Between reason and power: Experiencing legal truth

University of Cincinnati Law Review

Volumn 67, Issue 3, 1999, Pages 727-759

  Meyer, Linda ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0346616982     PISSN: 00096881     EISSN: None     Source Type: Journal    
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References (126)

1. Anthony Kronman, Rhetoric, U. CIN. L. REV. 677, 709.
2. See id. at 691.
3. Immanuel Kant, too, seems to take this view of rhetoric, see IMMANUEL KANT, CRITIQUE OF JUDGMENT 165 (J.H. Bernard trans., 1951), but insofar as rhetoric approximates poetry, it is rescued from its philosophical slanderers, see id. at 165, 170 (praising poetry over rhetoric). I have chosen here to make little of Kant's explicit and brief comments on rhetoric, which differ little from the philosophical canon and seem quite tangential to his train of thought, though he also seems to acknowledge the possibility of a more sympathetic account of rhetoric exemplified by "[t]he man who, along with a clear insight into things, has in his power a wealth of pure speech, and who with a fruitful imagination capable of presenting his ideas unites a lively sympathy with what is truly good." Id. at 172 n.50.
4. See PLATO, GORGIAS 523-525 (G.P. Goold ed. & W.R.M. Lamb trans., 1975).
5. See Ernest Weinrib, Law as Myth: Reflections on Plato's GORGIAS, 74 IOWA L. REV. 787, 801-06 (1989).
6. See Kronman, supra note 1, at 699.
7. See id.
8. BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 19-25 (Thomas Nugent trans., 1949) (1748).
9. I owe the view of Callicles presented here to Philippe Nonet, In Praise of Callicles, 74 IOWA L. REV. 807 (1989).
10. See PLATO, supra note 4, at 491-92.
11. See id. at 492e.
12. See id. at 494e.
13. See id. at 491b.
14. See id. at 497-505e.
15. See id. at 490-91.
16. See id. at 488d-489b. Socrates argues that if the many are stronger, then, by Callicles's own admission, the many must be right when they say it is fouler to wrong than be wronged. But Socrates always argues that the "many" are not to be believed. He uses what he knows to be a falsehood in order to get Callicles to agree with him about wronging and being wronged. Callicles replies: "[A] re you not ashamed to be word-catching at your age, and if one makes a verbal slip, to take that as a great stroke of luck?" Id. at 489c.
17. See id. at 494-95.
18. See id. at 487b-c.
19. See Nonet, supra note 9, at 810-11; GREGORY VLASTOS, SOCRATES, IRONIST AND MORAL PHILOSOPHER 45-80 (1991). The Gorgias is an early dialogue, though the myth at the end has more in common with later dialogues. In Plato's middle period, he turns from the elenchus to didactic methods.
20. See Nonet, supra note 9, at 810-11; GREGORY VLASTOS, SOCRATES, IRONIST AND MORAL PHILOSOPHER 45-80 (1991). The Gorgias is an early dialogue, though the myth at the end has more in common with later dialogues. In Plato's middle period, he turns from the elenchus to didactic methods.
21. See Kronman, supra note 1, at 699.
22. Id.
23. IMMANUEL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSICS OF MORALS 21-22 (Thomas K. Abbott trans., 1949) (1785).
24. IMMANUEL KANT, CRITIQUE OF PURE REASON 29 (Norman Kemp Smith trans., 1929): [E] ven the assumption - as made on behalf of the necessary practical employment of my reason - of God, freedom, and immortality is not permissible unless at the same time speculative reason be deprived of its pretensions to transcendent insight. For in order to arrive at such insight it must make use of principles which, in fact, extend only to objects of possible experience, and which, if also applied to what cannot be an object of experience, always really change this into an appearance, thus rendering all practical extension of pure reason impossible. I have therefore found it necessary to deny knowledge, in order to make room for faith, The dogmatism of metaphysics, that is, the preconception that it is possible to make headway in metaphysics without a previous criticism of pure reason, is the source of all that unbelief, always very dogmatic, which wars against morality. Id. (footnotes omitted).
