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UBC Theses and Dissertations

Rhetoric and the law Aldridge, James Robert 1979

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RHETORIC AND THE LAW by JAMES ROBERT ALDRIDGE B.A., Brock U n i v e r s i t y , 1972-75 L.L.B., York U n i v e r s i t y , 1975-78 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER,OF LAWS i n THE FACULTY OP GRADUATE SOTDIES i n the Department of Law We accept t h i s t h e s i s as conforming t o the required standard THE UNIVERSITY OF BRITISH COLUMBIA October, 1979 "o) James Robert Aldridge, 1979 In presenting t h i s t h e s i s i n p a r t i a l f u l f i l m e n t of the requirements f o r an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and study. I f u r t h e r agree that permission f o r extensive copying of t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the Head of my Department or by h i s r e p r e s e n t a t i v e s . I t i s understood that copying or p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l g a in s h a l l not be allowed without my w r i t t e n permission. Department of Law The U n i v e r s i t y of B r i t i s h Columbia Vancouver, Canada Date: i i ABSTRACT Lega l philosophy i s viewed as i r r e l e v a n t by v i r t u a l l y everyone except f o r l e g a l philosophers. In t h i s t h e s i s , I suggest that the main reason f o r t h i s i s l e g a l philosophy's i n a t t e n t i o n to the question of why the law and l e g a l reasoning are v a l u a b l e . Rather than addressing t h i s i s s u e , j u r i s p r u d e n c e has simply assumed that the law i s v a l u a b l e because i t i s o b j e c t i v e . Legal reasoning i s valu a b l e to the extent that i t obtains the t r u t h . The b e l i e f that law i s e s s e n t i a l l y a system of r u l e s stems from t h i s underlying premise. The assumption that the only v a l u a b l e r a t i o n a l a c t i v i t i e s are those which s i n g l e mindedly pursue t r u t h , i s not unique to the law. In f a c t , i t reached i t s highest expression i n nineteenth and tw e n t i e t h century science. But, i n recent years, many philosophers have r e j e c t e d the no t i o n that science i s o b j e c t i v e , and based upon independently e x i s t i n g f a c t s . T h i s , however, has not r e s u l t e d i n a r e j e c t i o n of science's value. S i m i l a r l y , an i n c r e a s i n g number of l e g a l philosophers are r e a l i z i n g that the b e l i e f i n r u l e s i s a myth. The law i s not, and cannot be o b j e c t i v e . How then can i t be valuable? To answer t h i s question, I search f o r the foundation of the b e l i e f that t r u t h i s the only v a l u e of r a t i o n a l i t y . In f a c t , philosophy proceeded f o r hundreds of years without any such n o t i o n . The goal of r a t i o n a l a c t i v i t y was the good, or v i r t u e , or exce l l e n c e . Philosophers strove to generate b e a u t i f u l or va l u a b l e v i s i o n s of the universe. R a t i o n a l i t y had s e v e r a l t o o l s which i t could employ to t h i s end. Log i c , the technique of proof, was but one of these t o o l s . No l e s s important was r h e t o r i c , the a r t of persuasion, and the c r a f t of the Sophists. The concept of t r u t h as the most important v a l u e , was introduced i n Athens, by Socrates, and e s p e c i a l l y by P l a t o and A r i s t o t l e . i i i The legacy of these three i n d i v i d u a l s was the e l e v a t i o n of t r u t h to a p o s i t i o n of u l t i m a t e value. T h i s , of course, r e s u l t e d i n a corresponding e l e v a t i o n of l o g i c , and a demeaning of r h e t o r i c . But l o g i c , by i t s nature, can only e l i c i t t r u t h . Where there are other v a l u e s , such as beauty, l o v e , or j u s t i c e , l o g i c i s impotent. The remainder of the t h e s i s i s dedicated to proposing a r e v i v a l of r h e t o r i c . I argue t h a t philosophy i n gene r a l , and the law i n p a r t i c u l a r , should become openly and avowedly r h e t o r i c a l . I t i s only by persuading the p u b l i c that i t s d e c i s i o n s are j u s t that the law can ever be j u s t . Legal d e c i s i o n s w i l l i n e v i t a b l y be d e c i s i o n s of value. R h e t o r i c i s the t o o l that can guide our d e c i s i o n makers to an a p p r e c i a t i o n of our c u l t u r e ' s v a l u e s , and can g i v e them the s k i l l to reach "good", r a t h e r than " t r u e " c o n c l u s i o n s . i v TABLE OF CONTENTS Page ABSTRACT i i i TABLE OF CONTENTS v CHAPTER ONE 1 CHAPTER TWO '. 23 CHAPTER THREE 61 NOTES TO CHAPTER ONE 92 NOTES TO CHAPTER TWO 93 NOTES TO CHAPTER THREE 94 BIBLIOGRAPHY 96 BIOGRAPHICAL INFORMATION v 1 RHETORIC AND THE LAW — CHAPTER ONE — The p r a c t i c e of r e f l e c t i n g about the law has f a l l e n i n t o severe d i s r e p u t e . When people l e a r n that my t h e s i s concerns the philosophy of law, most e i t h e r ask what that i s , or e l s e p o l i t e l y change the subject. When I was introduced to a l o c a l lawyer as a graduate student of law, he studied me care-f u l l y and sneered, "Oh, so you're one of those are you?" Eight months l a t e r , at my f i r s t a r t i c l i n g i n t e r v i e w , my prospective employer c a s u a l l y assured me that my p h i l o s o p h i c a l t r a i n i n g had no value whatsoever to the business of p r a c t i c i n g law. Even i n law school, jurisprudence courses tend to be o p t i o n a l w i t h small enrollments, and are viewed by the student body as " b i r d " courses f o r philosophy graduates. I t s teachers are urged to supplement t h e i r " t h e o r e t i c a l " pedagogery w i t h " s u b s t a n t i v e " ( i . e . , v aluable) courses. And the vast m a j o r i t y of law students, p r o f e s s o r s , p r a c t i t i o n e r s , and l a y people that I know, at l e a s t profess to b e l i e v e that l e g a l d e c i s i o n s depend u l t i m a t e l y on the whims of the person making the d e c i s i o n , and that r e f l e c t i n g any deeper than that i s nothing more than s e l f i n d u l g e n t and i m p r a c t i c a l f a n c i f y i n g . Yet, at the same time, the other sides of t h e i r mouths are paying l i p s e r v i c e t o r i g h t s and d u t i e s , to f i d e l i t y to the law, and to j u s t i c e . T his s t a t e of a f f a i r s does not bode w e l l f o r the law, the absence of a wi d e l y shared commitment to some form of t h e o r e t i c a l a p p r e c i a t i o n of the law presents i t w i t h at l e a s t two dangers, both of which have already begun to be r e a l i z e d . Without some o v e r a l l b e l i e f s concerning the law, i t i s an e d i f i c e without a foundation. Not only i s i t p r e c a r i o u s l y balanced, i t has nothing to d i r e c t i t s b u i l d e r s i n the e x e r c i s e of t h e i r r e s p o n s i b i l i t y over i t s f u t u r e growth. The other side of t h i s i s without the b e l i e f t h a t the law incorporates 2 s o c i e t y ' s v a l u e s , people w i l l see i t as amoral, and something to be adhered to or professed only when i t i s p r a g m a t i c a l l y b e n e f i c i a l to do so. The law i s thus conceived of as something n e u t r a l i n the world, something that can be used or abused, l i k e e l e c t r i c i t y or the wheel, but something whose value l i e s only i n i t s e f f e c t s and not i n i t s e l f . The purpose of t h i s paper i s to explore the means by which we can acquire and e x e r c i s e an a p p r e c i a t i o n of the law i t s e l f . How i s the law valuable? Why does i t matter to us? I f we are to i n v e s t i g a t e the law's v a l u e , a good place to s t a r t i s w i t h some of the conclusions that l e g a l philosophers have reached. A f t e r a l l , they must bear some of the r e s p o n s i b i l i t y f o r the ignominy which l e g a l theory has acquired i n the minds of a l l but themselves. For even though few people care to indulge themselves i n l e g a l philosophy, the presuppositions of the philosophers have managed to seep through the body of the law, i n f l u e n c i n g the perceptions and a c t i o n s of even i t s most concrete-minded p a r t i c i p a n t s . Law i s a set of r u l e s . T h i s , we are t o l d , i s the s t a r t i n g place f o r any coherent theory of law. In f a c t , i f we look at the h i s t o r y of l e g a l p h i l o -sophy, t h i s b e l i e f can be seen to have been axiomatic f o r many c e n t u r i e s . N a t u r a l law has held that the law i s the set of r u l e s r e f l e c t e d i n the n a t u r a l order of the un i v e r s e , or s t i p u l a t e d by the d i v i n e w i l l . P o s i t i v e law has held that the law i s the set of r u l e s s t i p u l a t e d by the sovereign, by the c u l t u r a l w i l l , by the c o u r t s , or by the systematic nature of the law i t s e l f . Despite t h e i r many d i f f e r e n c e s , f o r both there i s the b e l i e f that law i s a set of r u l e s . This c l a i m i s based upon epistemology and upon values. Philosophers have always b e l i e v e d t h a t , i n order f o r the law to be knowable, i t must be t o t a l l y independent and autonomous from any p a r t i c u l a r person, and perhaps from man himse l f . The d e s i r e to d i s c o v e r true p r o p o s i t i o n s about the law has motivated every l e g a l philosophy since c l a s s i c a l times. The d i f f e r e n c e s between competing 3 t h e o r i e s have a c c o r d i n g l y always r e f l e c t e d changing t h e o r e t i c a l f a shions con-cerning the means by which we acquire knowledge. When i t was b e l i e v e d that knowledge could only flow from d i v i n e r e v e l a t i o n , or r a t i o n a l i s t i c contemplation of abstract forms, n a t u r a l law was the orthodox, i f not the o n l y , l e g a l theory. The r i s e of empiricism and' d e c l i n e of metaphysics r e s u l t e d i n the development of l e g a l p o s i t i v i s m , and more recent refinements i n empiricism has l e d to the e n t h u s i a s t i c a p p l i c a t i o n of set theory and l i n g u i s t i c a n a l y s i s to the theory of law. Even l e g a l r e a l i s m can be seen to be merely the adaptation of behavioural s o c i a l science to the study of l e g a l d e c i s i o n making. Why should l e g a l theory be so i n t i m a t e l y t i e d to i s s u e s of how we know things? This i s the "value base" that I r e f e r r e d to above. The highest value i n almost every Western philosophy i s given to t r u t h . Before the t r u t h , a l l other values pale i n t o i n s i g n i f i c a n c e . In order, then, f o r the law to be as v a l u a b l e as i t must be, i t must be one of those things which l i e w i t h i n t r u t h ' s domain. This u l t i m a t e value i s acknowledged i n the d e s c r i p t i o n s of such "values" as c e r t a i n t y , c l a r i t y , and p r e d i c t a b i l i t y which n a t u r a l i s t s and p o s i t i v i s t s a l i k e a s s e r t must e x i s t w i t h i n the law. The necessary r e l a t i o n s h i p between law and the t r u t h has thus never been an issue i n l e g a l philosophy. In a sense, though, i t i s the source of the question which has been the c e n t r a l concern of a l l l e g a l philosophy. What i s the r e l a t i o n s h i p between law and m o r a l i t y ? How can we r e c o n c i l e the residence of law i n the palace of t r u t h , w i t h the e x i l e of j u s t i c e to the slums of opinion? Philosophers have c o n s i s t e n t l y taken one of two p o s s i b l e avenues of approach. They have elevated j u s t i c e along w i t h law to the domain of t r u t h . Or, they have denied that there i s any necessary connection between the two at a l l . Any apparent r e l a t i o n s h i p i s e i t h e r the r e s u l t of good l u c k , or e l s e of the u n r e a l i t y of j u s t i c e . 