Another Attempt At Exorcising Langdell's Tenacious Ghost

My latest attempt at exorcising C.C. Langdell's tenacious ghost is now in print: "Langdell & the Eclipse of Character." I've been trying to dispel this specter for years. https://lawreview.law.pitt.edu/ojs/lawreview/article/view/1001/643

Excerpt from Conclusion: "I will not conclude by calling Langdell a confidence man. I will, however, conclude with a few words from Melville’s THE CONFIDENCE MAN. As Melville reminds us: the false cannot plausibly overclaim perfection. For example, ‘[T]he best false teeth are those made with at least two or three blemishes, the more to look like life.’ A legal formalism which claims mathematical certainty (and which further denies the importance of the slings and arrows of substantial law practice for the law professor) does not even pretend to look like life. Were Langdellianism a con, it could therefore not be a plausible one, and those duped by it should be all the more ashamed . . . ."

Very Nice Little Post on Lawyers & Poets

                                                         From "Lawyer Poets"

                                              https://ahthesea.com/lawyer-poets/

"The description printed on the Lawyer Poet box muses: 'What other profession [than the law] is more concerned with the nuance of language, the intricately-crafted sentence, the passage that needs to be re-read a dozen times to be even remotely understood?' Well, leave it to me to let one cheeky bit of marketing copy send me on a thoughtful journey. What well-known poets have also been lawyers? I wondered. For the curious, here’s what I found (along with links to their poetry) . . . ."  

The Arc Continues: Disdaining Langdell From Law Student to Law Professor

 Favorite Carrell at Duke Law From LWI: 

Lecturing Against Langdell at Wake Law:

Not forgetting how our own legal education was watered down by Christopher Columbus Langdell's silly obsession with redacted appellate cases and his silly claim that law practice taints law professors, more and more of us are determined to make a change. Langdell's nonsense also eclipsed the importance of good character, and hopefully more and more of us will speak out on this as well.

From SSRN:

Hats, Rabbits, and Jurists’ Magic (Or Jurists’ Bright and Dark Magic)

I am grateful to Prof. Christine Corcos for inspiring to write an essay for her forthcoming second volume of Law and Magic which will be published by Carolina Academic Press. Here is a preview of the essay:

Abstract

This essay explores two senses of “magic” as they apply to the practice of law: magic as “the art of producing illusions by sleight of hand” and magic as “an extraordinary power or influence seemingly from a supernatural source.” 

Magic in the initial or “sleight of hand” sense overlaps with jurists’ emphasizing certain traits of a classification while hiding other nonconforming traits. For example, if the Great Blackstone classifies the Little Prince’s drawing of a boa eating an elephant as a drawing of a hat, the Great Blackstone must draw attention away from other contrary evidence such as the Little Prince’s asserted intent. Similarly, if he would classify Wittgenstein’s duck-rabbit as a rabbit, the Great Blackstone must also draw attention away from contrary evidence. (Thus, the use of “Hats” and “Rabbits” in this essay’s title.) 

Magic in the second or “supernatural” overlaps with jurists’ creation, modification, and rejection of categories and concepts (including conceptual metaphors). Categories and concepts (including conceptual metaphors) are creatures of language and not nature. Thus, jurists’ creation, modification, and rejection of categories and concepts (including categories and concepts about nature itself) are beyond nature and thus powerfully overlap with magic in the second, “supernatural” sense.  

To the extent jurists perform magic in either or both senses, such magic can be divided into either bright or dark magic. Jurists’ “bright magic” illuminates in ways that better and better organize experience (including moral experience). Lacking such light, jurists’ “dark magic” does the opposite. For example, stressing the role of commitment to and partnership with a loved one as essential to marriage while downplaying past opposite sex requirements would be bright magic to the extent such emphasis advances moral and social progress. Stressing past opposite sex requirements while ignoring core roles of love, commitment, and partnership would be dark magic to the extent inconsistent with advancing moral and social progress. Good jurists’ “magic” thus organizes experience (including moral experience) in better and better ways. Good jurist magicians are therefore good pragmatists: their bright magic organizes experience (including moral experience) in better and better ways. 

