., Samuel
Grappling with a Grotian Moment: Sovereignty and the Quest
for a Normative World Order, 19 Brook. J. Int'l L.
829, 850 n.61 (1993). "The
confusion of targets identified in postmodernist theories also
bedevils C[ritical] L[egal] S[tudies]." Id.
27. E.g., Steven
Hetcher, Climbing the Walls of Your Electronic Cage, 98
Mich. L. Rev.
1916, 1921-22 (2000) (reviewing Lawrence Lessig, Code: And
Other Laws of Cyberspace (1999)). "Hume's Law is
sometimes stated as: An ought cannot be derived from an is. The
proper conception of Hume's Law, however, is that an ought
statement cannot be derived merely from an is statement."
Id. This Article goes further and suggests that Hume was
not saying anything more than one must make his ought statements
known and not confuse them with his is statements.
28. Most frequently,
people think that Nietzsche is saying that there is no morality,
when in fact Nietzsche was struggling to build a new morality.
29. See David Hume, A Treatise of
Human Nature 469 (L.A. Selby-Bigge & P.H.
Nidditch eds., Oxford Univ. Press 2d ed. 1978) (1739-40)
[hereinafter Hume, A Treatise of Human
Nature]. "In every system of morality, which I have
hitherto met with, I have always remark'd, that the author
proceeds for some time in the ordinary way of reasoning ...." Id.
30. "[T]he author
proceeds for some time in the ordinary way of reasoning, and
establishes the being of a God, or makes observations concerning
human affairs ...." Id.
31. "[W]hen of a sudden I
am surpriz'd to find, that instead of the usual copulations of
propositions, is, and is not, I meet with no proposition that is
not connected with an ought, or an ought not." Id.
change is imperceptible; but is, however, of the last
consequence. For as this ought, or ought not, expresses some new
relation or affirmation, tis necessary that it shou'd be
observ'd and explain'd; and at the same time that a reason
should be given, for what seems altogether inconceivable, how
this new relation can be a deduction from others, which are
entirely different from it.
authors do not commonly use this precaution, I shall presume to
recommend it to the readers; and am persuaded, that this small
attention wou'd subvert all the vulgar systems of morality, and
let us see, that the distinction of vice and virtue is not
founded merely on the relations of objects, nor is perceiv'd by
34. See Nicholas
Capaldi, Hume's Rejection of 'Ought' as a Moral Category,
63 J. Phil. 126,
statements about moral sentiments are confused with his
statements about moral judgments. It is this confusion which
largely accounts for the misinterpretation of (I-O). That (I-O)
is not concerned with moral judgments but with moral sentiments
is best seen in two ways. First, the entire section deals with a
single problem: the attempt to show that moral distinctions or
sentiments are perceived not as relations of ideas but as
impressions. Second, the conclusions of (I-O) all deal with the
analysis of moral distinctions as impressions. Since (I-O)
concerns moral sentiments and not moral judgments, we may
inquire into the cause of the confusion. At least one reason is
that the paragraph is occasionally read or quoted in an
incomplete manner.... Once we accept the view that moral
distinctions are impressions, we must also accept the fact that
we can make inferences about such distinctions and even infer
their existence from accompanying circumstances.
35. See W. D. Falk,
Hume on Is and Ought, in Ought, Reasons, and Morality 551 (W.D.
Hudson ed., MacMillan 1969). Hume supposedly
deductibility of the latter from the former, as the 'ought'
expresses 'a new relation or affirmation', 'entirely different
from the others'. And this is commonly taken as saying that the
ought statement is 'different' and non-deducible, because it is
no longer a 'purely factual statement', to wit one that makes
another ordinarily testable truth claim. However, recent
criticism, by W.D. Hudson and others, points out that Hume says
other things seemingly inconsistent with this.... How is one to
understand Hume here so as to save him from incoherence? It is
said by Flew that Hume really meant that moral statements,
rather than being about attitudes, serve to express them. The
real Hume was the ancestor of noncognitivism, and the 'is-ought'
passage its early charter. By contrast, it is said by MacIntyre
that really Hume did not mean to deny deducibility. When he said
that it 'seemed inconceivable', he meant that it only seemed so
without really being so.
36. See A.C. MacIntyre,
"Hume on 'Is' and 'Ought,' in The Is-Ought Question
485, 493 (W.D. Hudson ed., MacMillan 1969). "Hume in the
celebrated passage does not mention entailment. What he does is to
ask how and if moral rules may be inferred from factual
statements, and in the rest of Book II of the Treatise he provides
an answer to his own questions." Id.
37. See W.D. Hudson,
Hume on Is and Ought, in The Is-Ought Question 511 (W.D. Hudson
ed., MacMillan 1969). "Here, as elsewhere in Hume, adumbrations of
modern theory are distorted by his failure to differentiate
clearly and explicitly logical from psychological or sociological
38. See Falk, supra
note 35, at 562. "Hume's
point ... is not to deny that merit is cognitively derived from
fact; but to make sure that theis derivation is not mistaken for
39. See, e.g., Ethics,
Encyclopedia of Philosophy (2006), http://www.iep.utm.edu/e/ethics.htm.
argued that moral assessments involve our emotions, and not our
reason. We can amass all the reasons we want, but that alone
will not constitute a moral assessment. We need a distinctly
emotional reaction in order to make a moral pronouncement.
Reason might be of service in giving us the relevant data, but,
in Hume's words, "reason is, and ought to be, the slave of the
passions." Inspired by Hume's anti-rationalist views, some 20th
century philosophers, most notably A.J. Ayer, similarly denied
that moral assessments are factual descriptions.
40. See, e.g., Eric
Barnes, Supplemental Notes on Relativism, (Sept. 29,
1999), available at http://220.127.116.11/courses/ebarnes/205/205-sup-relativism.htm.
41. See, e.g., Friedrich
Nietzche, Goetzendämmerung, "Die Verbesserer der
(last visited **
Feb. 14, 2007).
kennt meine Forderung an den Philosophen, sich jenseits von
Gut und Boese zu stellen, - die Illusion des moralischen
Urtheils unter sich zu haben. Diese Forderung folgt aus einer
Einsicht, die von mir zum ersten Male formulirt worden ist:
dass es gar keine moralischen Thatsachen giebt. Das moralische
Urtheil hat Das mit dem religioesen gemein, dass es an
Realitäten glaubt, die keine sind. Moral ist nur eine
Ausdeutung gewisser Phänomene, bestimmter geredet, eine
Missdeutung. Das moralische Urtheil gehoert, wie das
religioese, einer Stufe der Unwissenheit zu, auf der selbst
der Begriff des Realen, die Unterscheidung des Realen und
Imaginären noch fehlt: so dass "Wahrheit" auf solcher Stufe
lauter Dinge bezeichnet, die wir heute "Einbildungen" nennen.