25. See KANT, supra note 22, at 69-72.
26. I think Professor Kronman has, in the past, incorrectly characterized Kant as an enemy of the idea that lawyers or politicians have a special expertise, because he thinks Kant fails to appreciate that we are not all equal in deliberative skill. See ANTHONY KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 37-51 (1993). He comes to this conclusion because of Kant's assertion in the Groundwork that all reasonable beings are equal in their capacity to be good. Kant's main point in saying this, however, is that we all have the capacity as creatures of reason to turn away from temptation and follow law-he is speaking of our free will, not our deliberative skill. Kant never in his account of practical reason addresses the nature of deliberation and indeed seems to assume that, for the most part, we act through an unarticulated expertise that does not require explicit deliberation. Kant seeks only to "direct [the common men's] attention to the principle they themselves employ" so that when they fail to "just do it" and start rationalizing, they are not derailed by equivocation. KANT, supra note 22, at 22-23. Because practical reason in Kant's system is nothing but will, there is no need for Kant to account for deliberation in this book. He saves that topic for his Third Critique, The Critique of Judgment.
27. I think Professor Kronman has, in the past, incorrectly characterized Kant as an enemy of the idea that lawyers or politicians have a special expertise, because he thinks Kant fails to appreciate that we are not all equal in deliberative skill. See ANTHONY KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 37-51 (1993). He comes to this conclusion because of Kant's assertion in the Groundwork that all reasonable beings are equal in their capacity to be good. Kant's main point in saying this, however, is that we all have the capacity as creatures of reason to turn away from temptation and follow law-he is speaking of our free will, not our deliberative skill. Kant never in his account of practical reason addresses the nature of deliberation and indeed seems to assume that, for the most part, we act through an unarticulated expertise that does not require explicit deliberation. Kant seeks only to "direct [the common men's] attention to the principle they themselves employ" so that when they fail to "just do it" and start rationalizing, they are not derailed by equivocation. KANT, supra note 22, at 22-23. Because practical reason in Kant's system is nothing but will, there is no need for Kant to account for deliberation in this book. He saves that topic for his Third Critique, The Critique of Judgment.
28. See KRONMAN, supra note 25, at 113-16.
29. See HANNAH ARENDT, LECTURES ON KANT'S POLITICAL PHILOSOPHY 13, 26-27 (Ronald Beiner ed., 1982); KANT, supra note 3, at 44.
30. See ARENDT, supra note 27, at 4. See also PAUL GUYER, KANT AND THE EXPERIENCE OF FREEDOM: ESSAYS ON AESTHETICS AND MORALITY 27-47 (1996) (explaining the relevance of Kant's work on judgment to his moral philosophy).
31. Kronman takes note of the Critique of Judgment, but doesn't find it relevant. See KRONMAN, supra note 25, at 45-46. Indeed, its relevance is not patent, but I will try to make the connection here. See also, Mark Neal Aronson, We Ask You to Consider: Learning About Practical Judgment in Lawyering, 4 CLINICAL L. REV. 247, 270-79 (1998) (seeing importance of Kant's Third Critique in this context).
32. Kronman takes note of the Critique of Judgment, but doesn't find it relevant. See KRONMAN, supra note 25, at 45-46. Indeed, its relevance is not patent, but I will try to make the connection here. See also, Mark Neal Aronson, We Ask You to Consider: Learning About Practical Judgment in Lawyering, 4 CLINICAL L. REV. 247, 270-79 (1998) (seeing importance of Kant's Third Critique in this context).
33. Kronman, supra note 1, at 704.
34. KANT, supra note 3, at 15.
35. These distinctions are explained in more detail in KANT, CRITIQUE OF JUDGMENT, supra note 3, at 184-91. Kant also distinguishes "concepts," which are determinate categories for experience, usually communicable and linked with objects in the world, from "ideas," which may not be determinate or communicable or have referents in the world.
36. Id. See also, HANNAH ARENDT, THE LIFE OF THE MIND 57 (1978) The faculty of thinking, however, which Kant... called Vernunft (reason) to distinguish it from Verstand (intellect [or understanding]), the faculty of cognition, is of an altogether different nature. The distinction, on its most elementary level and in Kant's own words, lies in the fact that 'concepts of reason serve us to conceive [begreifen, comprehend], as concepts of the intellect serve us to apprehend perceptions'... In other words, the intellect (Verstand) desires to grasp what is given to the senses, but reason (Vernunft) wishes to understand its meaning. Cognition, whose highest criterion is truth, derives that criterion from the world of appearances in which we take our bearings through sense perceptions, whose testimony is self-evident, that is, unshakeable by argument and replaceable only by other evidence. As the German translation of the Latin perceptio, the word Wahrnehmung used by Kant (what is given me in perceptions and ought to be true [Wahr]) clearly indicates, truth is located in the evidence of the senses. But that is by no means the case with meaning and the faculty of thought, which searches for it; the latter does not ask what something is or whether it exists at all - its existence is always taken for granted - but what it means for it to be. Id. (quoting Kant, Critique of Pure Reason, B367). 53ee also PAUL GUYER, KANT AND THE CLAIMS OF TASTE 31 (Cambridge Univ. Press 1997) (1979).
