Philosophy, Explanation, and Coherence

Jay Michaelson
May 10, 1996

Introduction

I cannot make it cohere
. . . . Ezra Pound1

You don't need a weathervane to tell which way the wind blows. . . . . Bob Dylan2

Why have a discipline of philosophy of law? The question, though perilously self-referential, may have more than mere navel-gazing use: law is a practical, as well as theoretical, discipline, and the philosophical analysis of it may bear on its real-world application. The question of whether philosophy of law is appropriate thus is highly relevant. I will reject up front the "realist" answer to the question: that we have philosophy of law because professors are paid to create and teach it. While this may be the case, it begs the question of why anyone pays them to do so. To be sure, there may be no answer to this last question; some academic disciplines, classics for example, seem to exist mostly because they simply ought to exist. "What would Yale be without a classics department?"

But I think the case of philosophy of law is somewhat more interesting. My explanation of philosophy of law, self- referentially enough, will be that philosophy of law, first and foremost, is an explanatory enterprise. But it is not explanation qua explanation; it, like the basic justificatory act of writing judicial opinions, is explanation brought on by a set of legitimation crises centering around the use of compulsion and force in a free society. These crises create gaps in the conceptual coherence of such societies,3 gaps in meaning which must be filled in order for coherence and conceptual harmony to exist. Though "conceptual harmony" may seem quite a fluffy desideratum, I would not trivialize it; I argue that it drives most of religious thought as well, which remains a matter of paramount importance (maximal concernment, to use Locke s phrase) to the majority of Western people.

Towards the end of this paper, I will question in a postmodern idiom the entire notion of coherence and suggest that it is fundamentally incompatible with most of the anti-totalizing moves of postmodern thought, and I will even have occasion to rescue a discipline for which I and the reader share a common disdain: law and economics. But first, I will develop the affirmative case for philosophy of law as necessary explanation, and will have occasion to bash law and economics (and cite more Dylan songs) in that context.

Philosophy of law as explanation

Law is an activity at the nexus of theory and practice. In its daily application, not just in its academic study, potentially abstract notions such as justice and fairness are brought to bear on actual cases and controversies by courts who must decide them. Of course, the overwhelming majority of cases are not decided on the basis of a large ethical theory, but I would propose that most cases are decided on the consequences of such a theory, however inchoate (or incoherent) the underlying "philosophy" may be. More importantly, law relies on theory. It is legitimized by it. Even if "justice" is mentioned only on the pediment of the courthouse, it is still arguably the most important word in the trial, for it legitimizes both the judge s (and jury's) authority to make decisions and the state s authority to carry them out. And there must be some "justification" for there to be "justice."4

So law's theory may influence its practice, and have real world consequences. This is not so unusual. Nor is the reverse particularly interesting. Any legal philosopher who is not utterly irresponsible should think of the formal realizability (to use Balkin's phrase) of her ideas. But it is non-trivial to say that law's practice so strongly depends on its theory for justification. Kangaroo courts and star chambers dispense justice at least as efficiently as our own, yet they lack the ground of fairness that ours continue to have5 and are illegitimate. The dispensation of law without a coherent framework is arbitrary, and unlike many arbitrary decisions which we find acceptable (coin tosses at football games, for example), the administration of law (referees at football games) is somehow more 'accountable' to a set of concepts.

Before addressing why this is the case, let me briefly note that for most people, this set of concepts has a small number of members, and the members are not terribly complex at that. For some, simple deference to authority -- "he's the judge" -- may be sufficient. Alternatively, maxims such as "turnabout is fair play" or "an eye for an eye" are, in a day-to-day context, quite adequate for the dispensation of justice and the implementation of whatever penalties justice 'demands.' Indeed, in legal systems less developed than our own, such maxims are the accepted way to decide cases.6 I am not arguing that every person on the street requires a nuanced treatment of tort law to feel that all is right with the world.7 But every person will provide his or her own theory of justice in an instant case, which is the significant point for my purposes here.

