Legal Theory Blog

Posner on Morality and Public

Posner on Morality and Public Policy Richard Posner is guest blogging over at the Leiter Reports. He has a post entitled Faith-Based Morality and Public Policy. Here's a taste:

There are secular moralities, such as utilitarianism. But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe "secular humanism," as our civic religion? That might depend on the character of morality, on what kind of normative order morality is, exactly. Specifically, on whether it must be reasoned, functional, practical, articulably derived from or related to some unexceptionable social goal. Well, much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals. Think of the absolute prohibition of infanticide in contrast to the far more tolerant view of even late-term abortions. Think of the prohibition of bullfighting, cock fights, and cruelty to animals generally. Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons.

And then Posner makes the following, extraordinary, statement:

If morality, or at least a large part of the moral domain, lives below reason as it were, isn't the practical consequence that morality is simply dominant public opinion?

This point is a very large one--implicating more than can be adequately discussed within the compass of a blog post. But perhaps I can make a few useful comments:

• To begin, we need a distinction between two different senses of morality. On the one hand, there is "morality" as used by both ordinary folk and moral philosophers to refer to the realm of judgments about what is good and evil, right and wrong. On the other hand, there is "morality" as used to refer the norms of a particular culture. The term "morality" is used in both senses, and sometimes is used carelessly in ways that slide from one sense to the other.
  
• In the second sense, morality as the norms of a particular culture, Posner is right: "morality is simply dominant public opinion." And how could he be wrong, that simply is the meaning of the second sense of morality. This is not as Posner puts it, a "practical consequence" of the facts that Posner enumerates. It is, rather, a more or less conceptual (or analytic) point.
  
• In the first sense, morality as the realm of judgments about right and wrong, morality is most emphatically not "simply dominant public opinion." This is easy to see, because we can readily speak of the dominant public opinion about some question as being wrong or incorrect. "Nazi's thought that their treatment of Jews and other groups was morally correct, but they were wrong"--this statement does not involve an error of conceptual grammar. "Nazi's thought that their treatment of Jews an other groups was morally correct, but despite the fact that most people agreed with them at the time, it was nonetheless not the norm that characterized the culture of Nazi Germany"--that statement is self contradictory.

Posner also makes the following point about John Rawls's idea of public reason:

Rawls and others have thought that religious beliefs shouldn't be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn't about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.

This is a rather careless reading of Rawls--who said no such thing. Rawls does advance an ideal of public reason. A very early statement of that ideal was similar to Posner's characterization of Rawls's position:

[G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.

But as Rawls worked out his idea, it evolved and was clarified in ways that are inconsistent with Posner's assertion that Rawls thought "religious beliefs should not be allowed to influence public policy." Here are a few of the differences between Rawls's view and Posner's characterization:

First and foremost, Rawls's idea of public reason was limited to what he called "the constitutional essentials" and hence it did not apply to ordinary legislation. Rawls most emphatically did not believe that ordinary democratic politics should exclude reliance on comprehensive philosophical and religious conceptions of the good.
Second, as Rawls's thought evolved, he eventually came to what he called the "wide view" of public reason. Here is how he expressed the crucial feature of the wide view:
reasonable comprehensive doctrines, religious or nonreligious, may be *784 introduced in public political discussion at any time, provided that in due course proper political reasons--and not reasons given solely by comprehensive doctrines--are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support.
That is, Rawls's view of public reason does not require the exclusion of religious reasons (or the reasons provided by other comprehensive, nonreligious doctrinces, such as utilitarianism. Rather, it requires the inclusion of public reasons--in due course.