In examining such juristic magic, this essay also explores among other topics: (i) magic in legal imagination and in legal framing (foreground, background, and otherwise); (ii) magical insights for jurists from the art of translation and other humanities including the dark magic of using wrong or questionable translations of ancient texts such as the Bible when making tradition or other arguments (such as using wrong or questionable translations of "arsenokoitai" or "malakoi" or incomplete contexts for "para physin" when exploring same-sex rights and privileges) ; (iii) the dark magic of legal formalism; and (iv) dangers of juristic and political dark magic to democracy and rule of law.

Langdell and the Eclipse of Character

                                                                     Abstract

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. Readers wishing to explore virtues beyond those addressed in this Article might note my earlier examination of the role of virtue in good legal analysis found here.

This Article also calls out potential character issues with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced.

Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle (from my Apology Box also shared on this Blog) to supplement the prose. I hope such a cable can help lift Langdell and his follies from legal education and the world.

This Article can be downloaded here.

Keywords: Langdell, law school reform, legal education reform, virtue, imagination, empathy, balance, integrity, hazing, experience, translation, formalism, character, concept, category, metaphor

Recasting Canons of Interpretation and Construction into "Canonical" Queries: Further Canonical Queries of Presented or Transmitted Text

 

                                                                     Abstract

This Article draws from, builds upon, and continues my prior article (published in 2022 in the Wake Forest Law Review) addressing the conversion of canons of construction into “canonical” queries in both the public and private sphere. See such prior article here.

In this Article, I continue exploring further groups of canons and queries of transmitted/presented text including those outlined in appendices of my prior article. These further groups include: Queries of Signifier Scope (the Ejusdem Generis Query, the Noscitur a Sociis Query, the Expressio Unius Query, the Antecedent/Subsequent Query, and the Anaphora Query); Queries of Signifier Fit and Coherence (the Whole Text Query, the No Surplusage Query, the Absurdity Query, the Scrivener’s Error Query, the Exercise of Power Query, the Consistent Meaning Query, the Fit with the Surrounding Text Query, the In Pari Materia Query, the Particular vs. General Query, the Ellipsis Query, the Conjunction Query, the Disjunction Query, the General Query of Severability, the Relevance Query, the Presupposition Query, and the Preconception Query); and Queries of Context (including Queries turning on Linguistic, Physical, Cognitive, Type of Discourse, or Other Relevant Contexts).

This is the second in a series of four planned articles. The third will address queries of meaning and time. The fourth will address further miscellaneous queries of intent, motive, meaning and policy. My hope is that the four articles taken together will provide a detailed response to, among other works, Scalia & Garner's book titled Reading Law. 

This Article can be downloaded here.

Keywords: interpretation, construction, canon of construction, ejusdem generis, noscitur a sociis, expressio unius, anaphora, surplusage, absurdity, scrivener's error, pari materia, ellipsis, severability, context, conjunction, disjunction, meaning, relevance, whole text, text, semiotics

Exploring Presumptions & Entailments: Does the Concept of an Omniscient, Moral, Loving, & Omnipotent Divinity Entail Incarnation?

Lawyers and others (including theologians) who would conceptualize and reason well must carefully identify conceptual presuppositions and entailments involved in their reasoning. Such lawyers and others (including theologians) must furthermore be good  hermeneutic pragmatists who recognize the critical role of virtue in analysis. They must therefore only embrace  concepts and their entailments where doing so helps sufficiently better organize experience (including moral experience). In the spirit of prodding lawyers to learn from examples outside the law (as well as in the spirit of helping those struggling with matters spiritual), I examine presupposition, entailment, and pragmatic questions raised by St. Anselm's fascinating Cur Deus Homo.

