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					Today’s Lecture:

Skepticism

Number:

15

Lecture Organization:

• Class Announcements
• Review

• Analytic Positivism
• Critique of Analytic Positivism

• Decline of Analytic Positivism • “Inductive” Positivism
• Griswold v. Connecticut
Time

Class Announcements

paper & notes -- by next Monday for sure

Class Announcements

Time

Reading -- Breyer -- 3-12; 109-135 -- Wilson -1

Questions?

Intro to Skepticism
-- We finished positivism. Now we want to look at the last remaining “approach”
-- It really isn’t an approach or a school at all; it is more of a non-approach. (a criticism without an answer) -- To begin, let’s recall the Holmesian/realist problem ..

Holmes Explosion

Sociological Jurisprudence (Progressive
Determinism) Positivism
Originalism
Analytic

Skepticism

Inductive

“law”

Intro to Skepticism
Basic idea

-- There are no right answers. -- There are also no better answers. -- All answers are equally valid -- The truth is arbitrary -- “Justification” is a cloak or a sham
-- culture, politics, psychology and ideology is all that there is to justification

Intro to Skepticism
Basic idea

-- Other terms for:
Deconstruction

My term: “Anti-Foundationalism”

Post-Modernism
“Relativism”

• “plain” skepticism – there is no knowledge; only construction • moral skepticism – there is no morality; only position. • legal skepticism – there is no law; only power.

Intro to Skepticism
Some context

-- Before I explain this to you, let’s get some context
Teaching Tool -- Skepticism is something that philosophy departments generally use a toy

-- the idea is to get you thinking about what the foundation of your beliefs/claims -- by denying the validity of everything, your beliefs are encouraged to be broken down so that you might know how to reassemble them

Intro to Skepticism
Some context Metaphor –

-- Before I explain this were a let’s get some context mechanic, 1. If your thoughts to you, motor and you were a skepticism Teaching Tool would be the tool teachers use to get you to disassemble it. They want all the constituent parts of -- thoughts broken so that the motor appears as the chaos Skepticism is something that philosophy departments generallyparts.a toy allows you to be able to put the of its use This -- motor/thoughts back together again, what to know exactly the idea is to get you thinking about and the foundation ofwhat limitations your thoughts consist of. your beliefs/claims by denying the validity of everything, your limitations 2. --Mention Socrates: Wisdom is knowing thebeliefs are of encouraged toThebroken down so that youare certain; how knowledge. be ignorant think beliefs might know the tofools think allthem reassemble answers are the same. The wise know the answers for what they are.

Intro to Skepticism
Some context status outside of philosophy -- There are some people who take skepticism seriously (literally).

-- Many of these tend to be in sociology departments, in political science departments (to some extent), and in some areas of law school.
Left Wing?

-- it is worth mentioning that a lot of proponents of skepticism generally have a leftist ideology. Perhaps this might make skepticism itself a little “motivated?”

Intro to Skepticism
An example -- Skepticism really can’t be understood being talked about. It’s time to jump in the water.

Question:
How do you know that your classmates or I exist? Do you know that you are present in class right now and that I am talking to you? How do you know this?

Intro to Skepticism
An example -- Skepticism really can’t be understood being talked about. It’s time to jump in the water. Argument from hallucination
-- The technique is twofold:

“Matrix”

(1) Define knowledge as “complete certainty.” (2) To show that nothing can withstand that standard -- in the process, make even direct perception something that cannot give “truth” or “knowledge.”

Intro to Skepticism
An example -- Skepticism really can’t be understood being talked about. It’s time to jump in the water. Argument from hallucination
-- The technique is twofold:

“Matrix”

Question: (1) Define knowledge as “complete Answer: certainty.” Imagine for the moment that the (2) To show that nothing can withstand that standard argument from hallucination were It’s irrelevant! You still have to true: your perception something that -- in the process, make evenmake consequential choicesis direct senses are flawed. Life a Matrix. Is there a cannot give “truth” or “knowledge.” the logical problem within context with the argument from hallucination, and what is it?

Intro to Skepticism
Two Structures -- Skeptical arguments have one of two patterns or structures to them. It is very important that we get familiar with this. External Skepticism
-- We don’t know because we cannot transcend our context. -- Because we live in a context, we will never truly “know.” -- analogy: we are like fish in a bowl -- Hence, this argument treats context as an OBJECTION

“Real Truth” or “full truth”

(outside the context)

context

“contextual truth”

Fundamental Point – 1. The context is presented as an OBJECTION to knowledge, not a description of it.

