NYT's new philosophy blog uses lawyers as foil

We are, it appears, the very definition of what a philosopher is not.

Comments

[Monroe Freedman]

Looks like pettifogging to me.

A pettifogger, according to my dictionary, is an "inferior" legal practitioner, especially one who "deals with petty cases or employs dubious practices."

The writer characterizes all lawyers as pettifoggers, and then contrasts them with the greatest of philosophers. And then he submits that he has proved his point that all lawyers are inferior to all philosophers.

[Patrick S. O'Donnell]

Cf. this: http://leiterreports.typepad.com/blog/2010/05/what-is-the-ny-times-thinking.html

A couple of the comments critical of the article are spot-on.

Socrates' "otherworldliness"? Hardly.

Socrates had ample "time" to defend himself: he well-knew existing prejudices and rumors about his philosophizing in the agora (entrenched, for instance, by Aristophanes' portrait) would prevent the jury from acquitting him. Socrates admired much about Athenian democracy, even if he was keen on alerting its citizens as to its shortcomings. See Richard Kraut's indispensable study, Socrates and the State (1984).

Incidentally, Socrates was not "forced" to take his own life as the dialogue with the Laws in the Crito make clear.

If I find the time(!) later, I'll make some more comments on this piece (the truths it does contain are exaggerated or distorted and what is left out of the picture is quite troubling).

[Patrick S. O'Donnell]

I might of mentioned that there were no "lawyers" in Athens of the classical period, as Michael Gagarin writes, "the absence of legal professionals in Athenian law is well known." The closest thing to a lawyer was a logographer who would write a speech for a fee for a citizen-litigant, but I think that may have been the exception to the rule (i.e., litigants writing and reading their own speeches and documents). There were also exēgētai ('interpreters') who gave advice on religious matters when they happened to touch upon legal issues.

[Alice Woolley]

Patrick,

I would very much like to hear your additional comments. I am in no position to comment on the article as accurate reporting, but it nonetheless concerns me. The author's fundamental point seems to be that philosophers are located outside, if not the space/time continuum, then outside of the practical constraints of time or context. He refers to philosophers' "laughable otherworldliness and lack of respect for social convention, rank and privilege". He contrasts them to lawyers on the basis that lawyers are constrained by concern for time, whereas philosophers exist outside time.

Again, without entering into the philosophical debate per se, I am interested in the question of the extent to which philosophy can properly operate outside empirical facts insofar as it concerns itself with ethical questions. In a recent paper I wrote with Brad Wendel, to which David Luban has written a response (both forthcoming in GJLE), we consider the validity of the "act maxims" of legal ethics (do that which is most likely to produce justice, e.g.) in terms of what they assume about the person who does the action, and then consider whether the person so assumed is realistic, attractive, etc. One of David's challenges to us was as to the relationship between philosophical moral requirements and empirical notions of possibility. I.e., if something is not impossible, but is simply quite difficult, that does not have relevance to whether it is morally required.

I don't agree with David (although I obviously can't entirely disagree either). My counter-example was homosexuality, and suggesting that while he and I would not agree that homosexuality was immoral, if someone took that position, I would argue that they had a normative problem created by the significant evidence that homosexuality is not a choice, but is a biological fact, such that while a person could "choose" not to have a same-sex partner, that choice would be in some sense perverse. I.e., whatever the merits of their philosophical argument, the empirical facts make that argument problematic simply by their existence.

I would generalize from this point to say that I am not convinced that philosophy, insofar as it is concerned with questions as to the right way to live, can properly be disinterested in time or context insofar as it wants to provide compelling or plausible answers to those questions.

The counter-part question would be, can lawyers properly operate constrained wholly by the imperatives of time or context? As Monroe suggests, the pettifogger is the one who deals with petty cases and engages in dubious practices. I would argue that the lawyer who wants to practice ethically does, in one way or another, need to ask and answer questions about the right way to practice, whether with respect to client selection or any other issue. Lawyers do not need to be philosophers, and I know that to the extent I have employed philosophical concepts in my own scholarship i am acutely aware that I have made the paper of dubious use to a practitioner or judge grappling with the problem about which I am speaking (my best example of that being a paper I wrote a number of years ago on why Kant's concept of marriage required the legalization of same-sex marriage. I wasn't exactly stunned when the SCC didn't refer to my conceptual underpinnings in its constitutional analysis). At the same time, I think a level of abstraction, adherence to conceptual norms like "legality" or "rule of law" is essential for ethical practice.

Alice

[Patrick S. O'Donnell]

Alice,

I hope to oblige, either late tonight or sometime tomorrow.

