there were two kinds of truth in law ā“ testable and nontestable. The lawyerā™s
work rested on both, but ā[a]ll practical judgments must of necessity move on
such working bases: One seeks enough signiļ¬cant ā˜facts,ā™ accurately enough, with
a measure sufļ¬ciently explored as to likely consequence as to be a worthwhile
ā˜bestā™ move into the confessedly uncertain futureā (Twining 1973: 515, emphasis
in original). It is hard to miss the echo of Isocrates in Llewellynā™s view of the place
of ground truth in law.
FOUNDATIONALISM, LEGAL PRAGMATISM
(AMERICAN AND OTHER VARIETIES)
As the title of this section suggests, categories of thought become more complex as
American legal philosophy matures. Certainly pragmatism goes by many names,
such as neopragmatism, practical legal studies, practical reason, practical wisdom,
and skepticism. And within each label, one ļ¬nds a range of views that undermines
the identity of a school of thought. What follows here is an attempt to describe the
various approaches in a way that is pragmatic ā“ in the sense of comprehensible ā“
and to show the signiļ¬cance of ground truth to each.
200 Eileen A. Scallen
Neopragmatism is the most recent brand of pragmatism. Its best known advo-
cates are Richard Rorty, Richard J. Bernstein, and Hilary Putnam. Neopragmatists
build on the work of the earlier American pragmatism of John Dewey, William
James, and Charles Peirce. The link between legal realism and the older ver-
sion of pragmatism is apparent in Justice Oliver Wendell Holmes, who some
have labeled a realist (Posner 1988: 287) and others have labeled a pragmatist
(Grey 1989: 793).
However, neopragmatists distinguish themselves from earlier pragmatists in
two ways. First, neopragmatists ātalk about language instead of experience or
mind or consciousness, as the old Pragmatists did. Second, we have all read Kuhn,
Hanson, Toulmin, and Feyerabend, and have thereby become suspicious of the
term ā˜scientiļ¬c methodā™ā (Rorty 1990: 813). In this respect, the neopragmatists
also differ from the early legal realists, who were fascinated with the psyche and
the possibilities of the empirical method and the social sciences, but who (with the
notable exception of Llewellyn) did not question the limits of empiricism.
Although both old pragmatism and neopragmatism are responses to foun-
dationalism, I would add another difference. Some neopragmatists, such as
Margaret Jane Radin (1990: 1708ā“11), have stressed the importance of critical
self-consciousness. Although the early pragmatists emphasized the psychological
and context-dependent dimensions of decision making, they did not seem to be
as open about their own contexts, such as their own biases, attitudes, and values.
In contrast, some neopragmatists tend to be more autobiographical in their the-
oretical writing, sharing their ground truth as narratives. But this has provoked
criticism that such writers are mere storytellers, not legal scholars, and that ground
truth cannot accurately be generalized (Farber and Sherry: 95ā“117).
Recent scholarship reemphasizes ground truth and the value of sophisticated use
of legal empirical studies, seeking a new legal realism (Macauley 2005). Brian Leiter
and Ron Allen introduced to evidence law the philosophical concept of naturalized
epistemology, which moderates any move toward abstraction with high-quality
empirical studies but acknowledges that not all evidence rules are susceptible to
such studies (Allen and Leiter 2001: 1498). Similarly, the philosophical notions of
relative plausibility and inference to best explanation or abduction attempt to use
ground truth to ļ¬nd a path through the horns of the dilemma of foundationalism
and radical skepticism or relativism.
