>>> <JKSCHW at aol.com> 01/24/00 03:47PM >>>
In a message dated Mon, 24 Jan 2000 3:23:34 PM Eastern Standard Time, "Charles Brown" <CharlesB at CNCL.ci.detroit.mi.us> writes:
I had said something nasty about "dialectics" as a lot of Marxists use it. Charles asks:
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> CB: Justin, what do you think of all that jurisprudential jargon ? Quite with the normal rules of argument, no ?
There is something to the idea of "thinking like a lawyer." But ordinary rules of logic and reasonableness are supposed to apply. That's why we can see, for example, that O'Connor is being dishonest in Kimel when she says, well, older people aren't a discrete and insular minority, so no equal protection for them,
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CB: No strict scrutiny , anyway; from what I read in your earlier post.
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but then says in Croson that White people deserve equal concern and respect, so they get equal protection, and moreover, Blacks are a majority in Richmond, so they don't need equal protection.
Using ordinary logic, you see that these these cannot be asserted together in a nonarbitrary way--they are not actually inconsistent, but it's clear that what motivates the choice of the standard is political rather than legal doctrine.
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CB: Yes, that and there are a lot of other contradictions in U.S. law.
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After two decades of study into "Marxist dialectics" I have concluded--not absolutely, but provisionally in a firm sort of way, that there isn't much there. Mostly I think that Marx just reasons in the usual way. He picked up some moves from Hegel, some good, some bad, but these aren't insights into alternative inference patterns to noncontradiction and the like, but more like general metaphysics for looking at problems. Beyond that, I recognize that there is something one might call a dialectical feel for the whole of a dynamic situation, and MArx had that in spades, but it's not something that can be written down in any useful way. (It's like Thinking Like a Lawyer in that respect.) That is why all those books on Marx on Method are useless.
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CB: Also, a dialectician places importance on the fact that law changes. That's a key aspect of a dialectically logical approach to the law. The law is not a fixed and eternal set of principles handed down from God or the King. Even bourgeois jurisprudence started to understand this with the Amendment Provision of the U.S. Constitution. It is not a trivial or observation.
I don't find thinking like a lawyer to be that mystical. It can be written down in a useful way and explained in speech , although it would take longer than a post here. But thinking like a lawyer is not entirely formal logically consistent anymore than mathematics is,although both emphasize their reasonable faces. Also, like Marxists, and I believe pragmatists, lawyers explicitly unite theory and practice.
Likewise with dialectics, it is not mystical.
How does it compare with that Marxist jargon ?
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> Like mathematics, the law begets its Goedel, and so it too needs dialectics.
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> CB