Do Lawyers Know Anything?
posted by Nate Oman
I recently completed a short essay that will be included in collection of papers by a group of political philosophers. My topic was the relationship between religious thought and markets. I had originally thought that I would try to write a philosophical piece myself, starting with theological and economic first principles and then relating them to one another. As I thought some more about it, however, I decided this was not such a good idea. Although I like to play at philosopher (or historian or economist…) from time to time, at the end of the day I am just a lawyer. I am slowly coming to realize that there is no intellectual shame in this.
So rather than starting with first principles, I started with two concrete disputes over property and contract and used the arguments and resolution of those cases as a way of building upward toward more generalized claims. I wrote:
Often, discussions of capitalism proceed at a very high level of generality, speaking of entire social systems. Looking at the issue through the lens of the law, however, allows us to approach it from the opposite direction, denaturing the question of capitalism into the concrete legal institutions that make markets possible. Most people including those who think deeply about economics have a tendency to assume that property and contract are static, simple institutions . . . . The reality, of course, is that what we mean by property and contract changes from place to place and epoch to epoch.
Hardly the most startling insight in the world, but it does raise the question of what it is that one knows when one knows the law. As a young man, Oliver Wendell Holmes, Jr. fell for Emerson and the transcendentalists in college and considered himself a philosopher. The Civil War beat the transcendentalism out of him and returning from the battlefields of Virginia he enrolled in law school. I don’t think that he ever gave up his ambition to be a philosopher, however, and a few years after graduating from law school he sent a copy of one of his first law review articles to a very aged Emerson with a letter. The letter said something to the effect that if one went far enough into the law one found one’s self doing philosophy.
Last December the First Things blog had a rambling post about whether or not lawyers are intellectuals. Although the post ultimately petered off into a random discussion of the Volokh Conspiracy, literary theory, and science fiction it raised an interesting question. After noting that engineers and journalist, while smart (at least the engineers), are not intellectuals, the post said:
Still, I’ve always imagined that the law so closely parallels intellectuals’ activity — the work of philosophers, theologians, and literary critics — that there is an intellectual tendency that exists in the legal mind by its very nature.
There is something to this, I think, but it misses the point. Philosophers and theologians (who knows what literary critics do) start with generalities and theories and only gradually — if at all — descend to the particular and the concrete. Lawyers — at least common lawyers — start with cases, the particular and the concrete and only gradually ascend the ladder of abstraction to rules, doctrine, and — perhaps — theory. As Holmes noted, one may end up in roughly the same place as the philosophers but the road travelled to that place will be different. The question is whether or not the particular route taken matters, and if so how.
In the mean time, I take solace in the fact that law profs are paid better than philosophers. The absence of intellectual respectability has its compensations.
August 21, 2007 at 11:50 am
Posted in: Legal Theory
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Responses (5)
Patrick S. O'Donnell - August 21, 2007 at 2:47 pm
“Philosophers and theologians (who knows what literary critics do) start with generalities and theories and only gradually — if at all — descend to the particular and the concrete.”
I don’t think this generalization is accurate, at least in the case of philosophers (East or West). In the West, the dialectic in Plato ascends to the Good from the world of particularity (and descends back into the Cave after a vision of the Agathon), and Aristotle’s focus on judgment and virtues shows a keen appreciation of the particular and concrete (his scientific ambitions are further evidence of this). And one can cite numerous other examples from the Hellenistic period (see Nussabaum’s discussion of the ‘therapy of desire’ in Hellenistic ethics, especially Stoicism, which is focused on individual cases) through the Middle Ages and Renaissance, and into the modern period.
Philosophical refection and philosophical praxis might equally be said to begin with the concrete and particular, yet the dialectic of theory and praxis is something of a Mobius strip. To be sure, the concern, in the end, is with generalizations and theories or big pictures but the path to same is not that different, I think, from legal practice. It’s rather a Whiggish reading of the history of philosophy that lends itself to a descriptive characterization as beginning with generalities and theories and then, only occasionally descending to the world of the many, to what the Chinese term “the ten thousand things.” For the textbooks and the pedagogical methods are such that one learns a history of theories and arguments, but this should not be mistaken for the methods of philosophy or the manner in which philosophy is practiced. To be sure, on occasion there are philosophical schools that have a theoretical orientation that seem at best tenuously tied to our common sense world, as with the excesses of logical positivism and logical empiricism in the philosophy of science, or the cruder forms of British, Platonic, or Hegelian idealism. Toulmin’s Cosmopolis: The Hidden Agenda of Modernity (1990) makes a persuasive case for modern philosophy favoring the universal over the particular, the general over the local, the timeless over the timely, indicative of a shift from “practical” philosophy to a predominantly theoretical conception of philosophy. And I think there is a lot of truth to this story. But in the twentieth century, ordinary language philosophy, phenomenology, existentialism, post-modernist musings, and even analytic philosophy in general are among schools, trends, and methods that are careful not to privilege the universal over the particular in a way that ignores, diminishes or obliterates the relative significance of the the local, the timely, the particular, the individual case. It may not be full-fledged nominalism, but it reflects a respect for same.