Patrick

[Monroe Freedman]

I confess to a growing impatience with much of the philosophical or theoretical proposals for changing traditional ideals of lawyers' ethics. I refer, for example, to proposals that each lawyer do, in general or in particular situations, whatever "justice" or "morality" requires, without (1) taking into account that individual lawyer's notions of justice or morality vary as much as those of Rush Limbaugh and Keith Olbermann - or our clients themselves - and(2)how the Constitution would have to be amended to accommodate the proposed changes in lawyers' ethics.

I deal with this in part in "How Lawyers Act in the Interests of Justice," 70 Ford. L. Rev. 1717 (2002).

[Monroe Freedman]

I should add that I have nothing against philosophy, in its place. In fact, when I was in college, I took a course in The British Empiricists. (I thought it was on The British Empirialists.)

[Joe]

Lawyers, and more specifically judges, are really more interpreters than philosophers. They interpret existing laws to suit their purposes.

[Michael Webster]

I am both an philosopher, PhD in Choice Theory, and an attorney. With about equal time in both, 15 years.

The NY Times articles is a light hearted look at both the necessity and wastefulness of philosophical contemplation - no rush to judgment.

At the other end of the spectrum, we have another type of necessity and wastefulness - rush to judicial pronouncement.

Philosophical contemplation finds problems where the ordinary person would simply pass over. Look at any introductory text to philosophy which uses paradoxes to introduce the problem. Frege's puzzle of identity, for example, is one of these. (If a really does equal b, then how a = b be any more informative than the tautology a = a?) We spent more than 100 years on this problem with no great resolution in sight. And we may decide in the end that this was simply a wrong question.

On the other end, clients who need decisions made for them employ advocates who have to persuade not by reference to logical arguments, but rather by type. Contract arguments have certain types, tort another. As advocates, we simply have no time to entertain a deeply skeptical position - we rush to judgment, and hope our rhetoric equal to the task.

All in all, the article was skillfully done and has layers of amusing self reference and irony.

[John Steele]

Michael,

Thanks for commenting. I took the article as being gently self-deprecating as to philosophers, but also felt that the argument's point of distinction was an old, cliched, hackneyed description of lawyers. This paragraph in particular:

"Socrates says that those in the constant press of business, like lawyers, policy-makers, mortgage brokers and hedge fund managers, become ”bent and stunted” and they are compelled “to do crooked things.” The pettifogger is undoubtedly successful, wealthy and extraordinarily honey-tongued, but, Socrates adds, “small in his soul and shrewd and a shyster.” The philosopher, by contrast, is free by virtue of his or her otherworldliness, by their capacity to fall into wells and appear silly."

I know so many lawyers who, through the constant press of business, learn deeply about people and society, and they flourish as well.

[Patrick S. O'Donnell]

It took me longer than I anticipated to get around to this, but the passage of time finds a plethora of comments on the article, some of which are illuminating.* I need to qualify what follows by noting that while I teach in a Philosophy Department, I am not a professional philosopher (my formal training is in the field of Religious Studies: although this has involved taking some philosophy courses, it lacks the pedagogical and intellectual virtues intrinsic to an apprenticeship in professional philosophy). I do have a long-standing, ardent avocational interest in many-things-philosophical and thus might be described as an amateur in the truest sense of that word.

I rather wish Critchley had introduced his readers to several of the historical definitions, or more broadly, conceptions of philosophy (East and West), than relying solely on Plato’s portrait of Socrates, in one dialogue no less, to paint a picture of a philosopher that, at first glance, seems little more than an ironic play upon the “absent-minded professor” trope. But Critchley wants us to see beyond the surface of the painting: perhaps we might relate this to the Theaetetus itself, which we rightly characterize as a Platonic dialogue devoted to largely epistemological questions, and in particular a critique of perception and an empiricist theory of knowledge more generally. Be that as it may, the portrait is filled out by way of distinguishing the philosopher as one possessing the freedom or leisure to move “from topic to topic” or return “to the same topic out of perplexity, fascination and curiosity.” Iris Murdoch writes in a similar vein that philosophy “has in a sense to keep trying to return to the beginning, a thing which is not at all easy to do. There is a two-way movement in philosophy, a movement towards the building of elaborate theories, and a move back again towards the consideration of simple and obvious facts [from Wittgenstein’s Tractatus to the Philosophical Investigations?!], McTaggart says that time is unreal, Moore replies that he has just had his breakfast.” This is of course one aspect of what philosophy is all about, be it for Socrates in the agora or contemporary professional philosophers, and is thus one of the reasons the practice of philosophy is unavoidably described as an elitist practice: the vast majority of people then and now lack the talent, motivation and time to pursue “philosophy.” This alone makes philosophy suspect among those with democratic epistemic sensibilities, and is one reason it matters very little precisely what group or profession Plato chose by way of a contrast case with the philosopher, for the hoi polloi by definition are not suited for philosophy, although in our own time, the division of labor and quality of life available among several classes in affluent societies permits, at least in principle, quite a few individuals possessed of the requisite intellectual temperament or talent or ambition to pursue philosophical questions or engage in Socratic-like self-examination, even if only in an avocational sense (and philosophers might deign to call them ‘intellectuals,’ reserving the term ‘philosopher’ for members of the academy).

