My Dearest Gentlefolk,
With this bright Monday, I would like to inaugurate a brief weekly disquisition (of sorts) to help us all get the creative juices flowing. So much of my time is spent each week reading through email containing a variety of jokes, pithy stories, randomly noxious anecdotes and the like, that I feel compelled to send something into the fold that will, if only for a moment, cast a slightly more sober light on our language, our society, and our selves.
Each week, I propose to send out a brief excerpt of some author, drawn mostly from the law (for that is where I am spending most of my thinking-time these days), but occasionally from philosophy and other disciplines. Depending upon various constraints of time, I may or may not feel at liberty to add a short commentary, but will strive in every case to provide some sample of thought that speaks more or less for itself. I hope this enterprise will prove as refreshingly enlightening for you as I know it will for me; for, in truth, it is for my own peace of mind that I am committing myself to such a strange endeavor. Think now, that in this novel medium, you may help me retain that dignity of intellect I so treasured in my youth.
This week's quote comes from Justice Holmes, who was never short of insight, and seldom shy of verbosity.
"The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, duties, and malice, and intent and negligence and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some stage of the argument, and so to drop into fallacy."Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1896).
The tension between law and morality is plainly felt by all of us. It is a tension that grows in part from the collision of justice (writ law) and Justice (writ moral propriety). And this is a tension that much of our popular society appears to be eminently familiar with. I am nevertheless impressed by the linguistic turn taken by Holmes. An inference drawn in the political discourse of legality, may or may not be valid if drawn in the normative discourse of morality (or ethics), and vice versa, even where identical terms are used. Is this, perhaps, a reappearance of the collision of Roman pragmatism and Greek idealism?
Our Law (in concept and practice) owes as much to the infinitely practical mind of the Roman jurisprudent as does our Ethics to the profoundly idealistic mind of the Greek philosopher. To say that fallacy awaits the one who mimics the other begs a troubling question: Are these two discursive realms incommensurable? Are they, like the physics of Newton and of Einstein, paradigmatically irreconcilable? I scarcely think we need to go as far as Kuhn might have us (who's writings on scientific revolution suggested a model of colliding discursive realms incapable of authentic dialogue). Indeed, the observation that law and morality exist as two paradigms with a common vocabulary suggests that such collisions do not always connote mortal combat. Our people appear quite happy to live with both discursive realms, teasing inferences from each and sometimes confusing the two, but never truly bothered by their coexistence. Indeed, the vitality of each owes much to the resonance of its core terms in the inferential fabric of the other.
The Holmesian danger is quite real. But where would our law be without it?
David Robert Foss
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© 2000 David Robert Foss
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