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November 16, 2005


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Jason Steed

Re: Roach's 3rd post

You say: "I could, theoretically under your view, read everything you said above to mean, "I agree with Roach." How could you say I'm wrong? That's the problem with the quick-sand like view you're espousing; it also discredits anything you have to say."

No, you're wrong. To interpret what I said in the radical fashion you describe would be to assert a "private" meaning. The community would reject your interpretation as invalid. You are failing to recognize my emphasis on the communal nature of meaning and interpretation.

You also say: "Jason, there is no reason to believe you're interested in truth, and thus there's little reason anyone should listen to anything you have to say. And your closed, nihilistic system doesn't permit you to make a coherent response to that charge."

Wow. I'm not sure why I provoke such hostility in you. But then, this seems to be the typical conservative response to an idea that doesn't mesh completely with the conservative perspective.

I am very concerned with truth -- with what it is and how we can know it, and with whether or not it can be known. And your accusations of a "closed" and "nihilistic" system only reveal your utter lack of comprehension of what I'm talking about. What I am suggesting is not a "closed" system -- exactly the opposite! The recognition that meaning is communal and ever-changing and multiple is a recognition of profound openness to the system.

Fixing meaning as a singular, "objective" and unchanging (or at least highly-resistent-to-changing) thing is an attempt to "close" off the system.

And my own postmodernist position is far from nihilistic -- on the contrary, mine is an idealistic, optimistic position. It is the conservative, closed-mindedness of resisting change, denying community its proper recognition for its role in making meaning, and rejecting any view that does not mesh with its own, that is, in my opinion, nihilistic.

And I believe the community of readers reading this will include many who believe that I am able to make a coherent response to what you're saying -- that, in fact, I just did so. Your charge that I can't be coherent relies on imposing a privatization of meaning that you yourself had previously proscribed, to which you are ascribing me, but which I have never espoused nor advocated.


There is something off about your points, Jason, as is usually the case with people like you.

First, you write, "If it is an "objective" truth that blacks are inferior to whites, then changing that "truth" is hindered -- even when the community at large no longer believes it is "truth.""

The only way one can defeat a racist prejudice is with some objective account of race difference and some objective account of how those differences translate into moral life. You personally may not like racism, but you really have nothing intelligent to say on the question. Only with a notion of some moral understanding and human good apart from any given community consensus, individual preference, or whatever shibolleths of subjectivism you're peddling, is it possible to take moral evils. And notice that I don't put "evil" in quotes. In your schema there is no such thing as inferior, superior. In any system that acknolwedges truth, it also can acknowledge that it's wrong. And part of the point of philosophy and the role of intellectuals is to expose the girders of our beliefs that depend on facts that can be proven and disproven, as well as the relationship (and inconsistencies) between one of our value and another.

The other missing link in your basic viewpoint is the role of writing. Words that are written down have a permanence. They enshrine forever a moment in time where an individual or group recorded something, nto to be changed. It's true, I can read the words differently than they were understood at the time and thus, in some sense, create a new document. But the gap is not unbridgeable. We can read books, dictionaries, and compare how words were used in the past to see what they meant, and thus what they mean forever. To ignore a discernable meaning, as understood by the author, is to create a new meaning, a potentially limitless one based on social changes an individual perspective. But there is only one objective meaning as evidenced by the words used at the time of authorship. To respect written texts is to acknowledge the possibility of them having a discernable meaning.

But if you want to play a game of subjectivism, two can play at that game. I could just as easily say that you are the product of an overeducated, decadent, privilged upbringing and that influences you to engage in mental masturbation that has no useful impact on the practical job of jurisprudence. But I think such an argument is facile and useless. I'd instead rather show that most of what you said is sophistry.


Your response is not coherent, or at least not any more valid than alternatives. There is no such "thing" as community under your own view because of the radical otherness of every other individual. So when you say, "And your accusations of a "closed" and "nihilistic" system only reveal your utter lack of comprehension of what I'm talking about." I could just as easily say that my response is equally valid, one among infinite possible individual interpretations, and that any attempt to impose community "consensus" is a form of violence against my autonomy and a mere exercise in power that has nothing to do with truth or the integrity of my arguments. This is the heart of the subjectivist critique. It sure makes it hard to have a conversation though, doesn't it.

