Monday, May 19, 2008

Truth, Justification, and Law: The Clash of Analytic Philosophy and Pragmatism

The concept of truth is simultaneously the most obvious and the most arcane concept in legal reasoning. In one sense, no one can do without truth, but it's nonetheless difficult to appreciate just what the concept means and what role it plays in ratiocination. Is it true that it is now raining? Just go look. If it is raining, then the sentence "It is raining" is true. Nothing can be simpler or more routine. But what does the predicate "is true" add to the sentence "It is raining"? Does the predicate entail that the sentence or the truth of the sentence reflects, pictures, or corresponds to the way things are? If so, just how should we understand this idea of a sentence corresponding to reality? Does the sentence contain a snapshot of rain falling on one's head? What about the proposition "2+2=4" is true. Because it is true, does this sentence reflect some fact in the world? If so, it seems to be a rather strange sort of fact. "2" and "4" are curious enough facts in the world. But what about the relations "+" and "="? Does the notion of the addition and the equality of two values picture real world scenarios. If so, just what is pictured and how do we know it? The sentence "American constitutionalism creates a separation of federal powers" is true. But does it "correspond" to the White House, the Capitol, and the Supreme Court building or some relation between the three? Can sentences reflect relations?

However we understand truth generally or in legal reasoning, the notion of justification can't be too far behind. Indeed, it's difficult to understand either concept without making essential reference to the other. I can justify a legal proposition only if I can provide evidence of its truth. Indeed, truth seems to be the conceptual bedrock of justification.

The conventional wisdom in law is that the goal of a trial goal is truth--what happened, who did it, with which mitigating factors, if any--while justification--consensus--whether unanimous or not--is all we ever really achieve. Arguably, juries provide us with justification or consensus, not truth itself. In appellate litigation, we seek the true meaning of the law and whether the lower court committed some mistake concerning the law's meaning or application. But all we ever get is a consensus of the appellate panel, whether en banc or ordinary. Consequently, in the American legal system, justification seems to trump truth. But without at least a kernel of truth, justification seems to be a rebarbative and futile concept.

No one has done more to disparage truth than the late Richard Rorty, a recovering analytic philosopher whose more healthy persona embraced pragmatism. Rorty insists that truth as a reflector of reality is meaningless. All we ever have are sentences that achieve some sort of consensus. Rorty often refers to this consensus as justification. For Rorty, "[w]e do not have any way to establish the truth of a belief or the rightness of an action except by reference to the justification we offer for thinking what we think or doing what we do. The philosophical distinction between justification and truth seems not to have any practical consequences." See WUT, below at 44-45. Is that right? Isn't truth necessary, conceptually necessary, to make sense of justification. Without the normative notion of correctness, of truth, justifications become empty. Or put differently, making sense of justification requires the notion that whatever is justified would be true absent such ordinary limiting conditions as complete knowledge, flawless reasoning, and so forth.

In Rorty's attempt to cut truth from its moorings in our conceptual scheme, the idea of justification seems to get jettisoned also. Yet, if Rorty prefers justification to truth he most certainly is throwing the baby (justification) out with the bath water (truth). In other words, we can't make sense of justification without appealing to some conception of truth. Perhaps, there is some way to throw both notions out yet retain a manner of speaking that is not egregiously relativist or subjective. But no one has yet provided such a vocabulary convincingly.

In the brief exchange between Rorty and the French analytic philosopher Pascal Engel, in What's the Use of Truth? [WUT] the tension between retaining justification while abandoning truth becomes prominent. Engel and Rorty, have a lively debate regarding these and other issues involving truth, justification, and the attractiveness of analytic philosophy. For those interested in these conceptual, epistemic, and historical issues, this book is highly recommended.


Blogger Patrick S. O'Donnell said...

Thanks so much for this useful and important discussion, as well as the book recommendation.

Broadly speaking, it seems to me that we need to find a way to avoid the Scylla of deflationism on the one hand, and the Charybdis of extravagant metaphysical realism on the other. In other words, it is important to hold onto truth as a regulative ideal yet without thereby being entangled in controversial metaphysical claims. While I don't think the question of truth can skirt metaphysical questions, I do think it's possible to finesse them in a way that salvages some of the virtues of anti-realism, such as perspectivalism, contextualism, and relativism of a kind and to a degree, without wholly jettisoning a notion of objectivity. Discussions of truth I've thus found attractive include Michael P. Lynch's Truth in Context: An Essay on Pluralism and Objectivity (1998), Michael Luntley's Contemporary Philosophy of Thought: Truth, World, Content (1999), and Hilary Putnam's The Threefold Cord: Mind, Body, and World (1999). Lynch, Luntley and Putnam have all been deeply influenced by Wittgenstein and I think their accounts reveal the depth and sophistication of (especially) his later work.