37. Id. See also, HANNAH ARENDT, THE LIFE OF THE MIND 57 (1978) The faculty of thinking, however, which Kant... called Vernunft (reason) to distinguish it from Verstand (intellect [or understanding]), the faculty of cognition, is of an altogether different nature. The distinction, on its most elementary level and in Kant's own words, lies in the fact that 'concepts of reason serve us to conceive [begreifen, comprehend], as concepts of the intellect serve us to apprehend perceptions'... In other words, the intellect (Verstand) desires to grasp what is given to the senses, but reason (Vernunft) wishes to understand its meaning. Cognition, whose highest criterion is truth, derives that criterion from the world of appearances in which we take our bearings through sense perceptions, whose testimony is self-evident, that is, unshakeable by argument and replaceable only by other evidence. As the German translation of the Latin perceptio, the word Wahrnehmung used by Kant (what is given me in perceptions and ought to be true [Wahr]) clearly indicates, truth is located in the evidence of the senses. But that is by no means the case with meaning and the faculty of thought, which searches for it; the latter does not ask what something is or whether it exists at all - its existence is always taken for granted - but what it means for it to be. Id. (quoting Kant, Critique of Pure Reason, B367). 53ee also PAUL GUYER, KANT AND THE CLAIMS OF TASTE 31 (Cambridge Univ. Press 1997) (1979).
38. KANT, supra note 23, at 177.
39. Id. at 177-78.
40. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. L.J. 647, 657-59 (1998). See also the extensive literature on law as practical reason, including, KRONMAN, supra note 25, at 11-108, 113 (case law method aims at "cultivation of... perceptual habits"); Anthony Kronman, Practical Wisdom and Professional Character, 4 SOC. PHIL. & POL'Y 203 (1986); Martha Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 742 (1994); Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (where most of us got the idea in the first place, I suspect).
41. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. L.J. 647, 657-59 (1998). See also the extensive literature on law as practical reason, including, KRONMAN, supra note 25, at 11-108, 113 (case law method aims at "cultivation of... perceptual habits"); Anthony Kronman, Practical Wisdom and Professional Character, 4 SOC. PHIL. & POL'Y 203 (1986); Martha Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 742 (1994); Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (where most of us got the idea in the first place, I suspect).
42. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. L.J. 647, 657-59 (1998). See also the extensive literature on law as practical reason, including, KRONMAN, supra note 25, at 11-108, 113 (case law method aims at "cultivation of... perceptual habits"); Anthony Kronman, Practical Wisdom and Professional Character, 4 SOC. PHIL. & POL'Y 203 (1986); Martha Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 742 (1994); Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (where most of us got the idea in the first place, I suspect).
43. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. L.J. 647, 657-59 (1998). See also the extensive literature on law as practical reason, including, KRONMAN, supra note 25, at 11-108, 113 (case law method aims at "cultivation of... perceptual habits"); Anthony Kronman, Practical Wisdom and Professional Character, 4 SOC. PHIL. & POL'Y 203 (1986); Martha Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 742 (1994); Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (where most of us got the idea in the first place, I suspect).
44. See Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. L.J. 647, 657-59 (1998). See also the extensive literature on law as practical reason, including, KRONMAN, supra note 25, at 11-108, 113 (case law method aims at "cultivation of... perceptual habits"); Anthony Kronman, Practical Wisdom and Professional Character, 4 SOC. PHIL. & POL'Y 203 (1986); Martha Nussbaum, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 742 (1994); Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (where most of us got the idea in the first place, I suspect).