Posner's characterization, "religious beliefs shouldn?t be allowed to influence public policy," is inaccuare for yet another reason:

Third, religious reasons are allowed as supporting grounds, even for the constitutional essentials, if they are the foundations (or grounds) for public reasons. For example, in our political cutlure, the great value of the liberty of conscience is a clear example of a public reason. (Posner refers to President Bush's formulation of this principle in his post.) But one can support the liberty of conscience for religious reasons. An example is the role the doctrine of free faith played in gaining support for the liberty of conscience early in the history of liberalism. This religious reason for supporting liberty of conscience is, more or less, that belief can lead to salvation, only if the belief is free and therefore that coerced belief cannot lead to salvation. But the value of the liberty of conscience is a public reason?one that can be shared from a variety of perspectives.

That is enough for now. Read Posner's post!

Johnson on Race Kevin Johnson

Johnson on Race Kevin Johnson (UC Davis) has posted Roll Over Beethoven: 'A Critical Examination of Recent Writing about Race' (Texas Law Review, Vol. 82, No. 717, 2004) on SSRN. Here is the abstract:

In Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 62 Tex. L. Rev. 121 (2003), Professor Richard Delgado criticized the scholarly direction of Critical Race Theory (CRT). As a starting point for his criticism, Delgado reviews Crossroads, Directions, and a New Critical Race Theory (2002) edited by Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris. The volume consists primarily of papers and speeches presented at the Critical Race Theory conference at Yale Law School in 1997, an important event reflecting on ten years of CRT. Among the contributors to Crossroads are influential CRT scholars Derrick Bell, Kimberle Williams Crenshaw, Charles Lawrence III, Mari Matsuda, and others.

Delgado laments CRT's current focus, which he characterizes as "idealist" (and too much talk of discourse about inequality) as opposed to the "materialist" (and power disparities contributing to racial injustice). Crossroads, to Delgado, devotes too much to the ideal and, put simply, is filled with discourse about discourse.

Although Delgado makes important points about the state of CRT scholarship, this response contends that he overstates the distinction between the ideal and material forms of discourse and, by so doing, excessively criticizes CRT's direction, and fails to acknowledge the emerging critical scholarship that analyzes current the racial justice issues. In sum, this response questions Professor Delgado's criticism of Critical Race Theory, as well as his challenges to Critical Latina/o (LatCrit) Theory.

De Soysa, Bailey, & Neumayer

De Soysa, Bailey, & Neumayer on Democracy, Institutional Design, and Economic Sustainability Indra De Soysa , Jennifer Bailey and Eric Neumayer (Norwegian University of Science and Technology , Norwegian University of Science and Technology - General and London School of Economics - Department of Geography and Environment) have posted Free to Squander? Democracy, Institutional Design, and Economic Sustainability, 1975-2000 on SSRN. Here is the abstract:

While democracy's effect on economic growth has come under intense empirical scrutiny, its effect on economic sustainability has been noticeably neglected. We assess the effects of regime type and democratic institutional design on economic, or "weak" sustainability. Sustainability requires that stocks of capital do not depreciate in value over time. The World Bank gauges the rate of net investment in manufactured, human, and natural capital, a unified indicator of weak sustainability (the genuine savings rate). All four indicators of democracy we examine show that freer societies have higher genuine savings rates because they invest more in human capital, create less CO2 damage, and extract fewer natural resources per economic unit produced, even if they show lower net investment in manufactured capital. Democracies may trade off immediate material welfare gains for future pay-offs. This finding justifies why scholars should assess the effects of regime type on more than just immediate growth or the rate of change of manufactured capital. Among democracies, we find that pure parliamentary systems spend more on education than do presidential ones, but exhibit no statistically significant difference for the overall genuine savings rate. Proportional representation electoral systems fare worse than plurality when it comes to genuine and net national savings, even though they do better on education spending. The results taken together show that differences in regime type and democratic institutional design allow for different trade-offs. The results are robust to a range of specifications and a developing country only sub-sample.