For those relatively new to this sort of material but with an interest in or taste for philosophy, I would recommend Lynch's reader, The Nature of Truth: Classic and Contemporary Perspectives (2001). More accessible to the layperson but still chock-full of important arguments and insights is Lynch's True to Life: Why Truth Matters (2004). Finally, a book I've just begun reading that looks quite promising, although it does presume a background in philosophy, is Ralph Wedgwood's The Nature of Normativity (2007).

I'll leave it to you and others to tease out the relevance and applicability of this material for legal reasoning, legal theory, and philosophy of law.

5/19/2008 9:25 AM  
Blogger Robert Justin Lipkin said...

I think I agree with almost everything Patrick said. There's a useful analogy here, if I can retrieve it from a rather withered memory. When Quine first inveighed against the analytic/synthetic distinction as having virtually no explanatory value, he was pilloried by traditional analytic philosophers. Even Putnam said that Quine was wrong about the existence of analytic truths. However, Putnam went on to say that if we follow Quine we will be wrong about one claim, namely, that the analytic/synthetic distinction is pointless and right about everything else. While if we follow Quine's critics we'll be right about the analytic-synthetic distinction and wrong about everything else. So too with Rorty. At one time I flirted with Rorty's disdain for truth. I now think we probably should keep the idea of truth, but not in a way that supports "extravagant metaphysical realism" or any metaphysical realism for that matter.

5/19/2008 11:32 AM  
Blogger Patrick S. O'Donnell said...

Robert (if I may),

I might have said that a commitment to a metaphysical realism of sorts need be only methodological (hence the regulative ideal part), as it often is (or perhaps should be) in science.

My former teacher and friend, Nandini Iyer, has explained this a follows:

"To affirm that there can be several different systems all giving us, at the same time, varying and yet legitimate ‘true’ metaphysical descriptions of the world does not…necessarily entail that there are many realities, that nothing is absolutely real, or, put less dramatically, that there is no such thing as a single, context neutral description or account of the world, that is, as the world really is. It only means that no metaphysical description of it can be outside every possible conceptual framework, but Reality itself is. Nor does it follow that any assertions about this ‘real’ or ‘true’ world beyond all conceptual frameworks, are nonsense. We need not accept a very different solution, such as that offered by Kant—that there is a world in which there exists the ‘thing-in-itself,’ but that we can never directly know this world. [....] The conceptual frameworks we build in the realm of rational thought are not useless just because they cannot describe Ultimate Reality. Serious examination of, reflection on, these explanatory and interpretive schemes, their differences and overlaps, are crucial to expanding and deepening our understanding of reality, even if these conceptual frameworks (any or all possible combinations and collections of them) cannot bring us the Absolute Truth. If nothing else, they enable us to understand the relativity of conceptual truths and structures, and make us see what Pascal meant when he said that the highest function of reason is to show us the limitations of reason." Iyer in Knut A. Jacobsen, ed., Theory and Practice of Yoga: Essays in Honour of Gerald James Larson (Leiden: E.J. Brill, 2005): 99-127.

As Iyer reminds us, "Indian classical philosophy, since it is always connected with religion, must and does believe with complete assurance in the possibility of human beings actually attaining to a perfect knowledge of Reality—a ‘scientia intuitiva’ that leads to the Divine or the Absolute Truth." But the possibility of such knowledge, as in Advaita Vedanta philosophy, for example, commits one to neither metaphysical realism nor metaphysical anti-realism but to a "non-realism." Intriguingly, the Advaitic strategy, is to endeavor to show that
1) "Current experience is not of the sole and determinate reality;
2) But the standards for the validation of current experience are legitimate."

Chakravarthi Ram-Prasad elaborates:

"[The Advaitic position] may be characterised as being realist from an idealist point of view, idealist from a realist point of view, and sceptical about both points of view. It is realist because it asserts that the cognitive life can be explained only through the conception of an extrinsic, rather than a cognitively intrinsic, world. It is idealist because it holds that there is no proof that there must be an extrinsic world in whose absence there would be no cognitive life. Instead, it asserts that the existence of systematic cognition can be ascertained only because there are, in general, objects of cognition. Therefore, even if it is logically possible that there is an uncognised reality, it will not be the determinant of the validity (or invalidity) of current cognition. If there is a determinant of such validation, it must be a cognised reality. Advaita is sceptical of the idealist attempt to deny an external world. It maintains that the idealist disregards the extent to which cognition can go, namely, beyond the immediate or or the particular cognitive instance. This is because the idealist merely presumes that there cannot be an external world. It maintains that the realist disregards the constraint on affirming anything about that world, namely, that it is just from the structure of cognition that the conception of that world is obtained; and that in turn is because the realist just presumes that the world is existent independent of cognition of it." Please see Ram-Prasad's Advaita Epistemology and Metaphysics: An Outline of Indian Non-Realism (2002).

5/19/2008 12:29 PM  

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