Attempting to prove in his Cur Deus Homo why God had to become a man, Anselm presupposes divinity's existence in traditional Judeo-Christian form. Careful thought identifies such presupposition not only for logical reasons. There are practical, theoretical, and spiritual reasons as well. If one does not yet embrace such divinity, the work will not convince. Worse, one might not explore the fascinating broader logical questions of whether belief (should one have it) in any omniscient, moral, loving, and omnipotent creator deity logically entails belief in incarnation and perhaps even divine suffering and punishment in this world (such as the Crucifixion or the travails of Vishnu/Krishna). Additionally, addressing this second question first may help with one's answer to the first (i.e., whether such divinity in itself should be embraced). Exploring such entailment question involves at least the following epistemological, agapeic, moral, and omnipotence sub-questions:

Logical Entailments of Divine Omniscience

Omniscience would include human knowledge. However, since human knowledge involves concepts whose meaning turns on how such concepts play out in human experience, how could divine omniscience include such human knowledge without incarnation of at least part of itself in order to receive the fullness of such experience? (Similar points throughout these questions will also apply to other sentient creatures but, for simplicity's sake, I do not address them here.)

One might object that omniscience only requires divinity's having theoretical, "un-incarnate" knowledge and familiarity with the incarnate. However, since human theory is inseparable from practice in the incarnate world, how can true omniscience avoid actual presence within the incarnate world which includes perspectives, sensations, and feelings found only there? We see unfortunate parallels here in the world of law school where so-called professors of law purport to have deep knowledge without meaningful actual practice experience.

One might object that despite the fusion of theory and practice, divine omniscience can somehow miraculously include such experiential perspectives, sensations, and feelings. However, if this is so, how is the divine not thereby effectively incarnate? What would be the difference?

I leave readers to answer these questions for themselves.

Logical Questions of Divine Agape

How could a fully loving divinity entirely remove itself from the realm of the loved? Does this not require incarnation of at least part of itself?

One might attempt to answer this with such notions as the Holy Spirit operating in the world. But, again, for the reasons raised above, how could divinity fully share the human experience without becoming human as well? Does this not therefore require incarnation?

Again, I leave readers to answer these questions for themselves.

Logical Entailments of Divine Morality

How could divinity embrace the Golden Rule (do unto others as you would have them do unto you) without incarnation? That is, how could divinity require humans to suffer the slings and arrows of incarnation without divinity also subjecting at least part of itself to such slings and arrows? And does this not require incarnation?

The same could be framed another moral way: how without moral hypocrisy could a divinity expect humans to endure incarnation without expecting the same of at least part of itself?

However noble a divinity's reasons might be for creating this universe, how could a supremely moral divinity create a universe its omniscience knew would be filled with evil (including both evil unleashed by free will and evil unleashed by natural causes), require punishment of evil doers within that creation, and yet somehow fully exempt at least part of itself from punishment for any role it had in such evil? 

And if such moral accountability requires worldly punishment of those created, how could such divinity morally fully exempt itself from such worldly punishment for any evil it unleashed in this world? Would this not require incarnation as well? Traditionally viewed as heresies, Theopassianism (holding God suffered and died on the cross) and Patripassianism (God as Father vicariously endured his Son's suffering) have wrestled with these questions.

Again, I leave readers to answer these questions for themselves.

Logical Questions of Divine Omnipotence

If the divine is omnipotent, how can there be reason not to incarnate at least part of itself if required?

One might object that incarnation is a logical contradiction and omnipotence does not involve powers to perform the logically impossible. However, as conceptual metaphors demonstrate, contradiction is both possible and required within this world. For example, we speak of light as both a particle and a wave, and deepest knowledge and possibility recognizes that the world in which we live is too complex to be captured consistently. Contradiction is thus unavoidable in this world of actual experience.

Again, I leave readers to answer these questions themselves.

Having posed these questions, I end with just a few general points. First, of the questions raised above, perhaps the epistemological ones most strongly suggest that incarnation is conceptually entailed by the concepts of divinity explored. (That, of course, is not to demean the other questions.) Second, a serious hermeneutic pragmatist embracing the critical role of virtue in analysis will consider more than pure entailment logic and inquire whether such concept of the divine and its entailments sufficiently help us better organize experience (including moral experience). Third, two essays of William James are extremely useful in this regard: The Will to Believe and The Sentiment of Rationality. Fourth, in exploring and perhaps modifying concepts here, one must remember the animals and other sentient creatures. Vishnu/Krishna, for example, "appears in every species." If good hermeneutic pragmatism embraces entailed incarnation, how far must such entailment go? 