Brown Reviews Feelings and Emotions

Brown Reviews Feelings and Emotions On Metapsychology, Sam Brown reviews an anthology entitled Feelings and Emotions: The Amsterdam Symposium by Antony S.R. Manstead, Nico H. Frijda and Agneta Fischer, Cambridge University Press, 2004. Here is a taste:

Feelings and Emotions offers a pleasing snapshot of current scientific thinking and research on emotions. It accurately depicts the contemporary status of feelings in psychological research by largely downplaying them. Feelings, to most theorists, are the "tip of the iceberg" (e.g. Scherer, p.139): a minor facet, passive component or even a distraction in emotion theory. There are indications, however, that the study of feelings may soon make a resurgence from an unlikely quarter: neuroscience. There are also hints that previously fundamentalist positions on the notorious cognition-emotion debate are converging at last. These are the subtle trends, more implied than declared, that help to distinguish Feelings and Emotions from similar anthologies.

Legal Theory Lexicon: Speech ActsIntroduction

Legal Theory Lexicon: Speech Acts

Introduction Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words. When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.
O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.
Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.
Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance.
Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:
• Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
  
• Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
  
• Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
  
• Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.
Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.
A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:
• Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulating
  
• Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
  
• Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
  
• Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)
There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.
Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.
Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.
Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.
If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.
Links
• Kent Bach, "Speech Acts" entry in the Routledge Encyclopedia of Philosophy.
  
• Keith Allen, Speech Act Theory An Overview (pdf) (Google's html version).
  
• What Is a Speech Act?
Bibliography
• Austin, J. L. (1962) How to Do Things with Words, Cambridge, Mass.: Harvard University Press.
  
• Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts, Cambridge, Mass.: MIT Press.
  
• Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
  
• Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
  
• Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.

Legal Theory Bookworm The Legal

Legal Theory Bookworm The Legal Theory Bookworm recommends On The Rule of Law: History, Politics, Theory by Brian Z. Tamanaha. Here's a brief description:

Although it is currently the most important political ideal, there is much confusion about what the 'rule of law' means and how it works. Brian Tamanaha outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book's examination of the rule of law on a global level concludes by deciding whether the rule of law is a universal human good.

Download of the Week The

Download of the Week The Download of the Week is Minimalism at War by Cass R. Sunstein. Here is the abstract:

When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism.

Download it while its hot!

Two Papers by Rawls Online

Two Papers by Rawls Online Two well-known papers by John Rawls, Two Concepts of Rules and Justice as Fairness are now available online at HIST-ANALYTIC. I suspect most readers of LTB are familiar with these papers, at least by reputation. If not, these two papers are among the most important in modern political and moral philosophy. Very highly recommended.

Confirmation Wars Department: Bush to

Confirmation Wars Department: Bush to Resubmit 20 Nominees The Los Angeles Times reports:

President Bush intends to renominate to federal judgeships 20 candidates who failed to win Senate approval during his first term, the White House said Thursday.

Here is the list:

Court of Appeals
Terrence Boyle, 4th Circuit William J. Haynes II, 4th Circuit Priscilla Richman Owen, 5th Circuit David W. McKeague, 6th Circuit Susan Neilson, 6th Circuit Henry W. Saad, 6th Circuit Richard A. Griffin, 6th Circuit William H. Pryor Jr., 11th Circuit William G. Myers III, 9th Circuit Janice Rogers Brown, District of Columbia Circuit Brett M. Kavanaugh, District of Columbia Circuit Thomas B. Griffith, District of Columbia Circuit
District Courts
James C. Dever III, Eastern District, North Carolina Robert J. Conrad, Western District, North Carolina Thomas L. Ludington, Eastern District, Michigan Sean F. Cox, Eastern District, Michigan Daniel P. Ryan, Eastern District, Michigan Peter G. Sheridan, New Jersey Paul A. Crotty, Southern District, New York J. Michael Seabright, Hawaii

Lipshaw on Rational Choice Modelling

Lipshaw on Rational Choice Modelling of Judicial Decision Making In reply to Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making (posted yesterday), Jeff Lipshaw writes:

