Tuesday, November 21, 2006

Adversarial Philosophy?

I'm interested in the role of judging and individual dispute resolution through adjudication in the formation of the common law. I'm interested in the move that must be made between the general and the particular in judging an individual case, as so dramatically explained by Derrida at Cardozo Law School in Force of Law, and in what the need to cross that aporia over and over again brings to law. So, among other more stimulating works, I've been reading (slogging through--this man is dull, dull, dull) Ronald Dworkin, a leading expounder of what judges do. Except that Dworkin seems to have no interest in individual disputes or, indeed, in trial court level judges, despite the fact that he criticizes his critics' views as failing to provide useful advice for judges. His concern is with the selection (discovery, inference, divination?) of objectively correct rules of law rather than with the best resolution of this or that case, except insofar as clarification of legal rules will be instructive to judges on the ground.
Among the things I find annoying about reading Dworkin is the way his arguments are framed as responses to his critics, sometimes identified as Stanley Fish, Cass Sunstein, Richard Rorty or Richard Posner, but often unnamed, who are asserted to hold such simplistic views that they hardly need answering. For example, just now I am working my way through "Objectivity and Truth: You'd Better Believe It", published in Philosophy and Public Affairs in 1996. That piece begins (all scare quotes in original):
Is there any objective truth? Or must we finally accept that at bottom, in the end, philosophically speaking, there is no "real" or "objective" or "absolute" or "foundational" or "fact of the matter" or "right answer" truth about anything, that even our most confident convictions about what happened in the past or what the universe is made of or who we are or what is beautiful or who is wicked are just our convictions, just language games we choose to play, just the product of our irrepressible disposition to deceive ourselves that we have discovered out there in some external, objective, timeless, mind-independent world what (sic--that?) we have actually invented ourselves, out of instinct, imagination and culture?
The latter view, wearing names like "post-modernism" and "anti-foundationalism" and "neo-pragmatism," now dominates fashionable intellectual style.

This seems to me a poor start to a philosophical argument for objective truth. Particularly an analytic argument of the sort Dworkin typically makes, of the form: Idea A could mean B or C. If it means B then it entails D and E; if C then F and G. To follow an argument like that I have to trust (or, at least, suspend my disbelief)that B and C really exhaust the possibilities for A, that a host of other ways of viewing the matter are not being silently excluded at each step of the analysis. But how can I trust the honesty (integrity?) and precision of the author who makes such a straw-bogeyman of the alternative (the singular alternative: "The latter view") to the position he intends to argue?

1 comment:

thinking girl said...

I was going to simply respond here, but it kind of spinned off into something else, which turned into a post, and you can find that here. I quoted your post, I hope that's ok.