4 The former i s the t a c t i c not only of the n a t u r a l t h i n k e r s , but a l s o of many modern w r i t e r s , such as Ronald Dworkin, or J . C. Smith and Sam Coval, who say that a method can be found f o r d i s c o v e r i n g the r i g h t p r i n c i p l e s or the " c o r r e c t h i e r a r c h i c a l order of a l e g a l community's va l u e s " . I t i s the route taken by economics-minded phlosophers such as John Rawls who de f i n e j u s t i c e and law i n terms of a m a t e r i a l i s t i c d e f i n i t i o n of r a t i o n a l behaviour. The l a t t e r horn of the dilemma i s p r e f e r r e d by such t r a d i t i o n a l p o s i -t i v i s t s such as John A u s t i n , Hans Kelsen and H.L.A. Hart, as w e l l as by the l e g a l r e a l i s t s and most M a r x i s t s . Throughout t h i s paper I s h a l l be advocating that the way to confront t h i s dilemma i s to choose n e i t h e r of these horns, but to pursue a t h i r d p o s s i b l e choice. I propose that we cease t h i n k i n g about the law s o l e l y i n terms of i t s t r u t h or o b j e c t i v i t y , and r e s t o r e i t to the domain of o p i n i o n , where most other v a l u a b l e things i n our l i v e s r e s i d e . For i t i s opi n i o n that governs love and a r t and cooking. I t i s our s u b j e c t i v i t y , our passions that r e a l l y count i n most of our l i v e s , and anything that denounces a l l of these, renounces i t s own value. But w a i t , here i s something c u r i o u s . For, as I have already pointed out, the law bases i t s c l a i m of value on i t s o b j e c t i v i t y , on i t s independence from i n d i v i d u a l f e e l i n g s and b e l i e f s . Claims of o b j e c t i v i t y are i n e v i t a b l y framed and argued i n terms of r a t i o n a l i t y . So i t i s w i t h the law. Law must be r a t i o n a l i n order to v a l u a b l e , the argument begins. R a t i o n a l i t y i s concerned s o l e l y w i t h a s c e r t a i n a b l e , o b j e c t i v e f a c t s . Therefore, to be v a l u a b l e , law must be concerned w i t h a s c e r t a i n a b l e , o b j e c t i v e f a c t s . Now, the word " r a t i o n a l i t y " i s i n l a r g e part a term of approval. To say that something i s " r a t i o n a l " i s c e r t a i n l y t o suggest that i t i s at l e a s t prima f a c i e good, to say that i t i s v a l u a b l e . I am happy, t h e r e f o r e , to give my a f f i r m a t i o n to the f i r s t premise of the above s y l l o g i s m . So, i f , as I have 5 promised, I am going to r e j e c t i t s c o n c l u s i o n , l o g i c t e l l s me that I must r e j e c t the t r u t h of the second premise: that r a t i o n a l i t y i s concerned s o l e l y w i t h a s c e r t a i n a b l e , o b j e c t i v e f a c t s . Before t a c k l i n g such a formidably entrenched maxim as t h i s , however, i t seems prudent to examine i t s source and extent. From where d i d l e g a l theory acquire such a b e l i e f ? Without a doubt, the most s i g n i f i c a n t development i n recent human h i s t o r y has been the triumph of experimental science. From i t s modern genesis i n the minds of F r a n c i s Bacon, Isaac Newton, and David Hume, empiricism has empowered man to achieve a t e c h n o l o g i c a l mastery of h i s universe that e a r l i e r c u l t u r e s could never have imagined. The d r a m a t i c a l l y v i s i b l e successes of science i n the f i e l d s of p h y s i c s , astronomy and b i o l o g y has l e d t h i n k e r s i n other areas to t r y to emulate science's success by emulating i t s method. The people who developed the theory of science's success a s c r i b e d i t to the s c i e n t i f i c method. They can be thought of as using David Hume's famous exho r t a t i o n as a s t a r t i n g p o i n t : I f we take i n our hand any volume,' of d i v i n i t y or school meta-p h y s i c s , f o r i n s t a n c e , l e t us ask, Does i t c o n t a i n any a b s t r a c t  reasoning concerning q u a n t i t y or number? No. Does i t c o n t a i n  any experimental reasoning concerning matter of f a c t and existence? No. Commit i t then to ( the flames: f o r i t can c o n t a i n nothing but s o p h i s t r y and i l l u s i o n . ^ [emphasis his) The only v a l u a b l e t h i n k i n g concerns p r o p o s i t i o n s capable of being proven to be e i t h e r true or f a l s e . Unless a statement i s n e c e s s a r i l y true or f a l s e because of i t s l o g i c a l or mathematical nature, or unless i t describes a sensory experience, i t i s meaningless and without r a t i o n a l value. A c c o r d i n g l y , s c i e n t i f i c t h i n k i n g must d e a l only w i t h such p r o p o s i t i o n s . Sometimes, however, we encounter a statement such as "a body continues i n i t s s t a t e of r e s t or motion unless acted upon by some f o r c e " or "cats always land on t h e i r f e e t " . These are n e i t h e r l o g i c a l l y t r u e or f a l s e , but n e i t h e r are 6 they subject to e m p i r i c a l c o n f i r m a t i o n . No one can experience a l l bodies or a l l c a t s . But i t i s j u s t t h i s k i nd of general or u n i v e r s a l statement that g i v e s science i t s q u a l i t y of independence and o b j e c t i v i t y , as w e l l as i t s p r e d i c t i v e value. So to e x p l a i n how general statements d e s c r i b i n g v a r i o u s c l a s s e s of th i n g s can be found to be tru e or f a l s e , to account f o r the meaningfulness of t h e o r i e s , the s c i e n t i f i c method was invented. The s c i e n t i f i c method i s both a j u s t i f i c a t i o n and a guarantee. R e f e r r i n g to i t always e s t a b l i s h e s that one's a c t i v i t i e s are r a t i o n a l , and hence v a l u a b l e . D u t i f u l r e l i a n c e on i t ensures that i t s p r a c t i t i o n e r w i l l never make meaningless statements, nor w i l l he f a l l i n t o f a l s i t i e s . He i s guaranteed to discover the t r u t h , and nothing but the t r u t h . Simply put, the s c i e n t i f i c method r e q u i r e s proceeding i n the f o l l o w i n g f a s h i o n . Facts are observed, A theory, or group of u n i v e r s a l statements, i s formulated. Each general statement can be reduced d e d u c t i v e l y to a set of simple statements about f a c t s . Some of these "observation statements" w i l l d e s c r i b e the i n i t i a l l y observed f a c t s , w h i l e the others w i l l c o n s t i t u t e p r e d i c t i o n s about the world. The s c i e n t i s t conducts experiments to t e s t these p r e d i c t i o n s . Each time the experimental r e s u l t s c o i n c i d e w i t h a p r e d i c t i o n , the theory i s s a i d to have been "confirmed", or " v e r i f i e d " . The more times a s c i e n t i s t has "confirmed" a theory, the more he i s j u s t i f i e d i n b e l i e v i n g i t i s t r u e . But, i f a s i n g l e one of the p r e d i c t i o n s d e d u c t i v e l y generated from the theory f a i l s i t s experimental t e s t , the e n t i r e theory has been " f a l s i f i e d " or "disconfirmed" and must be aban-doned. A new theory must be formulated that accounts f o r a l l of the data of the old theory, and i t must make new p r e d i c t i o n s that the s c i e n t i s t can set out to confirm.^ The e s s e n t i a l p o i n t s u n d e r l y i n g the s c i e n t i f i c method's c l a i m to r a t i o n a l i t y are: (1) No p r o p o s i t i o n i s s a i d to be t r u e unless i t i s l o g i c a l l y true or e m p i r i c a l l y confirmed. 7 (2) Inconsistency w i t h observed f a c t i s the only grounds f o r , and always r e s u l t s i n the abandonment or r e j e c t i o n of a theory. (3) Emotion, personal i n t e r e s t and a e s t h e t i c appeal are never f a c t o r s i n the acceptance or r e j e c t i o n of any theory. I t can be f a i r l y s a i d that v i r t u a l l y every theory developed up to the midpoint of the twentieth century that e x p l a i n s the success of science adhered to some elaborated v e r s i o n of the p a t t e r n sketched above. The school of l o g i c a l p o s i t i v i s m was the highest development of t h i s outlook. The p o s i t i v i s t conception that law i s a set of r u l e s i s the r e s u l t of a d e s i r e to apply t h i s s c i e n t i f i c or o b j e c t i v e model to l e g a l d e c i s i o n making. L i k e the s c i e n t i s t , the judge i s , i n p r i n c i p l e , capable of making the r i g h t determination, i f he v i g o r o u s l y a p p l i e s the proper method. The judge i s con-fronted w i t h a "theory" concerning the law. I t w i l l normally be a general or u n i v e r s a l statement s i m i l a r to the s c i e n t i f i c t h e o r i e s described above. I t w i l l s t a t e t h a t , i n every s t a t e of a f f a i r s of a c e r t a i n type, a s p e c i f i c l e g a l d e t e r -mination must be made. I t could be t h a t , whenever one person p h y s i c a l l y s t r i k e s another person, that person i s g u i l t y of a s s a u l t . Or, i t could be t h a t , whenever a person enters i n t o a contract w h i l e s u f f e r i n g from mental d e l u s i o n s , that con-t r a c t i s not b i n d i n g . C l e a r l y , a countless number of these " t h e o r i e s " or general laws can be formulated. I t i s the r e s p o n s i b i l i t y of a judge to determine whether a proposed "theory" i s t r u e ; whether a purported law r e a l l y i s the law. How does he do t h i s ? F i r s t he observes the " l e g a l f a c t s " . These " l e g a l f a c t s " are not to be confused w i t h the f a c t s of the case. "Legal f a c t s " are the f a c t s of the l e g a l i n s t i t u t i o n i t s e l f . They i n c l u d e a l l of the s t a t u t e s , r e g u l a t i o n s , and previous l e g a l judgements which c o n s t i t u t e the judge's l e g a l universe. He t e s t s the " l e g a l theory" or purported law against a l l of these " f a c t s " . Each time he can f i n d a " f a c t " ( d e c i s i o n , s t a t u t e ) t h a t would be l o g i c a l l y pres-c r i b e d by the "law" i n question, he "confirms" h i s theory — he f i n d s a u t h o r i t y 8 fo r h i s law. But, i f a s i n g l e a u t h o r i t a t i v e case or s t a t u t e i s found which i s l o g i c a l l y i n c o n s i s t e n t w i t h a d e d u c t i v e l y generated instance of the law i n question, then that "law" i s not the law at a l l . The theory i s r e f u t e d . L i k e the s c i e n t i s t , the judge must then generate a new theory — a new expression of the law — which i s c o n s i s t e n t w i t h a l l of the " f a c t s " recognized i n the system, and which can then be t e s t e d against other f a c t s . An i n t e r p r e t a t i o n of the law must be generated f o r which a u t h o r i t y can be found. Opposing counsel, i n t h i s view, are nothing more than sources of information to the judge, and the trappings of the adversary system are merely t e c h n i c a l safeguards to ensure a high degree of f a c t u a l r e l i a b i l i t y , to ensure that a l l r e l e v a n t " f a c t s " are considered. I t i s e s s e n t i a l to t h i s v i s i o n that the judge be o b j e c t i v e and i m p a r t i a l . In f a c t , a person who p u b l i c l y denies t h i s o b j e c t i v i t y can, i n c e r t a i n circumstances, be found g u i l t y of contempt of c o u r t , and be e i t h e r imprisoned or f i n e d or both. O b j e c t i v i t y enables the judge to di s c o v e r what the law i s without h i s judgement or r a t i o n a l i t y being clouded by personal i n t e r e s t , f e e l i n g s or other a r b i t r a r y r c o n s i d e r a t i o n s . He must be l i k e the s c i e n t i s t , d i s p a s s i o n a t e l y engaged i n the search f o r t r u t h . So i t i s that the conventional v i s i o n of l e g a l reasoning l a y s c l a i m to the same earmarks of r a t i o n a l i t y that are espoused by s c i e n t i f c reasoning. (1) No law i s a p p l i e d unless i t i s d e d u c t i v e l y r e l a t e d to a v a l i d s t a t u t e or i s supported by a u t h o r i t a t i v e case law. (2) Inconsistency w i t h some a u t h o r i t a t i v e r u l e i s the only grounds f o r , and always r e s u l t s i n , the abandonment or r e j e c t i o n of a " l e g a l theory" or p u t a t i v e law. (3) Emotion, personal i n t e r e s t and a e s t h e t i c appeal are never f a c t o r s i n the acceptance or r e j e c t i o n of any p u t a t i v e law. Rules are to l e g a l reasoning as f a c t s are to s c i e n t i f i c reasoning. Facts give s c i e n t i f i c reasoning i t s value by t y i n g i t to p h y s i c a l r e a l i t y , to t r u t h . Rules give l e g a l reasoning i t s v a l u e by t y i n g i t to l e g a l r e a l i t y , to t r u t h . 9 Much of the debate about l e g a l reasoning has been whether i t can be r e a l l y s c i e n t i f i c i n the sense that I have described. In f a c t the h i s t o r y of l e g a l p o s i t i v i s m can be seen as an attempt t o g a i n f o r the law the s c i e n t i f i c and o b j e c t i v e r i g o r that i t s b i g brother, l o g i c a l p o s i t i v i s m , claimed f o r science. However, w h i l e l e g a l philosophy has been t r y i n g to catch up to the c e r t a i n t y and o b j e c t i v i t y of science, an i n c r e a s i n g number of s c i e n t i f i c t h i n k e r s have been r e a l i z i n g that science i t s e l f i s not o b j e c t i v e . Spurred by the impact of r e l a t i v i s t i c physics as w e l l as by e x i s t e n t i a l i s m , by the r e j e c t i o n of a u t h o r i t y i n the West and by the f a i l u r e of technocracies around the world, a new group of t h i n k e r s has emerged who have challenged the t r a d i t i o n a l d e s c r i p -t i o n of s c i e n t i f i c method, and found themselves examining the foundations of 3 r a t i o n a l i t y i t s e l f . The common theme of a l l of these w r i t e r s i s that human knowledge does not, never has, and never w i l l develop i n the f a s h i o n described by objec-t i v e r a t i o n a l i t y . The b a s i s of s c i e n t i f i c reasoning'svvalue i s , as I have s a i d , that i t grounds a l l of i t s claims on f a c t s , on observations and experiences of the world. Facts are the u l t i m a t e a r b i t e r s of our b e l i e f s — they are autonomous, independent, o b j e c t i v e . The a t t a c k on o b j e c t i v i t y has focussed on p r e c i s e l y t h i s c l a i m . S c i e n t i s t s everywhere began to r e a l i z e , and t o poi n t out, that f a c t s and t h e o r i e s are simply not inseparable. Every observation i s "theory-laden". Experiences r e q u i r e the personal involvement of the experiencer. The nature of the experience, the set of f a c t s which i s perceived, i s always a f f e c t e d by the person's b e l i e f s and values. There i s no such t h i n g as obj e c t i v i t y . Even at the most fundamental l e v e l , human values and i n t e r e s t s determine the p i c t u r e .of the universe that we paint f o r ourselves to contemplate. 