Truth After Transcendental Thought
With Evidence from Legal Theory
Philosopher and legal theorist Brian Leiter articulates a common opinion in his essay “Rethinking Legal Realism: Towards a Naturalized Jurisprudence” when he says that any attempt to eschew transcendental thinking consequences relativism. This consequence, however, is not necessary. His opinion stems from a misguided acknowledgment that there is a philosophically meaningful distinction between realism (the belief that our descriptions of the world hook up to the way things truly are) and anti-realism (the belief that our descriptions do so correspond).
Husserl took the first step in exposing the vacuity of this distinction when he articulated the “phenomenological reduction.” By setting aside ontological considerations, Huserel showed it possible to propound philosophical descriptions decoupled from ontology. The second step was taken by Rorty, who reminded us that inquiry always originates for some practical end. Put differently, Rorty thought we first ask, “what’s going on?” and only subsequently, “is this really right?” From this perspective the questions of ontology were not only decoupled from describing lived experience, but given a position secondary to that task .
There is support for Rorty’s philosophical view in contemporary legal theory. The Legal Realists say something like, “judges first decide on the fair result of case before them, then look for legal rules that support their position.” The judge makes a normative decision (what the result ought to be) before making a positive one (what the common law will henceforth be). Just as the judges doesn’t decide the case by looking at the law, the philosopher doesn’t find the truth by looking at the data. The philosopher doesn’t any sooner ask “is this Right?” than the judge asks “is this The Law?” Philosophers, like judges, make commitments based on intuition. The legal realist would therefore agree with Rorty when he says ontological truth is secondary to description.
The final step in showing Leiter’s confusion is a demonstration that an intuition driven decision making process dissolves the possibility for transcendental Truth. Following Popper, and because internal intuitions are are only verifiable empirically, objective descriptions of intuition are subject to the continual threat of falsification. As a result, Transcendental Truth defined as timeless universality can never be apodictically verified at a specified time. We cannot be realists about our knowledge, therefore, without holding the nearly indefensible notion that the true nature of reality changes with our descriptive paradigms. It would also be equally illogical to say, because we can’t conclude with certainty that our descriptions hook up to “things-in-themselves,” that they therefore don’t. The realism/anti-realism distinction is therefore unresolvable, and not philosophically meaningful.
Truth, in a world where the nature of our descriptions is unknowable, is not however relative to one’s contingent beliefs. Truth in such a world is “sufficient dialogical agreement.” The first requirement of such sufficiency is authenticity in discourse. Authenticity, obscured by 20th century existentialists but clarified by Habermas and Rorty, is achieved in the the non-strategic exchange of language. In contrast with strategic language, where the individual employs arguments they themselves do not find convincing, non-strategic language asserts “ arguments you yourself find entirely persuasive.” Truth is then achieved when the second requirement, that one individual makes the non-strategic speech of another part of her own vocabulary, is met.