The question, then, is why this is the case. Of course, if I am right so far, I may have already answered the "why philosophy of law" question sufficiently: there is philosophy of law in academia because there is philosophy of law everywhere. One is no more clever or justified in asking "why a philosophy of law course" than "why a music course;" it simply is "out there" so it should be "in here." But I have bigger fish to fry, and would like to sketch an account not only of why philosophy of law exists in the academy, but why it is so important in the world.

My answer resumes the theory-practice discussion begun above. Legal practice depends on legal theory/legal philosophy for legitimation not only because of the nature of the activity of judging, but for a group of specific reasons. The dispensation of justice requires that we offend some basic norms. Ordinarily, we do not tolerate forcing people to do something, or restricting their movement, or requiring them to pay another person. But the state does all of these things as a matter of routine in the law. Insofar as we regard values of freedom and autonomy as central to our self-definition as a society, then, there must be a "higher explanation" for their transgression. There is a clear dissonance at the local level between our norms and our practice, so there must be a larger explanation. That larger explanation is needed for coherence. In its absence, the system is unstable.8

It is important to note that, in such a view, the explanation provided may range from the most general to the most specific. One may legitimize an exercise of judicial coercion by a theory of justice, or a philosophical account of an area of law, or simply by a well-formed judicial opinion which places the decision in the context of the relevant jurisprudence.9 Broadly speaking, the specificity of a theory varies inversely with its coherence-making potential: the choice of which quality is important will depend on the circumstances of the theory s deployment. It will not be of much use to defend a ruling on a simple pre-trial motion by developing a grand unified theory of tort, contract, and criminal law. But, legal realism notwithstanding, it will not help address the questions of what we are doing when we hold persons liable for damages, or punish them for crimes, by referring to the relevant hornbook. Just as micro-questions require relatively local answers to remove the localized worry we may feel over offending basic norms, larger questions require larger answers. Philosophy of law and legal theory are, in this sense, a kind of extension of the practice of writing judicial opinions.

Of course, these theories and philosophies may in turn have other commitments -- economic analysis' commitments to utilitarianism and, ultimately, to a sentiment-based theory of morals, for example -- but these commitments need not come to the fore if they are submerged in a coherent explanation. For many, only a rigorous, from-scratch theory of justice will be an adequate explanation, but just as the satisfaction of a basic maxim is too little for judges to decide cases in our culture, a consistent theory of justice may be too much. Cases are decided on principles sufficient to justify the dispensation of justice in the eyes of the state, its individual agents, and the majority of its constituents, either because (optimistically) the consent or assent of these people is necessary for justice's implementation or because (more pessimistically, following Foucault) such rationality-based legitimation is a useful, and familiar, mode of the exercise of power.10 And if cases are decided upon principles, what legal philosophy and legal theory do is show that principles are derived from coherent systems. The world rests on the back of at least one more turtle.11

Of course, not all systems are equally coherent, and we may immediately launch into a debate over which yield better principles, which are more internally consistent, and which are more in consonance with other commitments we may have as a society or as individuals. This is an activity with which the reader is quite familiar. But in my view, this debate is generated not (just) by hubris or academic infighting but by the particular role which the abstract principles of law play in our 'material' world.

As an aside, this abstract-material relation is itself a crisis for Americans, who historically have tended to prefer tangible "things" to abstract "ideas."12 Not only is law enforcement a "legitimation crisis" (Habermas) for the liberal state because it would seem to problematize the norms with which we identify ourselves, it is a crisis because it defends the local, real- world transgression of those norms with abstract concepts. I have written on another occasion about how American attitudes towards the 'real' and material may be related to the obvious disdain Americans have for lawyers and the world of non-material wealth production, and how this disdain may be viewed as a modern form of anti-Semitism.13 Here, I will simply flag the issue as another source of crisis for the law as it is implemented in America, and note that recent discontent with "procedural" (i.e. non-substantive, non-"real") problems in the law -- habeas corpus, for example -- seem in line with this idea.

In short, whether there is a notion of intuitive fairness being offended by the taking of liberty or property, or particular ideas (e.g. of life, liberty, and property) being offended, the regular disposition requires a "higher coherence" to justify and explain its local dissonances,14 just as the existence of death and suffering have led billions of people to embrace a higher order of religious truths to explain local "dissonance."