45. KANT, supra note 3, at 15.
46. See KANT, supra note 22, at 19-21. Compare KANT, supra note 3, at 201: It is only through exciting the imagination of the pupil to accordance with a given concept, by making him note the inadequacy of the expression for the idea, to which the concept itself does not attain because it is an aesthetical idea, and by severe critique, that he can be prevented from taking the examples set before him as types and models for imitation, to be subjected to no higher standard or independent judgment. It is thus that genius, and with it the freedom of the imagination, is stifled by its very conformity to law; and without these no beautiful art, and not even an accurately judging individual taste, is possible. The propaedeutic to all beautiful art, regarded in the highest degree of its perfection, seems to lie, not in precepts, but in the culture of the mental powers by means of those elements of knowledge called humaniora, probably because humanity on the one side indicates the universal feeling of sympathy, and on the other the faculty of being able to communicate universally our inmost [feelings]. Id. (changes and emphasis in original).
47. IMMANUEL KANT, CRITIQIUE OF PRACTICAL REASON 158 (Lewis White Beck trans., 1956). In these pages, Kant also gives examples of conflicts of duties, as when one's obligation to save another conflicts with one's obligation to preserve one's own life, as well as duties which vary in their force (duties to help others vs. duties to give others their rights).
48. KANT, supra note 3, at 15.
49. Id. at 16.
50. Kant distinguishes the "technically practical" from the "morally practical." The former are probabilistic only and must conform to the limits of theoretical reason. These include "statesmanship" and questions of skill. See KANT, supra note 3, at 8-9. The morally practical encompass only questions of duty, which can be resolved only after the circumstances are understood theoretically. Principles of duty belong to practical reason, as the faculty of determining the will to act.
51. See id. at 22-23: If, then, we say that nature specifies its universal laws according to the principles of purposiveness for our cognitive faculty, i.e. in accordance with the necessary business of the human understanding of finding the universal for the particular which perception offers it, and again of finding connection for the diverse... in the unity of a principle, we thus neither prescribe to nature a law, nor do we learn one from it by observation.... We only require that, be nature disposed as it may as regards its universal laws, investigation into its empirical laws may be carried on in accordance with that principle and the maxims founded thereon, because it is only so far as that holds that we can make any progress with the use of our understanding in experience or gain knowledge. Id.
52. See KANT, supra note 22, at 63-77.
53. KANT, supra note 3, at 18. Nor are these "maxims" antiquated - modern physics still searches for the "unified theory" to unite quantum physics at the micro-level with relativity at the macro-level. See generally STEPHEN W. HAWKING, A BRIEF HISTORY OF TIME (1988).
54. See KANT, supra note 3, at 23-25.
55. Or meaning. See ARENDT, supra note 33, at 53-65.
56. Jack Balkin draws on this insight in his excellent chapter on "Transcendence," see J.M. BALKIN, CULTURAL SOFTWARE: A THEORY OF IDEOLOGY 142-70 (1998). There, he describes justice, not as an articulable concept or state of affairs, but as a "verb" - an "inchoate and indeterminate urge[]," id. at 161, shared by all humanity for a just "normative order," id. at 166. Though each culture may measure itself by different yardsticks of justice, we share the "urge" to justice, the need to make human life meaningful - or, as Kant would say, we share the experience of pleasure when confronted with order and meaning in the world.
57. See KANT, supra note 3, at 189. For since the beautiful must not be judged by concepts, but by the purposive attuning of the imagination to agreement with the faculty of concepts in general, it cannot be rule and precept which can serve as the subjective standard of that aesthetical but unconditioned purposiveness in beautiful art that can rightly claim to please everyone. Id.
58. See id. at 51-54.
59. The flip-side of this experience of beauty is the experience of nature as chaotic, tragic, immense, and dangerous. Here, Kant says, we feel foreign to nature, ill-fitted for it. Yet, if we move beyond fear, we also feel a sense of sublimity in that, however powerful and incomprehensible nature may be, we stand against nature as creatures endowed with reason, unaffected by its rage and chaos. In judgment, the ambiguity of our relation to the world is experienced through sensation - we feel at home with, and also foreign to, the natural world. In both feelings is a sense of freedom and pleasure connected with the exercise of our capacity for understanding. See KANT, supra note 3, at 82-106.
60. See ARISTOTLE, Rhetoric in 2 THE COMPLETE WORKS OF ARISTOTLE 1357a 5, 25 (W. Rhys Roberts trans. & Jonathan Barnes ed., 1984).