And I'm not hateful or hostile to you. I just think you sound like a smart enough person, who has wasted a lot of money on the simulacrum of an education.

Jason Steed

I'm not sure why you feel it necessary to get so personally offensive in this exchange. Yet, somehow this is consistent with the general conservative reaction to something they don't like.

There is so much that is wrong in what you're saying about my position that I don't even know where to start -- and I'm not going to bother going through it point by point.

I will say this: if you knew anything at all about the postmodernist position, you would know that it BEGAN with a careful attention to writing. In fact, the very privilege that you're giving to the written word (over the spoken word) is, some might say, a product of postmodernism -- that is, Derrida began with a critique of the prevailing view that spoken language was somehow more reliable than written language. The fact that you've swung the pendulum the other way, to privilege writing over speech, is evidence of the impact of postmodernist thought (though postmodernists would reject the privileging of either one over the other).

And you suggest that I am "the product of an overeducated, decadent, privilged upbringing."

Hmmmmmmm. Did you arrive at that interpretation through the appeal to some "objective" standard? Because the thing is, I come from a lower-middleclass, rural background that is FAR from privileged or decadent. I am an orthodox Mormon, and believe very much in truth and good and evil. And yes, I have a PhD -- but I'm not sure that that qualifies as "overeducated" in comparison to, say, a JD. In fact, I'm not even sure I know what constitutes being "overeducated" -- is there such a thing as too much education?

Your personal attacks are based on your interpretations of who I am and what my intentions are -- and supposedly, if you're operating on the "objective" standards and methodology that you advocate, you should be dead accurate in your interpretation.

Yet you're dead wrong.

I don't really know what to say to that, or to your hostility in general.

Jason Steed

Roach, Roach, Roach...

1. The radical otherness of one individual from another does not prevent community -- it merely recognizes the fundamental individualness of individuals. In no way does this prevent or proscribe the existence of community.

2. Your response IS just as valid, initially, as any other response -- but it likely would not be validated (i.e., accepted, embraced, adopted) by the community because it is too radical (i.e., "private"). This does not constitute the "imposition" of community consensus -- your autonomy is not threatened or violated. Rather, your interpretation is simply abandoned in favor of another (or several others -- whatever the case may be). The autonomy and validity of the individual remains, but the consensus of the community will prevail. (Because, as you've noted, there cannot be "private" meanings.)

3. As for my "simulacrum" of an education -- obviously, you feel I did not receive a genuine or authentic education because I don't agree with you. Only your way of seeing things is valid. Clearly, it is THIS view -- and not the pluralistic, communal view that I am advocating -- that invalidates my autonomy and does violence to my status as an individual. I cannot be equal with you unless I agree with you.

I recognize your right to, and the autonomy of, your position. I can only hope that the community at large opts to reject this position in favor of a more pluralistic one.


I think you don't have a real education because you're saying that no real understanding between us is possible, that there is no such thing as objective truth, and yet you purport to advance certain interpreative and moral views, e.g., the desirability of pluralism, the radical "Otherness" of others. In other words, you have adopted a cockeyed epistemology that renders your mind unreceptive to receive moral and philosophical truths. You have rendered yourself ineducable. Why that word? Because education consists of knowledge, and the further grounding of that knowledge in understanding. Understanding by one who denies understanding is impossible on its own terms. What it calls "knowledge" "truth" and "understanding" is, in fact, a cribbed version of the original.



You should never argue with a lawyer; you will inevitably loose.


Thank you for your comment. The reason why I subordinate interpretive theory to political theory is because I think that it is the most helpful way to describe how our legal system operates.

For example, court heirarchy and stare decisis. When a court encounters a litigated phrase that has "too much" meaning (e.g. "income") and looks for to outside sources as to what means (e.g. Q: does it include employer-provided apartment?) those outside sources are categorized according to the amount of deference to be given to it. Some interpretive sources explictly deemed "controlling", while others merely "persuasive." This interpretive meta-strategy is done explicitly, with reference to political theory - e.g. in order for law to have consistency, and for appellate review to be meaningful to a litigant, an appellate court must have more interpretive authority than a lower court. Here, a federal district court judge is "controlled" by the directly on-point interpretation of the higher appellate court in its jurisdiction, even if other interpretive sources (e.g. statements by the members of the legislature who passed the law) would exclude the appellate court's interpretation. Again, this is done because of political choices that have been made, most of which are (by and large) uncontroversial.