As a relative newcomer to the world of legal theory, I am alternatively amazed and aghast at the confusion around attempts to model legal or moral choice as though they were analogous to the pricing decisions facing the sellers and purchasers of summer wheat. (No doubt this is why Sen is your favorite economist.) To your point, microeconomic models, in their sphere, explain so much we can accept their relatively minor failings. I may disagree whether it is appropriate to have so much in merger analysis hinge on the market definition issues that precede the Herfindahl calculations, but there can be little doubt that economic analysis brings insight into what is fundamentally a contingent economic issue: is consumer welfare likely diminished or enhanced by the merger? I think there is more out there than you credit in the attempt to have rational choice theory explain (and predict) individual action. In Economic Analysis of Law, Richard Posner observes: “The basic assumption, that human behavior is rational, seems contradicted by the experiences and observations of everyday life. The contradiction is less acute when one understands that the concept of rationality used by the economist is objective rather than subjective, so that it would not be a solecism to speak of a rational frog.” In his most recent writing, he proposes an algorithm for the relationship between ex ante and e x post costs of contract construction: “The equation thus identifies the essential tradeoffs in analyzing the interpretation problem: the more the parties invest at the first stage, the lower the expected costs at the second stage.” I suppose this still purports to be an objective assessment, though to what end I am not sure, because the model assumes what we were spending the costs to clarify ex ante bear some relationship to the dispute ex post (see my Bewitchment paper you have previously been kind enough to post on your blog). Or to put it another way, the model is only helpful, I think, if individuals in the exercise of subjective judgment, actually make that calculation.& nbsp; Otherwise, what is the point? We should have a policy that we incur lots of buckshot ex ante costs regardless of their impact on the outcome? When the world is so complex the exceptions to the model subsume the model's predictive capability, we have to step back and ask what we are doing. What I see is the desire, notwithstanding the disclaimer (also see the work of Eric Posner in this regard), to find the last link that would unravel, a la Freud, the mystery of subjective choice (hence, Judge Posner's view it is an embarrassment that economics cannot model how a judge will decide). As we move from the objective to t he subjective, and from the collective to the individual, from simple modelable decisions to those most normal humans would never permit to be resolved by a computer, the likelihood, as you point out, we will ever find a single predictive maximand decreases. Yet this is the overwhelming thrust of current scholarship. I am skeptical - no, quite positive - there is no unified field theory equivalent of the objective and subjective, because despite the yearning for attainment of an Unconditioned First Principle of human behavior in science or economics (see my paper Contingency and Contracts: A Philosophy of Complex Business Transactions, http://ssrn.com/abstract=584441), no algorithm will ever tell a judge how to temper justice wit h mercy. That is because in the moment of decision, when it is time to apply a rule to a circumstance, we are free. (In this statement, I reveal myself as a child of Kant and Wittgenstein, and not Freud or any other philosophical determinist. I also recommend Linda Ross Meyer's "Is Practical Reason Mindless?" 86 Geo. L. J. 647 (1998)) We can measure (in theory) how most of us react and decide in that moment, but the possibility that one of us dissents and says "aha, now I understand the principle to be something else" invokes something we will never be able to measure. (My Bewitchment paper discusses this in the context of contract interpretation). (For an application of this to the mystery of judging where the demand of justice radically exceeds the ability of law or jurisprudence to address it, see the postcript to Hannah Arendt's Eichmann in Jerusalem.) My friend Susan Neiman uses Kant's  ;thought experiment to demonstrate the crossing from rational self-interested calculation to free moral choice. If the punishment for frequenting a brothel is that I will be hanged when I come out, it is of no great consequence to predict that I will find a way to avoid going in. But if now I am ordered to kill an innocent person on the pain of my own death, the possibility I will choose my own death proves that I am free. That moment of choice, which is the same as the moment of freedom when I apply a rule to the next circumstance or when I have a creative epiphany (also see Linda Ross Meyer, Beyond Reason and Power: Experiencing Legal Truth, 67 U. Cin. L. Rev. 727 (1999), is simply inconsistent with an objective model that, in its heart yearns to predict the subjective.