Center for Law and Philosophy
Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry.
Anomalies arise from data that do not fit the prevailing scientific theory. Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine's definitions, paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy that generates them. When we confront the special form of paradox called an antinomy, however, we have no such easy way out. The resolution of these more troubling contradictions requires reexamination of our fundamental premises. The solution typically represents a conceptual innovation, a new way of looking at the field of life that generates the contradiction.
For these factual and logical puzzles to become significant in a body of thought, theorists must be committed both to the completeness and to the consistency of their theoretical accounts. The impulse toward completeness renders anomalies disturbing. Confronted by data not explainable by the prevailing theory, theorists must either confess the incompleteness and inadequacy of their system or revise their tools of analysis to accommodate the anomaly. For example, those committed to the economic analysis of law initially regarded comparative negligence as anomalous under their system. The criteria of crime, criminal responsibility, and punishment have yet to receive an adequate account in the literature of law and economics. If anomalies like these accumulate, they can, as Kuhn has taught us, overthrow the theory that causes them to stand out. Until that overthrow occurs, the recognition of anomalies bears witness to the importance of the theoretical enterprise. That anomalies are troubling reflects a shared commitment to the development of a complete theory, not merely the accumulation of discrete formulae for unrelated factual data.
The commitment to the consistency of logical structures – as contrasted with the completeness of their theories – drives theorists to grapple with paradoxes and antinomies. This drive has been evident, as we shall see, in the philosophical tradition. Oddly, the commitment to consistency has generated little progress in legal theory. The Holmesian belief that "the life of the law has been experience rather than logic" provides a good excuse for ignoring seeming contradictions in the structures of legal argument. This aversion to logical thought is buttressed by the ubiquitous misreading of Emerson's branding consistency as the "hobgoblin of little minds." What Emerson deplored is the "foolish consistency"' of those unwilling to change their views over time. Yet criticizing inflexibility provides no excuse for accepting contradictory positions. In some circles of supposedly critical thought, it is even fashionable to tolerate contradictions as an inescapable feature of legal thought. These antitheoretical and antirational strains in legal thought discourage dialogue and preclude advances in our understanding of legal phenomena.
This Article commits itself to logical consistency as the indispensable foundation for effective dialogue and coherent criticism. Only if we accept consistency as an overriding legal value will we be troubled by the paradoxes and antinomies that lie latent in our undeveloped systems of legal thought. Grappling with uncovered paradoxes and antinomies will impel us toward consistent theoretical structures. None of this, I submit, requires us to suppress our sensitivities to policies, principles, or other questions of value.
George P. Fletcher,
Paradoxes in Legal Thought,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1072