More generally, stare decisis operates to prefer a prior court's interpretation of meaning to that of the present court. The doctrine operates in a way that both contributes to the power of the judiciary and constrains it. It empowers a judiciary by giving it the power to govern not only the two litigants immediately before it, but to govern all other persons within its jurisdicion who may find themselves in a similar situation. (This is why judicial power finds itself in theoretical tension with democratic theory. And probably why we care so much about court rulings, rather than just whatever altruistic feelings of justice we may have toward individual who find themselves in front of a court.) Stare decisis also constrains the judiciary in two ways: the first, obvious way is by limiting its interpretive authority vis-a-vis prior courts (the judicial obligation to decide like-cases-alike - itself an ideal motivated by political theory); and the less obvious way is by "holding its feet to the fire" - because a court knows that its ruling will control it in the future, the court as a policy-making body does not want to hamstring itself. (This is one reason why - apart from political reasons - Bush v. Gore upset so many people: the SCOTUS said that it would not act as precedent in future cases. This foonote has been largely ignored by litigants and lower courts - and correctly I believe, as inconsistent with the political theory which gives the judiciary its power.)

Anyway, because I think that our political institutions have been structured (almost explicitly) with reference to political theory (whether or not internally consistent), I believe that - at least as practiced - law treats political theory as conceptually prior to interpretive theory. In another discipline, where interpreters are not political actors within political institutions, political theory and interpretive theory may merge more easily.

Finally, my notes above on court heirarchy and stare decisis have omitted controversy that surrounds them (e.g. when to look at legislative history, when to overrule precedent.) However, these controversies confirm my point because they are largely waged in terms of political theory rather than interpretive theory.


Here's a question; why write down laws and judicial decisions at all? Why not have them all done off the cuff, based on shifting mores, so that they don't get tied down by any mistaken notion that what was written in the past and its understanding by its authors should bind us today?


Is this question directed at me?


Anyone who cares to answer.

Jason Steed

First, to Student:
Very interesting stuff. I don't really have a response, I just find your take on this interesting.

To Rodney:
Never argue with a lawyer because you'll inevitably lose? Where does that leave lawyers, then -- should they not argue with one another? Moreover, picking winners and losers in a contest that doesn't have mathematical measures (like a numerical score) is entirely subjective. You think I lose here -- but only because you agree with Roach's position. I can promise you that those who take my view think I'm winning.

To Roach:
First, I said "no real understanding is possible" with reference to a particular, deep, and complete understanding between individuals that really is not possible due to our utter individualness. No matter how intimate a relationship -- such as that between myself and my spouse, for example -- we do not (and cannot) always fully understand one another's perspective, simply because we have different experiences and backgrounds that shape how we perceive things.

Functional -- even thorough and complex -- understanding is always possible, however, and I have never suggested otherwise. Clearly you and I understand one another on a functional level, because we're able to have this discussion. And understanding is reached in a community whenever that community comes to a consensus on something, which communities do all the time.

Your attempt to dismiss my views follows from a gross misrepresentation (or misunderstanding) of them, which at times seems willful.

Second, why does advancing a moral or philosophical view require a reliance on "objective" truth. Let's take something like eating lettuce. Isn't it possible to have a community in which various individuals advance their views on the goodness or the badness of eating lettuce, without any reliance on "objective" truth? Advancing a view is a rhetorical act -- you make an argument for the view using whatever support and strategy you think will prove effective. There doesn't have to be "objective" truth or fact involved.

Sure, in certain communities, an appeal to "objective" truth or fact is privileged as a particularly persuasive support or strategy for forwarding an argument. But not always.

You say my mind is not receptive to moral and philosophical truths -- I have rendered myself "ineducable." But what you really mean is that (according to you) I am unreceptive to YOUR ideas of what constitute moral and philosophical truths.

