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The Self and Strong Legal Theory: A Heideggerian Alternative to Fish’s Scepticism

Published online by Cambridge University Press:  20 July 2015

Gavin Byrne
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Extract

This essay concerns the question of whether it is possible to have an account of what judges ought to do when they decide cases if one accepts Stanley Fish’s thesis that man is a socially constructed creature, who can only see the world around him in terms of the practice that he is involved in. It puts forward the view that such a position is defensible, provided that one makes different metaphysical commitments to the ones made by Fish. It is argued that Fish is best understood as a metaphysical idealist. The essay seeks to demonstrate that Martin Heidegger’s conception of the self and interpretation are similar to those of Fish, but that, when understood as involving a commitment to metaphysical realism, Heidegger’s philosophy can hold the possibility of strong legal theory open in a way that Fish’s cannot. Michael S. Moore’s natural law position is used in order to articulate what such a position might be. Moore’s example of what a judge ought to do if called upon to define ‘death’ as a concept is used to illustrate the difference between Fish and Heidegger when it comes to metaphysics and strong legal theory, despite their similarities when it comes to an account of interpretation and of the self.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 1 , January 2006 , pp. 3 - 30
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

I would like to thank Professor Gordon Woodman and Dr. Stephen Smith at the University of Birmingham, for commenting on drafts of this paper and Professor Woodman for his continuing guidance as supervisor of my Ph.D. Parts of this article are adapted from my LL.M. by research submitted at the University of Kent (2001), I would therefore also like to thank Dr. Stephen Pethick for his supervision, co-supervisor Professor Geoffrey Samuel and Mr. Henry Claridge for commenting on drafts of that thesis. Finally I would like to thank Tricia and my family for their love and support.

1. Robertson, Michael, “Principle, Pragmatism and Paralysis: Stanley Fish on Free Speech” (2003) 16 Can. J. L. & Juris. 287 CrossRefGoogle Scholar.

2. Supra note 1 at 288. Robertson makes similar claims throughout this argument, ibid. at 288-90, 313-14, and elsewhere, see Robertson, Michael, ‘“What am I doing?’ Stanley Fish on the Possibility of Legal Theory” (2002) 8 Legal Theory 359 at 362-67CrossRefGoogle Scholar.

3. Olson, Gary A., “Fish Tales: A Conversation with ‘The Contemporary Sophist’” in Fish, Stanley, There’s No Such Thing as Freedom of Speech and It’s a Good Thing, Too (New York: Oxford University Press, 1994) 281 at 299-300Google Scholar. Fish also includes Heidegger in a list of “anti-founda-tionalist” philosophers, see “Anti-Foundationalism, Theory Hope, and the Teaching of Composition” in Fish, Stanley, Doing What Comes Naturally (Oxford: Clarendon Press, 1989) 342 at 345CrossRefGoogle Scholar. Robertson uses Fish’s list to locate Fish’s account of knowledge—in the current section I demonstrate why he is right to do so with regard to how we understand things, but in the following section I demonstrate how Fish and Heidegger hold different accounts of what exists.

4. Leiter, Brian, “Heidegger And The Theory of Adjudication” (1996) 106 Yale L.J. 253 at 272, n. 77.CrossRefGoogle Scholar Leiter argues that such similarities are superficial only and his reading of Fish is less sympathetic than Robertson’s. Leiter claims ‘… for Fish, “theory” is not useful… while for Heidegger “theory” is not possible’. Robertson argues that for Fish “theory” is not only useless but also “non-existent”, see “What am I doing?”, supra note 2 at 359. I shall not discuss which interpretation of Fish is correct here. There is an implicit criticism in my argument, however, of Leiter’s reading of Heidegger. Leiter argues that Heidegger’s philosophy can offer no claims as to what judges ought to do when they decide cases. I argue, below, that it is possible to read similar normative conclusions for judging to those of Michael S. Moore into Heidegger’s philosophy.