Problems of Coherence in Philosophy of Law

Let me now apply this explanation of philosophy of law as necessary coherence to a few salient features of philosophy of law as it exists in today's marketplace of ideas.

The idea that philosophy of law provides coherence explains why most philosophy of law is as conservative as it is, upholding, conveniently, one form or another of the status quo. If philosophy of law gives not just accounts of law but reassurances that it is coherent, only "dangerous radicals" would undermine its newly poured foundations. For most, in this view, doing anything but defending a variant of the status quo is not what philosophy of law is about. It would be like writing a dissenting opinion to defend a court s judgment. Of course, dissent is one of the primary motivations of whole schools of legal theory, and it is probably not to harsh to observe that they, too, are outcome-driven in their approaches to the law. If conservative legal philosophers are apologetic, anti- establishment thinkers are diagnostic: they know that something is wrong with the system, and the question is pinning down the exact problems.

None of this should mean that all philosophy of law is necessarily polemical. It is of some value to ask what the system of criminal law (for example) is all about, and only after reaching a "logical" answer, pronounce on whether it is a good or bad thing. At this point, though, I would no longer postpone the realist agenda, and just note that this methodology does not seem to be the prevalent one in legal academic circles. Legal academic writing is not naked rationale, but given the context of explanation as providing coherence for localized offenses of norms, it seems hard to separate the explanatory project from the judgment of whether or not coherence now exists.

Given the fact that economic analysis has become the dominant legal "philosophy" of the present day, it is worth pointing out an inconsistency within economic approaches to law which the coherence explanation of legal philosophy brings up.15 Economic analysis purports to explain much, giving a sense of order and context to what might otherwise be a difficult jumble of large-sounding words and apparently inefficient decisions. Yet it is perhaps too successful. In postulating the large-scale coherence of efficiency, an economic approach to law seems willing to tolerate far greater local disturbances. If, for instance, a group of people living near train tracks are injured by a spill of toxic waste by a derailed train, the intuitive answer to the question of liability would seem to be to hold the train operator liable, whether on the basis of negligence or perhaps strict liability (transporting toxics as ultrahazardous activity) or policy reasons (we want rail companies to be extra careful) or whatever other rationale is available. But Richard Posner, drawing on Calabresi's cheapest cost avoider concept, has argued that in fact the people living near the tracks were the cheapest cost avoiders, and they should not be awarded damages, because they should never have been living there.16

I will set aside the enormous distributive justice problems I have with Posner's idea, as well as the more inchoate disgust I have for it based on my own ethical commitments to ideas about human dignity. What I wish to focus on is the degree to which economic approaches to law should tolerate such localized dissonances. Let's say Posner is right; it would be cheaper for these people to just move away than to impose costs on the train company (or the toxin's producer, or anyone else). Regardless of what our normative opinion of the idea is, it is indisputable that, if implemented, it would impose high local costs for a "greater good" than would a more traditional award of damages. That is, even if there is a greater gain in coherence (efficiency being the summum bonum), there is also a greater local pain in achieving it, a consideration that exists independent of our judgment on the validity of such good-exchanges.

Other systems will yield similar considerations. If it is shown conclusively, for example, that the kalam-based punishment of cutting off the hands of a thief, which is practiced in several countries including Somalia and Iran, is a tremendously effective deterrent, one might decide, depending on the policy considerations, that it would be worth implementing. Yet separate from the cost-benefit analysis question of whether such a system is worth its costs, and the various human- dignity/Kantian objections one might bring up, there is the same increase in local disturbance of norms (assuming the system were implemented in our own society), whatever the aggregate gain in coherence, efficiency, corrective justice, fairness, etc.

I bring this point up because it reveals a fundamental problem in economic theories of the law, which I would like not to pass over. If my amateur perceptions of recent events is at all accurate, it seems as though we as a society are unwilling to suffer localized losses, regardless of aggregate gains: market economics' higher coherence brings about its own incoherence, because it is unable to account for these frictions apart from labeling them as transaction costs. It may be that the efficient solution would be for the probably poor railside dwellers to move out, but as Bob Dylan said, "Dear Landlord,/Please don t dismiss my case/I'm not about to argue/I'm not about to move to no other place."17 It is probably the case that the efficient solution to some of Connecticut s woes are for defunct towns like Bridgeport to simply close up. Resettling Bridgeport's population among Connecticut's other struggling cities would likely push some of them over a "critical mass" line at which economic revitalization could take hold. But the "transaction costs" in doing so are prohibitive -- and as what I have called local disturbances in norms increase, these costs rise as well. If I am right about economic analysis, then, the use of economic approaches to the law in setting public policy will itself raise transaction costs.