Das moralische Urtheil ist insofern nie woertlich zu nehmen:
als solches enthält es immer nur Widersinn. Aber es bleibt
als Semiotik unschätzbar: es offenbart, fuer den Wissenden
wenigstens, die werthvollsten Realitäten von Culturen und
Innerlichkeiten, die nicht genug wussten, um sich selbst zu
"verstehn." Moral ist bloss Zeichenrede, bloss
Symptomatologie: man muss bereits wissen, worum es sich
handelt, um von ihr Nutzen zu ziehen.
Nietzche, Beyond Good and Evil, http://gutenberg.spiegel.de/nietzsch/jenseits/jense002.htm
(last visited **
Feb. 14, 2007).
is the idea that there is a fundamental split between mind and
is the idea that the universe is dualistic and that the duality is
marked by an absolute conflict between polar opposites.
46. The view that there
is a separation in the human person between the mind and the body
dates from the history of Western thought to Platonic dualism.
Plato's dualist theory holds that there are actually two different
worlds: the physical world of appearances and the higher world of
intelligible Forms. For Plato, human beings live in a visible
world of the sensible or physical and the invisible world of the
intelligible or abstract. This Platonic dualism was carried
forward into a similar separation in the human person between mind
and body. Don G. Rushing & William D. Janicki,
Treatment of Posttraumatic Stress Disorder Claims Under the
Warsaw Convention, 70 J. Air L. & Com. 429, 430 (2005).
Shapira, Structural Flaws of the "Willed Bodily Movement"
Theory of Action, 1 Buff. Crim. L. Rev. 349, 385 n.121
Juarrero-Roque, Fail-Safe Versus Safe-Fail: Suggestions
Toward an Evolutionary Model of Justice, 69 Tex. L. Rev. 1745,
49. Brett G. Scharffs,
Law as Craft, 54 Vand. L. Rev. 2245, 2267 (2001).
50. Aloysius A. Leopold
& Marie E. Kaiser,
The Lord in the Law: Reflections on a Catholic Law
School, 25 St.
Mary's L.J. 385, 389 (1993).
51. Aristotle, Metaphysics
bk. I, pt. 9 (W.D. Ross trans., Clarendon Press 1924) (350
B.C.E.), available at http://classics.mit.edu/Aristotle/metaphysics.mb.txt;
see also Aristotle, Posterior
Analytics bk. B, pt. 3, 1.10 (Hippocrates G.
Apostle trans., 1981); Aristotle, Prior Analytics
bk. A, pt. 31 (Robin Smith trans., 1989).
52. Rene Descartes, Meditations
on First Philosophy (1641), available at
53. Pascal, for example,
specifically declines any attempt to prove the existence of "God"
that is a noeous. "Therefore
I shall not undertake here to prove by natural reasons either
the existence of God, or the Trinity, or the immortality of the
soul, or anything of that nature" Blaise Pascal, Pensees Â§
VIII (1660), available at http://www.textfiles.com/etext/NONFICTION/pascal-pensees-569.txt.
54. See generally id.
is the philosophical theory that the self is the only thing that
can be known and verified. See Descartes, supra
note 52 (English); id., available at http://abu.cnam.fr/cgi-bin/go?medit3
56. See Philippe
Nonet, In Praise of Callicles, 74 Iowa L. Rev. 807,
restates the same thought in the form of the distinction between
two realms: that of the noÃ«ton
, accessible to reason,
, and of which knowledge, noesis,
is possible; and that of the horaton,
visible to the eyes, and about which there can be only doxa,
what seems, mere opinion.
57. See, e.g., St. Thomas
Aquinas, Summa Theologica (Fathers of the English
Dominican Province trans., 1947).
58. "[E]st quidem vera
lex recta ratio, naturae congruens, diffusa in omnis, constans,
sempiterna, quae vocet ad officium iubendo, vetando a fraude
deterreat ... [H]uic legi nec obrogari fas est, neque derogari
aliquid ex hac licet, neque tota abrogari potest ...." Marcus Tullius Cicero, De
Republica: Scripta Quae Manserunt Omnia 96, bk. III, pt.
22, Â§ 33, II. 26-32 (K. Ziegler ed., Leipzig 1969) (Bibliotheca
Teubneriana fasc. 39).
59. Holmes argues for a
pre-scientific view of law:
Oliver Wendell Holmes,
Jr., The Common Law (1881)
. A simple reductio
meets the argument. If syllogisms are irrelevant why bother
thinking? Why not just break out the billy clubs? If law is
nothing but passion and prejudice, then law has no moral force
and I might as well go be a criminal. Of course, if one were a
criminal one would have a bad life and society would be worse
off. Actions follow ideas. Moreover, if we look at the law, we
see it is more than physical force it is also moral constraint.
Holmes' view is amoral, but the province of law is morality. See
60. Scharffs, supra
note 49, at 2265-66.
61. Holmes and Hume alike
embrace Western values but question their ultimate foundation. Rob
Atkinson, Law as a Learned Profession: The Forgotten Mission
Field of the Professionalism Movement, 52 S.C. L. Rev. 621,
62. Hume, A Treatise of Human
Nature, supra note 29, at 416. It is not
"contrary to reason to prefer even my own acknowleg'd lesser good
to my greater ...." Id.
63. Leti Volpp,
Feminism Versus Multiculturalism, 101 Colum. L. Rev. 1181,
1203 n.98 (2001).
64. "[S]ome form of
mind-body dualism has been part of Western philosophy since Plato
Cammack, In Search of the Post-Positivist Jury,
70 Ind. L.J.
405, 411 (1995).
65. J.B. Ruhl,
The Battle over Endangered Species Act Methodology,
34 Envtl. L.
555, 564 (2004). "Scientific Method ... is defined by the
use of empirical observation and experimental testing to formulate
and evaluate hypotheses, usually about causal mechanisms, with
which to predict ...." Id.
