Methodological versus Naturalistic Legal Objectivity
Kenneth K. Ching
Regent University - School of Law
November 29, 2012
57 St. Louis U. L.J. 59 (2012)
Han Solo and Luke Skywalker have a debate. Luke is learning to use and trust the invisible Force, which he believes binds the galaxy together. Han thinks hokey religions are no match for a good blaster. This debate bears on law’s legitimacy and objectivity. Law’s legitimacy depends on law’s objectivity. But before we can ask whether law is objective, we need to define legal objectivity. This article argues for a reason-based conception of legal objectivity.
Judge Richard Posner and Dr. Brian Leiter claim that legal objectivity cannot be reason-based. They argue law should be naturalistic. This is the Han Solo, ‘blasters over hokey religions’ approach to legal objectivity. This article argues that naturalism is the wrong approach to legal objectivity for at least four reasons: (1) the lack of good reason to privilege scientific epistemology over a reason-based epistemology, (2) naturalism’s inability to account for normative discourse, (3) scientific epistemology’s lack of relevance to law’s legitimacy, and (4) the inability of a naturalistic conception of objectivity to assess law’s legitimacy.
This article offers a reason-based conception of objectivity called “Publicity.” This is the Luke Skywalker, ‘trust the Force’ approach to legal objectivity. Publicity is an appropriate conception of objectivity for inquiring about law’s legitimacy because (1) Publicity can assess law’s legitimacy; (2) Publicity can account for normative discourse; (3) Publicity can integrate the “successes of science”; and (4) Publicity addresses concerns about the contingency of a reason-based epistemology.
This article makes several contributions to the conversation about legal objectivity. It offers an improved version of Publicity. The previous version did not require any actual agreement among participants in legal discourse. This article argues that Publicity does require actual agreement. Further, this article offers new arguments for preferring Publicity over naturalism. The first is that the best argument for naturalism, that science has been more successful than reason, is actually a better argument for Publicity. The second is that the best argument against Publicity, the contingency of reason, is actually an argument for Publicity’s ability to assess legal objectivity.
Number of Pages in PDF File: 42
Keywords: objectivity, objective, legitimate, legitimacy, Posner, Leiter, Postema, naturalism, rationalism, rationalistic, reason, epistemology, ontology, pragmatism, rawls, public reason, empirical, science, empiricism, holmes, prediction theory
JEL Classification: K00, K40, K41Accepted Paper Series
Date posted: February 22, 2012 ; Last revised: August 14, 2013
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