Sciences Po Law School (SPLS) and Sciences Po PhD Program are
Seminar
Prof. Scott Brewer
Legal Theory Skepticism and Philosophical Skepticism: Comparison, Contrast, and Assessment
Paris
Wednesday, December 8th 2010 (05:00-07:00 PM)
Wednesday, December 8th 2010 (05:00-07:00 PM)
Scott Brewer is Professor of Law at Harvard Law School and visiting Professor at SPLS. His specialty is philosophical analysis of legal argument, especially the logical and epistemological dimensions of legal argument.
In the course of this seminar, Prof. Brewer will discuss the links between legal theory skepticism and philosophical skepticism.
Foreword"In Anglo-American legal philosophy the term 'skepticism' has often been linked to law and legal theory, most prominently to so-called "Legal Realism", which flourished in early twentieth-century America and which continues strongly to influence American legal education and legal theory to this day. Two types of "skeptical" arguments emerged as central Legal-Realist theses. One argument came to be called "fact skepticism". Roughly, this is an argument that advances doubt about whether and to what extent judges are constrained in the process of identifying ("finding") the facts that are material to the resolution of disputes in substantive law.
The second argument came to be called "rule skepticism". Roughly, this is an argument that advances doubt about whether and to what extent judges are constrained by legal rules when they decide disputed cases. I shall refer to these two types of “skeptical” argument as “legal-theory skepticism.”
In this paper I explain the basic arguments of legal-theory skepticism, and then compare and contrast them to two traditions of skepticism in the history of philosophy, whose arguments can be and sometimes have been applied to various forms of legal reasoning, but which are far more general in the types of reasoning to which they apply their skeptical questioning. These types of skeptical argument have come to be called “Cartesian skepticism” and “Pyrrhonian skepticism". I shall refer to these two types of “skeptical” argument as “philosophical skepticism.” Cartesian and Pyrrhonian skepticism differ in fundamental ways, as I shall explain, but they both insist that there may be a systematic gap between how things appear (to any human being, including judge, jury, lawyer, of course) and how they really are.
In these terms, the central goal of the paper is to assess to what extent legal-theory skepticism (either rule skepticism or fact skepticism) shares either the methodology or the conclusions of philosophical skepticism (either Cartesian or Pyrrhonian).
My two central conclusions are: (i) there is some significant overlap in the methods of skeptical argument used by legal-theory skeptics and philosophical skeptics, and (ii) the conclusions of legal-theory skepticism (either type) are vastly different from philosophical skepticism, and seem indeed to be far less threatening to the project of showing that it is possible to have knowledge or justified belief in the domains of legal rule application and legal fact-finding. I conclude with a brief assessment of the relative strengths of all four types of “skeptical” argument, fact-skeptical, ruleskeptical, Cartesian, and Pyrrhonian."
The second argument came to be called "rule skepticism". Roughly, this is an argument that advances doubt about whether and to what extent judges are constrained by legal rules when they decide disputed cases. I shall refer to these two types of “skeptical” argument as “legal-theory skepticism.”
In this paper I explain the basic arguments of legal-theory skepticism, and then compare and contrast them to two traditions of skepticism in the history of philosophy, whose arguments can be and sometimes have been applied to various forms of legal reasoning, but which are far more general in the types of reasoning to which they apply their skeptical questioning. These types of skeptical argument have come to be called “Cartesian skepticism” and “Pyrrhonian skepticism". I shall refer to these two types of “skeptical” argument as “philosophical skepticism.” Cartesian and Pyrrhonian skepticism differ in fundamental ways, as I shall explain, but they both insist that there may be a systematic gap between how things appear (to any human being, including judge, jury, lawyer, of course) and how they really are.
In these terms, the central goal of the paper is to assess to what extent legal-theory skepticism (either rule skepticism or fact skepticism) shares either the methodology or the conclusions of philosophical skepticism (either Cartesian or Pyrrhonian).
My two central conclusions are: (i) there is some significant overlap in the methods of skeptical argument used by legal-theory skeptics and philosophical skeptics, and (ii) the conclusions of legal-theory skepticism (either type) are vastly different from philosophical skepticism, and seem indeed to be far less threatening to the project of showing that it is possible to have knowledge or justified belief in the domains of legal rule application and legal fact-finding. I conclude with a brief assessment of the relative strengths of all four types of “skeptical” argument, fact-skeptical, ruleskeptical, Cartesian, and Pyrrhonian."
Prof. Scott Brewer
Lieu et conditions
Sciences Po Paris, 13 rue de l'Université, 75007 Paris, Room J210, 2nd floor
(Metro: Saint-Germain-des-Prés, Rue du Bac).
Please registrer via Internet in order to get the relevant documents.
Contact : Aude-Solveig Epstein (aude.epstein@sciences-po.org)
(Metro: Saint-Germain-des-Prés, Rue du Bac).
Please registrer via Internet in order to get the relevant documents.
Contact : Aude-Solveig Epstein (aude.epstein@sciences-po.org)