The fact is, I am very receptive to the argument for "objective" truth (as you seem to mean it). As I mentioned, I have a strong religious background that in some ways requires me to confront the arguments for "objective" truth on a daily basis. But that doesn't mean I have to completely embrace the notion of "objectivity" as a whole.

What if, for example, the only "objective" truth is that God exists and we exist -- everything, after that, is subject to interpretation? Or what if the amount of "objective" truth is greater than that -- then how great is it? How much of it is there? What is its nature? And how can we know it "objectively" if we cannot step outside our subjective position of interpretation?

It seems painfully obvious to me that, of the two of us, I am the more open to competing arguments. You are rejecting my position outright (and attacking me personally along the way), while I am willing to grapple with your assertions honestly.

This is, of course, the nature of the beast: someone (like me) who is open to the possibility of the utter subjectiveness of truth can still entertain the possible objectiveness of it; but someone (like you) who adheres strictly to the objectiveness of truth must necessarily reject the possibility of its subjectivity.

The irony is that the latter person (you) then tries to accuse the former person (me) of being "closed-minded" or "ineducable," when in fact the reverse is true.

Jason Steed

In answer to your question: We write things down as a matter of record. This inheres a conservative impulse -- the desire to conserve (or preserve) meaning, to fix it in place.

You keep trying to radicalize my position by implying that I have suggested that the written record has no value -- as though I am suggesting meaning is all made up out of thin air, without any attachment to texts or history. I've never suggested any such thing.

All I am saying is that we cannot ever escape the present historical moment. Our perceptions and interpretations are always necessarily PRESENT -- shaped and influenced by the present and existing within the present. The idea that we can reconstruct past meanings is not entirely ludicrous, but it does have something of the fool's errand about it -- because we can only see that "past meaning" through the lens of the present. All we really have, then, is the present's interpretation(s) of the past.

And those present interpretations are unavoidably colored by present political and cultural contexts, etc., etc., etc.

Of course writing things down has value, and of course we must turn to these texts with the goal of interpreting them "correctly" -- I'm simply advocating a recognition of the illusion of some kind of politically and historically transcendent "objectivity" that is really only a rhetorical strategy for promoting a particular present-day interpretation.


Let me try to respond to one specific part of your argument.

You bring up the preference for lettuce, and imagine that one coudl argue for and against preferring it with others. I'm not so sure. That is, I think the fact of debate suggests the possibility of a truth outside the speakers.

When someone says, I like chocalte, but I don't like strawberries, they are making a statement of taste. On the other hand, when someone says, "It's 3 o'clock" or "It's wrong to have an abortion." They are making reference to an outside standard. The fact of disagreement also points to the possibility of resolution. The nature of the claim--factual state of existence, moral truth--permits it to be argued about in a way that taste does not admit to disagreement. There are middling questions, such as "beauty" or "good taste," but others are clearly in the possibility of resolution crowd, such as "moral right" and "historical fact."

It's true, we perceive these truths dimmly, and may only approach them asymptotically, but, at the same time, the very fact of discussions in some arena, but not others, suggets that we are both accepting on some level that there is a "right" answer that is apart from our individual tastes. And law, most certainly, permits such debates about correct and incorrect decisions. It permits this because law has a built in logic. It may be inherited, of course, but I think there is also someting universal to it, the concern for precedent, procedure, regularity, consistency, fairness, etc. Such an epistemological status to legal questions, as distinct from taste ones, renders your postmodernist-whatever-you-call-it perspective less useful and distracting. The fact that you reached for an example that was one of taste a outrance simply serves to demonstrate the sleight of hand involved in your assertion in clear relief.


The fact that our law is in writing is an important but ambiguous one: It is evidently and obviously meant to the constrain the power of future lawmakers. Writing can pre-commit future political actors, but only so far as the text excludes meanings that would otherwise be available. It is also evident that text can leave open alternative explanations of its meaning and that a future lawmaker must decide what evidence is relevant to its meaning. The relevance of historical evidence is predicated upon a political theory that tells us why it is relevant. I understand the argument that the political purpose of law is intended to pre-commit us (i.e. constrain future lawmakers to do/not do), and that written text is an important (though not essential-see British constitution) method in achieving this. I also understand that when the text leaves alternative meanings open, that the purpose of pre-commitment is best served by taking the meaning commonly understood by the lawmaking body who passed it as authoritative.