Economic approaches to law, then, yield a situation in which some of the very costs we wish to minimize are increased by the preference of larger and larger aggregate goods at the expense of localized disruptions. Of course, were most legal-economists more reflective (perhaps another defense for philosophy of law generally), they could surely integrate these transaction costs into their calculations, and wind up with the result that Bridgeport closing is not efficient, absent massive change in social norms.18 But the theoretical tendency remains, and it is intimately connected with the way economic analysis performs the role of philosophy as explanation, morphing its depictions of coherence into a normative call for greater coherence in economic terms. And of course, if we dispute the idea that local disturbances in norms can be reduced to "transaction costs," the problem with law and economics is all the more grave.

Before concluding with a discussion of what coherence means at all, let me take a moment to zoom the picture out from economic analysis back to philosophy of law generally. The question of 'higher coherence' brought up by the economists' apotheosis of efficiency is not restricted to law and economics. In some ways, it is endemic to the project of philosophy of law itself. The level of generality upon which one searches for coherence is in some cases dispositive for what concrete actions are deemed appropriate. I hinted earlier that philosophy of law is in some ways similar to the myth-making activity of religion: both are searches for a justifying pattern that transcends and yet explains the local disarray. One might analogize the Augustinian view of evil, that when viewed from above its dark patches form part of a beautiful, harmonious mosaic, to an economists' acceptance of areas of suffering and poverty as necessary (or at least unavoidable) parts of a well- functioning economy.19 But I do not want to be flippant about the analogy. There is clearly a complicated tension between a high order of coherence, which seems desirable, and the increase in local dissonance that it will likely allow.

Bound up with this tension is the dilemma of whether the coherence of the law should be linked with still higher harmonies, be they metaphysical, sociological, or religious. In the Judaic tradition, for example, law is an inextricable part of the orderly functioning not just of society but of the universe itself.20 It would be impossible in this context to do philosophy of law without doing theology and metaphysics as well. In some strands of the Christian tradition, on the other hand, law is seen as the domain of man, separate from and less than the domain of God.21 The parameters of what philosophy of law is, and the questions it should answer, will vary with the order of coherence which the project is meant to bring about. In more contemporary idioms, the question is still alive: should law necessarily fit with one or another vision of proper economic order? should one be able to devise one theory to account for both law and literature, law and sociology, law and human behavior? These questions, in the view advocated by this paper, are questions about how much philosophy (of law) should explain, not what philosophy of law's function actually is. The aim is still coherence; the differences in law-ands are differences in degrees of enlarging the zone to be explained.

Finally, law may also have to answer to varying sets of criteria depending upon the level of coherence that is required. Owen Fiss would probably say that criteria appropriate in the day-to-day world are inappropriate in the special domain of the law.22 A Marxist legal theorist, on the other hand, would argue that the functioning of the law is inseparable from the economic realities and control of means of production in the "outside" world, and thus must be directly responsive to them.23 Bob Dylan makes the case that law must answer to basic questions of human dignity,24 and in his early association with political protest, seemed to make a active linkage between his ideas and the political realities of his time. Indeed, Dylan has indicated that philosophy of law is repugnant absent a linkage with core human values.25 And obviously the norms in question will vary depending on the relevant "sphere of coherence" in the debate -- if fundamentalist religious concerns are to be taken into the equation, for example, many laws which are incoherent on a purely "secular humanistic" level would be part of a coherent system. Not only is finding coherence for legitimation purposes, I suggest, what philosophy of law is largely about, and not only do changes in the level of coherence lead to changes in the tolerability of local disturbances, but the appropriate level of coherence may determine the very questions philosophy of law asks to begin with.