66. Some even try to
combine relativism with dualism. For example, Radbruch
relativism with neo-Kantian methodological dualism: statements
of what the law ought to be may be established only through
other statements concerning the "ought," never through what the
law "is." "Ought" statements may not be "discerned but only
professed." Therefore, legal science in the field of the "ought"
can achieve three things: (1) "establish the means necessary to
realize the end that ought to be attained," (2) "think a legal
value judgment through down to the remotest means for its
realization, [and] ... clarify it up to its ultimate
presuppositions of world outlook," and (3) develop
systematically the "conceivable ultimate presuppositions and,
consequently, all starting points of legal evaluation." Radbruch
presents a relativistic legal philosophy that exhaustively
presents the individual with all possibilities from which only
he or she can decide.
Leawoods, Gustav Radbruch: An Extraordinary Legal
Philosopher, 2 Wash.
U. J.L. & Pol'y 489, 509-10 (2000).
is the law in that? Law is nothing other than ought statements.
You ought not to steal (or you will go to jail). In fact, any
"ought" statement can be recast into a conditional ("if ...
then") statement. Thus, "you ought not to steal" really means:
"If you steal then you may go to jail." Seeing the world only in
terms of descriptions of existing facts or prescriptions of
possible states is a static view. A dynamic world view takes
into account state-changes. The world is not only about static
facts ("is" statements); it is also about dynamic processes
(conditionals). If any ought statement can be recast as a
conditional, then Hume's (supposed) dichotomy breaks down
"Epistemology is the philosophical study of what is 'knowledge'
(what it is to know) and how do we come to know (when do we have
DeVito, The Ontology of Copyright Infringement:
Puzzles, Parts, and Pieces, 35 Conn. L. Rev. 817,
817 n.3 (2003).
68. "Hume's scheme
jeopardizes the intersubjective ascribability of merit. One might
no longer be allowed to ask whether tolerance is good,
only whether it is good with me or with you; or, worse still, with
me or you now ...." Falk, supra note 35, at 123,
69. See, e.g., Friedrich Wilhelm
Nietzsche, Beyond Good and Evil (Helen Zimmern
trans., 1997), available at http://digital.library.upenn.edu/webbin/gutbook/lookup?num=4363
70. James A.
Gardner, Madison's Hope: Virtue, Self-Interest, and the
Design of Electoral Systems, 86 Iowa L. Rev. 87,
171 (2000). "During the nineteenth century, skepticism toward the
Enlightenment concept of objective truth appeared everywhere, from
Bentham's dismissal of natural law as 'nonsense on stilts' to
Neitzsche's antifoundationalism." Id.
Ansah, A Terrible Purity: International Law, Morality,
Religion, Exclusion, 38 Cornell Int'l L.J. 9, 64, (2005).
72. See Karl Marx, Capital
(Frederick Engels ed., 1936).
73. See Friedrich Nietzsche, Thus
Spake Zarathustra (Thomas Common trans., 1960)
Thus Spake Zarathustra].
74. Many mistake
Nietzsche for a postmodernist. E.g., Barbara
Stark, International Human Rights Law, Feminist
Jurisprudence, and Nietzsche's "Eternal Return": Turning the
Wheel, 19 Harv.
Women's L.J. 169, 182 n.68 (1996). Nietzsche's
commitment to objective truth and progress place him firmly in the
modernist camp. Even those who recognize some problems between
Nietzsche and postmodernism fail to recognize just how deep the
split is. For example,
Francis J. Mootz
III, Nietzschean Critique and Philosophical Hermeneutics,
24 Cardozo L. Rev.
967, 971 (2003)
. The ignorance continues: "Friedrich
Nietzsche, who has been called the 'patron saint of [P]ostmodern
philosophy,' proclaimed the death of God in what amounted to a
rejection of Modern thought, primarily a rejection of the idea
of a 'unifying center."'
Matthew McNeil, The First Amendment out on Highway
61: Bob Dylan, RLUIPA, and the Problem with Emerging
Postmodern Religion Clauses Jurisprudence, 65 Ohio St. L.J.
1021, 1040-41 (2004
). Wrong again. First, the mixed
metaphor of a patron saint of a godless religion is inapt.
Nietzsche is not looking to build a church filled with what he
and Jesus both regarded as sheep. He is seeking wolves to go
hunting with. Second, and more importantly, Nietzsche does not
reject modernity. Rather, he seeks to advance modernity to the
next stage in its evolution. A rejection of pre-scientific
superstition is a part of modernity's belief in Vorsprung
- progress through technology. Nietzsche may
be a forerunner of postmodernism but is no post-modern. After
all truth skepticism goes back all the way to William of Occam.
So calling Nietzsche postmodern on that basis would justify
calling the pre-modern Occam postmodernist.
Nietzsche, Goetzen-Dämmerung bk. 5 (1888), available
76. Aristotle, Nicomachen
Ethics(*) 44-48, bk.
2, ch. 7 (Martin Ostwald trans., 1962).
77. Thomas L. Shaffer &
Mary M. Shaffer,
Character and Community: Rispetto as a Virtue in the
Tradition of Italian-American Lawyers, 64 Notre Dame L. Rev. 838
78. "Ich bin kein Mensch,
ich bin Dynamit."
Warum Ich Ein Schicksal Bin 1 (1889).
79. Heraclites, The Fragments
(b), 8 (c. 500 B.C.), available at http://ratmachines.com/philosophy/heraclites/.
80. "'The elevation of
rationalism to a position of ultimate authority has created an
intolerance for ambiguity and subjective beliefs."' Erin
Englebrecht, Three Fallacies of the Contemporary Legal Concept
of Environmental Injury: An Appeal To Enhance "One-Eyed Reason"
with a Normative Consciousness, 18 Tul. Envtl. L.J. 1, 38
short, the emergence of moral relativism in Western thought, in
which it is believed that there are no objective truths and that
morals are relative and subjective, has led contemporary legal
theories to reject natural law and other normative concepts.
Alexander offers the possibility, however, that it is really the
limits of human rationality, and not the limits of morality,
that prevent us from perceiving ultimate, substantive truths.