I also understand the argument that value choices in a democratic society are best delegated to a branch of government subject to election, and that when the text leaves open alternative meanings, the judiciary should defer to the meaning chosen by the elective branches. (As an aside, as a theoretical matter, I don't understand how J. Scalia can look to the intent of the ratifiers in constitutional interpretation, but disregard legislative history in statutory interpretation. These points of political theory also tell us that in asking the question "what is evidence of 'income' in this statute?" the meaning of the lawmaking body who passed the statute is authoritative.)

These are good arguments of political theory. But I also understand the following argument:

Our system of governance embraces not one, but two fundamental principles: 1) to govern by consent (above), and 2) to protect individual from governmental encroachment. This latter point is part of what we mean when we say that we live in a "free society" and that "this isn't Russia." The principle of freedom is no less fundamental than the principle of consent.

Because a democracy locates its power in the elective branches, then because protection of a "free society" necessarily involves curtailment of government power, protection of individual freedom therefore curtails elective power.

This is admittedly a fundamental tension within our system of governance, but not one which should be hastily resolved in favor of the elective branch. (Even if legislators, protecting their governmental power and riling up their elective base for job support, follow their incentives to convince people that not to do so is to take power away from the people.)

Moreover, the policy goal of pre-commitment is (again) one of justified by political theory, and is in tension with the fundamental principle of freedom. Although it may be preferred, one must justify this preference in political theory terms - e.g. how to answer Lockean thesis that the entire purpose of government is to protect individual freedoms - and to such an extent that persons are justified in overthrowing such a government when it does not. (A political thesis, not coincidentally, reflected in our Declaration of Independence when we revolted by force of violence from Britain.)

An example (which I don't want to get off-topic on, we could do Brown v. Board or Bolling v. Sharpe just as easily): Abortion is a big issue today, and persons who impose a constitutional right to it argue that because abortion is not included in "Due Process" (or in Privileges or Immunities, or in the 9th Amendment), then it should be given to the elective branches. Because of the power of the issue, the fundamental nature of the "free society" aspect of our system of governance is lost. It is put into proper focus, I think, when people recognize that the same legislative argument would allow the U.S. to follow the Chinese policy of forced abortion, and that - even if environmental population activists controlled the legislature, it is inconsistent with our system of government.


That was to Roach.

Jason Steed

No, I reached for the example of whether or not it is GOOD or BAD to eat lettuce because it was an example that doesn't have an "objective" truth ready-made for it. I was not using an argument of taste, or practicing slight of hand.

I might argue that it is morally good to eat lettuce -- not simply a matter of taste. And there can be competing arguments -- that eating lettuce is in fact morally wrong, or (as you suggest) that it is not a moral issue at all, but rather a question of taste.

My argument might look like this: As a community, we have agreed that life is sacred; as a community, we have agreed that lettuce is alive; as a community we have agreed that to treat something as sacred entails not harming it, and harming that which we believe is sacred would be immoral; as a community we can agree that eating lettuce harms it; thus we should agree as a community that eating lettuce is immoral.

Notice that I am making NO appeal to "objective" truths here -- only to communal agreement. Of course, my argument can be challenged on perhaps any or all of its premises -- but this would require disputing the communal agreement. In the end, if the community really does agree on each point, then it must accept my conclusion.

This is hardly "slight of hand," nor is it merely a "matter of taste." It is a substantive argument over the correctness of a position, without any appeal to "objective" truths that exist "outside" the community.

I think most -- perhaps all -- arguments can be couched this way, and perhaps OUGHT to be couched this way. Instead, though, some within the community construct a rhetorical authority for "objectivity" that is then used rhetorically, as it is assigned to certain views, to advance those views.