“Real Truth” or “full truth” context

This

“contextual truth”

“Real Truth” or “full truth” context

Renders This Invalid

“contextual truth”

Fundamental Point –

1. There can be no truth, because there is a context

“Real Truth” or “full truth”

That’s why they call it “external skepticism”

context

“contextual truth”

Question: Answer: Answer: Question: Was the argument from Even if true (a better context exists), we still What is the external Yes it logical hallucination was. flaw in have to find merit within this argument? the context. There skepticism? is nothing wrong with finding contextual merit. What else are you going to do?

Intro to Skepticism
Two Structures -- Let’s introduce a second kind of skeptical argument that is better than the first kind. Internal Skepticism
-- This concedes that merit can exist within the context. -- It concedes that truth and knowledge within the context exists

-- However, it says that you will never find it
-- This is because of the humans inevitably misbehave -- This is because of the problem of BIAS.

Concession:
1. Yes, this is valuable. Some truths within the context are better than others

context

“contextual truth”

However:

1. Humans will screw it up. Their biases won’t get at it properly. (The rule of men will fail!). context 2. Justification within the context will inevitably be a sham. 3. What you think today is the answer will not be the same tomorrow! You do not have knowledge, you only have your psychological comforts

“contextual truth”

That’s why they call it “internal skepticism”

context

“contextual truth”

Intro to Skepticism
Important Ways of Speaking -- We should become familiar with some of skepticism’s vocabulary “construction” -- Assembling justification to fit a viewpoint.
-- (Just build what you need) Instrumentalism -- Using reasons for ulterior desires

(instrument = weapon) “Motivated Reasoning” -- Convincing yourself that your view is right. (psychological phenomenon)

Intro to Skepticism
Important Ways of Speaking -- We should become familiar with some of skepticism’s vocabulary “construction” -- Assembling justification to fit a viewpoint.
-- (Just build what you need) Key point: Instrumentalism -- Using reasons for ulterior desires 1. The subordination of (instrument = weapon) psychology. epistemology to

“Motivated Reasoning”

-- Convincing yourself that your view is right. (psychological phenomenon)

Intro to Skepticism
Language Wars -- Note the difference of the following grammars: Column 1 – bias Desire Impulse Psychology Ideology Hegemony
Dogma Construction

Column 2-- merit Premise Logic Justification Philosophy Knowledge
Science Paradigm

Key point:

Intro to Skepticism

1. The grammar of Language Wars anti-foundationalism -- Note the difference of the following grammars: Column 1 – bias Desire Impulse Psychology Ideology Hegemony
Dogma Construction

Column 2-- merit Premise Logic Justification Philosophy Knowledge
Science Paradigm

Intro to Skepticism Key point:
Language Wars 1. The grammar of foundationalism Column 2-- merit Premise Logic Justification Philosophy Knowledge
Science Paradigm

-- Note the difference of the following grammars: Column 1 – bias Desire Impulse Psychology Ideology Hegemony
Dogma Construction

Intro to Skepticism
Approach to “Law” -- there is no law; there is only power -- there are no rules; there are only motivations -- legal text is perpetually indeterminate (textual indeterminacy). -- principles/essences are either imagined, contradictory or motivated

Intro to Skepticism
The Argument from Equal Opposites -- there is another very common skeptical argument there I want to introduce you to -- it’s called “the fundamental contradiction:” • For every principle, P, there is a counter principle, Q (example: Christianity)

“The Fundamental Contradiction”

Love

Judgment

“The Fundamental Contradiction”

Love

Judgment

Basic idea:
1. One is given privilege, the other is “deprivileged”

1. There are two contradictory impulses in Christian theology 2. For a person to select a Christian message, he or she has to select which one to emphasize

2. This “choice” is a function of politics/ideology.

“The Fundamental Contradiction”

Hence:

Love

Judgment

1. Conservative preachers deprivilege love and stress judgment 2. Liberal preachers do the opposite
3. The Bible is a contradictory set of impulses used for instrumental rhetoric

1. There are two contradictory impulses in Christian theology 2. For a person to select a Christian message, he or she has to select which one to emphasize

“The Fundamental Contradiction”

Love

Judgment

My favorite!