Alexander contends that by adopting an epistemology aware of
human limitation, contemporary jurisprudence would not develop
narrow and short-sighted answers to dilemmas that are inherently
not objective, not quantifiable, and not concrete. Instead, a
humbled epistemology demands a jurisprudence that seeks the
assistance of disciplines other than economics and science such
as theology and moral philosophy
Best & Douglas Kellner, Postmodern Theory: Critical
Interrogations (1991), http://www.uta.edu/huma/pomo_theory/.
82. "Will to power."
83. That point also
constitutes a general critique of legal positivism. However,
naturalist theories of law cannot offer an alternative to legal
positivism because they rely at least implicitly (in the case of
Aquinas explicitly) on Platonic idealism. This Article suggests that
any alternative to purely voluntarist theories of law must be
founded on an ontology which rejects Hume's dualism just as it must
also be founded on an epistemology which rejects Plato's dualism.
84. In fact, Nietzsche
believed that truth, if it exists, is only discovered through the
battle to the death with its opposite. For Nietzsche, truth must
fight to live: this is his will to truth; not the will to shape
"truth" out of falsehood, but the will to the battle of truth
against falsehood. In this, Nietzsche, like Marx (e.g., Karl Marx & Frederick
Engels, Manifesto of the Communist Party (1848), available
harkens back to Heraclites (Heraclites,
supra note 79, at (b)). See Friedrich Nietzsche,
Menschliches, Allzumenschliches (erster Hauptstueck)
85. See Friedrich Nietzsche, Die
Froehliche Wissenschaft (1882).
86. See Nietzsche, The Sign,
in Thus Spake Zarathustra,
supra note 73, at 365, ch. 80. Nietzsche describes his higher
men - the next evolutionary stage in human development - as living
in a cave:
morning after this night however Zarathustra sprang up from his
camp, girded his loins, and came out of his CAVE glowing and
strong, like the dawn's SUN which comes out from behind dark
mountains. You giant star', he spoke, as he had first spoken 'you
deep eye of luck and joy, what would be your joy and happiness if
you did not have they whom you enlighten!/And if they remain in
their chambers while you are already awake and come to give and
share - how would your pride be upbraided!/Well! They still sleep
these higher men, while I am awake. They are not my true comrades.
I do not await them here in my mountains!/I want to go to my work,
to my day: but they do not understand what the signs of my morning
are, my step is for them no wake up call./They still sleep in my
87. Id. at Zarathustra's
Prologue (especially pt.3: "The Rope Dancer").
88. Plato, The Allegory
of the Cave, in The Republic bk.
VII (360 B.C.E.), available at http://www.constitution.org/pla/republic.htm.
"This wanderer is no stranger to me: many years ago he went by here.
He is called Zarathustra; but he has changed. Then you carried your
ASHES to the mountains: do you want to carry FIRE to the valleys? Do
you not fear the arsonist's punishment?" Id.; see Nietzsche, Zarathustra's
Prologue, in Thus
Spake Zarathustra, supra note 73 (author's
translation). Like Prometheus, Zarathustra brings men fire, yet he
brings not the truth of reason (the sun) but the stolen Promethean
fire. Is it a lie?
89. He does this in his
metaphor about the sun.
He who knows
not and knows not that he knows not, is a fool ... shun him. He
who knows not and knows that he knows not, is ignorant ... teach
him. He who knows and knows not that he knows, is asleep ... wake
him. He who knows and knows that he knows, is a wise man ...
91. Plato, Theaetetus (360
B.C.E.), available at http://classics.mit.edu/Plato/theatu.html
92. "I spoke in English,
but no one minded that. Everyone expects Americans to be
ignorant of any foreign language." Ronald D. Rotunda, Constitution-Building
in the Former Soviet Union, Green Bag, 1998, at 168 (emphasis added).
93. "[P]opular American
culture reflects broad ignorance of overseas events and foreign
affairs." Raymond M. Brown, I
Into Thou: American Resistance to Narratives of International
Humanitarian Law Violations, 28 T. Jefferson L. Rev.
1, 5 (2005).
Sagartz, Resolution of International Commercial Disputes:
Surmounting Barriers of Culture Without Going to Court, 13 Ohio St. J. on Disp. Resol.
675, 683 n.42 (1998).
have neither the tradition nor the necessity of living
internationally. Their ignorance about foreign countries, cultures
and customs, their lack of linguistic abilities, and their
inability to always respect foreign sensitivities are entirely
understandable.... [Others] take offense [however] when ...
American ignorance goes arm-in-arm with American arrogance.
Id. (internal quotations
95. Nietzsche, Thus Spake
Zarathustra, supra note 73.
96. "Strauss believed that
the essential truths about human society and history should be held
by an elite, and [h]e held that philosophy is dangerous because it
brings into question the conventions on which civil order and the
morality of society depend." R. Alta
Charo, Passing on the Right: Conservative Bioethics Is Closer
than It Appears, 32 J.L. Med. & Ethics 307, 311 (2004).
97. Niccolo Machiavelli, The
Discourses 139, 143 (Bernard R. Crick ed. &
Leslie J. Walker trans., Penguin 1970) (1520). Machiavelli, like
Plato, counseled religious hypocrisy. Id.
98. Nietzsche, Thus Spake
Zarathustra, supra note 73, at sec. 3, available
"Ich lehre euch den Ãbermenschen. Der Mensch ist Etwas, das
ueberwunden werden soll." Id.
99. Nietzsche, On the
Higher Men, in Thus
Spake Zarathustra, supra note 73, at bk. IV, sec.
3. "Zarathustra aber fragt als der Einzige und Erste: 'wie wird der
Mensch ueberwunden?"' Id.
100. Nietzsche, Die Froehliche
Wissenschaft, supra note 85.
101. K. Goedel:
Über formal unentscheidbare Sätze der Principia Mathematica
und verwandter Systeme,
I. Monatshefte fuer
Mathematik und Physik 38, 173-98 (1931), translated
in van Heijenoort: From Frege to Goedel (Harvard Univ.
Press 1971), available at http://home.ddc.net/ygg/etext/godel/.