10 Compared to the countless eons that have t r a n s p i r e d i n the u n i v e r s e , compared to the immense cosmic regions which c o n t a i n nothing but i n t e r s t e l l a r dust, the e n t i r e h i s t o r y and m a t e r i a l s i g n i f i c a n c e of the human species i s so t r i v i a l as to warrant nothing but the s c a n t i e s t a t t e n t i o n . And yet no one, i n c l u d i n g s c i e n t i s t s , looks at the universe t h i s way. I t i s only our (eminently under-standable) i n t e r e s t i n ourselves that leads us to v a l u e f a c t s i n such a way as 4 to place us f i r m l y at the centre of a t t e n t i o n . Our experiences are determined not only by the world, but a l s o by our v a l u e s , our c u l t u r e , and our p r e v i o u s l y held b e l i e f s . Any attempt to e x p l a i n the a c q u i s i t i o n , development and t e s t i n g of knowledge t h a t does not account f o r a l l of these f a c t o r s , i s n e c e s s a r i l y doomed to f a i l u r e . E x c l u s i v e a t t e n t i o n on the world as' the l e g i t i m a t e source of knowlege, l e d to the des-c r i p t i o n of a method which, i f f o l l o w e d , would render a l l human development impossible. V i o l a t i o n s of these methodological r u l e s are not a c c i d e n t a l or merely the r e s u l t s of human f a i l i n g s , but are necessary f o r progress. Indeed, one of the most s t r i k i n g f e a t u r e s of recent d i s c u s s i o n s i n the h i s t o r y and philosophy of science i s the r e a l i z a t i o n that events and developments, such as the i n v e n t i o n of atomism i n a n t i q u i t y , the Copernican R e v o l u t i o n , the r i s e of modern atomism ( k i n e t i c theory; d i s p e r s i o n theory; stereo chemistry; quantum t h e o r y ) , the gradual emergence of the wave theory of l i g h t , occurred only because some t h i n k e r s e i t h e r decided not to be bound by c e r t a i n 'obvious' methodological r u l e s , or because they u n w i t t i n g l y broke them. [emphasis h i s ] Methods that i n s i s t on consistency w i t h the f a c t s are r e a l l y i n s i s t i n g upon the f a c t s as viewed through the framework of some other, u s u a l l y older and widely accepted, theory. Because a l l of our perceptions are so i n t i m a t e l y bound up w i t h our, own subj e c t i v e , h i s t o r i c a l , m y t h i c a l and p s y c h o l o g i c a l makeup, methodological i n s i s t e n c e upon consistency w i t h the f a c t s r e s u l t s i n continued adherence to the o l d e r , r a t h e r than the b e t t e r theory. The Copernican R e v o l u t i o n i s probably the most discussed h i s t o r i c a l example of the growth of s c i e n t i f i c knowledge. T h i s i s no doubt p a r t i a l l y due 11 to the dramatic nature of the change i n world views that was inv o l v e d i n s h i f t i n g from a geo c e n t r i c to a sun-centred universe. I t i s a l s o explained by the f a m i l i a r i t y of the concepts w i t h which i t d e a l t . When I was i n p u b l i c school, and even l a t e r i n high s c h o o l , the s t o r y of the Copernican Revolution was o f t e n used to i l l u s t r a t e the workings of the s c i e n t i f i c method. According to t h i s myth, sc h o l a r s had always b e l i e v e d that the earth was s t a t i o n a r y and l a y a t the centre of the universe. T h e i r b e l i e f was reasonable enough, because i t accorded w i t h a l l of the f a c t s that people could experience. However, G a l i l e o G a l i l e i came along and proved t h a t the Copernican hypothesis was t r u e . That i s , using h i s te l e s c o p e , he showed that the Ptolmaic theory could not account f o r a l l of the f a c t s (some of i t s p r e d i c -t i o n s f a i l e d ) that the Copernican hypothesis not only explained or p r e d i c t e d a l l of the w e l l confirmed f a c t s , but th a t i t a l s o made new p r e d i c t i o n s , which experiment confirmed to be t r u e . A c c o r d i n g l y , he announced t h a t the/sun was the centre of the universe. U n f o r t u n a t e l y , the Church was dominated by s u p e r s t i -t i o u s and s e l f - i n t e r e s t e d b i g o t s who ignored G a l i l e o ' s proofs and who proceeded to persecute him to f o r c e him to renounce the t r u t h . Despite h i s r e c a n t a t i o n , the myth concludes, the t r u t h had been discovered and there was no p o s s i b i l i t y of reburying i t . I n the face of s c i e n t i f i c , o b j e c t i v e proof, the Church e v e n t u a l l y had no choice but t o grudgingly accept the h e l i o c e n t r i c t h e s i s . C a r e f u l study of what r e a l l y happened i n the s c i e n t i f i c r e v o l u t i o n shows that t h i s i s a l l f a n c i f u l nonsense. In f a c t , the Church, e s p e c i a l l y the J e s u i t Order, had been very i n t e r e s t e d i n the use of a sun-centred model of the universe, such as that of Copernicus, as a means of p r e d i c t i n g s t e l l a r phenomena, of "saving the appearances". However, as an a c t u a l d e s c r i p t i o n of r e a l i t y , G a l i l e o ' s claims not only c o n t r a d i c t e d S c r i p t u r e , they were not very p l a u s i b l e , But i t was e x a c t l y t h i s c l a i m that G a l i l e o made, and which got him i n t o t r o u b l e . He proceeded and argued as though h i s theory had been r i g o r o u s l y 12 demonstrated and the burden of proof was on h i s opponents, the defenders of S c r i p t u r e , to disprove i t . Throughout the document The L e t t e r to the Grand Duchess C h r i s t i n a , £which was the i n i t i a l source of the Church's i r e ] ' G a l i l e o completely evaded any astronomical or p h y s i c a l d i s c u s s i o n of the Copernican systems. He simply gave the impression that i t was proven beyond doubt. I f he had t a l k e d to the p o i n t , i n s t e a d of around i t , he would have had to admit t h a t Copernicus' forty-odd e p i c y c l e s and e c c e n t r i c s were not only not proven but a p h y s i c a l i m p o s s i b i l i t y , a geometrical device and nothing e l s e ; t h a t the absence of an annual p a r a l l a x j . i e . of any apparent s h i f t i n the p o s i t i o n of the f i x e d s t a r s , i n s p i t e of the new t e l e s c o p i c p r e c i s i o n , weighed h e a v i l y against Copernicus; that the phases of Venus disproved Ptolemy, but not Herakleides or Tycho [other g e o c e n t r i c t h e o r i e s j i ; and that a l l he could c l a i m f o r the Copernican hypothesis was that i t described c e r t a i n phenomena (the r e t r o g e s s i o n ) more economically than Pt61emy; as against t h i s the above-mentioned p h y s i c a l o b j e c t i o n s would have c a r r i e d the day. For i t must be remembered that the system which G a l i l e o advocated was the orthodox Copernican 'system, designed by the Canon h i m s e l f , n e a r l y a century before Kepler threw out the e p i c y c l e s and transformed the abstruse paper-construction i n t o a workable mechanical model. Incapable of acknowledging t h a t any of h i s contemporaries had a share i n the progress of astronomy, G a l i l e o b l i n d l y , and indeed s u i c i d a l l y , ignored Kepler's work t o the end, p e r s i s t i n g i n the f u t i l e attempt t o bludgeon the world i n t o accepting a F e r r i s wheel w i t h f o r t y - e i g h t e p i c y c l e s as ' r i g o r o u s l y demonstrated' p h y s i c a l r e a l i t y . But, while G a l i l e o f a i l e d i n o b t a i n i n g consent to the d e t a i l s of h i s system, i t was c e r t a i n l y h i s work and p o p u l a r i t y that r e s u l t e d i n the change i n world view from g e o c e n t r i c i t y to h e l o c e n t r i c i t y . I f i t wasn't s c i e n t i f i c , o b j e c t i v e proof t h a t made t h i s advancement p o s s i b l e , what was i t ? To sum i t up i n one word, i t was r h e t o r i c . G a l i l e o used p s y c h o l o g i c a l t r i c k s , eloquent language, appeals to emotions and j u s t p l a i n dishonesty i n h i s campaign to advance h i s b e l i e f s against the b e l i e v e r s i n g e o c e n t r i c i t y . He d i d t h i s i n order to get people to r e j e c t t h e i r o l d experience and thus see the world i n a t o t a l l y new way. The experiences upon which he based the Copernican view was "nothing but the r e s u l t of h i s own f e r t i l e imagination, i t has been invented. 13 Whenever an observed f a c t was proposed as a r e f u t a t i o n to Copernicanism, G a l i l e o delved i n t o the f a c t to f i n d the t h e o r e t i c a l or " n a t u r a l i n t e r p r e t a t i o n " that u n d e r l i e s t h i s o f f e n s i v e observation. He then used appeals to common sense, t o analogy and to a e s t h e t i c appeal to dethrone t h i s n a t u r a l i n t e r p r e t a t i o n and r e p l a c e i t w i t h another, one that r e s u l t e d i n the observation l o s i n g i t s con-t r a d i c t o r y e f f e c t . This new t h e o r e t i c a l c l a i m c o n s t i t u t e d an a u x i l i a r y , but unproven hypothesis, which supported and was i t s e l f supported by the main theory — i n t h i s case Copernicanism. So i t was that G a l i l e o suggested such th i n g s as the law of i n e r t i a and a theory of o p t i c s that defused troublesome f a c t s . In f a c t by combining a l l of these precarious and " i r r a t i o n a l " b e l i e f s , G a l i l e o made p o s s i b l e a new k i n d of experience. ... while the pre-Copernican astronomy was i n t r o u b l e (was confronted by a s e r i e s of r e f u t i n g instances and i m p l a u s i b i l i t i e s ) , the Copernican theory was i n even greater t r o u b l e (was confronted by even more d r a s t i c r e f u t i n g instances and i m p l a u s i b i l i t i e s ) — but that being i n harmony w i t h s t i l l f u r t h e r inadequate t h e o r i e s f i n e r t i a , o p t i c s j i t gained s t r e n g t h , and was r e t a i n e d , the r e f u t a t i o n s being made g i n e f f e c t i v e by ad hoc hypotheses and c l e v e r techniques of persuasion, [emphasis h i s j Paul K. Feyerabend and others have argued that every s c i e n t i f i c advance 9 has been preceded by t h i s k i n d of i r r a t i o n a l , non-methodological a c t i v i t y . R e l i a n c e on the f a c t s can only v e r i f y a theory t o which the s c i e n t i s t has a l r e a d y made a commitment — which he already b e l i e v e s i s t r u e . Facts cannot, t h e r e f o r e , provide value to science by guaranteeing i t s connection to o b j e c t i v e r e a l i t y — to t r u t h , As I suggested above, l e g a l t h i n k i n g has based i t s c l a i m to value on o b j e c t i v e l y e x i s t i n g r u l e s i n the same way that science was s a i d t o be based on o b j e c t i v e l y e x i s t i n g f a c t s . In f a c t , t h i s c l a i m about the law would seem to have a f a r lower i n i t i a l p l a u s i b i l i t y than the b e l i e f i n f a c t s . P h y s i c a l f a c t s are c e r t a i n l y a much b e t t e r contender to o b j e c t i v i t y than are r u l e s or 14 p r i n c i p l e s . The " r e a l i t y " of the l a t t e r tends t o be somehow i n f e r r e d by t h e i r e f f e c t s , r a t h e r i n the same way as we experience g r a v i t y or i n e r t i a as opposed to apples or t a b l e s . But h a b i t s run deep and the b e l i e f i n the r e a l i t y of r u l e s i s so deeply imbedded i n our l e g a l c u l t u r e that most people would no more t h i n k to challenge the existence of r u l e s than they would t h a t of concrete f a c t s . The f i r s t sustained, a t t a c k on law's c l a i m to value based upon the o b j e c t i v i t y of r u l e s came from the school of l e g a l r e a l i s m . This group of t h i n k e r s , many of whom were eminent judges, was twice blessed w i t h l e g a l experience and an i n q u i s i t i v e a t t i t u d e untrammelled by overwhelming deference to the p o s i t i v i s t d o c t r i n e . T r a d i t i o n a l j u r i s p r u d e n c e has c o n s i s t e n t l y maintained t h a t the law was o b j e c t i v e , and t h a t , i f d i f f e r e n t judges a p p l i e d the r u l e s c o r r e c t l y , they would always reach the same c o n c l u s i o n . Philosophers had such a strong a t t a c h -ment t o t h i s b e l i e f , that they dismissed apparent counter-examples as mere a b e r r a t i o n s , caused by the judge a l l o w i n g h i s personal makeup to contaminate h i s judgement. This meant that the theory t h a t law i s a set of o b j e c t i v e r u l e s was not capable of being disproved. The l e g a l r e a l i s t s recognized t h i s to be a v i o l a t i o n of the very s c i e n t i f i c method to which the p o s i t i v i s t s purported to adhere. They knew from t h e i r own observation and experience t h a t the i n f l u e n c e of judges' p e r s o n a l i t i e s on l e g a l d e c i s i o n making was f a r too prevalent to be simply shrugged o f f . They knew that t h i s i n f l u e n c e c o n s t i t u t e d a f a l s i f i c a t i o n of the theory t h a t l e g a l d e c i s i o n s are made by d i s c o v e r i n g and applying r u l e s . A c c o r d i n g l y , another theory was needed which could not only e x p l a i n the e x i s t i n g body of l e g a l d e c i s i o n s , but would a l s o enable the t h e o r i s t to make p r e d i c t i o n s about f u t u r e l e g a l d e c i s i o n s . The theory could thus be confirmed or f a l s i f i e d by the success of the p r e d i c t i o n s . I t was t h i s e m p i r i c a l f e a t u r e of the r e a l i s t j u r i s p r u d e n c e that gave i t value i n the eyes of i t s exponents. 