The "concern for precedent, procedure, regularity, consistency, fairness" that you speak of, in the law, need not be abandoned or lost via the piercing of the "objectivity" bubble. The community can still value these things in its decision-making process without appealing to "universal" or "objective" truths that transcend the community. And, in fact, by NOT appealing to these things, the community is more open to change and more fully in control of its values and communal autonomy, because it is not at the mercy of a contructed "objective" truth that dictates a given meaning or value despite the community's disagreement with it.


And by "meaning commonly understood by the lawmaking body" I'm not implying anything about the accessibility about such a meaning, only that the pursuit of such an interpretive goal is thought to best serve the goal of pre-commitment, regardless of whether or not the process can be thought of as disinterested in any significant manner.


But one cannot say, "community, you are doing something wrong, change," when that community has decided otherwise without an appeal to some standard outside of that community.

I suppose you'll respond, "No, you can appeal to other values within that community." But what good are they, they are always open to change by the community. There is nothing to constrain the community.

Jason, suppose the community, like communities past, wanted segregation or mass violence against minorities. Is it wrong? Or is it OK because the community has agreed to do so.

What do you make of the 75% margins by which anti-gay-marriage initiatives are ratified by referenda. Is that wrong? Is there any way to say so without reference to some moral principle outside the community's snapshot values at one or another time? Is there not a way that individually and communally we can be satisfied that any of our decisions are right or wrong? Or do we just know, once we've decided, that's that.


"Jason, suppose the community, like communities past, wanted segregation or mass violence against minorities. Is it wrong? Or is it OK because the community has agreed to do so."

Roach: same question. I'd love to see your response to it.

In your theory of objectivity, viz., originalism, would not these things be acceptable if they were codified as law? Slavery would have to be acceptable in past American society because it was recognized in the Constitution.

Also, why do you assume that Jason's theory of interpretation would deviate from your own in terms of results? Or even reasons for these results?

"What do you make of the 75% margins by which anti-gay-marriage initiatives are ratified by referenda. Is that wrong? Is there any way to say so without reference to some moral principle outside the community's snapshot values at one or another time? Is there not a way that individually and communally we can be satisfied that any of our decisions are right or wrong? Or do we just know, once we've decided, that's that."

Again, Roach, I'd love to see you address your own concern from within the method of interpretation you seem to be supporting (originalism).

I fail to see how originalism is necessarily the best method of interpretation. It's the simplest theory, certainly, and I suppose it deserves credit for being so straightforward and internally consistent... but does that really make it superior to, say, legal realim?


The problem with the "originalist" dispute is that most constitutional conflicts aren't about meaning or interpretation at all. You can stare at the phrases: "liberty", "due process" or "interstate commerce", and it won't help you decide whether Congress can regulate election spending or guns in school zones.

Judges have to apply broad norms to specific statutes and controversies. It isn't really that the norms themselves are controversial, but the weight we put on them.

The form of originalism that imagines what James Madison would do with obscenity regulation on the Internet is a bit absurd. But the more defensible kind -- that looks at original understandings -- has to face the fact that the Constitution, or at least the heavily litigated parts, has intentionally vague language.

Jason Steed

You say: "I suppose you'll respond, "No, you can appeal to other values within that community." But what good are they, they are always open to change by the community. There is nothing to constrain the community."

You're right -- I would appeal to other values in the community. What good are they? The same good as any value held by the community. You still cling to this idea that there are "objective" values that exist "outside" the community -- but I dare you to name one. Just one. Name a value that simply IS, and holds true "outside" the community.

The fact is, you can't -- because you can't step outside communities. You occupy numerous communities (gender, religious, ethnic, national, age, regional, economic, educational, political) -- and ANY "value" or "truth" that you try to posit as "objective" is really, at its root, simply a value held by a/the community that you align yourself with.

The problem is, your value system includes imposing your values onto other communities -- so, to justify this, you construct the notion of "objective" values that are simply True regardless of community. And you are privileged enough to have access to these Truths, and it is your mission to foist them onto other communities, regardless of whether or not they agree with you, because the fact of the matter is, your values are the True values, whether they agree with you or not.

You say that without these "objective" values or truths, "there is nothing to constrain the community." But of COURSE there is -- the community is still there, to constrain itself. What you really mean when you say that is that, without your myth of "objective" truths, you and your subcommunity have less power to constrain the larger community in the way you would like to.