61. See Linda Ross Meyer, "Nothing We Say Matters": Teague and New Rules, 61 U. CHI. L. REV. 423, 465-76 (1994) (and sources cited therein); Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741 (1993).
62. See Linda Ross Meyer, "Nothing We Say Matters": Teague and New Rules, 61 U. CHI. L. REV. 423, 465-76 (1994) (and sources cited therein); Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741 (1993).
63. See KANT, supra note 3, at 197-99. Plato, of course, preceded Kant in picturing beauty as a kind of sensible analog to the supersensible. Beauty, in the Phaedrus, arouses love and longing, as though evoking an indistinct memory of communing with the gods in perfect virtue and truth. See PLATO, PHAEDRUS 250c (G.P. Goold ed. & Harold North Fowler trans., 1977). Wittgenstein may also have been reaching toward something like this middle-ground between skepticism and rule-bound rationality. See Joshua Foa Dienstag's wonderful essay, Wittgenstein Among the Savages: Language, Action and Political Theory, 30 POLITY 579 (1998).
64. See KANT, supra note 3, at 197-99. Plato, of course, preceded Kant in picturing beauty as a kind of sensible analog to the supersensible. Beauty, in the Phaedrus, arouses love and longing, as though evoking an indistinct memory of communing with the gods in perfect virtue and truth. See PLATO, PHAEDRUS 250c (G.P. Goold ed. & Harold North Fowler trans., 1977). Wittgenstein may also have been reaching toward something like this middle-ground between skepticism and rule-bound rationality. See Joshua Foa Dienstag's wonderful essay, Wittgenstein Among the Savages: Language, Action and Political Theory, 30 POLITY 579 (1998).
65. See ARENDT, supra note 27, at 79-85. See also, Anthony Kronman, Paternalism and the Law of Contracts, 92 YALE L.J. 763, 790-94 (1983) (on Kant and imagination).
66. KANT, supra note 3, at 52.
67. See GUYER, supra note 33, at 75-79. "Reflective judgment, it turns out, leads to aesthetic response not by finding a possibe concept for a given particular, but by discovering that a given object fulfills the general condotion for the possibility of the application of concepts without having any concept at all applied to it." Id. at 78.
68. This thought is also common to Heidegger's understanding of Befindlichkeit, or the emotional attunement necessary for thought. See Meyer, supra note 36, at 657 n.48, 661-62; Nonet, supra note 9, at 812.
69. ARENDT, supra note 33, at 4.
70. Id.
71. KANT, supra note 3, at 158.
72. Id. See also, ARISTOTLE, supra note 52, at 1410b 9, 33. [W]e all naturally find it agreeable to get hold of new ideas easily: words express ideas, and therefore those words are the most agreeable that enable us to get hold of new ideas. Now strange words simply puzzle us; ordinary words convey only what we know already; it is from metaphor that we can best get hold of something fresh.... The words, too, ought to set the scene before our eyes; for events ought to be seen in progress rather than in prospect. Id. Aristotle continued: "[L]iveliness is got by using the proportional type of metaphor and by making our hearers see things." Id. at 1411b 24.
73. KANT, supra note 3, at 160.
74. Id. at 160-61.
75. See id. at 198-202.
76. ARENDT, supra note 33, at 105-06.
77. Kant connects all of these feelings directly with reason, hence all are universal among human beings. See infra, Part U.C. Kant also notes that teaching morality is in part an education of the emotions: [Educators] would find that even very young people, who are not yet ready for speculation of other kinds, would soon become very acute and not a little interested, since they would feel the progress of their power of judgment; what is most important, they could confidently hope that frequent practice of knowing and approving of good conduct in all its purity, and of noting even the least deviation from it with sorrow or contempt, would leave a lasting impression of esteem for the one and disgust for the other. KANT, supra note 3, at 158. See also LUDWIG BEMELMANS's, MADELINE (1939) (children's book), in which the schoolgirls, escorted by their teacher, venture out into the world each day "at half past nine in two straight lines in rain or shine." Outside the schoolroom, confronting the world, "they smiled at the good, and frowned at the bad, and sometimes they were very sad." Id. There is a burgeoning modern literature both in philosophy and in the social sciences debunking the view that emotion is "irrational." See, e.g., MARTHA G. NUSSBAUM, THE THERAPY OF DESIRE: THEORY AND PRACTICE IN HELLENISTIC ETHICS 507-10 (1994) (reinvigorating Stoic theory of emotions as inextricable from reason); NEAL FEIGENSON, LEGAL BLAME: HOW WE THINK AND TALK ABOUT ACCIDENTS ch. 4 (American Psychological Association Press, forthcoming 1999) (clear and helpful summary of recent social scientific research on the connection between emotion and decision-making, demonstrating rejection of the simplistic view that emotions always hamper rational judgment).