But the tension between foundationalism and the desire to use ground truth
in law continues. One area of contention is eyewitness identiļ¬cation (Levenson
2008: 279n). One could view the testimony of an eyewitness to a crime as the
paradigm of ground truth. Here, no theory is required; guilt or innocence is
established by the witness, who testiļ¬es on the basis of his or her ļ¬rsthand sensory
information to answer the question, Who done it? But those who work in the
criminal justice system know there are well-documented and numerous examples
of false or mistaken eyewitness identiļ¬cations. And yet courts are reticent to admit
expert testimony about the problems with eyewitness testimony because such
expert opinion is often based on testing that is not sufļ¬ciently reliable in the eyes of
the judges excluding it. Interestingly, one of the major ļ¬‚aws cited about these studies
is the lack of ground truth ā“ knowledge of actual innocence or guilt of the alleged
Foundationalism and Ground Truth in American Legal Philosophy 201
perpetrator (Ross and Malpass 2008: 17, 19). The conundrum of expert opinion
on the ļ¬‚aws with eyewitness testimony thus presents the classic dilemma ā“ we must
have the ground truth (foundationalist objective, universal truth) so we conclude
that we cannot use ground truth (partial, imperfect, contextual, contingent truth)
to provide the decision maker with information about the strength and weaknesses
of other evidence. But, in our adversarial system, we often cannot know the ground
truth, such as where there is no physical evidence or where the ultimate issue in the
trial is a question of mental state, such as intent or premeditation. The circularity
of the argument is maddening.
The way out of this circular path is to recognize that trials are not always
about ļ¬nding the ground truth, because it may never be capable of being known
with any degree of certainty. However, trials are always about using ground truth
to reach a reasonable decision under circumstances of uncertainty. Both an eye
witness identiļ¬cation and expert testimony about the problems with eyewitness
identiļ¬cation may be imperfect or ļ¬‚awed but still make useful contributions to a
conclusion about āwho done it.ā Excluding one or the other type of evidence does
not protect the system or its participants ā“ it only impoverishes the resources of the
decision maker who must make a decision on a question of fact that is inherently
unclear (for if it was clear, we would not need a trial).
At the bottom of the tension between foundationalists and advocates of ground
truth is an attitude toward the decision maker, particularly where that decision
maker is a juror. Those who argue that only the ground truth is acceptable as
expert testimony do not respect juries ā“ because they are not sophisticated, not
trustworthy, not intelligent, or not educated. Those who are willing to use ground
truth know that juries will make mistakes; juries may come to conclusions that
ultimately can be proved (perhaps objectively) wrong in hindsight. But those
who are willing to consider ground truth know that jurors ā“ or other decision
makers ā“ who inform their reasoning solely with evidence that is believed to be
the ground truth may also be proved wrong. The difference between the two
positions is that those willing to use ground truth sometimes see the injustice
of abstract principles when applied to concrete situations that are more complex
than the theory presupposes. The resultant expanded perspective may generate new
propositions about justice, some of which can be subject to controlled experiments
and some of which cannot ā“ but that are no less worthy of respect.
William Twining (1973: 3ā“4), in his masterful book on the legal realists and
Llewellyn, observed that the story of American legal philosophy can be seen as
an effort to respond to several problems: (1) adapting the English common law
to the conditions of the New World; (2) interpreting the expansive language of
the Constitution and Bill of Rights as the country evolved; (3) validating the
existence of a uniļ¬ed common law in a growing, heterogeneous federation of
independent states; (4) adapting the law to the dramatic industrial revolution of the
late nineteenth century; and (5) coping with the increased quantity and complexity
of law arising from legislation, administrative regulation, and decisional law.
202 Eileen A. Scallen
Just as Twining reļ¬ned and built on observations by Max Rheinstein, I wish to
add another dimension to Twiningā™s list of forces that have shaped the story of
American legal philosophy: the expansion of the legal profession in the mid- to
late-twentieth century, as barriers to law school and the legal profession began to
weaken for women and minorities of all kinds ā“ religious, racial, ethnic, and sexual.
Not surprisingly, confronted by foundationalist claims of neutrality and objectivity
of law, a few of these new legal scholars and lawyers turned to the kind of radical
skepticism and radical relativism that Plato reviled 2,500 years earlier. But as
with legal realism and legal pragmatism, it would be erroneous to reduce critical
feminist, Marxist, race, or queer theory to a one-size-ļ¬ts-all destabilizing force
(although, as Plato knew, it is easier to discredit and dismiss oneā™s opponents
that way). The beauty of American legal philosophy is that as new ground truth
emerges a range of responses develop ā“ from the most skeptical and relativist to
the moderate and practical.
