Law in Contemporary Society

The Right Question

-- By EricSpeckhard - 26 April 2018

Right or Right

Besides the usual requests for the “facts” or the holding below, one question seems to have made every law professor’s short list: “Was this case rightly decided?” While seemingly simple, this question in fact admits (at least) two quite distinct, though in practice related, interpretations: (1) Was this case cogently decided—that is, does the conclusion follow validly from the premises, or (2) was this case justly decided—that is, independent of the internal reasoning, is the outcome correct? This essay focuses on the interaction of these two interpretations and on my own ongoing struggle to provide, or more accurately to justify, answers to the second.

Right as Reason

Under the first interpretation, the variant most frequently applied in first year law courses, we are asked to assess the internal reasoning of the opinion. This version of the question is usually straightforward to answer. Some arguments rely upon logic alone, reasoning from some set of abstract legal principles to derive the fact free conclusions which populate the transcendental heaven of Van Jhering’s dreams. Other arguments may appeal to empirical assertions and assessments of cogency are reduced to judging the accuracy of those assertions. The mode of argument may vary, but the analytical acrobatics are typically within the comfort zone of even nascent law students. Nonetheless, despite the rational appeal of admitting a correct answer, these methods of reasoning and answers often feel empty. Surely law should be more than ivory tower parsing of formal argument? Searching for that additional meaning leads naturally to the second version of the question.

Right as Righteous

The second interpretation poses a much more difficult question—was the outcome of the case just? Though this version is considerably more abstract, the answer, somewhat paradoxically, usually seems to present itself with far less effort. My own beliefs about the justice of a given outcome are often based on essentially instinctual appraisals of the circumstances—I do not need to read Brown, parsing the logic for consistency or flaw, to know that the outcome is right. Even the finest legal theoreticians now recognize that greatest bit of transcendental nonsense dubbed “separate but equal.”

The difficulty here does not arise until asked to justify these intuitive beliefs, or, more strikingly, when confronted with someone who disagrees. Is it possible to resolve the disagreement? Arthur Leff gave the following chilling answer:

“I will put the current situation as sharply as possible: there is today no way of ‘proving’ that napalming babies is bad except by asserting it (in a louder and louder voice), or by defining it as so, early in one’s game, and then later slipping it through, in a whisper, as a conclusion.”

Justification, according to Leff, requires a justifier, and, in a godless world, there is no justifier to be had. Moral assertions are just that—axiomatic propositions devoid of any independent basis for belief. To speak of a moral truth then is not even wrong, but meaningless. Though counter to every instinct I have, Leff’s conclusion (assuming a godless universe) seems unassailable; subject neither to the constraints of nature nor logic, moral understanding seems unreachable.

Faced with this stark reality, what are we to do? Rather circularly, the typical maneuver attempts to hide the problem by reverting to the first interpretation, crafting the reasoning and style of argument to achieve the desired outcome, with each justifying the other. This is manifested, for example, by the strong tendency for conservative jurists to favor originalist interpretations and liberal jurists to favor ‘living’ interpretations. These self-contained arguments rely on their coherence for a kind of justification, but even the requirement of logical closure is itself is an assumption upon which parties may disagree. This approach leads only to division; different sects huddled upon their ships passing in the night, each convinced not only that someone is in fact right, but also that everyone else is wrong. Some other view is needed.

Emergent Justice

Justice may not be baked in the fundamental laws of logic or nature, but meaningful conceptions of justice may still emerge through the complex social and biological interactions which define human beings. By meaningful I do not mean “true” in any sense. Rather, I mean a concept of justice which may suggest itself as common to humanity, discoverable and, if not altogether coherent, useful for the regulation of human affairs. There is some support for the proposition. For example, many features of justice (e.g. abhorrence toward arbitrary killings) can be found in every culture and social creed, suggesting a kind of inevitable emergence. The reasons for that ubiquity may stem from biological structure, shared human experience, or some other sociological phenomenon. On the other hand, there is also evidence that differing moral and political beliefs are affected by immutable heredity. In any event, greater knowledge of the source of our beliefs can help us to destroy the barriers of dogma which seem so particularly infectious at present. These observations are woefully incomplete, but they provide me with some hope that progress in understanding justice is possible. Undoubtedly, that progress will have major impacts upon my own practice and the societal environment in which it takes place.


Creating a more just world requires us to abandon the notion of moral truth or supremacy. Informed by emergent properties, humans must craft the society of the future, squarely acknowledging that no one future is “right”. To quote Leff again, “we are all that we have.” This proposition admittedly fills me with fear and doubt. If we are to have a chance, it is critical that individuals who disagree be capable of civil dialogue about those disagreements, not to persuade, but to engender some measure of mutual understanding. I hope and intend to live up to that standard within my own practice, if not to resolve my own uneasiness, to provide some measure of comfort and understanding to others.


Word Count: 994

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r3 - 26 Apr 2018 - 15:36:38 - EricSpeckhard
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