78. Kant connects all of these feelings directly with reason, hence all are universal among human beings. See infra, Part U.C. Kant also notes that teaching morality is in part an education of the emotions: [Educators] would find that even very young people, who are not yet ready for speculation of other kinds, would soon become very acute and not a little interested, since they would feel the progress of their power of judgment; what is most important, they could confidently hope that frequent practice of knowing and approving of good conduct in all its purity, and of noting even the least deviation from it with sorrow or contempt, would leave a lasting impression of esteem for the one and disgust for the other. KANT, supra note 3, at 158. See also LUDWIG BEMELMANS's, MADELINE (1939) (children's book), in which the schoolgirls, escorted by their teacher, venture out into the world each day "at half past nine in two straight lines in rain or shine." Outside the schoolroom, confronting the world, "they smiled at the good, and frowned at the bad, and sometimes they were very sad." Id. There is a burgeoning modern literature both in philosophy and in the social sciences debunking the view that emotion is "irrational." See, e.g., MARTHA G. NUSSBAUM, THE THERAPY OF DESIRE: THEORY AND PRACTICE IN HELLENISTIC ETHICS 507-10 (1994) (reinvigorating Stoic theory of emotions as inextricable from reason); NEAL FEIGENSON, LEGAL BLAME: HOW WE THINK AND TALK ABOUT ACCIDENTS ch. 4 (American Psychological Association Press, forthcoming 1999) (clear and helpful summary of recent social scientific research on the connection between emotion and decision-making, demonstrating rejection of the simplistic view that emotions always hamper rational judgment).
79. Kant connects all of these feelings directly with reason, hence all are universal among human beings. See infra, Part U.C. Kant also notes that teaching morality is in part an education of the emotions: [Educators] would find that even very young people, who are not yet ready for speculation of other kinds, would soon become very acute and not a little interested, since they would feel the progress of their power of judgment; what is most important, they could confidently hope that frequent practice of knowing and approving of good conduct in all its purity, and of noting even the least deviation from it with sorrow or contempt, would leave a lasting impression of esteem for the one and disgust for the other. KANT, supra note 3, at 158. See also LUDWIG BEMELMANS's, MADELINE (1939) (children's book), in which the schoolgirls, escorted by their teacher, venture out into the world each day "at half past nine in two straight lines in rain or shine." Outside the schoolroom, confronting the world, "they smiled at the good, and frowned at the bad, and sometimes they were very sad." Id. There is a burgeoning modern literature both in philosophy and in the social sciences debunking the view that emotion is "irrational." See, e.g., MARTHA G. NUSSBAUM, THE THERAPY OF DESIRE: THEORY AND PRACTICE IN HELLENISTIC ETHICS 507-10 (1994) (reinvigorating Stoic theory of emotions as inextricable from reason); NEAL FEIGENSON, LEGAL BLAME: HOW WE THINK AND TALK ABOUT ACCIDENTS ch. 4 (American Psychological Association Press, forthcoming 1999) (clear and helpful summary of recent social scientific research on the connection between emotion and decision-making, demonstrating rejection of the simplistic view that emotions always hamper rational judgment).
80. See JAMES BOYD WHITE, THE LEGAL IMAGINATION: ABRIDGED EDITION 211 (1985) (quoting SIR PHILIP SIDNEY, THE DEFENSE OF POESIE (1595)). White, of course, also suggests that judicial opinion- writing and poetry have many similarities. See id. at 211-42.
81. See JAMES BOYD WHITE, THE LEGAL IMAGINATION: ABRIDGED EDITION 211 (1985) (quoting SIR PHILIP SIDNEY, THE DEFENSE OF POESIE (1595)). White, of course, also suggests that judicial opinion-writing and poetry have many similarities. See id. at 211-42.