Look: I believe in certain "truths." I do. Contrary to the popular misconception of postmodernists/-ism, I am not an advocate of absolute relativism. But I recognize that the "truths" that I believe in cannot be proven in any rational way to be "objective" or "outside" the context in which they exist. I recognize that the attempt to posit them as such is really just a rhetorical ploy.

I also believe that, in a democracy, it is the desires of the majority in the community that reign -- or ought to reign, if it is truly a democracy. One of the downsides of this, of course, is that you might find yourself in the minority. But if you value democracy, then you will respect the majority, even when you think it is wrong. And you'll try to change the opinions of the majority while staying within the bounds of democracy and respecting the views that differ from your own.

If the community decides slavery is okay, then I must appeal to other values in the community to make an argument for its abolition.

The problem with appealing to "objective" truths is that it sets up a justification for the community to be ruled by a minority. If you construct a set of "objective" truths that exist "outside" the community, and you are persuasive enough, then you can appeal to the "authority" of those "objective" truths and effectively enforce them in a community wherein a majority disagrees with that "objective" truth. This is accomplished because the community has been persuaded not to agree with the "truth" being advocated, but rather to buy into the notion of "objectivity." Once they buy into the notion of "objectivity," they have a much harder time refuting a "truth" that has been ascribed as "objective," even when the majority disagrees with that "truth."

This, in my opinion, is a deterioration of democracy and egalitarianism. You will say, "Ah, but then you are appealing to democracy and egalitarianism as 'objective' truths to make this argument."

No. Democracy and egalitarianism are truths that I believe in, and that I think my community (America) believes in, so I appeal to these ideas in making my arguments here. But I'm not trying to ascribe to them "objective" status -- to do so would be a justification for exporting those values onto other communities that might not agree with them (like, say, Iraq). Because I hold these values myself, I am naturally pleased when others hold them too -- and I might try to appeal to other common beliefs and values in other communities, in making an argument in favor of democracy and egalitarianism. But I would seriously resist raising my values to the level of "objectivity," because that becomes a rationale for imperialism.


An absolutely great back and forth, Roach and Jason (and the many others). (I realize in the heat of arguments people sometimes lose the bigger picture; your audience [or, at least, me] appreciates this very much.)

I just want to make clear that Roach's view, while representative of both the orthodoxy (positivism) and a radical version of the orthodoxy (originalism), is not alone in the legal world. A radical critique of interpretation -- along the lines of Jason's -- is alive and well, and has been only a few years behind that of other post-modernist critiques (and, in some respects, has been a bit ahead -- see, e.g., Hale). While the critique may have lost favor recently [as the cultural war generally has shifted to the right, advanced education has not been spared], it is not forgotten. I didn't want this to be considered as some sort of debate between lawyers and non-lawyers.

Oh, and both my wife and I are lawyers, which makes the rule that "you never win an argument against a lawyer" a rather tricky one! (Though, there is like a corrolary for this situation . . .)

Anyway, thanks again.



This relates back to your earlier comment/question directed at me. The short answer is that yes, I do think that postmodernism/-structuralism is too much of a pure critique to offer much in the way of translation into positive law.

As a method of academic critique, it did have some presence about ten years ago but wrote itself out rather quickly. The best thing to read on the topic is Pierre Schlag's Stanford Law Review article, "Normative and Nowhere to Go." http://lawweb.colorado.edu/profiles/pubpdfs/schlag/SchlagSLR.pdf

It's interesting and challenging (and quite funny) but the punchline indicates why this field never really took off: at the end of the day, Schlag seems to believe that normative legal scholarship is indeterminate and hence a waste of time. Nor does Schlag present much of an alternative (i.e., if normative scholarship is a waste, what's better?). "Nowhere to go," indeed.


In fairness to legal Crits, they are still live, though perhaps having a difficult time breahing. (I'd still argue that this has to do more with the overall culture war, not with anything specific to -- or preordained by -- critical thinking.)

For example, Gary Peller, as part of Georgetown's 1L Alternative curriculum, still inspires blog posts like this :http://beau.squarespace.com/whats-up/2005/8/16/gary-peller-rocks.html

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