Hermeneutics and Anselm's Ontological Argument: Lessons for Lawyers and Others On Existential Proof

When lawyers and others explore the limits of logical proof in proving matters of existence, it's quite useful to explore St. Anselm's Ontological Argument purporting to prove God's existence as a matter of pure logic. Grasping how the argument might might work on a purely hermeneutic level while possibly failing on the pragmatic level helps explain the need for meaning to work in the face of experience. We can also gain much insight on these points by exploring how a common objection to Anselm's argument fundamentally fails. As we'll see, hermeneutics must be pragmatic in the sense discussed below, and this straightforwardly makes the case for hermeneutic pragmatism as best philosophy.

Starting with a common objection to Anselm's argument, it seems but common sense that things either exist or they don't apart from pure logic. For example, as the objection might go, my keyboard I'm using now would exist even if no one knew logic. How, then, can pure logic prove anything exists? Well, the objection and example assume that existence as we commonly understand the term is something simply there apart from language. But that is error. Existence is a concept created by our language (or more precisely our semiotics). That is, existence itself is hermeneutic and things can meaningfully "exist" within countless conceptual schemes of the world that we might construct. Hilary Putnam's exploration of "internal realism" sheds further light here. How, then, is existence less subject to logical proof within conceptual schemes than other concepts like that of God offered by St. Anslem? 

All that said, we of course cannot accept that God must transcendentally exist simply because we can deductively prove God's existence within Anselm's (or any one else's) conceptual worldview. First, this ignores the hermeneutics just discussed: we can have countless concepts of God which may or may not be compatible within the countless potential conceptual world schemes we might use. Second, any such purely deductive ontological argument would ignore a critical element of good reasoning. Our concepts must work in the face of all experience: they must help us predict, organize, and improve such experience in ways that sufficiently handle (for the purposes we have) all experience (including moral experience). If we wish to fully "prove" anything, we must therefore not only successfully prove how concepts flow within a conceptual scheme. We must also demonstrate the pragmatic workability just discussed. This is the real lesson of Anselm's argument and the flaws in the common objection to Anslem noted above. Thus, as theologians wishing to prove the existence of God must address both hermeneutics and pragmatism (and thus embrace hermeneutic pragmatism), so must lawyers wishing to prove matters of existential dispute. 

Anselm's no less fascinating Cur Deus Homo also invites useful instruction in hermeneutic pragmatism. Hopefully soon, I plan to sketch out a more modern rewrite also in question form. In addition to allowing such further exploration of good hermeneutic pragmatism, I hope this will also help too-insular lawyers see how deep explorations of areas beyond the law can make them better lawyers.

Therapeutics of Powerful Verse in Powerful Translation

The therapeutic powers of poetry can be unparalleled. To cross languages, such powerful verse requires translation of no less merit.

Translators who achieve this feat should be lauded on their own accord. For example, those suffering from extreme anxiety or from painful inability to live in the moment might well experience a life-changing epiphany in these magnificent lines by Stuart Atkins translating Care's claims in Goethe's Faust:

Care: Once I make a man my own, 
nothing in this world can help him; 
everlasting darkness falls, 

suns no longer rise or set--
though no outward sense has failed, 
all is darkness in his heart, 
and however great his treasures, 
there's no joy in their possession. 
Good and bad luck both depress him, 
he is starving though there's plenty; 
source of joy or spot of trouble, 
it's postponed until the morrow--
caring only for the future, 

he gets nothing done at all . . . .

Whether he should go or come
is something he cannot decide; 
in the middle of a street 

his stride will break, he'll grope his way; 
more and more he is bogged down, 
everything seems more distorted; 
to himself, to all, a burden, 
when he breathes he feels he's choking, 
neither stifled nor yet living, 
tom between despair and hoping. 
All is one unceasing round 
of things not done, of odious duties . . . .