15 I n t e l l e c t u a l f a s h i o n once again intervened and determined the course adopted by the r e a l i s t s . E m p i r i c a l behaviourism and i t s i n f l u e n c e on the f l e d g -l i n g s o c i a l sciences was enjoying the height of i t s p o p u l a r i t y . I t was seized upon and eagerly a p p l i e d to the study of l e g a l d e c i s i o n making. A f t e r a l l , i f the determining f a c t o r i n d e c i s i o n making i s the personal i n t e r v e n t i o n of the judge, then i t i s h i s p s y c h o l o g i c a l and s o c i o l o g i c a l makeup th a t should con-s t i t u t e the main subject matter f o r an e m p i r i c a l ( i . e . , r a t i o n a l ) theory of law. The r e a l i s t s , w i t h the h u b r i s t y p i c a l of the s o c i a l s c i e n t i s t , embarked upon the massive task of developing a theory based upon the s o c i o l o g i c a l and p s y c h o l o g i c a l s t r u c t u r e of the j u d i c i a l and l e g a l p r o f e s s i o n s . Eager young graduates a p p l i e d themselves to assembling and disassembling data. They drew cha r t s and graphs and graphs and c h a r t s . They conducted i n t e r v i e w s and drew up p e r s o n a l i t y p r o f i l e s . They compiled data and argued about t h e o r i e s of data c o m p i l a t i o n . But a l l t h e i r e f f o r t s were to no a v a i l . L e g a l r e a l i s m had appeared suddenly amid much enthusiasm, but the enthusiasm waned and the research done by i t s adherents d i d nothing to r e k i n d l e i t s flames. I t has reached such a low l e v e l of c r e d i b i l i t y i t o d a y that many a defender of the r e a l i t y of r u l e s w i l l d ismiss any challenge to t h e i r hegemony as "only" l e g a l r e a l i s m . And we a l l know about l e g a l r e a l i s m . I t has been passe f o r year. The sneering d i s m i s s a l of the r e a l i s t s by modern ju r i s p r u d e n c e i s s u r e l y an i n j u s t i c e . Many of t h e i r i n i t i a l c r i t i c i s m s of the b e l i e f : i n r u l e s are powerful and convincing. The thoroughgoing s c e p t i c i s m of the r e a l i s t s i s an i n v a l u a b l e a i d i n unearthing many of the s e r i o u s problems and anomalies inv o l v e d i n the b e l i e f i n law's o b j e c t i v i t y . I t i s no doubt at l e a s t p a r t i a l l y because of the embarrassing nature of many of these c r i t i c i s m s that p o s i t i v i s t s are so eager to r e l e g a t e everything s a i d by the r e a l i s t s to the s h e l f where we store quaint, but e s s e n t i a l l y useless antiques. 16 The problem w i t h l e g a l r e a l i s m was not w i t h i t s d i a g n o s i s , but r a t h e r w i t h i t s p r e s c r i p t i o n . The r e a l i s t s ' major e r r o r l a y i n t h e i r wholesale sub-s c r i p t i o n to behaviourism. This paper i s not the place to embark upon an examination of the many p h i l o s o p h i c a l d i f f i c u l t i e s w i t h t h a t school of thought — i t has been done thoroughly and b e a u t i f u l l y by many oth e r s . " ^ These c r i t i c i s m s are e a s i l y a p p l i c a b l e to the b e h a v i o u r i s t foundations of l e g a l r e a l i s m . S u f f i c e i t to say t h a t , i n applying the e m p i r i c a l method of science, the l e g a l r e a l i s t s maintained the t r a d i t i o n of t r e a t i n g the law as something that can be described f a c t u a l l y . The independently e x i s t i n g r u l e s were no longer l e g a l r u l e s , but r a t h e r b e h a v i o u r a l r u l e s . But, by g i v i n g the behavioural r u l e s the e x c l u s i v e p o s i t i o n of t r u t h , of r e a l i t y , they shacked themselves t o t h e i r graphs and c h a r t s . The people involved i n the law vanished t o be replaced by u n i t s of behaviour. Because of t h e i r obsession w i t h v e r i f i a b l e f a c t s , they ignored the f a c t that people do b e l i e v e i n r u l e s . Judges r e l y on r u l e s to j u s t i f y t h e i r d e c i s i o n s . People r e l y on r u l e s to govern t h e i r behaviour. Lawyers r e l y on r u l e s to s t r u c t u r e t h e i r arguments. By r e f u s i n g t o acknowledge t h i s b e l i e f , the l e g a l r e a l i s t s entrapped themselves i n a fantasy that bore no r e l a t i o n s h i p to the law as i t i s a c t u a l l y experienced by most people. The reason that l e g a l r e a l i s m so a l i e n a t e d i t s e l f i s because i t mis-understood the nature of the b e l i e f i n r u l e s . I t t r e a t e d t h i s b e l i e f as simply an e m p i r i c a l hypothesis. In f a c t the b e l i e f i n the o b j e c t i v e e x i s t i n g of r u l e s i s not j u s t an explanation or p r e d i c t i o n of l e g a l d e c i s i o n s , i t i s a j u s t i f i c a t i o n of the law. When a judge r e f e r s t o a r u l e , he i s not merely e x p l a i n i n g h i s d e c i -s i o n , he i s giving' i t a value. He i s saying t h a t t h i s r u l e makes my d e c i s i o n r i g h t , i t i s c o r r e c t . Because i t i s c o r r e c t , i t i s j u s t . T r u t h always i s v a l u a b l e , I t i s absurd to t h i n k of a judge e x p l a i n i n g h i s d e c i s i o n on the b a s i s of an emotional trauma suff e r e d when he was twelve, or because ei g h t y percent of 17 judges w i t h s i m i l a r c u l t u r a l backgrounds would make th a t d e c i s i o n . Unless a d e c i s i o n i s the r i g h t d e c i s i o n , then i t i s not capable of being a good d e c i s i o n and we have no reason to respect i t . The r e a l i s t s had painted themselves i n t o a corner. I f t h e i r t h e o r i e s were c o r r e c t , the law had no value and was simply an instrument of a r b i t r a r y c o e r c i o n . Yet, i f the l e g a l spokesmen p e r s i s t e d i n d e s c r i b i n g the law's a c t i v i t y as the d i s c o v e r y and a p p l i c a t i o n of p r e - e x i s t i n g r u l e s , they would be i n d u l g i n g i n myth making and o b f u s c a t i o n of t r u t h . They would, that i s , be a c t i n g against t h e i r own highest i d e a l . In the face of such a quandary, American l e g a l r e a l i s m simply withered away, without ever being a c t u a l l y r e f u t e d . The r e a l i z a t i o n that the b e l i e f i n law's o b j e c t i v i t y as a set of r u l e s i s an e v a l u a t i v e as w e l l as a d e s c r i p t i v e c l a i m , l e d J u d i t h Shklar to c h a r a c t e r -i z e i t as an ideology which she c a l l s "legalism"."'""'" By ideology she means merely an a t t i t u d e , or set of preferences, that i s shared by people i n a community. Because i t i s shared, and normally very deeply imbedded, t h i s a t t i t u d e and the b e l i e f s that i t e n t a i l s are normally considered s e l f - e v i d e n t and are simply taken f o r granted. Thus " l e g a l i s m " , the b e l i e f that law, as a d i s c r e t e e n t i t y " o f a s c e r t a i n a b l e r u l e s , i s i n f a c t a preference, a b e l i e f that law should be a set of p r e - e x i s t i n g r u l e s . However, as the r e a l i s t s knew, and as Feyerabend p o i n t s out regarding s c i e n t i f i c t h e o r i e s , adoption of an ideology or a theory means that i t s fundamental b e l i e f s are not subject to c r i t i c a l examination. The b e l i e f that law i s v a l u a b l e because i t i s o b j e c t i v e i s unchallengeable as long as there i s no competing ideology, no a l t e r n a t i v e preference on which t o ground an under-standing of the law. I should make i t c l e a r t h a t i t i s no part of my argument to urge that we adopt an i d e o l o g i c a l l y "pure" p o s i t i o n from which to study the law. I do not b e l i e v e that t h i s i s e i t h e r p o s s i b l e or d e s i r a b l e . Shklar makes t h i s point i n her t y p i c a l l y concise and a r t i c u l a t e manner: 18 ... i t may w e l l be doubted whether p o l i t i c a l theory, of which l e g a l theory i s a p a r t , can be w r i t t e n without some sort of i d e o l o g i c a l impetus. Nor i s there any reason to f e e l that the expression of personal preferences i s an undesirable flaw. I t must seem so only to those who equate o b j e c t i v i t y w i t h remoteness from t h e i r own experiences, and e s p e c i a l l y from those they share w i t h t h e i r contem-p o r a r i e s . However, i f one t h i n k s of ideology as merely a matter of emotional r e a c t i o n s , both negative and p o s i t i v e , to d i r e c t s o c i a l experiences and to the views of othe r s , i t i s c l e a r that ideology i s as i n e v i t a b l e as i t i s necessary i n g i v i n g any t h i n k i n g person a:, sense of d i r e c t i o n . To be sure, i d e o l o g i c a l responses are o f t e n d i f f i c u l t to recognize i n on e s e l f , as they i n s e n s i b l y come to con d i -t i o n one's i n t e r e s t s , one's methods of study, one's conceptual devices, and even one's vocabulary. However, i f we d i d not t h i n k of ideology as a gross form of i r r a t i o n a l i t y , we would be l e s s anxious to repress i t and our self-awareness would be correspondingly greater.12 She s t a t e s her own ideology, her own order of preferences, to be one of "barebones l i b e r a l i s m , " t o i n c l u d e a primary commitment to s o c i a l t o l e r a n c e and d i v e r s i t y , t o c h e r i s h the freedom of the i n d i v i d u a l and the sub-o r d i n a t i o n of the State's power to these v i r t u e s . Throughout the remainder of her book, Shklar shows how the adoption of a l e g a l i s t i c view of law i n e v i t a b l y leads to the compromise of these important goals. I t i s i n the nature of r u l e s to homogenize t h e i r o b j e c t s , to ignore and thus devalue d i f f e r e n c e s , w h i l e e x a l t i n g s i m i l a r i t i e s . Not only are d i f f e r e n c e s between i n d i v i d u a l s frowned upon, but so are the d i f f e r e n c e s between s i t u a t i o n s . By c o n s t a n t l y s t r i v i n g to t r e a t the present and s t r u c t u r e the f u t u r e i n the same was as we coped w i t h the past, l e g a l i s t i c law i n h i b i t s r a t h e r than enhances the growth and development of the law. Those who i n s i s t on the conservative view that the law i s a complete e v o l u t i o n a r y e n t i t y i n e v i t a b l y ignore "the complex'and heterogeneous h i s t o r i c a l process that combines reasonable thought with personal i d i o s y n c r a c i e s ; s o p h i s t i c a t e d p o l i -13 t i c a l programmes w i t h ancient and p e t r i f i e d means of expression and thought". What i s the source of t h i s i n s i s t e n c e on a view that has so many u n s a t i s f a c t o r y consequences, t h a t turns a b l i n d eye t o so much common sense and h i s t o r i c a l experience? Shklar i d e n t i f i e s i t as the f e a r of a r b i t r a r i n e s s t h a t 19 u n d e r l i e s the e n t i r e growth of the western p o l i t i c a l t r a d i t i o n . We have e n t h u s i a s t i c a l l y endorsed the n o t i o n of the r u l e of law, because the r u l e of men i s assumed to be n e c e s s a r i l y a r b i t r a r y and whimsical. In order to stave o f f the tyranny t h a t i n e v i t a b l y accompanies a r b i t r a r i n e s s , we have developed laws that are immune from the w i l l of kings and judges. I f people are to be capable of f r e e l y ordering t h e i r l i v e s i n such a way as to avoid c o n f l i c t w i t h the law, i t must be c e r t a i n and p r e d i c t a b l e . The l i k e l i h o o d of tyranny and oppression increases i n v e r s e l y w i t h the c e r t a i n t y of the law's a p p l i c a t i o n , and d i r e c t l y w i t h the amount of d i s c r e t i o n i t s o f f i c i a l s are able to e x e r c i s e . Lack of o b j e c t i v i t y leads to a r b i t r a r i n e s s . A r b i t r a r i n e s s leads to tyranny. Tyranny i s bad, so o b j e c t i v i t y must be good. In order to be good, law must be o b j e c t i v e . Q.E.D. The problem i s , the b e l i e f i n law's o b j e c t i v i t y does not e l i m i n a t e i t s u n c e r t a i n t y , i t merely ignores i t . T h i s i s the theme of Steve Wexler's 14 a r t i c l e " D i s c r e t i o n : The Unacknowledged Side of Law". He shows t h a t the vast m a j o r i t y of l e g a l d e c i s i o n s made today are not the r e s u l t of c l e a r and unambiguous r u l e s , but are r a t h e r the r e s u l t of some o f f i c i a l a pplying h i s personal f e e l i n g s , b e l i e f s and preferences to a case which he has the d i s c r e t i o n to decide e i t h e r way. That d i s c r e t i o n , and the absence of c l e a r and b i n d i n g r u l e s , i s u b i q u i t o u s i n the f u n c t i o n i n g of bureaucracies i s w e l l known to anyone who has had any contact w i t h what we e u p h e m i s t i c a l l y c a l l a d m i n i s t r a t i v e law. But l e g a l t h e o r i s t s continue to deny to t h i s f a c t any relevance to t h e i r general view of the law. But even i n the c o u r t s , according to Wexler as to the l e g a l r e a l i s t s , the judge i s only r a r e l y bound by a r u l e which compels one p a r t i c u l a r d e c i s i o n . The judge's job i s to " d i s c o v e r " the a p p l i c a b l e r u l e f o r the case before him. 20 But t h i s always i n v o l v e s choosing the r e l e v a n t f e a t u r e s of the s i t u a t i o n before him, as w e l l as the i n t e r p r e t a t i o n of both s t a t u t e s and previous j u d i c i a l d e c i s i o n s . The judge i s no more capable of performing t h i s choosing and i n t e r p r e t i n g unaffected by h i s own v a l u e s , b e l i e f s and p r e j u d i c e s than i s the s c i e n t i s t who i s " t e s t i n g " a theory. Values, b e l i e f s , and p r e j u d i c e s , e s s e n t i a l to a l l human d e c i s i o n s , are not o b j e c t i v e , not c e r t a i n , and are not capable of being captured or e l i m i n a t e d by a r u l e , or by a methodology. But by t a l k i n g and a c t i n g as though the law i s o b j e c t i v e , we end up paying an enormous p r i c e . I t i s not merely t h a t we a l i e n a t e the law from i t s h i s t o r i c a l and c u l t u r a l context, which i s indeed s e r i o u s , but somehow t h e o r e t i c a l and amorphous. The r e a l tragedy i s that we a l l o w our d e c i s i o n makers to proceed without being honest and r e s p o n s i b l e to the people a f f e c t e d by t h e i r c h o i c e s . A judge or a bureaucrat i n e v i t a b l y makes h i s d e c i s i o n on the b a s i s of h i s personal values and d e s i r e s , But he i s not r e q u i r e d , indeed he i s f o r b i d d e n , to be above board about t h i s . He must not s t a t e h i s r e a l reasons nor f r a n k l y out-l i n e the values upon which he r e l i e s . Instead he must hide behind the c l o a k of o b j e c t i v i t y and r u l e s . D i s c u s s i o n and e v a l u a t i o n of the values involved are normally precluded by the mass of what i s too o f t e n tangled and impenetrable "reasoning". Furthermore, the myth t h a t judges simply d i s c o v e r and apply pre-e x i s t i n g r u l e s leads us to v a l u e too h i g h l y the wrong q u a l i t i e s i n the people that we appoint to bench and bar. Impersonal judgement and the s t r i v i n g f o r o b j e c t i v i t y are i n t e l l e c t u a l v i r t u e s of the highest order. But they are the v i r t u e s of observers, of t e c h n i c i a n s , and of s t r a t e g i s t s , not of those how must make s o c i a l choices f o r themselves and f o r others i n s i t u a t i o n s where i t i s f a r from c l e a r what ends can and should be pursued, however much the p a r t i c i p a n t s may long f o r c l e a r rulebooks to guide them.15 ... we a l l o w hack o f f i c i a l s to decide cases which even the most s e n s i -t i v e among us would f i n d very d i f f i c u l t to decide. We pretend or b e l i e v e that r u l e s are at work when i t i s men who are, and we do not demand that the men be our best or that they answer f o r t h e i r d e c i s i o n s . 