5. I concentrate on Heidegger’s early work, in particular Being and Time, trans. by Macquarrie, John & Robinson, Edward (Oxford: Basil Blackwell, 1980).Google Scholar

6. “Embedded self” is Robertson’s terminology, supra note 1 at 288-90. Nevertheless, it is suitable shorthand for Fish’s position and I use it throughout this article.

7. Stanley Fish, ‘Force’ in Doing What Comes Naturally, supra note 3 at 503-25.

8. Ibid. at 356-72.

9. Supra note 5 at 95.

10. Ibid. at 97.

11. Ibid.

12. Ibid. at 98.

13. Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994).Google Scholar

14. Ibid. at 108.

15. Supra note 7 at 511.

16. Supra note 5 at 86-87.

17. Ibid. at 89.

18. Ibid. at 115.

19. Ibid. at 80.

20. Ibid. at 171.

21. Ibid at 191-92.

22. Supra note 7 at 512.

23. Ibid

24. Supra note 5 at 192.

25. Supra note 7 at 517.

26. Ibid.

27. Ibid.

28. Ibid. at 518.

29. Supra note 7 at 518-19.

30. Supra note 5 at 155.

31. Ibid. at 164.

32. Heidegger calls this limitation of Being ‘throwness’, ibid. at 219-25.

33. Supra note 8 at 365-66.

34. Robertson provides an example of religious beliefs that are “deeper” than scientific ones when he relates Fish’s position to the concept “death”. I discuss this example in the subsection ‘Fish and the impossibility of theory’.

35. Supra note 5 at 224.

36. Moore, Michael S., “A Natural Law Theory of Interpretation” 58 S. Cal. L. Rev. 277 at 322-29.Google Scholar

37. As discussed, Fish and Heidegger are likely to agree that a judge’s interpretation of a rule, previous decision or concept is a function of the way in which the judge is looking at the entity in question. This does not mean that both Fish and Heidegger are idealists. The metaphysical status of what the judge is looking at is still open here; the judge may only be able to see a rule, previous decision or concept as it appears to him or he may, at least in part, see the thing-in-itself.

38. The obvious alternative to absolute idealism is “transcendental idealism”, associated with Immanuel Kant. The term “transcendental idealism” is a loaded one and I deliberately avoid using it for reasons that should become apparent later.

39. Although early Heidegger appears to support a conclusion in favour of the value of traditional metaphysics, his later work abandons the term. Heidegger’s so-called ‘turning’ in later works is seen by some as an effort to abandon traditional philosophy, including metaphysics, in favour of establishing a new philosophy called “thinking”. I shall not assess whether this is correct here. An introduction to Heidegger’s later work is Pattison, George, Routledge Philosophy Guidebook to The Later Heidegger (London: Routledge, 2000)Google Scholar. For an illuminating explanation of how early and later Heidegger fit together see Olafson, Frederick A., “The Unity of Heidegger’s Thought” in Guignon, Charles B., ed., The Cambridge Companion to Heidegger (Cambridge: Cambridge University Press, 1993) 97.CrossRefGoogle Scholar