102. See Ferdinand de Saussure, Third
Course of Lectures on General Linguistics (1910), available
103. See id.
104. W. V. O. Quine, Words and
105. Peter Bichsel, "Ein
Tisch ist ein Tisch," in Kindergeschichten (Berlin und Neuwied
106. Dualism is a flawed
theory. See Kimberly
Kessler Ferzan, Opaque Recklessness, 91 J. Crim. L. & Criminology
597, 612 n.42 (2001);
Richard Hyland, The Spinozist, 77 Iowa L. Rev. 805,
107. Saussure, supra
Karl R. Popper, The
Problem of Induction, in Popper Selections 101, 104 (David Miller
ed., 1985). "[T]he whole apparatus of induction becomes unnecessary
once we admit the general fallibility of human knowledge, ... the
conjectural character of human knowledge.... [S]cientific knowledge
is essentially conjectural or hypothetical."� Id.
109. Karl Popper, Objective
famous explanatory example is rendered thus by Bryan Magee,
"although no number of observation statements reporting
observations of white swans allow us logically to derive the
universal statement 'All
swans are white', one single observation statement, reporting one
single observation of a black swan, allows us logically to derive
the statement 'Not all swans are white.'
111. See, e.g., Karl
Encyclopedia of Philosophy (2006), available at http://plato.stanford.edu/entries/popper/.
112. Francis Bacon, The New
Organon or True Directions Concerning the Interpretation of
Nature ch. LXX (1620), available at http://www.constitution.org/bacon/nov_org.htm.
113. See also Karl
Marx & Friedrich Engels, The Manifesto of the Communist
Party, reprinted in Communism,
Fascism, and Democracy 82-89 (Carl Cohen ed., 2d ed. 1972).
114. On the liberation of
the subject from power see, e,g., Eric Allen Engle, The Torture
Victim's Protection Act, the Alien Tort Claims Act and Foucault's
Archaeology of Knowledge, 67 Alb. L. Rev. 501 (2003), or anything by
115. Robert F.
Blomquist, Re-Enchanting Torts, 56 S.C. L. Rev. 481, 483
116. See, e.g., Krysia
Kubiak, History of the Women in the Law Division Gender Bias
J., Oct. 27, 2006, at 4 (discussing slow pace and
continuing reality of sex inequality in the legal profession).
Aristotle, Politics, in The Works of Aristotle Translated into English
bk. II, ch. V (Benjamin Jowett ed., Oxford Univ. Press 1966).
118. See Aristotle, Nicomachen Ethics(*) 107 (D.P.
Chase trans., Ernest Rhys ed., J. M. Dent & Sons Ltd. 1911).
119. Aristotle, Politics,
supra note 117, at bk. V.
120. Max Weber, "Objectivity"
in Social Science and Social Policy, in The Methodology of the Social
Sciences 49 (Edward A. Shils & Heary A. Finch trans.
& eds., 1949). Like Hume, Weber is only proposing a prudent
methodological counsel as a way to avoid confusion.
121. "Understanding and
'taste' (by which merit is discovered) address themselves to
different issues. The one is the 'discovery of truth and falsehood'
the other the importance of things to us ... their relevance for us
as things to be responded to with favor or disfavor." Falk, supra
note 35, at 554. "Because merit is discerned by taste it is not and
cannot be among the facts discovered by the understanding." Id.
122. Basil Markesinis
& Joerg Fedtke, The Judge as Comparatist, 80 Tul. L. Rev. 11, 148
Stopler, Gender Construction and the Limits of Liberal
Equality, 15 Tex.
J. Women & L. 43, 51 (2005).
Coleman & Jackson Maogoto, Democracy's Global Quest: A Noble
Crusade Wrapped in Dirty Reality?, 28 Suffolk Transnat'l L. Rev.
175, 216 (2005).
125. See, e.g., A.
Higginbotham, Jr., The Ten Precepts of American Slavery
Jurisprudence: Chief Justice Roger Taney's Defense and Justice
Thurgood Marshall's Condemnation of the Precept of Black
Inferiority, 17 Cardozo
L. Rev. 1695 (1996).
126. See, e.g.,
Michael J. Klarman, Race and the Court in the Progressive
Era, 51 Vand. L.
Rev. 881, 892 (1998).
127. Hart, then Fuller
describes this as the problem of "immoral morality." Lon
L. Fuller, Positivism and Fidelity to Law "" A
Reply to Professor Hart, 71 Harv. L. Rev. 630, 636 (1958).
128. "It is generally
accepted that the first person to deny the possibility of this
inference [from is to ought] was David Hume."� Capaldi, supra
note 34, at 126.
129. Hume, A Treatise of Human
Nature, supra note 29 (asking readers to note the
distinction between is and ought statements and to explain how one
can be derived from the other""and nothing more nor anything less).
in the Inquiry, and in the 'is-ought' passage, if read in
the light of his comments in the Inquiry, is not to deny
that merit is cognitively derived from fact but to make sure that
this derivation is not mistaken for deduction.... The Inquiry,
more so than the Treatise, shows Hume's concern in this
matter to be two-edged: to ward off the entrenched confusion of
evaluative inference with demonstrative proof; and to show what
cognitive procedure is instead.... Hume's point is that the facts
as known are the basis, not of a formal, but rather of an
experimental, proof ....
131. "Hume makes it clear
that he believes that factual considerations can justify or fail to
justify moral rules." MacIntyre, supra note 36, at 485, 489.
132. While Hume is
skeptical about causality and thus deduction, he is even more
radical in his critique of induction:
assumption that arguments must be either deductive or defective
... is the very assumption which underlies Hume's skepticism about
induction. And this skepticism is commonly treated as resting
upon, and certainly does rest upon, a misconceived demand, ...
"the demand that induction shall be shown to be really a kind of
deduction." This is certainly an accurate way of characterizing
Hume's transition from the premise that "there can be no demonstrative
arguments to prove, that those instances of which we have had no
experience resemble those of which we have had experience" to the
conclusion that "it is impossible for us to satisfy ourselves by
our reason, why we should extend that experience beyond those
particular instances which have fallen under our observation."
Part of Hume's own point is that to render inductive arguments
deductive is a useless procedure. We can pass from "The kettle has
been on the fire for ten minutes" to "So it will be boiling by
now" (Strawson's example) by way of writing in some such major
premise as "Whenever kettles have been on the fire for ten
minutes, they boil." But if our problem is that of justifying
induction, then this major premise itself embodies an inductive
assertion that stands in need of justification. For the transition
which constitutes the problem has been justified in the passage
from minor premise to conclusion only at the cost of reappearing,
as question-beggingly as ever, within the major premise. To fall
back on some yet more general assertion as a premise ... would be
to embark on a regress, possibly infinite and certainly pointless.