Akins deserves his owns spotlight alongside that of Goethe. To underscore the genius of Atkins here, compare this "classic" translation by Bayard Taylor:

Whom I once possess, shall never 
Find the world worth his endeavor: 
Endless gloom around him folding, 
Rise nor set of sun beholding, 
Perfect in external senses,
Inwardly his darkness dense is;
And he knows not how to measure 
True possession of his treasure.
Luck and Ill become caprices; 
Still he starves in all increases; 
Be it happiness or sorrow,
He postpones it till the morrow; 
To the Future only cleaveth: 
Nothing, therefore, he achieveth. . . .

Compared to Atkins' work, how many lives might these lines change? 

Translators carry a heavy burden. I am grateful to those who carry it well. I am dismayed by the rubble of those who fail. 

Translators also illustrate a further passion of mine: exploring the power of framing. If one doubts such power, one need only compare the frames of Atkins and Taylor here.

Those wishing to buy a copy of Atkins' translation can find it here or here.

Rhetoric Syllabus 2023

  The Art of Persuasion: Classical Rhetoric for Lawyers

 

Harold A. Lloyd

Spring 2023

 

(1-18-2023)

 

Involving the art of ethical persuasion, rhetoric is central not only to the good practice of law but to good social life as well.   Litigation, negotiation, public speaking as well as interactions with clients, colleagues, friends, teachers, students, government, and all others encountered in daily life can benefit from proper and effective rhetoric.  Additionally, rhetoric is much more than style, though style is an important part of rhetoric.  The basic principles of Rhetoric were refined by the ancient Greeks and Romans who understood its critical role in good citizenship, good government, and in the good life.  In this course, we will study these basic principles of persuasion and their application to the materials set forth below, and we will practice putting these principles into application with the hope of not only improving legal skills but life skills as well.     

Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis

                                                                Abstract

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning."

This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Download the full text of this article here.

Keywords: legal analysis, virtue, skill, formalism, character, phronesis, concept, category, hermeneutic pragmatism, Peirce, Rorty, Putnam, deduction, induction, semiotics, legal education, rhetoric

Recasting Canons of Interpretation and Construction into "Canonical" Queries

In a new Article I advocate recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction. This Article can be opened or downloaded by clicking here.

Hypatia & Palladas

 Not only is there a new book out about #Hypatia but Chapter 2 begins with lines from my #translation of the Complete #Palladas.

My Common Thread

Though the subject matters of my writing may seem quite diverse, there is a common thread. What is it?

That common thread is a hermeneutic pragmatism which explores meaning that is workable (morally and otherwise) through time as more particularly set forth in (for example) my "Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law." As a philosopher and experienced lawyer, I explore "diverse" matters which on closer examination uniformly involve hermeneutic pragmatism for proper analysis. Such matters include the inseparability of theory and practice in law and life; workable semiotics (including semantics, hermeneutics, and pragmatics) in law and life; originalist claims as to interpretation and construction; conceptual metaphor in law and life; the cognitive nature of emotion in law and life; the role of virtue in legal and other analysis; the interrelation of law and the humanities (including classical rhetoric and parallels between lawyers and poets); and the need for legal education reform consistent with thoughtful explorations of the matters set forth above. 

How To Do Things With Signs: An Overview of Semiotics for Lawyers and Others

Click HERE for a link to my current draft of "How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education."

Abstract

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

Keywords: semiotics, intentionality, signifier, sense, reference, meaning, index, icon, symbol, rhetoric, speech act, interpretation, construction, speaker meaning, reader meaning, originalism, first amendment, intent, contracts, legislation, Peirce, Shakespeare, directive, commissive, verdictive

Voltaire and the Semiotics of Dress

For those who doubt that there is a semiotics of dress, here is Voltaire wigged and wigless. Many thanks to the National Gallery of Art in Washington, D.C. for displaying these busts in near tandem.

La Bruyère on Human Inconstancy

It's a shame so many Anglophones don't read or even know of La Bruyère.  Here's some food for thought from his clever pen (as translated by Jean Stewart):  "After making a close and mature study of men, and recognizing the wrongness of their thoughts, their feelings, their tastes and affections, one is forced to admit that they have less to lose by inconstancy than by persistence."

