Academic journal article Faulkner Law Review

Reason and Public Discourse: What Can We Learn from Socrates?

Academic journal article Faulkner Law Review

Reason and Public Discourse: What Can We Learn from Socrates?

Article excerpt

And this is another strong argument in law, Nihil quod est contra rationem est licitum ; for reason is the life of the law, nay the common law itselfe is nothing else but reason ; which is to be understood of an artifician perfection of reason, gotten by long study, observation, and experience, and not of every man's naturall reason ; for, Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law in England is ; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason. (1)

--Edward Coke

The Greek culture of the Sophists had developed out of all the Greek instincts; it belongs to the culture of the Periclean age as necessarily as Plato does not: it has its predecessors in Heraclitus, in Democritus, in the scientific types of the old philosophy; it finds expression in, e.g., the high culture of Thucydides. And--it has ultimately shown itself to be right: every advance in epistemological and moral knowledge has reinstated the Sophists--Our contemporary way of thinking is to a great extent Heraclitean, Democritean, and Protagorean: it suffices to say Protagorean, because Protagoras represented a synthesis of Heraclitus and Democritus. (2)

--Friedrich Nietzsche

I. REASON AS LAW PERFECTED VS. SOPHISTRY AND SKEPTICISM

Edward Coke (1552-1634), English common law barrister, judge, and politician, (3) says the common law is reason perfected. Coke speaks from a rich common law tradition in which legal decisions are the application of reason as wisdom. Coke's common law, which is the backdrop of the founding documents of the United States and its legal system, assumes a common culture from which one reasons to appeal to practical decisions for the common good of the nation. Common culture serves as the common ground for Coke and other common law judges. Common law works in rendering legal decisions where there are certain basic beliefs that are held in common within a culture. These basic beliefs are not questioned, but serve as a basis for practical decision making.

Something has happened between Coke's day and ours, namely the modern period, in which many commonly accepted beliefs have been called into question in the areas of epistemology, metaphysics, ethics, and law. Previously accepted answers to basic questions in these areas have been rejected, as seen in the quote by Nietzsche: "Our contemporary way of thinking is to a great extent Heraclitean, Democritean, and Protagorean: it suffices to say Protagorean, because Protagoras represented a synthesis of Heraclitus and Democritus." (4) This rejection has led to widespread skepticism, an accepted naturalism, and ethical relativism with implications for legal pragmatism in our day. Common law, based upon common culture, no longer seems viable. And yet, Coke's insight that law is reason perfected, has a ring of truth. Today we do not see law as reason perfected. Rather, law seems to be the height of pragmatism, a kind of Rawlsian public reason (5) applied to contentious issues that cannot be settled by any other institution of culture. At the highest level--the Supreme Court--law has become the strong arm of the minority seeking "social justice" as may be seen in the recent Obergefell v. Hodges decision. (6)

In order to return to a view of law as reason perfected, law will need to be grounded in something deeper than common culture, which is non-existent in a "global" community. In a pluralistic context, law must be grounded in reason itself and in human nature as fundamentally rational. …

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