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Friday, March 7, 2014


And so we return to the question that provoked Wolff to a restless quizzing of his fellow conferees: why Kant? 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 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 shticks, 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.
Did the Liberty Fund get its money's worth? One hopes not, considering that organization's political orientation. Perhaps the readers of this journal can decide for themselves, having read the best of the papers re­vised and refined in the light of three days of debate. After the partici­pants had left for their several homes, the following notes were discovered at the seat that had been occupied by Robert Paul Wolff. Wolff apparently found the Weinrib paper philosophically suggestive and worthy of serious consideration. His fragmentary jottings have been Englished, as editors like to say, and are offered hare for what they might be worth.
Comments by Robert Paul Wolff on Ernest Weinrib's Paper
A very interesting piece of work. W. is clearly a Thomist who sees in K.'s notion of an 'Idea of Reason' a modern rationale for the Aristotelian-Thomist conception of the telos or internal purpose of a natural kind. Ex­cept that the law, being a human product, can have no other telos than what its makers impute to it


W. seems hesitant to come out from behind Kant's skirts and declare himself. It is difficult, merely from the text, to tell whether he endorses the notion that the unity of the law is an idea of Reason, or merely attributes it to Kant. But the evident passion with which W. advances his views decides clearly for the former.
W. is certainly correct in his diagnosis of Fletcher and Calabresi on torts [whatever they are], but a diagnosis is not yet a condemnation, let alone a refutation. Why shouldn't those two merely grant L's point, and agree that, absent a purposeful God who has set for Mankind the task of articulating an internally coherent Law, our legal institutions quite properly reflect the fundamental disunity of our society? [Probably Calabresi would be more comfortable with that response than Fletcher.]
But leaving aside such considerations, which bear merely on the truth of L's position, there are serious difficulties with his appropriation of Kant. The problems center on the Critical doctrine of Ideas of Reason.
According to Kant, the intellectual powers of the human mind have both a merely logical and a real employment. In their merely logical employment, our rational capacities are used to compare, contrast, order, and systematise such mental contents as they are presented with, from whatever source. So the arrangement of objects of perception by genera and species, the classification of sense—contents into the familiar five senses, the rearrangement of judgments into the form of syllogisms, and so forth, are all in—stances of the merely logical employment of intelligence. Nothing is created thereby, and the result is no more than a sorting out and neatening up of the materials presented to intelligence.
The real employment, on the other hand, is genuinely creative, resulting in cognitively significant thoughts, or representations, as Kant calls


them, that did not exist before, and could not have been arrived at by any process of the comparison, reorganization, or abstraction from presented materials of consciousness.
In the CRITIQUE OF PURE REASON, Kant differentiates between two intellectual powers of the mind, which he labels Understanding and Reason. The real use of Understanding, he says, produces the Pure Concepts of Understanding, or, as they are usually referred to, the categories, among which are Substance and Accident, Cause and Effect, Possibility, Necessity, and so forth.
Reason, personified by Kant as a purposive agent, is said always to strive to complete the processes of organization and arrangement which it undertakes in its merely logical employment, seeking everywhere for the first cause in the series of causes, for the necessary being on whose existence rests the possibility of contingent beings, the first premise from which all syllogistic reasoning descends, and so forth. Kant calls this the quest for the unconditioned, and he claims that the product of the real employment of reason is the concept of the unconditioned. For reasons of piety and historical pendulation [to use Harnack's lovely neologism], Kant resurrects the Platonic term 'Idea,' and calls the various articulations of the concept of unconditionality 'Ideas of reason.'
Kant knows, of course — indeed, he insists — that such Ideas can never find instantiation in experience, for on Kant's own teaching, all experience is conditioned by the mind—dependent constraints under which things can be objects for us in space and time. Hence we can never find a first cause, a free will, a necessary being, or, for the same reasons, a system of law that achieves full inner coherence.
Nevertheless, Kant claims, with absolutely no justification whatsoever,

Nature would not instill in us the unconquerable urge to seek the Unconditioned unless She had some useful purpose thereby. So we may conclude that although the search can never be completed, the quest is set us as a task. The search for an internally coherent tort law, like the search for a single unified theoretical foundation for the sciences, or a single set of logical premises from which all true mathematical theorems follow as logical consequences, or a first cause, a free will, a necessary being, is a search dictated by the inner telos of reason, setting for us, as an unattainable goal, an Ideal of Reason. [It is not clear why Wolff reminds himself here of certain elementary facts about Kant's philosophy with which he would be thoroughly familiar. I. C.]
But though Kant talks this way all the time, he offers no argument at all for the repeated invocation of Nature's purposes with which the introductory and less central portions of his writings are filled. In fact, of course, Kant himself, through his devastating refutations of the traditional attempts at proving the existence of God, is, together with David Hume, the Enlightenment executioner of this way of speaking. It is entirely incompatible with the deeper teaching of the CRITIQUE to speak of the inner coherence of tort law as though its achievement were an objectively necessary task set us by the inner purposes of Reason itself. Rather, we must recognize that ideal for what it is: one ideal among many that lawyers or theorists of law may set for themselves, for their own political, aesthetic, moral, or professional purposes.
So, in the end, W.'s essay is little more than a cri de coeur, and Fletcher's two—stage process of considerations of right followed by considerations of humanity is as legitimate as any other. L's use of Kant here illustrates a more general difficulty with the too—quick appropriation of portions of a philosophy, as though they were bits and pieces of material


that could be separated from the main body of theory and bent to purposes of one's own. The philosophy of a great thinker like Kant is an organic unity unfolding from one, or at most a very few, central insights. One's under­standing of every element in that philosophy, however secondary or peripher­al, is thoroughly conditioned by one's construal of those central insights. Before we can 'use' the Kantian notion of an idea of reason, for example, we must decide how we understand the revolutionary teaching that concepts are rules for the organization of a diversity of sense-contents, and hence have not even problematic application beyond the limits of sense experience
W. cannot escape the necessity of stating, and defending, his aesthet­ic, moral, political or professional reasons for seeking internal coherence in the tort law, or in any other set of institutional practices, for that matter. But this was simply the message of my opening presentation.  I guess it really was the waste of time it seemed.

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