One assumption here, and it’s not one necessarily shared, to put it mildly, by contemporary guild members, is that philosophy has something to do with more than knowledge as conventionally and otherwise understood: philosophy, at least for the ancient Greeks, is literally the “love of wisdom.” To be sure, knowledge is part and parcel of the pursuit of wisdom, but it also entails such things as contemplation, meditation, self-examination and self-discovery, self-knowledge, virtue(s), a concern with “the soul,” an ascent toward “the Good”…and a descent back into the Cave of “particulars” (as Iris Murdoch reminds us, the idea of the Good or goodness entails more than an accounting of various ‘goods’ and virtues, something greater than moral obligation or duty, something more elusive than calculations of utility or fidelity to moral principles, and something other than a concern for intrinsic values; furthermore, an orientation toward the Good in no way precludes an appreciation of man’s ‘fallen nature,’ the distance between good and evil, or the potential extremity of evil), “spiritual exercises” (such as those practiced in the Hellenistic schools, but especially among the Stoics) and, above all, the cultivation of a peculiar “way of life” that is conspicuous for its decisive rejection of the conventional criteria of “success” or “making it,” including a deliberate refusal to succumb to the siren songs of fame, wealth, or status. In this sense, then, the pursuit of philosophy is “otherworldly” inasmuch as this could be said to involve a movement from the visible to the invisible: “That is why we should make all speed to take flight from this world to the other, and that means becoming like the divine [cf. ‘Be ye therefore perfect…’] so far as we can, and that again is to become righteous with the help of wisdom. But it is no such easy matter to convince men that the reasons for avoiding wickedness and seeking after goodness are not those which the world gives” (Theaetetus 176b).

Critchley does his readers a disservice, however, inasmuch as he avoids any discussion of the deeper myths (in a non-pejorative sense), metaphors and metaphysics that were central to Plato’s understanding of philosophy, either Plato’s conception or that embodied in his beloved Socrates. The picture he does paint obscures not only much of what philosophy meant for the ancient Greeks but distorts the history of the practice of philosophy and the motley makeup of actual philosophers in our own day. For instance, he writes in an idealized (in a pejorative sense) or romantic key that “philosophy has repeatedly and insistently been identified with blasphemy against the gods, whichever the gods they might be. Nothing is more common in the history of philosophy than the accusation of impiety. Because of their laughable otherworldliness and lack of respect for social convention, rank and privilege, philosophers refuse to honor the old gods and this makes them politically suspicious, even dangerous.” This is just the sort of grandiose and inaccurate generalization that makes most philosophers (thus not just historians of philosophy) cringe. What is said here is true enough, on occasion, and in the case of some philosophers, but I find it hard to imagine the “otherworldliness” of, say, John Dewey, or Jean-Paul Sartre and Simone de Beauvoir, and the latter were hardly above concern with rank and privilege even as they took delight in violating at least some social conventions. At the same time, Dewey, Sartre and Beauvoir were, in their different ways, politically provocative if not suspicious and even, at times, dangerous. But whatever political danger they evoked, it was rather different in important respects from the very real political danger incarnated in Heidegger’s affiliation with and support for Nazism (whatever its possible connection to his philosophical corpus). What is more, Socrates’ deference to the Oracle at Delphi and his belief in the divine nature of his philosophical practice (it’s been said that he had a religious dedication to a philosophical way of life) suggests that at least some gods are worthy of devotion and obedience. And if “the gods” include “the God” of Aquinas or Maimonides or Ibn Sina (cf. ‘whichever gods they might be’), then more than a handful of philosophers could be said to have been scrupulous in their avoidance of blasphemy.

I think it fairly obvious that contemporary professional philosophy is anything but “otherworldly,” at least if by that is meant something other than a taste for abstract thinking, a fondness for (formal and informal) logic, an appreciation of ideas and ideals, and a concern for other-than-economic values. The flourishing of “practical ethics” could be said to exemplify a “this-worldly” orientation with a vengeance, and we have the burgeoning sub-field of social epistemology, work in the philosophy of mind related (for better and worse) to neuroscience, artificial intelligence and psychology, the resurrection of political philosophies since Rawls and Nozick with explicit and subtle connections to regnant political and economic ideologies, and so forth and so on.

Finally, the piece appears to assume that philosophy is first and foremost a Western endeavor and thus parochialism and provincialism (which should be constitutionally anathema to philosophy) prompts no mention of Eastern philosophies or philosophers.

