Two Birds and Reader-Based Originalism

Speaker intent governs speaker meaning. Hearer meaning doesn't. Thus legislative intent controls, not contemporaneous reader meaning (even if there were such a thing).

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.