Yet it is easy to grow weary of the conļ¬‚ict between foundationalists and ground
truth. In fact, some legal scholars contend that it is impossible for anyone to be a
faithful foundationalist, opining that now āwe are all realistsā (Green 2005: 1917),
or āevery conscientious judge and scholar . . . in any of the supposed camps, is
a pragmatist in the broadest senseā (Smith 1990: 827). But ground truth proves
these conclusions are not true. Legislators, judges, regulators, law professors, and
lawyers still regularly rely on foundationalist claims based on natural law, tradition,
natural science, or religion. Such claims offer clarity and certainty, so reassuring
and alluring in unsettling times ā“ when steel and concrete skyscrapers or bridges
crumble into dust or when strange new families (with two dads and children with
different-colored skin) move in down the block.
The lessons of classical rhetoric, realism, and pragmatism, and their progeny
are important. We need not be skewered by Platoā™s false dilemma; to embrace the
value of ground truth is not to become a radical relativist or skeptic. Ground truth
is real; it can be reported and counted (although sometimes imperfectly). One can
often (though not always) generalize from ground truth and empirically test it.
The very nature of ground truth is that it is relatively stable, even if it does shift
with additional experience and discovery. Most of these shifts in the earth below us
are subtle, detected only by specialists who study them with sensitive instruments.
Sometimes, however, there are earthquakes (Kuhn 1970). But these major
upheavals do not have to end in chaos and anarchy. Although building on bedrock
may be better than building on landļ¬ll, there are limited amounts of bedrock.
Where bedrock is not available, seismologists have shown that buildings with
rigidity suffer more severe damage in earthquakes than buildings with some give
or ļ¬‚exibility in their construction (Langenbach 1989).
Obviously, my notion of ground is operating as a metaphor here, as is the
concept of ground truth, and that is intentional. Human understanding is shaped
by associating the intangible with the material ā“ hence our attraction to metaphor,
which transforms the abstract into the concrete. It is no accident that battles
between foundationalism and ground truth in American legal philosophy also
have been fought over the role of rhetoric: is it a conduit of absolute truth, the tool
of deceit and manipulation, or something else? We keep asking these questions
Foundationalism and Ground Truth in American Legal Philosophy 203
because humans have only language (whether verbal or nonverbal) to express our
Classical legal rhetoric, realism, and pragmatism have a surprisingly strong
lineage to one another. Some might yawn at the banality of such an observation,
but the tension between foundationalist truth and ground truth has persisted in
Western culture for more than 2,500 years. At times, that tension has erupted into
war ā“ both cultural and martial. However, if we can stop fetishizing foundationalist
claims (e.g., democracy is an unqualiļ¬ed good for any culture, any time; the only
worthwhile expert testimony or scholarship is that which is based on empirically
testable theories) and take ground truth more seriously, we might avoid some of
the inevitable injustice resulting from such conļ¬‚icts.
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24 The Irrelevance of Contemporary Academic
Philosophy for Law: Recovering
the Rhetorical Tradition
francis j. mootz iii
Can we hope for justice in this world? Plato thought not. In the Republic, he suggests
that justice can be achieved only if the philosophers rule, but also that philosophers
cannot simultaneously rule the many and remain in the sunlight of true knowledge.
They must return to the cave. Leo Strauss famously interprets Plato as arguing that
the philosopher in the cave must speak esoterically because if he speaks plainly his
wisdom will be misunderstood, leading the prisoners to attack the one who opens
this dangerous line of thinking. After all, the philosopher āreturning from divine
contemplations to the petty miseries of men cuts a sorry ļ¬gure and appears most
ridiculous, if, while still blinking through the gloom, and before he has become
sufļ¬ciently accustomed to the environing darkness, he is compelled in courtrooms
or elsewhere to contend about the shadows of justiceā (Plato 1930: 517dā“517e).
What, then, can be said about striving to create a just world? Plato leaves us with
the Laws, in which three tradition-bound men discuss politics in light of real-world
practical constraints. Law is our resignation in the face of the impossible demands
of justice; it is not just unphilosophical; it is antiphilosophical.
Against this backdrop, is it realistic to believe that todayā™s philosophers will pro-
vide our divided world with the roadmap to just social relations? Can philosophy
reveal that we are living in the shadows and shed light on our imprisoned predica-
ment? Dare we hope for salvation to emerge from the cadre of Ph.D. philosophers
who teach in our universities and colleges, or have they descended back into the
cave so far that they only vaguely recall the blinding light that captivated them in
their youth? These questions, of course, suggest their own answers.