27 an for Levinas it is something to be ruptured by a genuine encounter with the Other.28

It is too late in an overlong paper to treat these challenges seriously, but any response to postmodernity would have to recognize the contingency of law, as well as its potential for oppression.29 One might, strangely enough, be able to bring back law and economics as a postmodern solution to the problem. Granted, the law and economics crowd could say, we have no idea what grounds our system or even what "grounds" means, so we will be utilitarian in our mechanics and let each person decide internally what is desirable, leaving to the law the practical problem of how to most efficiently allocate goods and bads as they have been 'voted' upon. The trouble with postmodernity is that it, by definition, cannot be programmatic; it seeks to undermine the idea of the program, not construct a new one. It deconstructs, not constructs. But neither its vacuum nor the naive positivism of law and economics have to be our endpoint, simply because we realize that accounts of law strive for coherence and coherence is somehow suspect. Accounts of law can be bottom-up as well as top-down, deriving their substance not from a summum bonum but from the narratives of those involved and contingent yet agreeable notions of fairness, or balance, or what-have-you. The grounds for these notions would be pragmatist ones; they are not justified, but are no less justified than anything else; hence such a philosophy could be called "ironic."30 Law can be accounted for not inasmuch as it coheres into a transcendent theory, but inasmuch as it coheres in the functioning of an orderly and just society.

As many questions as this conclusion begs, it is as programmatic as I can be without being substantive on any particular issues of law or theories of justice. A nonfoundationalist philosophy of law need not abandon the explanatory functions which I have suggested are legal philosophy's core project. But it would have to redefine what "explain" means while not losing sight of the non-ironic dignity and tragedy it must confront every day.

Endnotes

1. Ezra Pound, Canto XCIII inSelected Poems of Ezra Pound (1956).

2. Bob Dylan, Subterranean Homesick Blues, from Bringing it All Back Home (1965).

3. Though not one of my subjects in this paper, I would suggest that such a gap would not be present in societies which do not include notions of freedom and autonomy within their self- identity; hence the tension between ideas of so-called "human rights" and some non-Western societies in which the dominance of the state over individuals is an accepted part of their ideological traditions.

4. See Jean Hampton, The Moral Education Theory of Punishment(in reading packet) at 494-99 (giving brief survey of idea of "justification" as entry into her own justificatory project).

5. Of course, for many, particular critical race and feminism theorists, there is no ground of fairness whatsoever in our system of justice, which is based, to them, not on a set of ideas about fairness but rather on a set of customs and strategies developed by dominant groups to maintain their dominance over others. While I share some of these concerns, and do not share some others, the question of whether their is a reallinkage between the judicial system as we know it and a coherent idea of fairness or equality or even efficiency is less important to me here than that there is an allegedone.

6. Bedouin trials, for example, generally consist of an arbitrator agreed upon by the parties in the conflict, and an audience which plays a central role in the deciding of the case by shouting out competing maxims of justice, in the form of rhymed couplets which are part of Bedouin folk culture. For example, in Coase's case of overgrazing animals, one member of the audience, partisan to the damaged crop owner, might shout "A cow's damage is as if done by his owner" (which would rhyme in the original Arabic), and then another member of the audience would answer "A farmer must fence his own land," until one side has provided an unanswerable argument, or the judge cuts off debate. Here the theories of law may only be implicit in the memorized maxims shouted by the audience members, but they are essential to the legitimate disposition of the case nonetheless, and our own more sophisticated system is more advanced only in level of sophistication; the mechanism of theories and legitimations, I would argue, is quite similar.

7. Indeed, it is frequently the case that popular theories of justice, crime, and punishment run directly counter to more considerate academic treatments of the issues, of which capital punishment is probably the best example. The vast majority of Americans support capital punishment, apparently on "just desserts" grounds ("they get what s coming to them") as well as selective use of authoritative sources ("an eye for an eye," but not Jesus's rejection of it), while many, if not most, academics are opposed to capital punishment on a wide variety of more complex grounds.