21 Perhaps most t r a g i c i s the p l a i n , simple f a c t t h a t , i n c r e a s i n g l y , no one i s fooled anymore. Lawyers, law students, policemen., and even some judges show t h e i r w o r l d l i n e s s and s o p h i s t i c a t i o n by s c o f f i n g at the idea that law i s o b j e c t i v e . They a l l know that " i t a l l depends on which judge you get". The pronouncements of the p r o f e s s o r s and the assurances of the judges that the law i s j u s t because i t i s o b j e c t i v e , that one can l e a r n " l e g a l reasoning" and see t h a t , d e s p i t e i t s appearances, the law r e a l l y JLS_ r a t i o n a l , a l l of these f a l l on deaf ear s. Arguments can be made, and no doubt w i l l be, that those who deny that the law i s o b j e c t i v e simply don't understand, that t h e i r view of the law i s shallow. But i t i s too l a t e f o r t h a t . The choice i s not between r u l e s and d i s c r e t i o n , but "between the pretense of r u l e s , and the r e a l i t y of discretion".'''^ And w h i l e our philosophers and our judges and our teachers postpone t h i s d e c i s i o n and maintain t h e i r facade, the gap between law and j u s t i c e yawns wider and wider. The " f i d e l i t y to law" appears i n c r e a s i n g l y naive. And the value of law, the b a s i s of our commitment t o i t , has evaporated. How can the law cope w i t h t h i s c r i s i s ? Neither Shklar nor Wexler o f f e r us any more d e f i n i t e p r e s c r i p t i o n than to recognize that the law i s not merely a set of o b j e c t i v e r u l e s . They do not t e l l us what to do w i t h t h i s r e c o g n i t i o n . I have argued that the law seeks t o be o b j e c t i v e i n order that i t be r a t i o n a l ; r a t i o n a l i n order to be v a l u a b l e . Perhaps the problem i s w i t h t h i s equation. Is i t r e a l l y necessary that the law be o b j e c t i v e i n order to be valuable? As I pointed out, science once thought t h a t , i n order f o r ±t_ to be v a l u a b l e , i t had to be based upon o b j e c t i v e f a c t s . Now i t has been r e a l i z e d that science i s not o b j e c t i v e : there are no f a c t s . T h i s r e a l i z a t i o n has not led anyone to deny the value of science; people have merely sought a new b a s i s f o r 22 i t s v a l u e . This has been the m o t i v a t i o n f o r the h i s t o r i c a l work of such i n d i v i d u a l s as Paul K. Feyerabend and Arthur K o e s t l e r . They have i d e n t i f i e d a p a t t e r n that seems to accompany a l l evolu-t i o n a r y growth, whether i t be of species or of ideas. ... a new period i n the h i s t o r y of science commences w i t h a backward  movement th a t r e t u r n s us t o an e a r l i e r stage where t h e o r i e s were more vague and had smaller e m p i r i c a l content. T h i s backward movement i s not j.ust an ac c i d e n t . I t has a d e f i n i t e f u n c t i o n ; i t i s e s s e n t i a l i f we want to overtake the status quo ...18 £emphasis added] K o e s t l e r i d e n t i f i e s t h i s backward movement as a r e c u l e r pour mieux sauter: a drawing back to leap. I t may be u s e f u l at t h i s point to draw back i n our i n t e l l e c t u a l h i s t o r y to make a new s t a r t . We should attempt t o r e t u r n to the embryonic stage of Western philosophy — to the t h i n k e r s of ancient Greece. 23 — CHAPTER TWO — ** i AA There i s no doubt that ancient Greece has had a powerful i n f l u e n c e on subsequent Western world views. The f u l l nature of t h i s impact i s not pr o p e r l y appreciated. Many s c h o l a r s d e s c r i b e the accomplishment of the Greek t h i n k e r s i n terms of a b s t r a c t i o n . For the f i r s t time, according to these accounts, man acquired the a b i l i t y to conduct h i s r a t i o n a l i t y i n an a b s t r a c t u n i v e r s e , separate from the world of mere sensation. T h i s permitted the development of a b s t r a c t mathematics, E u c l i d i a n geometry, and formal l o g i c . I t r e s u l t e d i n the development of a p r e c i s e and elaborate astronomy and p h y s i c s . Now, j u s t as the groundwork f o r these d i s c i p l i n e s can be traced to the newly found Greek a b i l i t y to a b s t r a c t from everyday experience, so too can Western l e g a l systems f i n d t h e i r common root i n the H e l l e n i c genius. ... Professor F.S.C. Northrop ... has shown t h a t the c r e a t i o n of the Western c o n t r a c t u a l l e g a l science was the r e s u l t of the Roman S t o i c lawyers' i n t r o d u c t i o n of the epistomology, l o g i c , and imageless t h e o r e t i c a l forms of Greek physics i n t o t h e i r ' l e g a l system, producing the r e v o l u t i o n a r y change i n Roman law described by S i r Henry Maine as the s h i f t from Status to Contract.1 An understanding of the change i n world view that occurred twenty-f i v e c e n t u r i e s ago on the shores of the Mediterranean cannot help but e n l i g h t e n us about the b e l i e f s and dogmas that u n d e r l i e our own world view, and p a r t i c u -l a r l y our l e g a l s t r u c t u r e . The change that evolved i n the t h i n k i n g of the Greeks was more fundamental than the " a c q u i s i t i o n " of the power t o t h i n k i n an a b s t r a c t or u n i v e r s a l way. In f a c t , i t seems more p l a u s i b l e to suppose t h a t the a c t u a l c a p a c i t y to t h i n k a b s t r a c t l y d i d not develop i n the span of a few hundred years, but had e x i s t e d f o r as long as homo sapiens had walked the surface of the e a r t h . 24 Instead, the Greeks invented a p a r t i c u l a r s t y l e of a b s t r a c t thought that had never before been performed. But before t h i s change i n s t y l e could occur, a r a d i c a l change of world view was necessary, a change that went to the very core of r a t i o n a l i t y i t s e l f . And i t was t h i s change th a t i s the r e a l legacy of the philosophy of ancient Greece. More p r e c i s e l y , i t i s t h i s change that i s the legacy of the l a t e r Greek philosophers, e s p e c i a l l y P l a t o and A r i s t o t l e . For the f i r s t time i n philosophy, these two men made the tru e r a t h e r than the good, the u l t i m a t e c r i t e r i o n of r a t i o n a l i t y . I t i s t h i s change which has haunted our r a t i o n a l i t y ever s i n c e , I t was. t h i s change that l e d to the typ of a b s t r a c t t h i n k i n g that we c a l l " o b j e c t i v e " . I t was t h i s change that made science and her s i s t e r technology p o s s i b l e , that l e d to the dis c o v e r y of the cure f o r smallpox and to the i n v e n t i o n of napalm. I t was t h i s change that both determined the form of C h r i s t i a n d o c t r i n e , and provided the b a s i s f o r n a t i o n a l s o c i a l i s m . Because of the n o t i o n that the true r e a l l y i s the Holy G r a i l a f t e r which a l l of our r a t i o n a l quests are d i r e c t e d , i t i s d i f f i c u l t f o r us to imagine that t h i s i s not inherent i n the very concept of r a t i o n a l i t y . T h i s d i f f i c u l t y i s not s u r p r i s i n g , f o r the b e l i e f l i e s behind, or under, a l l of our other b e l i e f I t i s the foundation of our r a t i o n a l l i v e s . A thr e a t t o i t i s a thr e a t to our r a t i o n a l i t y , perhaps to our s a n i t y . But s u r e l y any t r u e c o n f r o n t a t i o n w i t h a world view w i l l e n t a i l t h i s s o r t of t h r e a t . I f i t doesn't, then we are not r e a l l y attempting to understand the world view i n ques t i o n , but merely to embrace i t and a s s i m i l a t e i t w i t h i n the f o l d s of our own. What i s needed then, i s a sense of imagination, an openness to suspend d i s b e l i e f , and a f e e l i n g of adventure. Crossing f r o n t i e r s i s never easy, but i s almost always e x c i t i n g . Every f r o n t i e r r e q u i r e s a v e h i c l e to f a c i l i t a t e the c r o s s i n g . The v e h i c l e that I have discovered f o r the e x p l o r a t i o n of the founda-t i o n s of r a t i o n a l i t y i s the c o n f l i c t between l o g i c and r h e t o r i c . T h i s i s 25 e s p e c i a l l y u s e f u l when we consider the philosophy of ancient Greece, f o r i t was here that t h i s b a t t l e was f i r s t fought. In t h i s chapter, I w i l l examine the r o l e that r h e t o r i c a l t h i n k i n g played i n p r e - S o c r a t i c philosophy, and the nature of the a t t a c k t h a t was l e v e l l e d a gainst i t by Socrates and P l a t o . I w i l l , show how t h i s determined the treatment which was given to r h e t o r i c by A r i s t o t l e , and suggest how t h i s has influenced Western r a t i o n a l i t y ever s i n c e . I w i l l s t a r t where h i s t o r i e s of philosophy i n e v i t a b l y s t a r t — w i t h Thales of M i l e t u s , who walked i n t o a w e l l w h i le l o o k i n g at the s t a r s . ** i i ** The s i x t h century before the b i r t h of Jesus C h r i s t was one of the most remarkable epochs i n the short h i s t o r y of our species. I t produced the Buddha i n I n d i a , Confucius and Lao-Tzu i n China, Z a r a t h u s t r a i n P e r s i a , and the Ionians and Pythagoras i n the Mediterranean. Perhaps even more remarkable i s the f a c t that the s p i r i t of d i s c o v e r y i n a l l of these f a r d i s t a n t lands was so s i m i l a r . The c i t y of M i l e t u s was i n I o n i a , which we now c a l l Turkey. I t was here that the f i r s t Greek philosophers l i v e d and d i e d . And i t was here that Thales proposed the fundamental substance of the u n i v e r s e t o be water. This preposterous c l a i m cannot be considered i n the same way that we e n t e r t a i n our own a s s e r t i o n s . For Thales, as f o r a l l of the philosophers that we s h a l l consider i n the next few pages, t r u t h was not the g o a l . Neither was there the separation between the worlds of r e l i g i o n and of knowledge that we are so f a m i l i a r w i t h today. Thales was a philosopher and not merely :another r e l i g i o u s prophet or o r a c l e , because he described the f r u i t s of h i s own r e f l e c t i o n s and h i s own experience, and not a b e l i e f about the universe based upon communication w i t h the gods. But h i s d e s c r i p t i o n of the u n i v e r s e was c e r t a i n l y t i e d t o what we would 26 c a l l r e l i g i o u s b e l i e f . The water t h a t formed the b a s i s of a l l e xistence was not a simple object i n the world. I t was d i v i n e water, i t was ensouled and communicated i t s l i f e to a l l matter. The universe was a l i v e f o r Thales and t h i s l i f e was the source of a l l motion. Man was but a part of t h i s d i v i n e motion. Behind a l l of the apparent d i s t i n c t i o n s , was the u n i t y of the l i v i n g water. The b e l i e f i n a primary substance that c h a r a c t e r i z e d the u n i t y of a l l t h i n g s was held i n common by a l l of the p r e - S o c r a t i c t h i n k e r s . But, as i n the East, where the same b e l i e f was f i r m l y entrenched, philosophers came up w i t h d i f f e r e n t ways of t r y i n g to communicate the i n e f f a b l e . No d e s c r i p t i o n of the universe can be complete, f o r language i s based on d i s t i n c t i o n s , and the b a s i s of the universe i s the One — the absence of d i s t i n c t i o n s . But that does not d i c t a t e s i l e n c e . I t i s human nature t o communicate. Therefore d i f f e r e n t people came up w i t h d i f f e r e n t d e s c r i p t i o n s of the One, d e s c r i p t i o n s that enabled others to experience t h e i r world i n new and r i c h e r ways. But these d e s c r i p t i o n s