Philosophy no longer is a way of life for members of a community seeking to
determine what the good life entails. Today, philosophy designates a department
of the modern research university, a technical discipline whose members vie for
I dedicate this essay to the memory of William Hardman Poteat, formerly chair of the Department
of Religion at Duke University, who served as a wonderful role model for me by living the life of
a philosopher in the real world. Poteat exempliļ¬ed what he termed our āmindbodilyā presence; his
presence will be missed by many.
| 205 |
206 Francis J. Mootz III
prestige and glory in the shadowy world of academe. This is not to say that
philosophers are disqualiļ¬ed by their profession from active participation in the
communal effort to deļ¬ne justice, but it is to suggest that being a professional
philosopher is no better preparation for this task than is being a literature professor,
artist, or medical doctor.
Academic philosophers are quick to point out that the ugly machinery of law
ignores the painstaking philosophical clariļ¬cation of pertinent concepts such as
responsibility, culpability, and intent. This is a hollow indictment, however, because
they inevitably fail to establish that conceptual confusions in law have important
negative consequences that can be identiļ¬ed and corrected only through philo-
sophical analysis. A woefully tangled mess of cases has attempted to deļ¬ne an
intentional act for purposes of insurance coverage, and there can be no doubt that
this area of law always beneļ¬ts from careful analysis. Can a philosophical exegesis
of the concepts of intention and causation assist lawyers and judges in a manner
that is uniquely philosophical?
Philosophers tend not to think so. Applied philosophy is a ghetto that the
philosophical Brahmins are loath to enter. It is enough simply to establish that
judges and lawyers do not deal with concepts like intentionality with the precision
of philosophers, and it is better not to struggle to bring philosophical precision
to bear on speciļ¬c legal problems, which are inherently normative and contextual
rather than analytical and conceptual. An intentional act for purposes of insurance
coverage is different from an intentional act for purposes of criminal law, tort law,
or the expression of moral opprobrium by the community toward the actor.
Clarifying the polysemic concept of intentional act is a philosophical challenge
that is important and difļ¬cult, but any potential payoff with regard to speciļ¬c legal
dilemmas is both unlikely and rather beside the point. Once youā™ve basked in the
sunlight, it is difļ¬cult to go grubbing around in the earth again.
Perhaps the most dramatic illustration that law is a speluncean adventure
occurred when Ronald Dworkin, John Rawls, Robert Nozick, and other moral
philosophers submitted an amicus brief to the U.S. Supreme Court regarding the
asserted constitutional right to assisted suicide. The Philosopherā™s Brief, as it was
named when published in The New York Review of Books, began by admitting that
the Court was not being asked to make a moral or ethical judgment but rather
to determine the scope of the constitutional principle of liberty that guarantees
individual self-determination (Dworkin 1997). The elegant and persuasive argu-
ment elided various philosophical debates in which the authors might otherwise
have engaged, and instead made an argument for what justice demands under
our constitutional system in a manner not altogether different in kind from an
ordinary legal argument (although, thankfully, they did not cloak their arguments
with endless case citations and overblown claims of inevitability and univocity).
The philosopher-lawyer H. L. A. Hart brought rigor to legal theory, but this is
not the same as connecting the disciplines of philosophy and law. Analytic legal
philosophy strives to rise above the everyday struggles within a legal system to focus
on the conceptual structure that existing legal practices imply. Just as a philosopher
of aesthetics wouldnā™t attempt to tell a painter how to paint, philosophers of
law in this vein donā™t attempt to tell parties how to engage in legal practice.
The Irrelevance of Contemporary Academic Philosophy for Law 207
The Hart-Fuller debate and the Hart-Dworkin debate, as interesting as they may
be, do not connect with legal practice in a unique and directive manner.
Some philosophers embrace an even more hermetic posture. Friedrich Nietzsche
famously acknowledged that he would be a posthumous philosopher because his
contemporaries were incapable of seeing the light. There appears to be no reason
for the philosopher to return to the cave, where, still blinded by the light of true
knowledge, he or she is unable to relate to prisoners who live among the shadows.