82. Including Professor Kronman, of course. See KRONMAN, supra note 25, at 209-25, 362-64.
83. See Meyer, supra note 53, at 465-76; Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. REV. 1467, 1493-99 (1996); Meyer, supra note 36, at 662-67. Well, I said I was repeating myself.
84. See Meyer, supra note 53, at 465-76; Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. REV. 1467, 1493-99 (1996); Meyer, supra note 36, at 662-67. Well, I said I was repeating myself.
85. There are many scholars who have understood the importance of metaphor in the law. See, e.g., Bernard J. Hibbitts, Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse, 16 CARDOZO L. REV. 229, 233-39 (1994) (and sources cited therein).
86. See ARENDT, supra note 27, at 19. Kant's moral philosophy is often "in the way" of his political insights.
87. See KANT, supra note 3, at 41-43.
88. Though philosophers have tried to do so. See R.M. HARE, MORAL THINKING: ITS LEVELS, METHOD AND POINT 6-7 (1981) (mixing Kant's categorical imperative with utilitarianism to derive a procedure for moral deliberation that avoids moral conflict).
89. See KANT, supra note 23, at 177; see also KANT, supra note 3, at 158. In Kant's brief mention of rhetoric, he also acknowledges die importance of examples, while otherwise denigrating the use of rhetoric in practical deliberation. See id. at 171.
90. See KANT, supra note 39, at 158.
91. See KANT, supra note 3, at 105, 143, 196-202.
92. Id. at 105.
93. GUYER, supra note 28, at 34. See generally id. at 27-47.
94. See KANT, supra note 3, at 182-91.
95. See id. at 128-38. See also GUYER., supra note 33, at 7-11 (for brief summary); id at 60-105 (for extended critical discussion).
96. See, e.g., ARISTOTLE, supra note 52, at 1411b 24 ("[L]iveliness is got by using the proportional type of metaphor and by making our hearers see things.").
97. See KANT, supra note 3, at 37-45.
98. See id. at 41.
99. See id.
100. See IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 19 n.3 (Lewis White Beck trans., 1969).
101. There is a conundrum here for Kant because the "interest" in morality cannot be shared by all reasonable creatures, as purely reasonable creatures without bodies cannot experience "interest." Kant solves this problem in part through his Third Critique. See supra note text accompanying notes 76-79.
102. See KANT, supra note 3, at 135-38; ARENDT, supra note 27, at 42-44, 58-77; ARENDT, supra note 33, at 38, 50.
103. See Linda Ross Meyer, Just the Facts?, 106 YALE L.J. 1269, 1309-11 (1997); KRONMAN, supra note 25, at 337-42. The vast literature on incommensurability makes similar points. For recent collections, see generally, INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON (Ruth Chang ed., 1997); Symposium, Law and Incommensurability, 146 U. PENN. L. REV. 1169 (1998).
104. See Linda Ross Meyer, Just the Facts?, 106 YALE L.J. 1269, 1309-11 (1997); KRONMAN, supra note 25, at 337-42. The vast literature on incommensurability makes similar points. For recent collections, see generally, INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON (Ruth Chang ed., 1997); Symposium, Law and Incommensurability, 146 U. PENN. L. REV. 1169 (1998).
105. See Linda Ross Meyer, Just the Facts?, 106 YALE L.J. 1269, 1309-11 (1997); KRONMAN, supra note 25, at 337-42. The vast literature on incommensurability makes similar points. For recent collections, see generally, INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON (Ruth Chang ed., 1997); Symposium, Law and Incommensurability, 146 U. PENN. L. REV. 1169 (1998).
106. See Kronman, supra note 1, at 699: But because laws and institutions are mortal composites, existing in time and subject like every other finite being to the forces of decay, their good can never be as clear or perfect as the good of things that exist outside of time, like the objects of mathematics. Because every regime is an embodied idea, its values must always have some local coloration. They must always have an element of particularity, of historicity, associated with the peculiar circumstances of their career in time.
107. See Meyer, supra note 70, at 1521-25.
108. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 126-27 (1961); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 133 (1978) ("The 'vague' standards [in the Constitution] were chosen deliberately, by the men who drafted and adopted them, in place of the more specific and limited rules that they might have enacted.").
109. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 126-27 (1961); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 133 (1978) ("The 'vague' standards [in the Constitution] were chosen deliberately, by the men who drafted and adopted them, in place of the more specific and limited rules that they might have enacted.").
