NOTHING FANCY:

SOME SIMPLE TRUTHS ABOUT TRUTH IN THE LAW

Leys Lecture

SIU Carbondale,April 2015

Susan Haackshaack@law.miami.edu

1. Truth and Truths nouns like “life,” “beauty,” “truth,” have two

uses

referring to a property or phenomenon

and to particular instances; in which use they take the indefinite article and the plural

“It is a truth universally

acknowledged, that a single man in possession of a

good fortune must be in want of a

wife”---Jane Austen

“We hold these truths to be self- evident, that all

men are created equal…”---American

Declaration of Independence

the same goes for other languages

“las verdades científicas son como el amor: eternas mientras duran”---Joaquín Sabina

“esa es una verdad de perogrullo”

this dual usage encourages confusions thinking that “Truth” refers to some all-important

particular truth

(or, reacting against this) denying there’s any value in truth

mistaking properties of particular truths for properties of the phenomenon, truth

but while there are many truths

some truths are vague

some propositions are only partly true

there’s only one truth

truth is not a matter of degree

truth doesn’t decompose into parts

& while some propositions

are made true by things people do

some truths make sense only relative to place, jurisdiction, time

truth is objective

truth is not relative

2. The Meaning of Truth the English word “true” derives from the old

verb “treowe,” to give one’s word

(which survives in “betrothed,” “trust”)

it also has non-propositional uses

as in

“the frog is not a true

reptile”

&

“out of true” = askew

not to mention

“trueing the wheels” on a

bicycle

there are many theories of (prop’nal) truth a whole family of

correspondence theories (Logical Atomist, conventionalist)

a whole family of coherence theories

a tangle of pragmatist and neo-pragmatist theories

Alfred Tarski’s semantic theory of truth for formal languages

&

Frank Ramsey’s “laconicist” theory: “a belief is true if it is the belief that p, and p” (and its successors)

Frank Plumpton Ramsey1903-1930

as I see it Tarski’s theory has been much

misunderstood

e.g., by Quine (as disquotationalism)

& by Popper (as a version of the correspondence theory)

& (more importantly here) I believe Tarski was right when he said

that his theory applies only to formally specifiable languages

& not to natural languages like English or Polish

& (again, as I see it) of all the efforts

to articulate the Aristotelian Insight “to say of what is, that it is, is true, …etc.”

Ramsey’s (though it faces challenges, e.g., about propositional quantifiers) is the simplest and most direct

moreover it is enough to show that, whatever the

subject-matter of a proposition (legal, historical, mathematical, scientific …)

what it means to say it is true is the same

that it is the proposition that p, and p

e.g. it’s true that Socrates was sentenced to

death for corrupting the young iff Socrates was sentenced to death for corrupting the young

it’s true that 7+5 is12 iff 7+5 is12

cont. it’s true that DNA is a double-helical molecule iff

DNA is a double-helical molecule

it’s true that current Fla. law imposes the death penalty for murder in special circumstances iff current Fla. law does impose the death penalty for murder in special circumstances

to be sure

the theory doesn’t tell us whether, e.g., ethical claims have truth-values

only that if they do, then, e.g., it’s true that it is morally wrong to torture babies for fun iff it is morally wrong to torture babies for fun

3. Legal Truths and Factual Truths at first blush, the distinction seems easy

“there was a stop sign at the intersection at the time of the accident” (factual)

“one whose conduct brings about an unintended death in the commission of a felony is guilty of murder” (legal)

indeed, in a common-law system

where legal questions are the province of the judge

& factual questions the province of the jury

the distinction is crucial

(not quite by the way) while it is sometimes suggested that a trial

is a search for truth, this is potentially misleading

the fact-finder’s job is to determine whether guilt or liability has been established to the required degree by the (admissible) evidence presented

moreover while the key issue in some trials is factual

(did the defendant do it? was the substance cocaine?)

in others, of course, the key issue is legal (was it permissible to allow a lay witness to give her opinion that it was cocaine?)

& (more to the present purpose)

there are mixed and borderline cases

e.g. since Daubert (1993), the line between

admissibility and weight is blurred

via the legal conception of evidentiary reliability

(which can create the illusion that judges’ rulings can determine what scientific claims are true)

& (most important here)

the word “law“ (like “truth”) has two uses

to refer to the phenomenon, law

to refer to instances of the phenomenon

e.g.

“law is distinct from morality,” “law is essential to civilized society” (first use)

“since 1986 the U.S. has had laws relating specifically to injuries allegedly caused by vaccines” (second use)

&

legal truths (truths about laws in the second sense) are a sub-class of social-scientific truths

more strictly, a sub-sub-class---of truths about the norms of a society

social-scientific truths are often local to a place/a time

though objective, also socially constructed

i.e., made true by things people do (& believe, etc.)

similarly with legal truths, e.g. the Establishment Clause of the U.S.