a l l shared something. They always included the observer as an i n d i s p e n s i b l e part of the observed. Humanity p a r t i c i p a t e d i n the experiences t h a t i t had, and so human q u a l i t i e s played a determining part i n the s t r u c t u r e of the world. T h i s i s e s p e c i a l l y evident i n the t h i n k i n g of Anaximander, another M i l e s i a n and a younger contemporary of Thales. For Anaximander the fundamental p r i n c i p l e i s the unbounded or i n d e f i n i t e . The unbounded i s i n t e r n a l l y u n d i f f e r -e n t i a t e d , but i s the source of a l l appearances. Opposites separate themselves out from the One and then war upon each other. There i s a continuous c y c l e of becoming and ceasing to be as the opposites i n t r u d e upon each other, and then are forced to pay r e t r i b u t i o n i n accordance w i t h the p r i n c i p l e of cosmic j u s t i c e 2 (dike) . This concept of j u s t i c e as the r e g u l a t i n g p r i n c i p l e of the universe i s a v i t a l part of the p r e - S o c r a t i c thought. In the way that i t binds gods as w e l l as men, i t i s s t r o n g l y suggestive of the Eastern concepts of Karma or Tao. I t 27 invokes a dramatic p o r t r a y a l of the u n i v e r s e — a q u a l i t a t i v e and moral under-standing of e m p i r i c a l phenomena that i s q u i t e f o r e i g n to our s c i e n t i f i c manner of t h i n k i n g . But once we adopt the view t h a t the nature of the perceived world i s the r e s u l t of the p a r t i c i p a t i n g s u b j e c t , i t becomes i n e v i t a b l e that moral concepts w i l l p l a y an e s s e n t i a l r o l e i n the d e s c r i p t i o n of that world. The human p a r t i c i p a t i o n i n the universe was a l s o s t r e s s e d by Anaximenes, who described the fundamental substance as a i r or, more a c c u r a t e l y , as breath or s p i r i t (pneuma). A l l o b j e c t s are t h i c k e n i n g s or t h i n n i n g s of t h i s p r i m o r d i a l , homogeneous breath. T h i s substance i s a l i v e or ensouled and i t s l i f e causes a l l change and motion. I must repeat my contention t h a t these explanations of the universe were not attempts at c o n s t r u c t i n g s c i e n t i f i c t h e o r i e s i n the sense of a set of t r u e p r o p o s i t i o n s . I t i s probably b e t t e r t o t h i n k of them as a c t i v i t i e s t h a t resemble p a i n t i n g or w r i t i n g poetry. They were attempts to share an experience, or way of experiencing the world that was p l e a s i n g or f u l f i l l i n g , r a t h e r than true or f a c t u a l . T h i s may help us to understand the f o l l o w i n g observation of Arthur K o e s t l e r : None of the cosmologies ... gained a considerable f o l l o w i n g . Every philosopher of the period seems to have had h i s own theory regarding the nature of the Universe around him. To quote Professor Burnet, "no sooner d i d an Ionian phlosopher l e a r n h a l f a dozen geometrical p r o p o s i t i o n s and hear that the phenomena of the heavens recur i n c y c l e s than he'set to work t o look f o r law every-where i n nature, and w i t h an audacity amounting to h y b r i s t o construct a system of the universe."3 Surely t h i s image i s more evocative of a group of f l e d g l i n g a r t i s t s a l l t r y i n g to p a i n t the best p i c t u r e , than a group of draughtsmen t r y i n g t o r e p l i c a t e the t r u e s t a t e of a f f a i r s . The most complete example of how cosmic wonder, a e s t h e t i c d e l i g h t and the e x e r c i s e of reason are i n e x t r i c a b l y t i e d together at t h i s time was the d o c t r i n e of the Pythagorean brotherhood. Pythagoras of Samos i s u n i v e r s a l l y 28 recognized as the father of Western mathematics. I t i s h i s i n f l u e n c e that p e r s i s t s i n attempts to e x p l a i n the universe i n terms of mathematics. There ar e , however, e s s e n t i a l d i f f e r e n c e s between the r e l a t i o n of numbers to r e a l i t y f o r Pythagoras^ and f o r more recent t h i n k e r s . Pythagoras, it'seems, b e l i e v e d i n the same cosmic u n i t y that was described i n v a r i o u s ways by the M i l e s i a n s , He a l s o b e l i e v e d that the universe was i n a continuous s t a t e of f l u x . But the u n i f y i n g v i s i o n that he proclaimed was not water, or breath, or the combination of opposites. Pythagoras b e l i e v e d that the study of numbers was the way to understanding of the u n i v e r s e . Once again, we must be c a r e f u l not to t h i n k t h a t the goal of Pyghagoras' t h i n k i n g was knowledge. Mathematics was not a method f o r c o n s t r u c t i n g true d e s c r i p t i o n s of the u n i v e r s e . Rather i t was a d i s c i p l i n e that enabled an adept to have a m y s t i c a l i n s i g h t i n t o the cosmos. I t may be e a s i e r to appreciate the nature of the Pythagorean v i s i o n 4 i f we consider i t s r e l i g i o u s r o o t s . I t d i s p l a y e d a powerful Orphic i n f l u e n c e . The Orphic r e l i g i o n had sought e c s t a t i c r e l e a s e from the world through intense r i t u a l s of dance, d r i n k i n g and other sensual pleasures. Now, Pythagoras taught that i n t e l l e c t u a l ecstasy ( e k s t a s i s ) could be a t t a i n e d by contemplation of the " d i v i n e dance of numbers". In f a c t , the modern word, "theory" i s derived from t h i s Pythagorean idea. But r a t h e r than the c o l d l y o b j e c t i v e conno-t a t i o n s that i t bears today, to the Greeks of that time i t meant something q u i t e d i f f e r e n t : "passionate, sympathetic contemplation". I t was the kind of beholding c h a r a c t e r i z e d by a spectator at a r e l i g i o u s f e s t i v a l . For Pythagoras, the "passionate sympathetic contemplation" was i n t e l l e c t u a l , and issued i n mathematical knowledge. In t h i s way, through Pythagoreanism, "theory" g r a d u a l l y acquired i t s modern meaning; but f o r a l l who were i n s p i r e d by Pythagoras i t r e t a i n e d an element of e c s t a t i c r e v e l a t i o n . To those who have r e l u c t a n t l y l e a r n t a l i t t l e mathematics i n school t h i s may seem strange; but 29 to those who have experienced the i n t o x i c a t i n g d e l i g h t of sudden understanding that mathematics g i v e s , from time to time, to those who l o v e i t , the Pythagorean view w i l l seem, completely n a t u r a l even i f untrue. I t might seem t h a t the e m p i r i c a l philosopher i s the slave  of h i s m a t e r i a l , but t h a t the pure mathematician, l i k e the musician,  i s a f r e e c r e a t o r of h i s world of ordered beauty.5 [emphasis addedj Through the passionate contemplation of the r e l a t i o n of numbers to the appearances of the world, through the p u r s u i t of the balance and order (armonia) of the universe as d i s p l a y e d by the r e l a t i o n s between numbers, p u r i f i -c a t i o n ( k a t h a r s i s ) was obtained and the i n d i v i d u a l could then escape from the wheel of r e b i r t h . The study of numbers, then, was f o r Pythagoras what the p r a c t i c e of yoga, or the a c t i v i t y of m e d i t a t i o n , or the s o l v i n g of Koans were f o r h i s Eastern contemporaries. I t was the method t o r e a l i z e the i l l u s o r y nature of the world of t h i n g s , and a method f o r l o o s i n g oneself from i t s bonds. The claims about numbers were not statements of f a c t , but methods of personal involvement w i t h r e a l i t y , of c o n t r o l over experience. the Pythagoreans ... were aware t h a t the symbols of mythology and the symbols of mathematical science were d i f f e r e n t aspects of the same, i n d i v i s i b l e R e a l i t y . They d i d not l i v e i n a 'divided house of f a i t h and Reason'; the two were i n t e r l o c k i n g l i k e the ground p l a n and e l e v a t i o n on an a r c h i t e c t ' s drawing. I t i s a s t a t e of mind very d i f f i c u l t f o r t w e n t i e t h century man t o imagine — or even to b e l i e v e that i t could have e x i s t e d . I t may help to remember though, that some of the greatest p r e - S o c r a t i c sages formulated t h e i r p h i l o s o p h i e s i n verse; the u n i t a r y source of i n s p i r a t i o n of prophet, poet, and philosopher was s t i l l taken f o r granted.6 The major impact of the Pythagorean philosophy, along w i t h the i n t r o d u c t i o n of mathematics to the d e s c r i p t i o n of the u n i v e r s e , was the method of deductive reasoning t h a t i t introduced to a l l aspects of p h i l o s o -p h i c a l s p e c u l a t i o n . I t must be kept i n mind, however, that the Pythagoreans saw deduction as a means of g a i n i n g ecstasy, as a m y s t i c a l d i s c i p l i n e that brought them i n t o contact w i t h the u l t i m a t e r e a l i t y and thereby l i b e r a t e d them from day-to-day appearances. I t s appeal was a e s t h e t i c and s p i r i t u a l r a t h e r than s c i e n t i f i c . Those sc h o l a r s who suggest that the Pythagoreans founded the 30 deductive method as an avenue to the t r u t h , a l a Rene Descartes, d i s t o r t the r e l a t i o n that the Pythagoreans themselves saw between t h e i r thoughts and t h e i r worId. One of the most i n f l u e n t i a l of the l a t e r f o l l o w e r s of the Pythagorean d o c t r i n e s was H e r a c l i t u s . L i k e Pythagoras, he taught t h a t everything i s i n a s t a t e of flux.. For him the fundamental substance i s f i r e . But as w i t h the M i l e s i a n s who preceded him, t h i s i d e n t i f i c a t i o n should be thought of as meta-p h o r i c a l or p o e t i c . He s t a t e s that the u n i t y i n the world i s a u n i t y of opposites. The dynamic p r i n c i p l e of the u n i v e r s e i s s t r i f e . His b e l i e f i n s t r i f e i s connected w i t h t h i s theory of opposites, f o r i n s t r i f e opposites combine to produce a motion which i s a harmony. There i s a u n i t y i n the w o r l d , but i t i s a u n i t y r e s u l t i n g from d i v e r s i t y : "Couples are th i n g s whole and thi n g s not whole, what i s drawn together and what i s drawn asunder, the harmonious and the d i s c o r d a n t . The One i s made up of a l l t h i n g s and a l l t h i n g s i s s u e from the One." 1 The remarkable s i m i l a r i t y between the teachings of H e r a c l i t u s and those of the Chinese philosophy of Taoism has been pointed out by F r i t j o f Capra: I t i s amazing t h a t , at the same time when Lao Tzu and h i s f o l l o w e r s developed t h e i r world view, the e s s e n t i a l f e a t u r e s of t h i s T a o i s t view were taught a l s o i n Greece, by a man whose teachings are known to us only i n fragments and who was, and s t i l l i s , very o f t e n mis-understood. This Greek " T a o i s t " was H e r a c l i t u s of Ephesus. He shared w i t h Lao Tzu not only the emphasis on continuous change, which he expressed i n h i s famous saying "Everything f l o w s " , but a l s o the n o t i o n that a l l changes are c y c l i c . He compared the world order to "an e v e r - l i v i n g f i r e , k i n d l i n g i n measures and going out i n measures," an image which i s indeed very s i m i l a r to the Chinese idea of the Tao m a n i f e s t i n g i t s e l f i n the c y c l i c i n t e r p l a y of Y i n and Yang.^ The teachings of Parmenides of Elea are o f t e n supposed to be i n c o n f l i c t w i t h those of H e r a c l i t u s , T h i s i s because Parmenides and h i s d i s c i p l e Zeno taught t h a t the only t r u e being i s the One, which i s i n f i n i t e and i n d i v i s i b l e . Any change, motion, or opposites, then, are i l l u s o r y . But, as I pointed out, H e r a c l i t u s a l s o b e l i e v e d i n the One. His concern was the 31 r e l a t i o n between the world of events, of i l l u s i o n s i f you w i l l , and the One. Parmenides devotes h i s energy to the One i t s e l f . I suspect that the d i f f e r e n c e s between the two was more one of emphasis and a t t e n t i o n than anything e l s e . I might a l s o note that Parmenides' second major work has been l o s t to us. I t s t i t l e was The Way of Opinion and i t can be reasonably supposed to have d e a l t more w i t h the perceived world than d i d h i s s u r v i v i n g piece The Way of Truth, i n which he taught the d o c t r i n e of the unchanging whole. Parmenides i s a l s o c r e d i t e d w i t h being the f i r s t t o invent a meta-physics based on l o g i c . This i s t r u e , but i t s t r u t h must be tempered w i t h another f a c t about h i s w r i t i n g s — they were a l l done i n poetry. The a e s t h e t i c element of philosophy i s s t i l l prominent today, and I suggest, i t i s s t i l l the a e s t h e t i c , rather than the f a c t u a l , appeal of l o g i c that e x p l a i n s i t s use. A younger contemporary of Parmenides was Empedocles. He taught that everything i s composed of the four elements of ear t h , a i r , f i r e and water. D i f f e r e n t o b j e c t s r e s u l t from d i f f e r e n t p r o p o r t i o n s of mixtures. He has been termed a " p l u r a l i s t " r a t h e r than a "monist" such as Parmenides. As i s usual w i t h such l a b e l s , t h i s a p p e l l a t i o n i s not e n t i r e l y accurate. Empedocles b e l i e v e d that the e t e r n a l , and unchanging r e a l i t y i s the c y c l i c motion and i n t e r a c t i o n of these elements, This e t e r n a l motion i s governed by a u n i f y i n g p r i n c i p l e and a separating p r i n c i p l e . The former i s love and the l a t t e r , s t r i f e . L i k e Parmenides, Empedocles wrote i n verse. The f i r s t person