Saturday, December 13, 2008

Who does this Rawls think he is?

One of the things I’ve decided to do with my impending increase in free time is to revisit philosophy. Before I went to law school I wanted to go get a Ph.D. in philosophy. I applied to a few prestigious programs and they all rejected me. I guess that might have left me disenchanted, and, in any case, law school didn’t provide me many opportunities to do what I’m about to.

I’ve decided to go through certain books, study them, reexamine them. The first book I decided to read is A Theory of Justice by John Rawls. I’ve never read most of it, although there are parts of it, where he lays out his basic theory, that I spent a fair amount of time with. Despite that, it still is probably one of the most important books, in terms of shaping my perspective. But more on that later; I just started.

The one thing I wanted to mention, though, is how refreshing it is to read something without so many footnotes or citations. Legal writing is so full of attribution. For instance, law review articles have so many footnotes on each page. And it’s irritating. I never know if I’m supposed to read them, I’m always wondering what they say if I ignore them, so I can’t focus on just figuring out what the argument is.

And this hatred of footnotes reminded me of one of the things I always liked about philosophy. Unlike legal arguments, philosophical arguments don’t depend on what came before them. They don’t require support in statute or precedent. They’re good insofar as you can defend them and nobody can explain why they’re wrong.

In Theory, Rawls is relying on many people who came before him. He’s drawing on some of the greatest thinkers the world has ever seen. But his ideas are his own. They are mostly just coming out of his head, and they stand or fall on their own. In fact, they wouldn’t have much value if they came from someplace else. In the law, an idea is only as good as the support you can find. That can be frustrating, because the law is often wrong. Sometimes it’s so wrong, it blows your mind. And thinking outside those constraints, especially as the winter of my discontent (with the law) falls, feels liberating.


Josh D. said...

I agree with you, except I do not think that good legal writing is as ridden with footnotes as you might think, just that there are so many outlets for legal writing that a lot of bad articles get published and a lot of bad habits are incubate. But, this is one of those, "only as prevalent as you let it be" kind of fads. I don't think editors screen for it, and I bet most people (smart ones) find it refreshing when people break the mold and abandons the footnoteyness.

As another example, the colon in article titles... there was a great article on this in "The Green Bag" a couple of years ago by some guys named Deahl and Eskandari. The data shows based on some subjective factors that the worse the article, the more likely it is to have a colon in its title (I would equally suspect that the worse the article, the greater number of footnotes it has).

Ben said...

That was a great piece, by Deahl and Eskandari. Maybe this footnote thing could be the next frontier in their path-breaking exploits.