Joseph Ransdell on Charles Sanders Peirce

"When the truth about Peirce's life and accomplishments becomes generally known, it will be perceived that he was not only the most omnicompetent scientific mind of his time, perhaps never subsequently to be equalled, but also a moral hero of the intellect, of the stature of Socrates: a veritable icon or paradigm of philosophia--which really means devotion to the search for truth . . . ." Joseph Ransdell, Semiotic Objectivity in Frontiers in Semiotics 240 (John Deely et al. eds., 1986).

Fantastic Cognitive Emotion & the Law Symposium Held at Wake Law 2/22/19

Many thanks to the thoughtful speakers and Wake Law Review students who made possible this engaging February 22, 2019 symposium on the inseparability of emotion and reason in legal and other reasoning. The symposium volume will be forthcoming.  Read more about cognitive emotion and the law here.

Miscellaneous French Verse Translations

When translating verse, I think one should try to capture both the form (meter, line positions, rhyme scheme, etc.) and substance to the extent possible and to the extent not cumbersome* in the new language.  "To the extent possible" can require much work that I think is often missing from much translation.  I also think the original should be printed on the opposing page so the reader can judge the success for herself. 

 

*Where end stopping or alexandrines, for example, seem cumbersome in English, I would think the original poet would want substitutes that distract less in English. Thus I've often used iambic pentameter in lieu of hexameter.  I've also often avoided end stopping where that seemed a distraction (my translation of Phaedre for example).

Here are the English pages of some of my dabblings along these lines.  I think the Veraline & Du Bellay present especially hard challenges and I keep tweaking......

 

I.  Verlaine: MacIntyre claimed: “No one has ever translated, or can or will translate [Chanson d'automne]; yet it offers the supreme challenge, the shifting lure of the bright impossible.” Maybe MacIntyre didn’t try hard enough?

Musical Score for "The Flood" from "Charms and Knots"

Click here for a link to Thomas Swenson's Musical Score for "The Flood."

Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law

Here is the abstract for my latest article forthcoming in the Wake Forest Journal of Law & Policy. In the article, I try to take a middle path between two types of error plaguing present times: "post-truthism" and formalism.

Abstract

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning,  (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities,  (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (6) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts.

Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules.  Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language.  Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact.

In addition to countering formalist error, such hermeneutic pragmatism thus timely counters troubling “post-truth” claims in certain segments of government and society. For example, The Washington Post tells us that President Trump is “known for trafficking in mistruths and even outright lies;” that “The president often seeks to paint a self-serving and self-affirming alternate reality for himself and his supporters;” that, through May 31, 2018; “Trump had made 3,251 false or misleading claims in 497 days--an average of 6.5 such claims per day of his presidency;” and that  Donald Trump, Jr. has posted poorly-doctored images making “his father’s Gallup presidential approval rating look [ten points] higher than it actually is” while claiming “I guess there is a magic wand to make things happen and @realdonaldtrump seems to have it.”  Additionally, the President’s attorney Rudy Giuliani has expressly claimed that “Truth isn’t truth.” Competent and ethical lawyers must of course reject such mendacity.

("Sense" in the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article.)

Addition to Strings of Thought 5-19-2018

Hermeneutics

                               To Gadamer

Though eye must squint, eye must explore the bird

Who plays at the horizon of the word,

Whose far tints flash, far notes lag as it hops 

Beyond and back from where the language stops.

For the entire "Strings of Thought" as it currently stands, see here.

Why Legal Writing Is "Doctrinal" and More Importantly Profound

It is high time that we end the disparate treatment of legal writing professors and the use of such disparaging labels as "non-doctrinal" for the profound and essential subject matters which they teach. It is also high time that we reject the absurd Langdellian notion that practice taints scholarship.  I discuss these points in more detail here.