Heidegger (2002: 61) suggests that the murder of the philosopher returning from
the light is a metaphor of the poisoning of philosophy that occurs when the
philosopher abandons the quest for truth as the unconcealedness of beings in
favor of the search for truth as the correct framing of propositions about the
shadows. Heideggerā™s elitist reading of Platoā™s elitism leads him to conclude that
the philosopher is destined to rescue only a few prisoners by force, but only if
he ignores the āobligatory cave-chatterā of the sophist-philosophers of the cave.
āHe does not liberate by conversing with the cave-dwellers in the language, and
with the aims and intentions, of the cave, but by laying hold of them violently and
dragging them away. He does not try to persuade the cave-dwellers by reference to
norms, grounds and proofs. In that way, as Plato says, he would only make himself
laughableā (Heidegger 2002: 62). Heidegger, like Nietzsche before him, considered
academic philosophers to be cave dwellers who could not be saved, and he almost
certainly would characterize philosophers of law who work even indirectly with the
shadows in the same manner. For Heidegger, academic philosophy is the enemy of
If philosophers generally do not seek to engage law on the ground, it is equally true
that lawyers generally do not seek such engagement. Llewellynā™s sentiments on this
score are particularly revealing. Although he taught jurisprudence and was engaged
in the preeminent theoretical disputes of his day, academic philosophy offended
Llewellynā™s realist sensibilities (Twining 1985: 93, 173). He embraced a notion
of philosophy that was pragmatic and instrumental: relevant legal philosophy
just is the set of concepts and heuristics that facilitate the everyday work of the
legal system, whereas elitist academic posturing is of no consequence. Llewellyn
attempted to understand the play of shadows on the wall, and he saw no point in
musing about the light of philosophy that was outside the scope of the concerns of
people making their way through life in the cave. Moreover, he regarded philosophy
as a follower rather than a leader; philosophy gains traction by answering a felt
need within society by permitting us to render dynamic social trends coherent. He
argued that legal realism was a helpful way of thinking about law whose time had
come rather than a dictate to change the legal system in a particular manner. The
very name legal realism denoted an effort to develop concepts that match what
already exists so as to serve present needs.
It is easy to indict the vast majority of lawyers and judges, and not a few law
professors, for an anti-intellectual approach to their profession. If a jurisprudential
giant like Llewellyn took such a dim view of academic philosophy, it is safe to assume
208 Francis J. Mootz III
that most contemporary legal actors would be even more skeptical. It is not that they
necessarily are uninterested in philosophy, but only that philosophy is irrelevant to
their day-to-day activities as lawyers. This in no way suggests that philosophy is a
frivolous enterprise. Philosophy is hard work, and professional philosophers earn
their pay. The question is whether contemporary academic philosophy is able to,
wishes to, or should speak directly to the troubling issues that pervade our legal
system. Llewellyn, like Plato, thought not.
We might explain the lack of a relationship between philosophy and law by char-
acterizing it as a feature of the unavoidable chasm between theory and practice,
grudgingly conceding that philosophers philosophize and lawyers lawyer. But this
facile answer ignores the inevitable slippage between the two activities. Philoso-
phers must talk about something. However ill-informed or removed from reality
their knowledge of law and legal practice, it forms part of the basis for philos-
ophizing about social and political experience. The merit of contemporary legal
positivism is its attempt to engage with legal practice to the greatest degree possi-
ble before ascending back toward the light of conceptual clarity. Similarly, lawyers
inevitably utilize philosophy in their work, however poorly. Great legal arguments
and decisions have crisp analysis, conceptual clarity, and normative force. We
would never confuse legal practice with philosophy, but it is not possible to make
a difļ¬cult legal argument without confronting the great issues of legal philosophy.
To repeat the old saw, there is nothing so practical as a good theory, and nothing
that calls for theoretical reļ¬‚ection so much as a difļ¬cult practical problem.
The contemporary divide between academic philosophy and legal practice is
neither absolute nor unavoidable. At the height of natural law philosophy there
was an organic connection between the work of ecclesiastical courts and the theolo-
gians. The question is whether such a bond can be reforged between the academic
philosophy of the modern research university and the vast bureaucratic machinery