“The Fundamental Contradiction”

1. sinners go to hell
2. non-believers go to hell Love (Jews? Muslims?) 3. fire and brimstone 4. homosexuals are living in sin

Judgment

5. Good values mean a conservative social order
6. Abortion is murder

My favorite!

“The Fundamental Contradiction”

Love

Judgment

My favorite!

“The Fundamental Contradiction”

1. everyone gets to heaven

Love

2. we will all be shown our Judgment errors and shortcomings at the end; the crucifixion saved us all.

My favorite!

3. Forgive and love your enemies, including Iraq 4. Being a good Christian means ending poverty, fighting hunger, providing national health insurance, etc.

“The Fundamental Contradiction”
Basic Idea:

Love

1. Religion is politics in disguise 2. It is a “sham.”

Judgment

3. It cannot be taken “in and of itself” 4. The fundamental contradiction prevents this (Very important to understand: skepticism does not say that motivated reasoning exists; it says it MUST exist. Extremely important point). (Also remember: EVERYTHING has a fundamental contradiction)

“America’s Fundamental Contradiction”
Question:

Is there a dichotomous set of ideals that underlie the fabric of American society? What two, seeminglyopposing ideas might be at the center of America as a political philosophy

“America’s Fundamental Contradiction”

Liberty

Order

“America’s Fundamental Contradiction”

Liberty

Order

My favorite!

“America’s Fundamental Contradiction”
1. can’t burn the flag

2. government can outlaw abortion 3. noLiberty enemy rights for combatants 4. no warrants for surveillance 5. states can make kids pray in school 6. No rights unless specifically mentioned

Order

My favorite!

“America’s Fundamental Contradiction”

Liberty

Order

My favorite!

“America’s Fundamental Contradiction”
1. warrants for everything
2. not only can you burn flags, but “porn” is “speech” too.

Liberty

Order

3. Not only can you not prey in the schools, government can’t ever mention the word “God” – not on its money or anywhere.

My favorite!

4. Death penalty is unconstitutional; abortion is always allowed.

“America’s Fundamental Contradiction”

Basic Idea:

1. American “ideals” are nothing but Order in politics Liberty disguise 2. They are a “sham.” 3. They cannot mean something “in and of itself” 4. The fundamental contradiction prevents this
Question: What, if anything, is wrong with this? Is there a basic flaw in logic here?

“America’s Fundamental Contradiction”

1. It essentially says this: if something has an Liberty antonym, you cannot use deployOrder it intelligently. Anything that has an antonym cannot be used.
Mathematics? (addition and subtraction)

2. Spectrum or “blend” concepts. (Says you cannot have a blend?)

“America’s Fundamental Contradiction”
Either/Or Fallacy: It is a fallacy to say that a society could only validly exist as Idea: complete totalitarianism or the garden of Basic either Eden. That to blend these concepts would be a Liberty Order fundamental contradiction. nothing but politics in 1. American “ideals” are disguise It is also a fallacy to say that religion could only exist as2. They brimstone or with dreadlocks. That to fire and are a “sham.” combine the two could not produce an intelligent 3. They BLEND. cannot mean something “in and of itself” 4. The fundamental contradiction prevents this These “opposite-conceived” belief systems gain their validity from the idea of BLENDS or RECIPIES, not from an “eternal contradiction.”

“The Triangle”

Understanding Jurisprudence -- We’ve just completed the story of the history of the foundations of judging (teaching philosophy through history) -- In this story, we encountered three basic “Godfathers” of thought: Natural Law Positivism
Skepticism

“The Triangle”

Understanding Jurisprudence -- We also saw that each of these “Godfathers” had smaller crews or units that were working under them God?
Reason?

Logic?

Tradition? Natural Law Positivism
Skepticism Pragmatism

Originalism?

Analytic?

Inductive? “Crits”

“The Triangle”

Understanding Jurisprudence -- In looking these three “mafia families” (or meta approaches), you will note that they serve 3 basic concerns (“Gods”) … God?
Reason?

Logic?

Tradition? “Ideation” The Words Power Natural Law Positivism
Skepticism Pragmatism

Originalism?

Analytic?

Inductive? “Crits”

“The Triangle”

Understanding Jurisprudence -- One of things that might be helpful is to relate these three basic concerns to the way human existence is structured -- Hence, “the triangle.” God?
Reason?