* Leiter links to them here: http://leiterreports.typepad.com/blog/2010/05/more-critchley-reactions.html

[Alice Woolley]

Thanks Patrick - I'm glad you did find the time, as that's both helpful and thought provoking (much more so than the original article - which in contrast seems clever rather than intelligent)

[Patrick S. O'Donnell]

Alice,

For a nice illustration of how to combine sensitivy to context or an acute perception of the salient features of situtations with generalizable ethical principles, please see Martha Nussbaum's Love's Knowledge: Essays on Philosophy and Literature (1990). It's also helpful to read whatever Iris Murdoch (who was of course both an accomplished novelist and philosopher) has written about the arts in general and literature in particular in comparison with philosophy. See, for example, the essays collected in Peter Conradi, ed., Existentialists and Mystics: Writings on Philosophy and Literature (1997).

And I forgot to mention Seneca, Cicero and Marcus Aurelius: two statesmen and an emperor, three philosophers who artfully combined an "otherworldliness" with a "this-worldiness" and thus exemplified a kind of philosophical practice well outside the frame of Critchley's clever caricature.

[Patrick S. O'Donnell]

erratum: "this-worldliness"

[Alice Woolley]

Patrick, I have read a little Nussbaum, although not as much as I'd like. But I almost invoked her as an example of why philosophy might fail if it can't be have "this worldliness" because she has written about a topic that older philosophers tended to ignore or treat in a troublesome way - i.e., the humanity of people with mental disabilities.

[Patrick S. O'Donnell]

Alice,

Ah yes, and her essay eventually became a section in Frontiers of Justice: Disability, Nationality, and Species Membership (2006). And I like her (and A.K. Sen's) "capability" approach to questions of distributive justice even if it's not always easy to discern the specific public policy implications.

I admit to preferring that sort of philosophy Nussbaum identified in her book, The Therapy of Desire: Theory and Practice in Hellenistic Ethics (1994):

"The Hellenistic philosophical schools in Greece and Rome--Epicureans, Skeptics, and Stoics--all conceived of philosophy as a way of addressing the most painful problems of human life. They saw the philosopher as a compassionate physician whose arts could heal many pervasive types of human suffering. They practiced philosophy not as a detached intellectual technique dedicated to the display of cleverness but as an immersed and worldly art of grappling with human misery. They focused their attention, in consequence, on issues of daily and urgent human significance--the fear of death, love and sexuality, anger and aggression--issues that are sometimes avoided as embarrassingly messy and personal by the more detached varieties of philosophy. [....] There is in this period broad and deep agreement that the central motivation for philosophizing is the urgency of human suffering, and that the goal of philosophy is human flourishing, or eudaimonia." [...]

"'There is no time for playing around,' says Seneca, attacking philosophers who devote their careers to logical puzzles. '...You have promised to bring help to the shipwrecked, the imprisoned, the sick, the needy, to those whose heads are under the poised axe. Where are you deflecting your attention? What are you doing?'"

A book from which one can still get a fairly decent sense of the state of contemporary professional philosophy in North America is Avner Cohen and Marcelo Dascal, eds., The Institution of Philosophy: A Discipline in Crisis? (1989). In her contribution to the volume, Amelie Oksenberg Rorty tellingly writes:

"We guild-philosophers are good at discussing whether answers to the question 'How should one/we/I live?' are objective, or whether they can be rationally justified. But we are not, as philosophers, very good at actually examining the details of competing substantive answers to that question, tending as we do to protect ourselves by moving straightaway to methodological issues. So quickly do we make that move that we rarely even ask about the most basic and fundamental failures that shape our lives."

There are, of late, some exceptions to this observation but I think it remains largely on target.

[Jonathan Speke Laudly]

Philosophy of the Law, is a valid and important subcategory of Philosophy.
Lawyers, however, make arguments to win a case not to convey their vision of truth in the world.
A lawyer may touch upon Ontology, Epistemology, Ethics and even Metaphysics in scholarly legal writing but the only business of a lawyer is to make arguments
to convince a judge or jury to decide for or against a defendant in relation to a law; the reasoning and imagination is confined by the procedural and traditional legal framework.
It is necessarily specialized reasoning within the narrow bounds of settled law, case law, precedent, legislation, statute.
Lawyers are more like Sophists: rhetoricians whose skill in advocacy is for hire.
The Philosopher is free to address any issue, any question at all of universal scope and the traditional academic standard for Philosophical writing is much more flexible than that of any judge.
But, given the legal system, who else will fight for our rights and against injustice? Lawyers are necessary. No, good honest lawyers are necessary.
Corrupt cops who lie and prosecutors who hide the truth to gain convictions and better their reputation for personal gain---are not uncommon. Good lawyers are needed to fight such injustice as well as counter the depredations of corporations and government.
If you are an honest and good lawyer be proud. If you are corrupt then if there is a hell, you have a one way ticket.

[John Steele]

Jonathan, thanks.