110. See, e.g., James Boyle, The Anatomy of a Torts Class, 34 AM. U. L. REV. 1003 (1985).
111. See LLEWELLYN, supra note 36, app. C, at 521-35.
112. See ARISTOTLE, supra note 52, at 1375a-1377b. If you have already sworn an oath that contradicts your present one, you must argue that it is not perjury, since perjury is a crime, and a crime must be a voluntary action, whereas actions due to the force or fraud of others are involuntary. You must further reason from this that perjury depends on the intention and not on the spoken words. But if it is your opponent who has already sworn an oath that contradicts his present one, you must say that if he does not abide by his oaths he is the enemy of society, and that this is the reason why men take an oath before administering the laws. 'Do my opponents insist that you, the judges, must abide by the oath you have sworn, and yet will not abide by their own oaths?' And there are other arguments which may be used to magnify the importance of the oath. Id. at 1377b 5-10. Sound familiar?
113. I thank Brian Bix for this example.
114. See LLEWELLYN, supra note 36, app. C, at 521: Plainly, to make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon: The good sense of the situation and a simple construction of the available language to achieve that sense, by tenable means, out of the statutory language. Id.
115. See ARISTOTLE, supra note 52, at 1358a. Kronman also recognizes that good lawyering is the development of character, not just mental facility. See KRONMAN, supra note 25, at 109-62.
116. Sometimes this depends on experience, sometimes on innate sensibility. See JANE AUSTEN, PERSUASION 222-23 (Bantam Books ed. 1984) (1818) ("There is a quickness of perception in some, a nicety in the discernment of character, a natural penetration, in short, which no experience in others can equal ...." (speaking of the character of Anne Elliot)).
117. See KANT, supra note 23, at 177-78 ("A physician, a judge, or a ruler may have at command many excellent pathological, legal, or political rules, even to the degree that he may become a profound teacher of them, and yet, none the less, may easily stumble in their application."). See also KANT, supra note 22, at 21-22 ("[W]e do not need science and philosophy to know what we should do to be honest and good, yea, even wise and virtuous."). See also, ARENDT, supra note 33, at 83: Kant, at any rate, seems to have been unique among the philosophers in being sovereign enough to join in the laughter of the common man.... he tells in perfectly good humor a ... tale about Tycho de Brahe and his coachman: the astronomer had proposed that they take their bearings from the stars to find the shortest way during a night journey, and the coachman replied: "My dear sir, you may know a lot about the heavenly bodies; but here on earth you are a fool."
118. See KRONMAN, supra note 25, at 109-21 (discussing the need to cultivate sympathy and detachment for lawyerly virtue).
119. ARISTOTLE, supra note 52, at 1355b 10, 15.
120. Jack Balkin has suggested in conversation that a good rhetorician is one who respects the audience and shares his vision with them, not one that tries to manipulate the audience for his own undisclosed purposes. Interview with Jack Balkin, author of CULTURAL SOFTWARE, supra note 48 (Mar. 25, 1999). In other words, one might say, the good rhetorician abides by Kant's categorical imperative.
121. I may be understating the dangers here. See Richard K. Sherwin, A Matter of Voice and Plot: Belief and Suspicion in Legal Storytelling, 87 MICH. L. REV. 543, 558-63, 611-12 (1988). "Suspicion must remain the touchstone for prudent judgment and wisdom in action." Id. at 563.
122. Hannah Arendt makes much of this point in Lectures on Kant's Political Philosophy. See ARENDT, supra note 27, at 17-19. Likewise, in her work on totalitarianism, she points out that inconsistency, changing constellations of authority, and secrecy were the keys of power. See HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 368-88 (Harvest ed. 1979) (1951).
123. Hannah Arendt makes much of this point in Lectures on Kant's Political Philosophy. See ARENDT, supra note 27, at 17-19. Likewise, in her work on totalitarianism, she points out that inconsistency, changing constellations of authority, and secrecy were the keys of power. See HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 368-88 (Harvest ed. 1979) (1951).
124. Conceived this way, I can go along with Kronman's characterization of rhetoric as awakening a feeling of political fraternity. See KRONMAN, supra note 25, at 100-01.
125. The word for wisdom here is Φρóνησις, or practical wisdom.
126. See PLATO, supra note 54, at 250d.