Academic

Wolff on Philosophy of Law

By Lawrence Solum

What were busy, successful, worldly lawyers [worldly, at the very least. by philosophical standards] doing locked in three days of debate about Kant? Some of the participants suggested that they were looking for a shtick to beat the utilitarianism of the left. Others identified the 'law and economics' of the right as their target. But neither group gave any indication of a serious interest in the arguments with which Kant had sought to establish his arcane and rather paradoxical philosophical theses. Arguments, unlike sticks. not being adaptable to purposes other than those for which they were fashioned. what did anyone at the conference hope to get from Kant? The answer is this: lawyers. unlike serious philosophers [but. in this regard, quite like second-rate philosophers], do not actually seek to demonstrate the positions they defend. Rather, they aim to assimilate issues with which they are concerned to the existing structure of laws and precedents in hopes that courts will construe those issues in ways that favor their clients. For this purpose, lawyers need a large and versatile armamentarium of concepts. categories. distinctions. and argument-fragments with the aid of which they can articulate intuitions. convictions, or interests to which they are already committed. Both utilitarianism and cost/benefit analysis provide just such weapons to advocates of the left or the right, none of whom can be said ever to prove their positions, but all of whom gain argumentative leverage from their ability to embed their advocacy in a preexisting proof structure. Kant's philosophy is a rich resource of arguments, concepts, and distinctions, already elaborated into an architectonic of subordinations and coordinations, incomparably high in intellectual and academic status, and lying entirely within the public domain. Philosophically speaking, it is to utilitarianism, cost/benefit analysis, or Rawls' THEORY OF JUSTICE what a strategic nuclear weapon is to a medium tank. Invocations of the Categorical Imperative or the noumena/phenomena distinction instantaneously confer on the author vast quantities of what teen-age players of Dungeons and Dragons call 'hit points.' In the jargon of the old gangster movies, Kant is the Equalizer. Since lawyers are a combative lot, and good lawyers are winners, three days at Arden House probably seemed like a pretty fair price to pay for a chance at a secret weapon.

Full post as published by Legal Theory Blog on May 09, 2010 (boomark / email).