Patrick S. O'Donnell - August 21, 2007 at 2:59 pm
I inexplicably and conspicuously left out Pragmatism in the mention of twentieth century philosophy above.
I might also recommend two essays with points germane to the point above: Hector-Neri Castaneda’s “Philosophy as a Science and as a Worldview,” in Avner Cohen and Marcelo Dascal, eds., The Institution of Philosophy: A Disciipline in Crisis? (1989), 35-60, and Nicholas Rescher’s discussion of philosophical methodology in a System of Pragmatic Idealism, Vo. III: Metaphilosophical Inquiries (1994), 36-58, and reprinted in (where I found it) Bo Mou, ed., Two Roads to Wisdom: Chinese and Analytic Philosophical Traditions (2001), 3-25.
Daniel Goldberg - August 21, 2007 at 3:15 pm
Nate,
In any case, the difference
between generalities and cases is not historically sound as a means of demarcating lawyers and philosophers.
Anglo-American common law was heavily influenced from its beginnings by styles of Roman law and the canon law that dialectically followed. As any reader of Aquinas can tell, one of the major modalities of canon law is casuistry, which is exactly the kind of case-based, bottom-up reasoning you (correctly) ascribes to legal practice.
However, canon law exerted a profound influence on medieval thought and philosophy as well — hence its role in Aquinas’s thought. Many philosophers and humanists, perhaps most notably, Montaigne, were quite comfortable with a case-based approach to thinking philosophically, and this did not really change fundamentally, IMO, until Descartes entered the scene.
In any case, some philosophers and ethicists — see Jonsen and Toulmin, among others — have stressed that casuistry fulfills a very important role in current moral philosophy, and there is a vigorous debate within bioethics proper as to the merits of the kind of broad-based, principlist top-down thinking you ascribe to philosophers.
The current focus on moral particularism that Jonathan Dancy helped inaugurate is, in fact, a mode of philosophical thinking that begins by eschewing the kind of generalism with which you characterizes philosophy.
Finally, as to the question of whether lawyers are intellectuals, I would simply suggest that it is no coincidence either that legal training essentially began in Bologna during the late Middle Ages, nor that a definite majority of medieval and Renaissance humanists trained in the law (e.g., Petrarch, Pico). I don’t know about lawyers per se, but the law itself is a highly intellectual discipline, IMO, and the fact that many lawyers may not consider themselves intellectuals nor be particularly interested in intellectual matters says much more about current legal pedagogy than about the law per se.
Patrick S. O'Donnell - August 21, 2007 at 3:34 pm
FWIW: I second Daniel’s incisive comments.
Serendipitously perhaps, but I’m just now reading Ian Hacking’s Historical Ontology (2002) and he writes of how Kant, provoked by Hume’s puzzlement over how particulate impressions can give rise to the idea of a person, “proposed one of those massive absurdities that are the preserve of truly great figures who take reasoning seriously and plunge on: I mean the transcendental unity of apperception. Every one of my noticings of anything is accompanied by a noticing that I notice it. Thus the particulate fact, a child of double-entry bookkeeping and the new commercial practices, engendered transcendental philosophy.” !!!
Adam - August 21, 2007 at 3:56 pm
Without meaning to be flippant, I think it’s important to note that, in his concluding paragraph, Nate equates lawyers with law professors. But is that equivalence accurate in this context?
I would conclude that a great number of law professors “start with generalities and theories and only gradually — if at all — descend to the particular and the concrete.” At risk of speaking in generalities (ironically, given the subject matter), I can’t remember the last time I read a law review article that said, “let’s look at the data and then induce a conclusion,” so much as “here’s my pre-existing theory, let’s see why the cases do or don’t back me up.” At least outside of the law and economics crowd.
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