40. Cerbone, Daniel R., “World, World-entry, and Realism in Early Heidegger” (1995) 38 Inquiry 401 CrossRefGoogle Scholar. See also R. Schatzki, Theodore, “Early Heidegger on Being, the Clearing and Realism” in Dreyfus, Hubert & Hall, Harrison, eds., Heidegger: A Critical Reader (Cambridge, MA: Basil Blackwell, Ltd., 1992) 81.Google Scholar Cerbone’s article responds to Blattner, William, “Is Heidegger a Kantian Idealist?” (1994) 37 Inquiry 185 CrossRefGoogle Scholar; Blattner reaches a different conclusion in attempting to explain the ‘puzzle passages’. It is not the purpose of this article to argue whether Cerbone is correct in his claim that Heidegger is a realist. Rather, the purpose is to show that it is possible to couple a Fish-like conception of the self with different metaphysics to Fish’s and to show that this has further potential consequences for legal theory. Therefore the “Cerbone interpretation” of Heidegger will suffice albeit that this is not universally accepted, see Blattner, above, and Blattner, William, “Heidegger’s Kantian Idealism Revisited” (2004) 47 Inquiry 321 Google Scholar, although Blattner concedes much to Cerbone in this second piece. I find Cerbone’s claim that Heidegger is a realist compelling but even amongst those that view Heidegger as some sort of realist there is debate as to whether he is what is termed a ‘robust’ realist or what is termed a ‘deflationary’ realist. Dreyfus, Hubert & Spinosa, Charles, “Coping With Things-in-themselves: A Practice-Based Phenomenological Argument for Realism” (1999) 42 Inquiry 49 CrossRefGoogle Scholar sparked this debate. The issue of Heidegger’s type of realism is not relevant to current discussion. For the reasons given above, it is sufficient to my argument to say that Heidegger is a realist of the type that Cerbone claims that he is. Furthermore, Dreyfus and Spinosa accept that Heidegger is a deflationary realist, the type that Cerbone attributes to him, ibid. at 54, about “everyday” practices, ibid. at 50-52 as distinct from the hard sciences, ibid. at 65-66.

41. Cerbone, supra note 40 at 401.

42. Supra note 5 at 228, quoted in Cerbone, supra note 40 at 401.

43. Cerbone, ibid.

44. Supra note 5 at 255, quoted in Cerbone, supra note 40 at 402.

45. Cerbone, ibid.

46. Supra note 5 at 21-24.

47. Ibid. at 79-80.

48. Ibid. at 81.

49. Mulhall, Stephen, Routledge Philosophy Guidebook to Heidegger and Being and Time (London: Routledge, 1996) at 43–46.Google Scholar

50. Cerbone, supra note 40 at 411.

51. Ibid. at 412.

52. Ibid. at 414.

53. Heidegger, Martin, The Metaphysical Foundation of Logic, trans. by Heim, Michael (Bloomington: Indiana University Press, 1984) at 193-94Google Scholar.

54. Mulhall provides a good, brief summary of this aspect of Heidegger’s position, supra note 49 at 97-101.

55. Pattison, supra note 40 at 50.

56. Supra note 40 at 414.

57. Heidegger lengthily discusses “death” as a necessary part of Dasein, supra note 5 at 279-304. Briefly, Heidegger’s concern in his analysis of “death” is to “ask how the ontological essence of “death” is defined in terms of that life.” Ibid. at 291; that is, he examines the role that the temporality of life plays as part of Dasein, our “being-towards-death”, just as he analyses the part that “being-with Others” plays, ibid. at 279-81. As Heidegger notes, such analysis is separate from the question I address; the concept of “death” as a biological fact that we try to learn more about, ibid. at 290-91.

58. Robertson, Michael, “Picking Positivism Apart: Stanley Fish on Epistemology and Law” (1999) 8 S. Cal. Interdisciplinary L.J. 401 at 405-06Google Scholar.

59. Ibid. at 413-14.

60. Throughout “Picking Positivism Apart”, Robertson attributes a position to Fish that amounts to idealism, supra note 58 at 403-28.

61. I take the ex Pression “strong reading” from Thomson, Garrett, On Kant (Belmont, CA: Wadsworth/Thomson Learning, 2000)Google Scholar, a brief, introductory work. For a more complete explanation of how this position represents a particular reading of Kant see Allison, Henry E., Kant’s Transcendental Idealism: An Interpretation and Defense (New Haven , CT: Yale University Press, 1983) at 1–35 Google Scholar, although Allison refers to “the standard position” rather than “strong reading”. Allison notes two influential strong interpretations, Strawson, Peter F, The Bounds of Sense: An Essay on Kant’s Critique of Pure Reason (London: Metheun, 1966 Google Scholar) and H.APrichard, , Kant’s Theory of Knowledge (Oxford: Clarendon Press, 1909)Google Scholar. Allison considers this strong interpretation inconsistent with Kant’s general project. Instead, Allison argues for what Thomson calls a “milder” interpretation, see also Bird, Graham, Kant’s Theory of Knowledge: An Outline of One Central Argument in the ‘Critique of Pure Reason’ (London: Routledge & Kegan Paul, 1962)Google Scholar. Briefly, the milder interpretation emphasizes Kant’s distinction between the empirical, sensational experience, and the transcendental, theoretical reflection upon that experience. According to the milder interpretation, Kant only felt that noumena, or “things-in-themselves” were inaccessible to us in the transcendental rather than empirical sense. Allison argues that this amounts only to an argument that theoretical knowledge is limited to that which we have theoretical concepts for, which in turn is limited by possible experience.