8. I am unpersuaded by Joel Feinberg's proposition that the disposition of justice -- punishment, in particular -- is in some way its own "explanation," inasmuch as itprovides the expression of our moral values. Joel Feinberg, The Expressive Function of Punishment. Though I would be hard pressed to say that Kant is part of America's "self-identifying" set of moral norms, certainly some variant of the notion of human autonomy is transgressed when people are used as instruments of the collective's expression. In any case, Feinberg still finds cause to write his article, suggesting that the "expression" punishment gives is not unambiguous enough to provide total coherence. And Feinberg does intimate that the expressions we make in punishing someone cannot be those of mere preferences, but must in some ways be justified by a conception of justice. Id,at 423.

9. For a recent twist on the function of judicial opinions as justification, see Paul Gewirtz, On 'I Know it When I See It,' 105 Yale L.J. 1023, 1038-43 (1996) (discussing opinions' use of rhetoric and non-rational arguments as not undermining traditional function justification).

10. I will not defend the claim that rational argument is itselfa form of power play, just that it is usedto legitimize and exercise power. The more extreme claim is quite an interesting one, and not entirely outside the bounds of this paper, but I cannot do it justice in the time, space, and cognitive ability available.

11. I would say that this additional turtle is sufficient, because we can make a judgment on pragmatist grounds whether the system as a whole is useful or not. It does not need to depend on or be generated by a further foundation in order to be defensible. SeeRichard Rorty, Contingency, Irony and Solidarity 46 (1989) (quoting Joseph Schumpeter: "To realise the relative validity of one's convictions and yet stand for them unflinchingly, is

12. Cf. Wallace Stevens, Not Ideas about the Thing But the Thing Itself in Collected Poems (1954). In his quintessentially American preference for real, present things, Stevens is-- in my opinion -- in both good company (Thoreau, Emerson) and bad (Pat Buchanan, the cattlemen s board). See also discussion infraof Bob Dylan, Dear Landlordin John Wesley Harding (1967) ( Anyone can fill his life up with things/he can feel but he just cannot touch. ).

13. The ideas were in a paper entitled Critiquing Capitalism's Critics. My basic theory there was that anti-Semitism as a pattern of thought is intimately connected with the dislike of the archetypal non- material parasite: usurious moneylenders, who make money from money and not off the fat of the land, as parasites and inherently untrustworthy, much as lawyers are today viewed by most Americans. In the paper, I also traced the pattern through Marx -- both in his On the Jewish Question essay and theories of value in Capital-- and tried to take apart the idea of 'real' wealth ('real estate') and value generally.

14. This is not to say that some accounts of areas of the law admit that there is any local dissonance. Herbert Morris, for example, argues that notto punish would imply "the denial of all moral rights and duties." Herbert Morris, Persons and Punishment(in packet) at 476. But refocusing Morris's lens slightly makes the problem reappear. The local dissonance is still locking someone up against her will; the coherence is given by the explanation that she has the entitlement to the punishment. Though there is no move from the individual to the collective here, there is still a move from one conceptual 'plane' to another which contextualizes the brute, potentially offensive act.

15. Not all who are sympathetic to law and economics propose that it be seen as giving adequate coherence to the law, of course. SeeAlvin K. Klevorick, On the Economic Theory of Crime(in packet) at 304 ("[T]o give a coherent explanation of the criminal category, as I have couched it in economic terms, one needs at least a political theory of rights. undertaking a microeconomic analysis of crime requires as a precondition a certain minimum of political and legal structure.")

16. Richard A. Posner, Economic Analysis of Law 195 (4th ed. 1992)

17. Bob Dylan, Dear Landlord inJohn Wesley Harding (1968).

18. It is unclear which way the "Polinsky theorem," that distributional concerns should not be brought into localized, bipolar transactions, cuts in this context. On the one hand, Polinsky would probably say that if costs are properly factored in, the contradiction I am alleging does not exist. But on the other, I would invert Polinsky to say that if "large" distributive questions do not belong in simple, bipolar tort or criminal contexts, then certainly "large" efficiency questions do not either. The theorem, as I understand it, seems just to reduce to the preference for one system of larger coherence over another, not any serious postponement of the idea of coherence itself.

19. House Enfant TerribleNewt Gingrich has recently made a similar case in advocating the ending of federal interference in local issues like urban renewal, saying that there will be pockets of extreme despair but that these are a natural and appropriate part of the greater picture.

