Academic

Truth, Justification, & American Law

By Robert Justin Lipkin

The concept of truth is the most obvious and (yes simultaneously) the most arcane concept in legal reasoning. In one sense, no lawyer or judge can do without the idea of legal truth. Indeed, the goal of a trial is to fairly arrive at the truth. But it's nonetheless difficult to appreciate just what the concept means and what role it plays in legal ratiocination. Is it true that the defendant committed the crime? How does that sentence differ from "Did the defendant commit the crime?"

This puzzle is not restricted to legal reasoning. Consider the following: Is it true that it is now raining? Just go look. If it is raining, then the sentence "It is raining" is true.  Nothing can be simpler or more routine. But what does the predicate "is true" add to the sentence "It is raining"? Does the predicate entail that the sentence or the truth of the sentence reflects, pictures, or corresponds to the way things are? If so, just how should we understand this idea of a sentence corresponding to reality? Does the sentence contain a snapshot of rain falling on one's head? What about the proposition "2+2=4"? Does this sentence, because it is true, reflect some fact in the world?  If so, it seems to be a rather mysterious sort of fact. "2" and "4" are curious enough facts in the world.  But what about the relations "+" and "="? The sentence "American constitutionalism creates a separation of federal powers." is true.  But does that mean that the sentence itself "corresponds" to the White House, the Capitol, and the Supreme Court building or some relation between the three?  Can sentences reflect relations?

However we understand truth generally or in legal reasoning, the notion of justification can't be too far behind. Indeed, it's difficult to understand either concept without making essential reference to the other. A legal proposition is justification whenever it is true. And I can justify a legal proposition only if I can provide evidence of its truth. Indeed, justification seems more dependent on truth than truth is dependent on justification.

The conventional wisdom is that the goal of a trial is truth--what happened, who did it, under what circumstances--while justification--consensus--whether unanimous or not--is all we ever really achieve.  In appellate courts we seek the true meaning of the law and whether the lower court committed some mistake concerning the law's meaning or application. But all we get is a consensus of the appellate panel, whether en banc or ordinary. Consequently, in the American legal system, justification seems to trump truth.

No one has done more to disparage truth than the late Richard Rorty, a recovering analytic philosopher whose more healthy persona embraced pragmatism.  Rorty insists that truth as a reflector of reality doesn't exist.  All we ever have are sentences that achieve some sort of consensus.  Rorty often refers to this consensus as justification. For Rorty, "[w]e do not have any way to establish the truth of a belief or the rightness of an action except by reference to the justification we offer for thinking what we think or doing what we do.  The philosophical distinction between justification and truth seems not to have any practical consequences." See WUT, below at 44-45. Is that right? Isn't truth necessary, conceptually necessary, to make sense of justification.  Without the normative notion of correctness, of truth, justifications become empty. Or put differently, making sense of justification requires the notion that whatever is justified would be true absent the ordinary conditions limiting justification such as complete knowledge, flawless reasoning, and so forth.

In Rorty's attempt to cut truth from its moorings in our conceptual scheme, the idea of justification seems to go with it.  Yet, if Rorty prefers justification to truth he most certainly is throwing the baby (justification) out with the bath water (truth). In other words, we can't make sense of justification without appealing to some conception of truth.  Perhaps, there is some way to throw both notions out yet retain a manner of speaking that it not egregiously relativist or subjective. But no one has yet done so convincingly.

In the brief exchange between Rorty and the French analytic philosopher Pascal Engel, in What's the Use of Truth? [WUT] the tension between retaining justification while abandoning truth becomes prominent. Engel and Rorty, have a lively debate regarding these and other issues involving truth, justification, and the attractiveness of analytic philosophy. For those interested in these conceptual, epistemic, and historical issues, this book is highly recommended.

Full post as published by Essentially Contested America on May 28, 2008 (boomark / email).