62. Kant’s initial project, the bedrock for all his work, investigates how synthetic a priori truths are possible. A synthetic truth tells us something about the world around us. By contrast, an analytic truth is true by virtue of the meanings of the sentences involved. An “a priori” truth is knowable without recourse to investigation, as distinct from a posteriori truths, which are only knowable by verification or experience in the world around us. Kant tried to show how it is possible for statements that tell us something about the world around us, to be true a priori, that is, true in and of themselves instead of on the basis of some experience that we have had of the world. Some might argue, therefore, that Robertson would need to argue that “this is a poem” is an a priori rather than a posteriori claim, before he could use Kant in the above way. For how Kant’s thought developed see Cassirer, Ernst, Kant’s Life and Thought, trans. by Haden, James (New Haven, CT: Yale University Press, 1981) at 39–171.Google Scholar

63. Supra note 1 at 311-12. In “Principle, Pragmatism and Paralysis” Robertson consistently attributes this metaphysical position to Fish, for example with regard to “freedom” at 302-03.

64. Supra note 58 at 422-23, citing Watts, Alan, The Book on Taboo Against Knowing Who You Are (New York, Pantheon Books, 1966)Google Scholar.

65. Another possibility is Fish’s freedom of speech argument. Fish’s position is premised on the idea that truth/reality is inaccessible to humans, and that arguments in favour of “blanket toleration” freedom of speech that are centred around the discovery of truth through open debate are therefore unconvincing. Heidegger’s metaphysical claims, in which reality is something that we uncover piece-by-piece, may provide a different basis for an argument in favour of blanket toleration. “Truth” on Heidegger’s conception is capable of continually being further uncovered by human endeavour, rather than constantly replaced as in the argument that Fish attacks.

66. Moore briefly critiques Heidegger, in “The Interpretive Turn in Modern Theory: A Turn For The Worse?” (1989) 41 Stan. L. Rev. 871 at 923-28Google Scholar. Although not the purpose of this article to assess Moore’s treatment of Heidegger, it may be suggested that his analysis is flawed. Moore’s claims about Heidegger stem from a belief that Heidegger’s “lifetime project was to show how … metaphysical debate … must be left behind us”, ibid. at 923-24. This is not entirely accurate, see supra note 39. Nevertheless, Moore offers an insight that is relevant to current discussion. Moore states that Heidegger’s scepticism about the value of metaphysical analysis “seems to be an extraordinarily metaphysical … way to write off all metaphysics”, in “The Interpretive Turn” at 924 In other words, Heidegger’s philosophy rests on metaphysical commitments, regardless of his claims as to whether metaphysics is useful. My analysis points out that had Moore taken his claim further and looked at the metaphysical commitments Heidegger makes he would have found that they too are “realist”. Moore also claims that “full-blooded” metaphysical realism, of the type he supports, involves five claims relating to ontology (what exists), truth, logic, sentence meaning and word meaning, ibid. at 874-75. Although most of the points I raise here relate to the first of these, I describe Heidegger as a “metaphysical realist” rather than an “ontological realist” since some of the sources I use to work out Heidegger’s position as to “what exists” also include discussion of issues relating to truth, logic and meaning.

67. Supra note 36 at 322-23.

68. Ibid. at 325-26.

69. For an introduction to how “death” has been defined by both legislation and the courts see Mason, John Kenyon, Smith, Alexander McCall & Laurie, Graeme, Law and Medical Ethics (London: Lexis Nexis U.K., 2003) at 409-22Google Scholar.