Addition to "Strings of Thought" (2/7/18)

2/7/18 A legislative bill or other proposal isn’t simply a string of words on a page. Instead, a legislative bill or other proposal involves concepts (the signified) to which words (the signifiers) refer with varying degrees of precision.  Legislators debate the concepts signified and the signifiers as signifying such concepts.  Justice Scalia therefore oversimplifies how language works when he claims that “the only thing one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute.”  (Reading Law, p. 376) Justice Scalia oversimplifies here because any such text was adopted as part of a greater whole, as signifiers of concepts involved in the bill.  For example, a statute reading “All cars must drive on the write side of interstate roads” adopted by both houses of Congress and signed by the President no doubt likely means “All cars must drive on the right side of interstate roads.” It’s hard to believe that both houses and the President agreed on “write side” instead of “right side” of the road. I at least cannot “say for sure” that they did. Justice Scalia concedes the same by acknowledging what he considers “the rare case of an obvious scrivener’s error.” (Reading Law, p. 57)  In the real world, of course, obvious scrivener’s errors are hardly rare.

The entire text of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/30/18)

Legislative Intent

1/30/18  Legislative “intent” lies in legislatures’ speech acts and not legislators’ speech acts.  That is, legislative “intent” is the speaker meaning of legislatures not legislators—confusing the two is a category mistake. For example, when the legislature adopts a rule requiring drivers to drive on the right side of the road, the legislature has performed a directive speech act adopting a rule to some end or purpose (such as changing driving patterns to enhance road safety).  When the legislature censures someone, it has performed an expressive speech act condemning someone for some end or purpose (such as discouraging future bad behavior on the part of public officials).  The different purposes (and the plans involved in such purposes) distinguish the different types of speech acts. Recognizing this distinction between legislature and legislator speech acts avoids pseudo-quandaries such as “How can we ever aggregate the subjective intent of countless legislators to determine legislative intent?” or “How do we include the intent of a legislator who votes for a bill for unrelated reasons?” Instead, we ask: “What is the objective bill or proposal (and the concomitant purpose or plan or both) properly adopted by the legislature?”  We also ask: “What are the objective concepts involved?” while acknowledging such concepts can have yet-to-be explored threads and extensions.

1/30/18 A legislature typically speaks best when it adopts a bill or other proposal (and any concomitant purpose or plan) after reasonable debate by legislators.   Although individual legislators’ speaker meaning in such debates can be highly relevant evidence of the legislature’s speaker meaning, legislators’ speech acts are not legislatures’ speech acts. 

The entire post of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/21/18)

Speaker Meaning

1/21/18 “Original” speaker meaning includes the unexplored.  Imagine I buy a netted device I categorize as “my hammock” before I unbox and see it.  On the next day, I unbox “my hammock,” count its strings, and note their makeup and weave. On the third day, I tie “my hammock” between two trees.  I broadly gauge its new shape when tied into the world. On the fourth day, I refine “my hammock’s” new shape:  it contradictorily resembles both a canoe and a crescent moon. On the fifth day, I wonder whether “my hammock” now qualifies as a bed and tentatively conclude that it does. On the sixth day, I lie down in “my hammock” and see interesting new views from its vantage point. On the seventh day, I rest with no hammock thoughts in my head.  The “original” meaning of “my hammock” thus casts a wide and variable net not captured from day one. Instead, day by day through day six, I have obtained fuller and fuller understandings of “my hammock” including how it intersects with (and provides vantage points to) the world to which it is tied.  Thus, any “original concept” signified by “my hammock” is larger than any “original conception” (or first-day conception) of something boxed and unseen, is larger than any second-day conception adding counted strings, their makeup, and their weave, is larger than any third-day conception of the hammock as tied, and so on.  Furthermore, for those seeking speaker meaning, any “original concept” and any preceding daily conceptions don’t sleep the seventh day.

The entire post of "Strings of Thought" can be found here.

Strings of Thoughts

Recognizing I’ll never have time to put in finished prose or verse all the things I’d like to explore, I’m starting some strings of thoughts unfinished as of the dates entered below.  I’d enjoy hearing others’ responses to any of the strings.

