Knowledge … is not itself power, although it is the magnetic field
of power. Ignorance and opacity collude or compete with knowl-
edge in mobilizing the flows of energy, desire, goods, meanings,
—Eve Kosofsky Sedgwick, Epistemology of the Closet
In the prior chapter, I described the tension between cer- tainty and doubt with reference to familiar legal problems. Whether lawyers like it or not, the U.S. Constitution doesn’t explain what it means in every controversy by “searches and seizures” or “cruel and unusual punishment.” The first set of words is inherently ambiguous: one cannot assert with certainty or finality either what behaviors the Framers of the Constitution intended to be subsumed within the terms “searches” and/or “seizures” or what behaviors should be subsumed within those terms. The second set of words—particularly the word “cruel”—is inherently ethical, what is often called a “value judgment.” I meant to convey in that chapter that it is simplistic and irresponsible just to retreat into the supposed superiority of “objective” over “sub- jective” assessments of such words, and even that the divide between “objective” and “subjective” is a smoke screen.
The underlying problem is that, even if there were some objective, fixed, external world beyond what we perceive, there is no way for us to verify when we truly “know” it. That dilemma is among the four that Immanuel Kant described as philosophical antimonies: questions that keep coming up but for which there can be no ultimate resolution. These are the “intractable questions” for which this chapter is named, and there is no getting around them in law.
Another of the metaphysical antimonies is the question of whether we have free will or have all our thoughts and actions (including our perception that we’re acting freely) determined by some larger force. On