to introduce philosophy to Athens was Anaxagoras. He s a i d that mind i s the source of a l l motion and added i t t o the other four d i s t i n c t types of elements. The p r e - S o c r a t i c cosmologists developed a r i c h and v a r i e d set of p h i l o s o p h i e s , I have maintained t h a t to speak of them as c o n t r a d i c t o r y or to c r i t i c i z e them f o r not being true i s l i k e d e s c r i b i n g Rembrandt and Goya as 32 being " c o n t r a d i c t o r y " or c r i t i c i z i n g Van Gogh because the sky doesn't r e a l l y have a l l of those funny c i r c l e s i n i t . A l l of the philosophers of p r e - S o c r a t i c Greece b e l i e v e d i n an u l t i m a t e r e a l i t y that transcended the world of appearances. They sought d i f f e r e n t ways to d e s c r i b e and e n r i c h experience and managed to e x c i t e many minds w i t h the power and beauty of t h e i r v i s i o n s . But i n a l l cases there was an expression of the human p a r t i c i p a t i o n i n the f a b r i c of r e a l i t y . Their goal was v i r t u e , e x c e l l e n c e , the good ( a r e t e ) . No one had thought of d i s c o v e r i n g a t r u t h that was independent of man. That would come l a t e r , i n the c i t y to which Anaxagoras had introduced philosophy. I t would come i n Athens. AA i i i A A One of the c h a r a c t e r i s t i c s of a l l of the philosophers considered thus f a r i s the scant a t t e n t i o n which they pay to questions of e t h i c s . T h i s may be explained p a r t i a l l y by the f a c t that p o e t i c v i s i o n s of the u n i v e r s e lend them-selves to moral issues only i n an exhortatory manner. Where codes of conduct do appear (as f o r example, w i t h Pythagoras) they tend to be expressions of tabus r a t h e r than r a t i o n a l l y considered or r e f l e c t e d upon standards of behaviour. As the f i f t h century progressed, p h i l o s o p h i c a l a t t e n t i o n began to swing from the heavens to everyday l i f e . The f a s h i o n of p h i l o s o p h i c a l specula-t i o n spread t o broader walks of l i f e , and became concerned w i t h r e f l e c t i n g upon concepts that had p r e v i o u s l y been the s o l e preserve of myth and drama. Th i s l e v e l of c o n s i d e r a t i o n was f a c i l i t a t e d by the a r r i v a l of philosophy i n Athens. The Athenians were c e r t a i n l y i n t e r e s t e d i n e x e r c i s i n g t h e i r mental s k i l l s . But there were more pres s i n g demands than merely p a i n t i n g p i c t u r e s of the p r i m o r d i a l u n i t y . Athens was governed by the assembly of i t s c i t i z e n s . 33 D e c i s i o n s were made by l a r g e groups of c i t i z e n s a f t e r hearing contenders f o r d i f f e r e n t s i des of an i s s u e argue t h e i r p o i n t s of view. S i m i l a r l y , l e g a l cases were decided by the assembly and each p a r t y was r e q u i r e d to present h i s own case. Questions of j u s t i c e , of right-wrong, of v i r t u e were t h e r e f o r e c o n t i n u a l l y under p u b l i c debate. There was a great demand f o r teachers of the a r t of per-suasion — people who could i n s t r u c t the Athenians of the most e f f e c t i v e way of swaying people's opinions. These teachers were the Sophists. The term "Sophist" has become h i g h l y p e r j o r a t i v e . T h i s i s due mostly to the i n f l u e n c e of P l a t o . His p i c t u r e s of the r h e t o r i c i a n s are so broadly s a t i r i c a l t hat at times they become c a r i c a t u r e s ; but h i s l i t e r a r y r p o w e r ^ and p h i l o -s o p h i c a l o r i g i n a l i t y have so impressed themselves upon succeeding ages th a t the s o p h i s t s and r h e t o r i c i a n s of Athens have become symbo-l i c a l of f a l s e pretense of knowledge, overwhelming c o n c e i t , f a l l a c i o u s argument, c u l t i v a t i o n of s t y l e f o r i t s own sake, demagoguery, corrup-t i o n of youth through a s c e p t i c i s m which professed complete i n d i f -ference to t r u t h , and i n general, a ready s u b s t i t u t i o n of appearance f o r r e a l i t y . 9 Recently, s c h o l a r s have begun t o take a more sympathetic view of some of the Sophists and to examine t h e i r p h i l o s o p h i c a l p o s i t i o n s w i t h a new r e s p e c t . In many ways they are r e a l i z i n g that the Sophists can be seen to be the ones c a r r y i n g the mantle of the e a r l i e r p h i l o s o p h e r s , and P l a t o and A r i s t o t l e to be an a b e r r a t i o n that knocked Western philosophy f o r a two-thousand-year loop. Space and time prevent me from g i v i n g f u l l j u s t i c e to the Sophists. There are many whose names I s h a l l not even mention. Furthermore, w h i l e I d e s c r i b e only the philosophy of Protagoras, i t i s dangerous to t h i n k that t h i s i s a philosophy which i s r e p r e s e n t a t i v e of a l l Sophists. ... i t has been e s t a b l i s h e d that such terms as a s o p h i s t i c mind, a s o p h i s t i c m o r a l i t y , a s o p h i s t i c s c e p t i c i s m , and others implying a common b a s i s of d o c t r i n e are q u i t e without j u s t i f i c a t i o n . Their common c h a r a c t e r i s t i c s were th a t they were p r o f e s s i o n a l teachers, that they accepted f e e s , and that r h e t o r i c was a l a r g e element i n the teaching of v i r t u a l l y a l l of them. The general emphasis upon r h e t o r i c does not mean that as s c h o l a r s a l l the s o p h i s t s found 34 t h e i r i n t e l l e c t u a l i n t e r e s t s centred i n r h e t o r i c . But r h e t o r i c was the one subject w i t h which they could be sure to make a l i v i n g . The c o n d i t i o n s which made r h e t o r i c a l t r a i n i n g a u n i v e r s a l neces-s i t y i n Athens have been f r e q u e n t l y set f o r t h . The sophist who was a master of r h e t o r i c had a number of p o s s i b i l i t i e s before him. He could win power and repute from the d e l i v e r y of e u l o g i s t i c o r a t i o n s at p u b l i c f u n e r a l s , or d e l i b e r a t i v e addresses at times of p o l i t i c a l c r i s e s . He could appear at games, or upon occasions of h i s own making, w i t h what we sometimes c a l l o c c a s i o n a l , or l i t e r a r y , addresses, expounding Homer or other works of Greek l i t e r a t u r e . He could w r i t e speeches f o r c l i e n t s who were t o appear i n court. He was not allowed to appear i n person as an advocate unless he could show that he had a d i r e c t connection w i t h the case, but the p r o f e s s i o n of logographer was p r o f i t a b l e . ^ R h e t o r i c formed a v i t a l part of the Sophists' i n t e l l e c t u a l a c t i v i t i e s , though few of them a c t u a l l y studied i t as a subject. The d i s t i n c t i o n I am suggesting i s analogous to the d i f f e r e n c e between the study of l o g i c and use of l o g i c . Because of the i n t i m a t e connection between s o p h i s t r y and r h e t o r i c , the ignominy cast upon the former a l s o brought the l a t t e r i n t o d i s r e p u t e . Even today the word " r h e t o r i c " suggests something underhanded and somewhat d e c e i t f u l . I t i s mere g i f t wrapping f o r the r e a l l y important t h i n g s — l o g i c and f a c t s , Since r h e t o r i c ' s demise was occasioned f i r s t of a l l by the d o w n f a l l of the Sophists, i t i s a p p r o p r i a t e that the r e h a b i l i t a t i o n of r h e t o r i c should commence w i t h a new look at the teachers of ancient Athens. The greatest of the Sophists i n terms of p h i l o s o p h i c a l s o p h i s t i c a t i o n , was Protagoras. Professor F.C.S, S c h i l l e r , the founder of pragmatism, wrote the f o l l o w i n g statement: Our only hope of understanding knowledge, our only chance of keeping philosophy a l i v e by n o u r i s h i n g i t w i t h the r e a l i t i e s of l i f e , l i e s i n going back from P l a t o to Protagoras, and ceasing to misunderstand the great teacher who discovered the measure of man's u n i v e r s e . H One of the problems i n g a i n i n g an adequate understanding of Protagoras, or any of the Sophists, i s the small number of t h e i r w r i t t e n works which have survived to the present. A l s o , the Sophists, f o r the most p a r t , d i r e c t e d t h e i r a t t e n t i o n towards the e d i f i c a t i o n of t h e i r immediate l i s t e n e r s r a t h e r than to 35 f u t u r e readers. They a c c o r d i n g l y , spent more of t h e i r time speaking than w r i t i n g . The works that Protagoras d i d w r i t e were l a r g e l y destroyed a f t e r h i s e x i l e , when the Athenians c o l l e c t e d h i s books and p u b l i c l y burned them. Fo r t u n a t e l y there are s u f f i c i e n t references to him and the t h i n g s he s a i d i n the works of h i s contemporaries that we can a s c e r t a i n h i s c h i e f p h i l o s o p h i c a l d o c t r i n e s . Protagoras' thought has two d i s t i n c t movements — one negative and 12 the other p o s i t i v e . The f i r s t i s the theme of h i s i n i t i a l book, the A n t i l o g i a e . He maintained t h a t i n every experience, there are two l o g o i i n o p p o s i t i o n to each other ( d i s s o i l o g o i ) . The concept;of logos was a v i t a l part of Greek thought. In f a c t , i t has become something of an academic commonplace t o say t h a t i t h e development of ancient Greece was that from mythos to logos. The d i f f i c u l t y i n f u l l y under-standing the concept of logos has l e d many sch o l a r s to a shallow understanding of t h i s phrase. They construe i t to mean simply that Greek thought moved from m y t h i c a l explanations of the world to s c i e n t i f i c explanations of the world. The i d e n t i f i c a t i o n of logos w i t h s c i e n t i f i c r a t i o n a l i t y i s our own e t h n o c e n t r i c p r o j e c t i o n on to the ancient use of "logos" to mean "reason". We t h i n k of "reason" as s c i e n t i f i c or l o g i c a l thought; t h e r e f o r e logos-mmst mean s c i e n t i f i c or l o g i c a l thought. In f a c t , logos i s a l s o used to mean the word, and sometimes the idea. I t could mean a s e r i e s of words, a t e x t , or a speech. I t could be used to s i g n i f y the c a p a c i t y f o r language, or even the d i v i n e w i l l of God. H e r a c l i t u s r e f e r r e d to the p r i n c i p l e by which the opposites r e v e a l themselves to us as logos. T h i s power of logos over our experience was recognized i n one form or another by most of the e a r l i e r p hilosophers, and i t was o f t e n eulogized by the Sophists. 36 One of the best known of these eulogies was composed by Isocrates, a contemporary and academic competitor of Plato. Isocrates says that i t i s logos which distinguishes humanity from other l i v i n g things. .., because we have the innate capacity to convince each other and express our opinions, d e s i r e s , and decisions, we not only surpass a l l wild l i f e but have succeeded i n forming a society, bu i l d i n g towns, formulating laws and discovering a l l sorts of techniques. ... the Word enables us to put the wicked to shame and commend the good, to educate the ignorant and to learn from the wise ... the Word d i r e c t s a l l our thoughts and a c t i v i t i e s , our use of i t being proportionate to the degree of our i n t e l l i g e n c e . ^ The magic or c r e a t i v e power of logos was i t s most important feature. It not only constructs, i t " d i r e c t s " our experiences and actions. Logos i s the hegemoon of thought and experience. Hegemoon meant something l i k e a prince, leader, or guide. Logos then has a kind of a u t h o r i t y — not the coercive kind, but rather the sort that an older brother or more experienced f r i e n d might give. The d i r e c t i o n that i t suggests i s f r e e l y chosen, not imposed. For Protagoras, logos denoted the p r i n c i p l e by which things are experienced. His statement that there are two l o g o i i n everything means that every experience contains i t s own opposite or negation. It i s an idea that c l o s e l y resembles H e r a c l i t u s ' doctrine of opposites. But H e r a c l i t u s taught that, when men perceive i n common, i t i s due to the u n i v e r s a l logos; when they disagree, logos does not e x i s t , or i s not present. Protagoras on the other hand, taught that a l l things contain or consist of two opposing l o g o i , and are thereby a l l subject to disagreement and uncertainty. The d e s c r i p t i o n of the c o n f l i c t of opposites had been present i n the Greek psyche for a long time. It f i r s t showed up i n the early and Homeric mythologies i n the guise of moral dilemmas that the world posed for both gods 37 and men. The dramatic expression of the problem formed the core of the tr a g e -dian's work, The idea of the c o n f l i c t i n g sides of j u s t i c e or m o r a l i t y (dike) i s a fundamental element i n , f o r example, the Aeschyclean drama. ... a c h a r a c t e r i s t i c , t h e r e f o r e , of the Aeschylean drama i s the spasmodic harshness i n which t h i s double nature of r e a l i t y f i n d s expression. T h i s thought i s dominant i n a l l the t r a g e d i e s of Aeschylus; i n the Supplices, where the Logos of the Danaides contends w i t h that of the r e s p o n s i b l e power of the State; i n the Persae the d i v i n e a u t h o r i t y imposes on Xerxes a c o n t r a d i c t o r y a c t i o n such that i t was p o s s i b l e to speak of a d i v i s i o n i n the mind of God; i n the Prometheus there a r i s e s the greatest c o n f l i c t of God w i t h himself; i n the Seven Against Thebes the problem begins to be concentrated on a b s t r a c t d i k e from the moment when Agamemnon has taken h i s t r a g i c d e c i s i o n at A u l i s , t i l l the end of the t r i l o g y . In the Choephori the c o n f l i c t which a r i s e s f o r d i k e i n the heart i s c a r r i e d to a t r a g i c p i t c h of anguished s u f f e r i n g throughout the course of the whole drama, i n such a way that a l l are g r a d u a l l y i n v o l v e d . Orestes, who must by d i v i n e e d i c t commit m a t r i c i d e , thus v i o l a t i n g another, d i v i n e e d i c t , when a f t e r much thought he r e a l i z e s h i s true s i t u a t i o n , exclaims: 'Ares w i l l come i n t o c o n f l i c t w i t h Ares, Dike w i t h Dike. God w i l l war w i t h God, and j u s t i c e w i t h j u s t i c e . The tragedy involved i n r e l a t i v i t y was w e l l known to the Greek mind, but i t was not u n t i l Protagoras that anyone attempted t o r e f l e c t p h i l o s o p h i c a l l y upon t h i s element of human exi s t e n c e . Only i n the l i g h t of h i s theory of l o g o i i n o p p o s i t i o n can Protagoras' agnostic opening of the A n t i l o g a i e be p r o p e r l y appreciated: Concerning the gods, I am not i n a p o s i t i o n t o experience t h e i r phenomenal existence or otherwise, nor t h e i r nature w i t h regard to t h e i r e x t e r n a l m a n i f e s t a t i o n ; f o r the d i f f i c u l t i e s are many, which prevent t h i s experience; not only the i m p o s s i b i l i t y of having a sense-experience of the gods, but a l s o the b r e v i t y of human l i f e . 