Logic?

Tradition? “Ideation” The Words Power Natural Law Positivism
Skepticism Pragmatism

Originalism?

Analytic?

Inductive? “Crits”

Natural Law

Ideals

(principles)

Positivism
Text (words)

Anti-foundationalism the triangle Results
(policy)

Natural Law

Ideals

(principles)

Positivism
Text (words)

Anti-foundationalism the triangle Results
(policy)

And now, the “schools” …

God’s will? Natural Law
Ideals Tradition or Reason ?

CLT

(principles)

Empirical Science

Soc. Jur

Positivism
Text (words)

Anti-foundationalism the triangle Results
(policy) Preserve Power Structure?

Assembly Intent

Originalism Analytic P
Inductive P

Canonical Reading

Pragmatism
Disrupt the Power Structure?

Essences, principles

Critical Legal Studies

God’s will? Natural Law
Ideals Tradition or Reason ?

CLT

(principles)

Empirical Science

Soc. Jur

Positivism
Text (words)

Examples:

Anti-foundationalism Results
(policy)

1. the strike zone. the triangle

Assembly Intent

Originalism Analytic P
Inductive P

Preserve Power Structure?

Canonical Reading

Pragmatism
Disrupt the Power Structure?

Essences, principles

Critical Legal Studies

God’s will? Natural Law
Ideals Tradition or Reason ?

CLT

(principles)

Empirical Science

Soc. Jur

Positivism
Text (words)

Examples:

Anti-foundationalism Results
(policy)

1. Tom Brady Fumble the triangle

Assembly Intent

Originalism Analytic P
Inductive P

Preserve Power Structure?

Canonical Reading

Pragmatism
Disrupt the Power Structure?

Essences, principles

Critical Legal Studies

God’s will? Natural Law
Ideals Tradition or Reason ?

CLT

(principles)

Empirical Science

Soc. Jur

Positivism
Text (words)

Examples:

Anti-foundationalism Results
(policy)

Hand-touch against Jordan the (Kobe?) in the playoffs triangle

Assembly Intent

Originalism Analytic P
Inductive P

Preserve Power Structure?

Canonical Reading

Pragmatism
Disrupt the Power Structure?

Essences, principles

Critical Legal Studies

Natural Law

Ideals

(principles)

God’s will? – Divine right Tradition and Reason? -- CLT Empirical science? -- Soc. Juris

Positivism
Text (words) Assembly intent? – “HP” Canonical reading? – AP

Examples:

Anti-foundationalism Results
(policy)

4. What the “war?” is a triangle

Preserve power structure? -- pragmatism

disrupt power structure? -- CLT

Great essences behind words? – IP

Natural Law

Ideals

(principles)

God’s will? – Divine right Tradition and Reason? -- CLT Empirical science? -- Soc. Juris

Positivism
Text (words)

Examples:

Anti-foundationalism Results
(policy)

5. What is “jurisdiction?” the triangle

Assembly intent? – “HP” Canonical reading? – AP

Preserve power structure? -- pragmatism

disrupt power structure? -- CLT vote your ideology? – IA

Great essences behind words? – IP

Analytic Positivism Help:

1. Enforce a literal, stingy meaning 2, by using a canon:

Reading Canons: (literal, stingy)

Policy Canons: (half credit; back up only)

1. The plain meaning rule. 2. specific controls the general 3. a word is known by its company 4. “in para materia” 5. negative implication 6. most recent in time

1. strict or liberal construction of ...

2. deference to administrative agencies 3. interpretation to avoid unconstitutionality
4. social purpose rule 5. the rule against absurdity 6. statutes in derogation of the common law are strictly construed

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Jurisdiction = “land?”

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Jurisdiction = “land?” (very literal)

Jurisdiction means = control

Natural Law

Ideals

(principles)

God’s will? – Divine right Tradition and Reason? -- CLT Empirical science? -- Soc. Juris

Positivism
Text (words) Assembly intent? – “HP” Canonical reading? – AP

Examples:

Anti-foundationalism Results
(policy)

5. What is “equal the protection” triangle

Preserve power structure? -- pragmatism

disrupt power structure? -- CLT vote your ideology? – IA

Great essences behind words? – IP

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

13th –Slavery
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

15th – Voting
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

14th – Equal Protection
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws


				
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