Constitution was ratified in 1791, first applied to the states in 1947

FLA adopted Frye in 1952, reaffirmed its commitment to Frye after Daubert (1993), came close to Daubert in Ramirez (2001), and finally adopted Daubert in 2013

moreover, legal truths are made true by things people do

e.g., by the writers of constitutions

by legislatures & parties to international treaties

by formal advisory bodies, & the less formal political groups that also influence legislation

& of course

by judicial interpretations of statutes and precedents

e.g., the long series of rulings spelling out what is meant by “establishment of religion”

4. Judicial Construction of Legal Truths

… a very complex business, as Black’s

Law Dictionary reveals

I especially like

the “Four Corners Rule”: the entirety of a

document should be taken into

account, not just part

but recently it is

“statutory construction,” and especially the question of severability, that

has been in the news, with constitutional challenges to the “individual mandate”

in the Affordable Healthcare Act

& the distinction of strict vs. liberal construction

reminds me to say that I don’t accept

Langdell’s conception of a legal system as like a system of axioms, from which correct decisions can be deduced

I’m with Holmes: “the life of the law has not been logic, it has been experience”

Langdell really was, as Holmes unkindly said, a “legal theologian”!

when statutes and precedents must be applied to new situations, formal-

logical reasoning won’t always suffice

& considerations of legal history, of explicit or imputed legislative intent, considerations of equity & of forward-looking policy, etc., etc., will be needed

as Edward Levi wrote

“new situations arise [and] people’s wants change. The categories used in

the legal process must be left ambiguous [flexible?—SH]… to allow the infusion

of new ideas”

e.g.

adaptation of U.S. tort law as it coped with new forms of mining, transportation, manufacture, distribution, etc.

more recently, courts’ adaptation to the ruling in Melendez-Diaz (2009) (what counts as testimonial, what as business records, etc.)

N.B.: though …, nevertheless ___ legal truths are in part

made by judicial interpretation

courts play a role in the construction of legal truths

once made, they can be discovered by legal research

the law isn’t just what courts say it is (they can get it wrong)

again judicial interpretations

involve something more than, and very different from

formal-logical reasoning

but this doesn’t mean that they are inevitably arbitrary & capricious

rather, they call on historical, moral, economic, etc., factors

5. The Normative, the Legal, & the Moral

some of you may say: OK, OK, you’ve talked about truths about legal provisions---but what about the truth of legal provisions?

& may suspect that I think legal norms are just like rules of etiquette---pure convention

no!

legal norms aren’t pure convention; but it

doesn’t follow that they must be judged by how well they conform to the true account of what’s

right or just

legal norms and moral norms

are conceptually distinct (e.g., it’s morally wrong, but not legally prohibited, to be inconsiderate to your spouse)

and different in extension, too (morally deplorable laws are, nevertheless, laws)

e.g.

Nazi race laws

“Jim Crow” laws in the Southern U.S.

as this reveals I do think moral claims can be true or false

though not that we can know which a priori

my approach, influenced by James and Dewey, is a kind of moral fallibilism (which was also, I believe, Holmes’s view)

of course there are important differences between

James’s view and Dewey’s

James focuses on “demands” (what’s desired), Dewey on what’s desirable

but they share the important idea of our having to work out what’s morally better, what’s worse

& while both face difficulties James’s view (though not by design)

captures something important about the way legal systems try to accommodate competing demands

while Dewey’s (I think) gets closer to a defensible ethical theory

however, the key point here is that it’s not clear that the idea of a unique

morally-best legal system, or even of a linear ordering of better and worse, makes sense

especially since in modern societies the law interacts with many other social institutions

& our moral assessments (of what really

enables human flourishing) are fallible

& our foresight limited, so that

well-intentioned legal changes sometimes have unintended bad consequences

e.g., sexual-predator residency restrictions

on top of which legal systems may be assessed on many

dimensions, not only the ethical

e.g., in terms of economics, of procedural efficiency, etc.

think of Italy, censured by the EU for the slowness of its legal proceedings!

in short, I’m comfortable neither

with appeals to a hypothetical judicial Hercules, as Ronald Dworkin suggested

nor

with simple reliance on individual judges’

seat-of-the-pants decisions (as Judge Posner suggests)

but how do I account for the normative force of law?

any law carries a legal obligation on those in its jurisdiction to obey

& if detection, punishment are likely, also a prudential reason to comply

some laws prohibit actions which are morally deplorable

and here there is both legal and moral obligation

moreover there can be moral

reason to comply even with morally indifferent laws

because the rule of law makes possible some preconditions of human flourishing

but in the case of morally-bad laws, while there’s a legal obligation to comply, there’s no moral one

except to try to get them changed---or break them?

Whew! Thank you …