Document Type
Article
Publication Date
1997
Abstract
It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.
Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped it. Blackstone, the First Amendment, and Marbury v. Madison – these sources command a kind of respect with American lawyers that German or Iranian lawyers feel only for the central texts of their traditions. But the habit of deferring to sacred or established texts runs against the grain of philosophical thought. In the tradition exemplified by Wittgenstein, reasoned argument – not authority – is the only basis for assenting to a claim of truth.
It is remarkable, therefore, that we can sustain philosophical inquiry about the law. I greet Dennis Patterson's book with enthusiasm as an attempt to probe, in a legal context, the classical philosophical conundrum about the nature of truth. Patterson tells us that his book will focus on a single problem: "What does it mean to say that a proposition of law is true?" We can see already that we are·on the verge of coping with a serious puzzle, for if law is based on recognizing authorities, then how can there be any truth in the law at all? The law would seem to be nothing more than the teachings and prescriptions of its leading texts, and these might in fact bear only a contingent connection to truth.
Disciplines
Jurisprudence | Law | Law and Philosophy
Recommended Citation
George P. Fletcher,
What Law Is Like,
50
SMU L. Rev.
1599
(1997).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/3559