20. I am thinking here both of the general concept of ethical monotheism, which links social norms with Divine will, and of particular doctrines within Judaism such as the recurring theme that the universe has a moral dimension, not dissimilar from its spatial and temporal ones, and the idea that the ethical and ritual codes of the Torah are the blueprint of creation.

21. "Render unto Caesar what is Caesar's," for example, is a particular instance of a general trend within early Christianity towards abandonment of tying any particular ritual or legal system to one s religious beliefs or religio-national identity. While the idea lessened in importance during the temporal reign of the Catholic Church, it resurfaced with Protestantism, which again sought to separate the temporal (including the legal) from the spiritual, with all the subsequent body/soul and acts/faith conundrums it brought about.

22. SeeOwen Fiss, Reason in All its Splendor,56 Brook. L. Rev. 789, 801 (1990) (separating 'legal reality' from the 'real world' and claiming that law should be a zone of "pure rationality" to achieve its performative ends).

23. See, e.g., Jeffrie G. Murphy, Marxism and Retribution(in packet) at 231-41 (arguing, inter alia, that "everything we are ordinarily inclined to say about punishment . . . can be quite beside the point").

24. See, e.g., Bob Dylan, The Lonesome Death of Hattie Carroll in The Times They Are a' Changin' (1962) (describing travesty of justice involving sentencing of two well-to-do murderers); Bob Dylan, Dear Landlord, supra; Bob Dylan, Ballad of a Thin Man in Highway 61 Revisited (1966) (implying that having discussed "with great lawyers . . . lepers and crooks" in the abstract is irrelevant to real-world understanding); Bob Dylan, Hurricanein Desire (1975) (telling story of miscarriage of justice and pervasive racism in criminal justice system); Bob Dylan, Dignityin Greatest Hits Vol. 3 (1995) ("Asking the cops wherever I go/have you seen dignity?"). Interestingly, Dylan's interest in the law, almost pervasive in his early work, disappeared with the "Christian Phase" of his music, suggesting that in his embrace of Christianity, Dylan saw less connection between legalbehavior and ultimate goodness as compared with that between faithand ultimate goodness. See, e.g.,Gotta Serve Somebodyin Slow Train Coming (1981) (suggesting that power distinctions and ethical behavior are irrelevant because all must serve either "the Devil or . . . the Lord"). The nexus between law and ultimacy returned with Dylan s return to Judaism. See, e.g.,Everything is Broken in Oh Mercy (1989) (providing litany of signs of decayed, broken world, including law ( broken treaties, broken vows )); Ring them Bellsin Oh Mercy (1990) (looking forward to time when "the chosen few . . . will judge the many, when the day is through" and expressing concern that others "are breaking down the difference between right and wrong.")

25. See, e.g., The Lonesome Death of Hattie Carroll, supra("You who philosophize disgrace/and criticize all fears/take the rag away from your face/ now ain't the time for your tears.")

26. Some of the more influential contributions to the legal philosophy/legal theory literature have been those that show unexpected connections between what might've been thought to be separate "spheres" of the law, e.g., Guido Calabresi and Melamed's Cathedral, and the move to higher coherence remains something of a goal. See, e.g., Jules Coleman, Introduction: The Interdependence of Corrective and Distributive Justice.

27. SeeJacques Derrida, The End of the Book and the Beginning of Writing, in Grammatology 6-10, 12 (Gayatri Spivak trans. 1970 ed.). But seeRichard Rorty, Two Meanings of 'Logocentrism' in Essays on Heidegger and Others (1990) (disputing that the "logocentric problem" exists in the discourse of philosophy as whole).

28. SeeEmmanuel Levinas, Philosophy and the Idea of the Infinite 47-59 (Alfonso Lingis trans. 1987) (arguing that totality turns autonomous others into mere clicks in the subject s ego-loop and that a radical destabilization is needed to re-prioritize ethics over ontology).

29. SeeRichard Rorty, Contingency Irony and Solidarity, supra, at 50-72 (attempting to construct a coherent, acceptable system of law that recognizes its and each individual's contingency).

30. Id.at 73-95.

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