Id. at 487.
holds in some passages on induction at least that arguments are
deductive or defective, we could reasonably expect him to maintain
that since factual premises cannot entail moral conclusion ...
there can be no connections between factual statements and moral
judgments .... [H]is remarks on "is" and "ought" are not only
liable to receive but have actually received a wrong
Id. at 488.
What I have
so far argued is that Hume himself derives "ought" from "is" in
his account of justice. Is he then inconsistent with his own
doctrine in that famous passage? Someone might try to save Hume's
consistency by pointing out that the derivation of "ought" from
"is" in the section on justice is not an entailment and that all
Hume is denying is that "is" statements can entail "ought"
statements, and that this is quite correct.
Id. at 492.
134. See, e.g.,
Barbara Winters, Hume on Reason, in I Hume Stud. 229, 234
(1979), available at http://departments.oxy.edu/philosophy/hs/issues/v5n1/winters/winters-v5n1.pdf.
is arguing that if reason is viewed on the traditional
conception, then reason does not determine us to have beliefs,
e.g. about the unobserved. But he does not stop with this
result. Hume is trying to give an account of human nature based
on an examination of how we in fact operate, and when he
investigates the processes that go on in us in coming to believe
things, he comes to a discovery that we do reason to our
beliefs, but what goes on when we reason is not what was
traditionally thought to occur. His empirical investigation,
then, results in a different understanding of what reason is
like, and when reason is viewed according to his interpretation
it can be seen that in making the transition from the observed
to the unobserved we are reasoning and inferring. I see Hume,
then, as rejecting reason under one conception as inoperative in
human affairs, but arguing that if conceived in another way,
reason does cause belief and influence action. This
interpretation, which I develop below, will resolve the
paradoxes and explain the inconsistency between Book I and Books
II and III.
135. "Under stare
decisis, contrary to Hume's law, courts may indeed derive, to
some extent, an 'ought' from an 'is,' as the mere fact that cases
were decided in a certain manner in the past lends normative force
toward deciding like cases in a like manner in the future." Steven
Hetcher, Non-Utilitarian Negligence Norms and the Reasonable
Person Standard, 54 Vand. L. Rev. 863, 866 (2001).
136. In fact Hume
criticizes deduction because what is taken for causal may only be -
perhaps even can only be -coincidence:
I have found
that such an object has always been attended with such an effect,
and I foresee that other objects, which are, in appearance,
similar, will be attended with similar effects. I shall allow, if
you please, that the one proposition may justly be inferred from
the other; I know in fact, that it always is inferred. But if you
insist that the inference is made by a chain of reasoning, I
desire you to produce that reasoning.
4 David Hume, The Philosophical Works 30 (Green
& Grose eds., Scientia Verlag 1964) [hereinafter Hume, The Philosophical Works].
"All inferences from experience therefore, are effects of custom,
not of reasoning." Id.
reasonings concerning matter of fact are founded on a species of
Analogy, which leads us to expect from any cause the same events,
which we have observed to result from similar causes. Where the
causes are entirely similar, the analogy is perfect, and the
inference, drawn from it, is regarded as certain and conclusive:
nor does any man ever entertain a doubt, where he sees a piece of
iron, that it will have weight and cohesion of parts; as in all
other instances which have ever fallen under his observation. But
where the objects have not so exact a similarity, the analogy is
less perfect and the inference is less conclusive; though it still
has some force, in proportion to the degree of similarity.
Id. at 85. "[M]en, learn many
things from experience and infer, that the same events will always
follow from the same causes." Id.
137. For example,
interpretation of this passage takes Hume to be asserting here
that no set of nonmoral premises can entail a moral conclusion. It
is further concluded that Hume therefore is a prime opponent of
what Prior had called "the attempt to find a 'foundation' for
morality that is not already moral."� Hume becomes, in this light,
an exponent of the autonomy of morality and in this at least akin
to Kant. In this paper, I want to show that this interpretation is
inadequate and misleading.
MacIntyre, supra note 36, at
138. Falk noted:
denies the deductibility of the latter from the former, as the
'ought' expresses 'a new relation or affirmation', 'entirely
different from the others'. And this is commonly taken as saying
that the ought statement is 'different' and nondeducible, because
it is no longer a 'purely factual statement,' to wit one that
makes another ordinarily testable truth claim. However, recent
criticism, by W.D. Hudson and others, points out that Hume says
other things seemingly inconsistent with this.... How is one to
understand Hume so as to save him here from incoherence? It is
said by Antony Flew that Hume really meant that moral statements,
rather than being about attitudes, serve to express them. The real
Hume was the ancestor of noncognitivism and the 'is-ought' passage
its early charter. By contrast, it is said by Alasdair MacIntyre
that really Hume did not mean to deny deducibility. When he said
that it 'seemed inconceivable', he meant that it only seemed so
without really being so
Falk, supra note 35, at 551.
139. "Hume's point ... is
not to deny that merit is cognitively derived from fact but to make
sure that this derivation is not mistaken for deduction." Id.
140. "Hume ... in the
celebrated passage does not mention entailment. What he does is to
ask how and if moral rules may be inferred from factual statements,
and in the rest of Book III of the Treatise he provides an
answer to his own question." MacIntyre, supra note 36, at
141. "[I]n all reasonings
from experience, there is a step taken by the mind, which is not
supported by any argument or process of understanding." Hume, The Philosophical Works,
supra note 136, at 36.
willingness to accept the normative conception of ethics is so
deeply embedded that, when someone such as Hume challenges it, we
take the challenge as a classic defense. (I-O) is not the
foundation of normative ethics but its death warrant. Perhaps the
shock value of this revelation will lead us to reconsider what
might be the most important issue in twentieth-century philosophy.