70. See the English case Re: A (A Minor) [1992] 3 Med. L. Rev. 303 (Fam D); alternatively, the case may be cited as follows: Re: A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961. Here, in the absence of any direct precedent, Johnson J. took the recommendations of the Conference of the Medical Royal Colleges and their Faculties, (1976) 2 B.M.J. 1187, as a definition of “death”, thereby accepting that “brain stem death” falls within the legal definition because it falls within the medical profession’s definition. For a case note on Definition of Death: Re: A (A Minor) see 1 Med. L. Rev. 98. The question of how death is defined at law is different to that of what steps a doctor must take in order to comply with his legal duty in establishing that death has occurred. In terms of negligence cases involving steps taken in order to establish death, recent British case law has seen a retreat from the position that legal standards ought to simply follow medical standards, see supra note 69 at 271-309.

71. This was the approach in Re: A, ibid.

72. Two important caveats must be added to this. Firstly, not everyone will agree that a judge ought to have or be burdened with such an increased responsibility. My point in introducing Moore is not to argue for or against his conclusions but to indicate a normative consequence for judging that is consistent with Heidegger’s writing but inconsistent with Fish’s. For criticism of Moore’s conception of “death” see Bix, Brian, “Michael Moore’s Realist Approach to Law” (1992) 140 U. Pa. L. Rev. 1293 CrossRefGoogle Scholar. Secondly these conclusions only follow for a metaphysical realist if he makes a further argument to the effect that seeking out reality/truth is something judges always ought to do instead of sometimes sacrificing truth in favour of, for example, continuity. Moore provides such an argument but it is not discussed here. Nevertheless, since Heidegger did not write about law, one is free to couple Heidegger’s philosophical position with Moore’s argument in favour of a judge seeking truth.

73. Supra note 1 at 290.

74. Supra note 40 at 414.

75. For similar normative conclusions about judging based on Heidegger’s work see Meyer, Linda Ross, “Is Practical Reason Mindless?” (1998) 86 Geo. L.J. 647 Google Scholar. Meyer uses Heidegger’s concept “thinking” to argue that judges ought to adopt an open approach towards interpretation. While unconvinced that “thinking” was supposed to apply to practices like judging, I agree with Meyer that, applying Heidegger, the judge can do more within his practice to try to capture as much truth as possible by looking “outwards” at nature, notwithstanding my second caveat at supra note 72. The term “thinking” is explained in Heidegger’s later work, especially What is Called Thinking?, trans. by Gray, Glenn J. & Wieck, Fred R. (New York: Harper and Row, 1968).Google Scholar

76. This is as “strong” a theory as others that Robertson cites, for example that of “multiculturalists”, who “want to enable people to reflect critically upon their substantive constructed and commitments, and therefore hold [their beliefs] more lightly or tentatively, with greater tolerance for the commitments of others”, supra note 1 at 290.

77. Supra note 1 at 315.

78. A good example is Stanley Fish, “Consequences” in Doing What Comes Naturally, supra note 3 at 315-41.

79. Dreyfus and Spinosa do not address this issue directly but make similar points in passing, “If … language A cuts the world up according to colors and language B … according to shapes … the two languages and sets of beliefs can always be integrated to form a richer whole”, see “Robust Intelligibility: Response to Our Critics” (1999) 42 Inquiry 177 at 178. Dreyfus and Spinosa deal with a related issue, the problem of incommensurability between practices. They use the example of being Christian and a psychologist where certain types of behaviour are considered ‘saintly’ according to Christians, but ‘dysfunctional’ according to psychologists, ibid. at 178-84 and supra note 40 at 60-61.

80. See Eagleton, Terry, “The Estate Agent” London Review of Books 22:5 (2 March 2000) 10 Google Scholar, online: http://www.lrb.co.uk/v22/n05/eagl01_.html.

81. See Fish’s argument against Duncan Kennedy, Robert Gordon, and Critical Legal Studies generally, Stanley Fish, supra note 3 at 215-46, 225-31.