The Inherent Inseparability of Doctrine & Skills

A quick screen shot of my brief bit in Linda Edwards' fantastic new book The Doctrine Skills Divide: Legal Education's Self-Inflicted Wound.  I think the title speaks for itself, and the book should be required reading for everyone interested in reforming legal education today.

Speaker Meaning and the Interpretation and Construction of Executive Orders

Here is an abstract of my latest article posted on SSRN:

ABSTRACT:

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”).

President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 

President Trump & Word Association

As a lover of words, I am of course interested in the following Quinnipiac poll which asked responders "What is the first word that comes to mind when you think of Donald Trump?"  The list provides endless fodder for analysis of speaker meaning.  The top two answers were "idiot" and "incompetent."  Did the speakers mean some subtle difference between those terms?  What about any meant difference between those two terms and such other terms as "unqualified," "ignorant," "stupid," and "clown"?  The third most frequent response is "liar."  Was "liar" meant in a different sense from "dishonest" or "con-man" which pop up later in the list?  Is "leader" (fourth on the list) a complement or is it a factual statement such as "president"  (sixth on the list)?  What about "trying"?  Does that mean the man is attempting to succeed (my guess but it's only a guess) or that he is "causing strain, hardship, or distress" (American Heritage College Dictionary 4th ed.)?  I also wonder how Originalists like Neil Gorsuch would interpret and parse each word in this list.  Reasonable contemporaneous readers can of course draw wildly different conclusions about the meanings of these words.

Embracing Life: Shakespeare and "Existentialism"

              Sartre claims that existence precedes “essence,” that “being-in-itself” is thrust upon us, that we have our subsequent brief existence to create our identities or “essences” (our “beings-for-itself”).^[1]   The great American pragmatist William James also notes that we are thrust into a swirl of experience which we try to predict and organize with concepts and theories as our “tools.”[2] 

            Many years before James and Sartre, Shakespeare’s Macbeth, Lear, Hamlet, Jaques, and other diverse characters also opine on one’s brief moments thrust upon life’s “stage.”  Lear’s naked babe, for example, cries when tossed upon that “stage.”  Interestingly, the infant has feeling and tears for coming to a “great stage of fools”^[3] even though it presumably lacks language and concepts such as “stage” or “fool.”  Shakespeare’s babe suggests a pre-conceptual link to the swirl of experience—a feeling link which James’s concepts and theories for predicting and navigating experience could then supplement and build upon. (For those interested in feeling and emotional connections to the world, I have explored the subject further in my Cognitive Emotion and the Law .)

            Lear’s babe also gives us moral as well as epistemic insight. The infant “comes to” rather than “brings” foolishness to a “great stage of fools.”  Not choosing to navigate this swirl of experience, the babe can’t be a fool for just being born--any foolishness it may display must come after mere birth itself.  As Emily Dickinson also notes, mortals born into the swirl aren’t given an initial “Skipper’s” or “Buccaneer’s” choice in the matter:

A Sonnet on the Jerusalem Cross

For me, the Jerusalem Cross is endlessly inspiring:  Christ before Paul; the Kingdom that’s within; the wisdom of the Buddha; William Blake and all he tried to do, say, draw, and paint; the semiotics of the endless signified and signifier; the freedom and choice in how we frame; the crosses we bare and bear; the number 5 that I somehow took as “my” number when I was a child.  Such crosses cross beyond mere prose:

               The Jerusalem Cross

Her references are kingdoms built within,

Are centers of what is, are plots of peace,

Are emanations of Blake’s Albions,
Are heavenly vistas of Jerusalems,

Are fresh imaginations testing worlds,

Are fourfold noble truths, are eight crossed paths

That frame a centered cross that wisdom bares

To study all the crosses that it bears.

Her signifiers are two crossing lines,

Four smaller pairs, too, eight paths framing round

Just four right angles centering sixteen more

That also form at most a single square--

Or four or five depending on the count.†

                          *****


†(The cross's lines are personal as well
  In ways they interweave both "H" and "L,"
  In ways they cover Everyone with "E"
  Should some find some initials tough to see.)