Hudson, supra note 37, at
143. "Hume's attitude to
induction is much more complex than appears in his more skeptical
moments and is therefore liable to misinterpretation""his remarks on
'is' and 'ought' are not only liable to receive but have actually
received a wrong interpretation." MacIntyre, supra note 36,
144. "Hume observes, that
the good divides from the true. The standard for the latter is
'eternal and inflexible' in being founded on 'the nature of things';
while that for the former is variable, in depending on 'the internal
frame and constitution of animals."�' Falk, supra note 35,
145. "In short, Hume is
rejecting any normative conception of morals."� Capaldi, supra
note 34, at 134. Is that statement circular? If normativity and
morality are synonyms, then it is. Hume has been accused by recent
scholars of equivocation. A view upholding a univocal reading of
such terms, then attributes to Hume the position that we reason to
and infer such beliefs, that such transitions are ones of reasoning,
but that reason doesn't produce the beliefs. And it must hold that,
despite the fact that Hume concludes that animals have reason from
the fact that they make some of the same inferences that we do, he
believes that in the human realm such examples of reasoning are not
produced by reason. It must claim that whatever faculty is which
Hume thinks reasons and infers, it is not reason. Winters, supra
note 134, at 233.
146. Hume is a
Hume defend his view of the derivation of morality from interest?
By appeal to the facts. How do we in fact induce someone to do
what is just? How do we in fact justify actions on our own part?
In observing what answers we have to give to questions like these,
Hume believes that his analysis is justified.
MacIntyre, supra note 36, at
491. But, unfortunately, Hume is also a dualist. "All reasonings
may be divided into two kinds, namely demonstrative reasoning, or
that concerning relations of ideas, and moral reasoning, or that
concerning matter of fact and existence."� Hume, The Philosophical Works,
supra note 136, at 31. It is his dualism that leads to his
trouble with moral statements as fact. It sets him up for
dichotomies like "ideas" versus "impressions" and of course "is"
147. Hume, The Philosophical Works,
supra note 136, at 31.
rejection of "ought"� as a special moral category is far more
revolutionary than his rejection of the traditional concept of
causal necessity.... One can no longer chant the refrain that
"ought is not deducible from is"� because this presupposes the
very thing that is to be proved, and it is the very thing that
Hume rejects, namely the existence of peculiarly normative
entities. In place of a normative conception, Hume holds the view
that ethics is an empirical science.
Capaldi, supra note 34. If
that interpretation is correct, however, then Hume's ethics are
flawed by epistemological dualism.
Correspondence Theory of Truth, Stanford Encyclopedia of Philosophy (2005), http://plato.stanford.edu/entries/truth-correspondence.
150. See, e.g., Monism,
(last visited **
Feb. 14, 2007).
151. For a synoptic
summary of the struggle of dualist neo-platonism against materialism
see, Neo-Platonism, Catholic Encyclopedia, http://www.newadvent.org/cathen/10742b.htm
(last visited **
Feb. 14, 2007).
152. See, e.g.,
Robert Goldman, Stephen Papson & Noah Kersey, Speed:
Through, Across, and in ""The Landscapes of Capital, http://www.uta.edu/huma/agger/fastcapitalism/1_1/gpk2.htm
(last visited **
Feb. 14, 2007); Timothy W. Luke, Kanban Capitalism: Power,
Identity, and Exchange in Cyberspace, http://www.cddc.vt.edu/tim/tims/Tim589.htm
(last visited **
Feb. 14, 2007).
Hart Ely, Another Such Victory: Constitutional Theory and
Practice in a World Where Courts Are No Different from
Legislatures, 77 Va.
L. Rev. 833, 849 n.39 (1991).
K. Hom, Equality, Social and Economic Justice,
and Challenges for Public Interest Lawyering, 8 N.Y. City L. Rev. 511,
516 (2005); Jess M. Krannich,
The Corporate "Person": A New Analytical Approach to a
Flawed Method of Constitutional Interpretation, 37 Loy. U. Chi. L.J. 61,
155. "Thus, critical race
realism encompasses not only the goals and methodologies of the
broader critical race and feminist projects, but also some of the
shared goals and methodologies of legal realism and law and market
economy theory (which I have integrated into my critical race work
M.S. Houh, Critical Race Realism: Re-Claiming the
Antidiscrimination Principle Through the Doctrine of Good Faith
in Contract Law, 66 U. Pitt. L. Rev. 455, 457 (2005).
156. See, e.g., Karl
Llewellyn, Some Realism About Realism-Responding to
Dean Pound, 44 Harv.
L. Rev. 1222 (1931).
157. See, e.g.,
Jerome Frank, Law and the
Modern Mind 119-20 (Brentano's 1970) (1930).
Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457
(1897). Holme's article is oft cited and illustrates exactly
the problem of modernity""the separation of law and morality
consequent to relativism.
159. For example, "Some
commentators discussing constitutional restrictions have suggested
reasons for successive prosecution in addition to those discussed
above. Professor Amar, for example, advocates 'flexible, fact-and
case-specific rules of due process, rather than global, rigid,
bright-line rules of double jeopardy."' Anne
Bowen Poulin, Double Jeopardy Protection from
Successive Prosecution: A Proposed, Approach, 92 Geo. L.J. 1183, 1284
160. For example, "In the
final analysis, the marriage movement will not relinquish the
talisman of marriage as fixed and natural instead of 'ultimately
dependent upon social and economic structures."' Richard
F. Storrow, Rescuing Children from the Marriage
Movement: The Case Against Marital Status Discrimination in
Adoption and Assisted Reproduction, 39 U.C. Davis L. Rev.
305, 366 (2006).
referred to mechanical jurisprudence as scientific because those
who administer it believe it such. But in truth it is not science
at all. We no longer hold anything scientific merely because it
exhibits a rigid scheme of deductions from a priori
conceptions. In the philosophy of to-day, "theories are
instruments, not answers to enigmas, in which we can rest."
balancing commit the Court to an overall theory of a
constitutional provision. The old conceptualization could be
discarded and a balancing approach could temporarily fill the
theoretical void while the Court groped towards a conception more
attuned to the times. Of course, there was the risk that
balancing's flexibility would be viewed as unprincipled
Aleinikoff, supra note 161,
163. See, e.g., Paul
W. Kahn, The Court, the Community and the Judicial
Balance: The Jurisprudence of Justice Powell, 97 Yale L.J. 1 (1987).
N. Coffin, Judicial Balancing: The Protean Scales
of Justice, 63 N.Y.U.
L. Rev. 16, 40 (1988).
E. Maggs, Karl Llewellyn's Fading Imprint on the
Jurisprudence of the Uniform Commercial Code, 71 U. Colo. L. Rev. 541,
W. DeLong, Placid, Clear-Seeming Words: Some
Realism About the New Formalism (with Particular Reference to
Promissory Estoppel), 38 San Diego L. Rev. 13, 50 (2001).
V. Alfieri, Impoverished Practices, 81 Geo. L.J. 2567, 2624
legal realism is a pluralistic view that marshals a
multi-disciplinary analysis of the constitutionality of speech
incorporating historical, linguistic, social and political
Tsesis, The Boundaries of Free Speech, 8 Harv. Latino L. Rev.
141, 152 (2005).
169. For a brief overview
of realism and an attempt to both criticize and ameliorate realist
discourse, see Anthony
D'Amato, The Limits of Legal Realism, 87 Yale L. J. 468 (1978).
Llewellyn, Some Realism About Realism""Responding
to Dean Pound, 44 Harv.
L. Rev. 1222 (1931).
Marie Kohm, A Reply to "Principles and Prejudice":
Marriage and the Realization that Principles Win over Political
Will, 22 J.
Contemp. L. 293, 325 (1996).
172. For a discussion of
balancing tests in legal theory and pedagogy, see James Boyle, The
Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003
realists, Tushnet explained, demonstrated the indeterminacy of
legal doctrine, which meant that rules and precedents could be
manipulated to produce often contradictory legal outcomes. The
result was, the realists argued, that the explanation for these
outcomes must be sought outside of the system of legal doctrine,
in the sociology of power.
174. See, e.g., Duncan
Kennedy, Form and Substance in Private Law
Adjudication, 89 Harv.
L. Rev. 1685 (1976).
175. See Eric
Allen Engle, When is Fair Use Fair? A Comparison of E.U. and
U.S. Intellectual Property Law, 15 Transnat'l Law. 187
176. How can we
distinguish norm and mores? The norm is that
which is customary, habitual and thus seen as normal. These terms
177. This argument
requires that one understand that contingent truth is only
potentially true depending upon circumstances whereas necessary
truths are true in all times and places.
178. A post-modernist
paradox: If no truth exists, how can the truth that there be no
truth exist? This alone should demonstrate the flaw of
epistemological nihilism and/or moral relativism.
Engels, Anti-Duehring (1877), available at
180. See, e.g., Richard Posner, The Economics
of Justice (1981). Posner's arguments are certainly
coherent and internally consistent""but equating justice to the
marketplace requires several unrealistic assumptions (rational
profit maximizing economic actors, fungible goods, no transaction
costs) and is in the end likely wrong. There are values which are
non-fungible: they're called human rights. But see United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand's
181. See, e.g.,
Nigel Purvis, Critical Legal Studies In Public International
Law, 32 Harv.
Int'l L.J. 81, 94 (1991). Purvis argues, incorrectly,
that liberalism postulates that value is subjective.
premise of liberalism is the principle of subjective value. This
radical epistemology emphasises that moral truth and moral worth
are subjective, because as an epistemological matter universal
morality is unknowable. There is no accessible "objective value,"
"intelligible essence," "virtue," or Platonic form. There can be
"no natural distinctions among things, nor any hierarchy of
essences that might serve as the basis for drawing up general
categories of facts and classifying particulars under those
Id. But Purvis confuses
epistemological dualism with axiological cognitivism. It is
perfectly possible to be both an ontological or epistemological
materialist and a moral cognitivist.
182. Efficient markets
"require that participants have perfect information, incur no
transaction costs, and that there are no externalities not reflected
in the market information ...." Patrick
J. Ryan, Rule 14a-8, Institutional Shareholder Proposals, and
Corporate Democracy, 23 Ga. L. Rev. 97, 169 n.295 (1988).
183. "[F]ew (if any)
sellers are always rational profit-maximizers." Tasty Baking Co. v. Ralston Purina, Inc.,
653 F. Supp. 1250, 1275 (E.D. Pa. 1987);
see also USX Corp. v. United States, 12 C.I.T. 205,
184. These facts help to
explain some of the paralysis and cacophony in contemporary legal
theory, especially in contemporary American legal theory.
Tushnet, The Possibilities of Comparative
Constitutional Law, 108 Yale L.J. 1225, 1254 (1999).
186. See, e.g.,
Balancing Tests, Legal Theory Lexicon, http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le_1.html
(last visited **
Feb. 14, 2007); Iddo
Porat, The Transformation of American Constitutional
Balancing: The History of Constitutional Balancing from Holmes
to the Present Day (2005), (unpublished article), available
From 1930 to
1940, federal spending tripled in volume as new programs were
created and old ones expanded in a costly effort to revive the
collapsing economy. As a share of the gross domestic product
(GDP), federal spending rose from 3.4 percent in 1930 to 9.8
percent in 1940. Yet, despite this unprecedented surge in
spending, America's GDP fell by 27 percent part way through the
decade and by 1938 was less than two percent above its 1929 level.
For American workers, the failure of this spending spree to do
anything more than expand the deficit and bureaucracy was
devastating. The number of unemployed more than doubled from 2.8
million at the beginning of the decade to 6.9 million in 1940.
188. George Mason
Employment after the War?": The Women's Bureau Studies Postwar
Plans of Women Workers, http://historymatters.gmu.edu/d/7027/
(last visited **
Feb. 14, 2007).
189. E.g., Daniel
Gutman & Tyler Lewis, In the Wake of Proposal 2's Passage,
Affirmative Action Supporters Look to the Future (Dec. 21,
2006), available at http://www.civilrights.org/issues/affirmative/remote-page.jsp?
itemID =29141557. "With the passage of Proposal 2, Michigan becomes
the third state after California and Washington to ban via ballot
initiative affirmative action and equal opportunity initiatives in
state contracting, education, and employment." Id.
190. "According to Hume,
all mental activities are perceptions. Perceptions are of two kinds,
impressions and ideas.... Reason is of two kinds: comparing ideas
(relations of ideas) and inferring matters of fact...." Capaldi, supra
note 34, at 126. It is exactly this dualism which the author regards
as the source of conflict in Western theory and praxis.
191. Critical Legal
Studies ("CLS") failed due to a lack of radical commitment. CLS
theory was closet Marxism and so went nowhere because it did not
commit to Marx and was decimated by the same relativism that
undercut realism. See, e.g., E. Dana
Neacsu, CLS Stands for Critical Legal Studies, if Anyone
Remembers, 8 J.L.
& Pol'y 415 (2000).