1 5 He showed that i t would be impossible to a s c e r t a i n e i t h e r the existence or the non-existence of the gods, by means of perception or by means of l o g i c . T his i s because i n every perception or proof of the gods, there i s a l s o the opposing l o g o i •— the opposite and i n c o n s i s t e n t c o n c l u s i o n can always be reached. This i s the same sor t of t h i n g t h a t Eastern philosophy claimed 38 about the d i v i n e . Because i t i s the fundamental r e a l i t y , i t i s impossible to speak of i t , except i n paradox. Protagoras' statement about the gods i s the ul t i m a t e case of h i s c l a i m about everything. I f there cannot be a c e r t a i n statement regarding even the gods, how can we expect t h a t any t r u t h at a l l i s a t t a i n a b l e ? Opinion (doxa) ra t h e r than knowledge holds r u l e over even the most important concepts. Protagoras engaged P e r i c l e s i n argument f o r an e n t i r e day once, attempting to decide who was t o blame f o r the a c c i d e n t a l k i l l i n g of a spectator at a j a v e l i n - t h r o w i n g match — the man who threw i t , or the supervisor of the competition. This i n c i d e n t has been i n t e r p r e t e d as teaching: ... the i m p o s s i b i l i t y of d e c i d i n g which was the cause — the a b s o l u t e l y c a p r i c i o u s and a r b i t r a r y character of the choice.16 I t taught the complete dependence of r i g h t (dike) on op i n i o n (doxa). What was tru e f o r j u s t i c e a l s o a p p l i e d to m o r a l i t y . The Greek word d i k e comprises not only our whole concept of r i g h t and j u s t i c e , but a l s o that of moral or e t h i c a l goodness. Protagoras extended h i s c l a i m of r e l a t i v i t y to a l l spheres of human experience and a c t i v i t y , t o judgements of us e f u l n e s s , of a r t i s t i c worth, and even to mathematics and geometry. The o l d n o t i o n of op p o s i t e s , of the paradox inherent i n e x i s t e n c e , le d Protagoras to the a s s e r t i o n t h a t there i s no such t h i n g as c e r t a i n knowledge. He i s a c c o r d i n g l y o f t e n described as a s c e p t i c . ^ T h i s i s a wrong c o n c l u s i o n . He denied not merely the p o s s i b i l i t y of l e a r n i n g or d i s -covering the t r u t h , he denied that there even i s such a t h i n g . T h i s i n v o l v e s a tragedy f o r the i n t e l l e c t f o r i t i s the mind i t s e l f which authors the l o g o i i n o p p o s i t i o n . The mind t h e r e f o r e must go through the tragedy involved i n the r e a l i z a t i o n of the paradox. Had he been merely a s c e p t i c , Protagoras would have stopped at t h i s p o i n t . Remember, however, t h a t he d i d not suddenly have 39 an i n s i g h t that dissuaded him of t r u t h . He had never b e l i e v e d i n i t . The b e l i e f i n t r u t h as an independently e x i s t e n t " f a c t " had not yet entered the p h i l o s o p h i c a l mind. The statement of d i s s o i l o g o i i s a s t a r t i n g p o i n t , not a c o n c l u s i o n . In order to transcent the tragedy of u n c e r t a i n t y t h a t n e c e s s a r i l y inheres i n e x i s t e n c e , Protagoras turned to the question of the v a l u e i n the experience that man does have. How i s any experience p o s s i b l e i f everything contains the logos of i t s opposite? To answer t h i s question, Protagoras formulated h i s most famous p r o p o s i t i o n : JULCTCpoV C^V&piO^ This phrase i s most o f t e n t r a n s l a t e d as "Man i s the measure of a l l t h i n g s . " However, Professor U n t e r s t e i n e r t r a n s l a t e s i t , and the. sentence i n which i t i s found, i n the f o l l o w i n g f a s h i o n : Man i s the master of a l l experiences, i n regard t o the "phenomenality" of what i s r e a l , and the "nonphenomenality" of what i s not r e a l . He i n t e r p r e t s t h i s to mean: ... One succeeds i n having i n one's own power a l l those "experiences" of which one can say that they are r e a l , whether sense percepts or i n t e l l e c t u a l concepts, i n so f a r as they have the p o s s i b i l i t y of becoming apparent ( t h i s i s the meaning I g i v e to the word "pheno-menality") . The aim envisaged by Protagoras c o n s i s t e d i n the mastery  of a r i c h domain of "experiences" since t h i s was not r e a l u n t i l the  moment when the "experiences" were freed from those c o n t r a d i c t i o n s  which could n u l l i f y a l l t h e i r v a l u e . ^ [emphasis added] The universe f o r Protagoras i s i n a s t a t e of f l u x . I t i s c o n t i n u a l l y becoming and ceasing to be. I t i s the i n d e f i n a b l e absolute that i s determined f o r the f i r s t time by man experiencing i t , and t h e r e f o r e the nature of the experience w i l l be v i t a l l y l i n k e d t o the man who brought i t i n t o a c t u a l i t y . Man thus i s the master of experience i n two d i f f e r e n t ways. As the r o o t or cause of a l l experience, i t i s he who b r i n g s f o r t h r e a l i t y . As an i n d i v i d u a l member of a community, he determines the manner i n which s p e c i f i c " o b j e c t s " are perceived, the logos which determines the a c t u a l experiences. 40 The paradox that n e c e s s a r i l y accompanies d e s c r i p t i o n s of the One i s eloquently stated by Protagoras: " i t i s not p o s s i b l e t o t h i n k t h a t which does not e x i s t , nor anything except what one experiences, but the l a t t e r i s always t r u e . " As mentioned above, t h i s i s o f t e n wrongly regarded as a s c e p t i c a l p o s i t i o n . But, whereas s c e p t i c i s m normally e n t a i l s the d i s b e l i e f that knowledge of the e x t e r n a l can be gained from i n t e r n a l or s u b j e c t i v e s t a t e s , Protagoras s t a t e s that the s u b j e c t i v e s t a t e i s the only r e a l i t y , and thus determines the e x t e r n a l as w e l l as i t s e l f . None of t h i s denies that the u n i v e r s e i s r e a l , that i t does e x i s t as a (somewhat Kantian) p r e - c o n d i t i o n t o experience. There s t i l l appears t o be a c o n t r a d i c t o r y a t t i t u d e between the negative " l o g o i i n o p p o s i t i o n , " and the c o n s t r u c t i v e "man i s the master of a l l t h i n g s . " There i s s t i l l no explanation of how uniform experiences are p o s s i b l e , nor how one experience can be s a i d to be s u p e r i o r or more v a l u a b l e than any other. For the c r u c i a l t h i r d l e g of h i s system, f o r the main i n s p i r a -t i o n that Protagoras has l e f t to us, we must look at the t h i r d of h i s c h i e f p r o p o s i t i o n s . T h i s i s the c l a i m t h a t i t i s p o s s i b l e t o change the l e s s e r p o s s i b i l i t y of knowledge i n t o a greater p o s s i b i l i t y of knowledge. (XOV fjt C U) AOV^V He e x p l a i n s t h i s idea i n a long passage contained i n P l a t o ' s 19 dialogue, the Theaetetus. He says that the f a c t that man i s the master of a l l t h i n g s does mean that d i f f e r e n t men can and do experience d i f f e r e n t r e a l i t i e s and that n e i t h e r can c l a i m to be r i g h t and the other wrong. But t h i s does not mean that wisdom does not e x i s t , or t h a t one o p i n i o n i s not b e t t e r than another. The mind th a t c o n t r o l s the logos and thus i s master of the experience can be improved and thereby improve the experience that i t c r e a t e s . 41 Strange as t h i s sounds, i t i s not d i s s i m i l a r to t h i n g s that we are a l l f a m i l i a r w i t h , Protagoras mentions doctors and farmers as examples of people who are wise about c e r t a i n t h i n g s . Their experiences of the body, or of crops and husbandry, i s superior to the experience a l a y person would have. More dramatic examples can e a s i l y be thought of. A computer expert looks at a paper covered w i t h v a r i o u s geometrical p a t t e r n s , and sees a new design of l o g i c c i r c u i t . He looks at a hockey game and sees a c h a o t i c movement of p l a y e r s and puck. Right beside him, I see a b r i l l i a n t s t r a t e g y of a t t a c k f o i l e d by defen-s i v e s k i l l . One person sees an impenetrable mass of verbiage. A lawyer glances at i t and sees a p e r f e c t l y d r a f t e d w i l l . A novice sees chess pieces s c a t t e r e d at random about the board. A master sees a checkmate i n f i v e moves. The c a p a c i t y f o r superior experience w i t h regard t o c e r t a i n c l a s s e s of t h i n g s has been acquired by each group of persons. I t would be wrong t o t h i n k of the improvement c o n s i s t i n g merely of the a c q u i s i t i o n of f a c t s , or of knowledge. None of the "experts" mentioned above perform deductions based on a s e r i e s of t r u e p r o p o s i t i o n s that they know. Rather, they immediately recognize f e a t u r e s of the experience that are inacces-s i b l e t o the l a y person. I t i s thus b e t t e r to t h i n k of the improvement as the a c q u i s i t i o n of a s k i l l , a way of dynamically i n t e r a c t i n g w i t h the u n i v e r s e , of s t r u c t u r i n g i t so as to r e c e i v e a r i c h and v a l u a b l e set of experiences. The s k i l l i s a t t a i n e d through p r a c t i c e and c o r r e c t i o n by a master. The group of wise people i n a given area determine the value s t r u c t u r e of that area. The values are those developed adhered to and passed along to l e a r n e r s i n each area. These novices thereby acquire the superior logos, the superior a b i l i t y to apprehend experience, The judgement of who has the superior logos w i l l vary from community to community and from time to time. But at each time and i n each place there w i l l be persons who are wise i n v a r i o u s areas, and who, i n 42 t h e i r wisdom, determine the judgement of others' experiences. Thus are values determined, and yet are not the subject of f a c t u a l knowledge. For no one's judgement i s r i g h t or wrong. It i s better or worse. Between the wise men ... there i s a kind of i d e a l r e l a t i o n s h i p which a l l of them, farmer, doctor, and teacher, exercise i n some way with regard to p h y s i c a l nature and with regard to i t s s p i r i t . This a c t i v i t y according to a l i k e p r i n c i p l e i s determined by the fa c t that each i n d i v i d u a l farmer or doctor or teacher becomes an exponent of the advantage of the community, an aggregate of i n d i v i d u a l s of a s p e c i f i e d category, which i s united, epistemologically speaking, by a correspondence of a b i l i t y to apprehend a given experience. The aspects of the a b i l i t y of apprehension on which a l l are agreed are contained i n the category "superior logos", those on the other hand i n which t h i s agreement i s lacking c o n s t i t u t e the " i n f e r i o r logos", the elementary f a c t of experience which r e s i s t s the demands of the community, and therefore of u n i v e r s a l i t y . ^ Just as there i s a greater p o s s i b i l i t y of knowledge of farming or medicine, there i s also a wisdom to be attained concerning moral questions. In 21 order to t i e h i s metaphysics to e t h i c s , Protagoras constructs a myth. He r e l a t e s the story of Epimetheus and Prometheus who, sh o r t l y a f t e r the creation of the mortal species, were charged with the task of d i s t r i b u t i n g the powers of preservation and attack to the various species. But a f t e r Epimetheus had f i n i s h e d assigning powers to a l l of the other animals, they found themselves with none l e f t for man. Prometheus crept into heaven and s t o l e , along with f i r e , the "knowledge of the c r a f t s " which gave to man the a b i l i t y to survive by means of obtaining or making food, shelter, and clo t h i n g . But Prometheus had not been able to obtain the " p o l i t i c a l a r t " , for t h i s was with Zeus. And so, when men gathered together for protection, they were unable to l i v e together and injured each other through lack of t h i s " p o l i t i c a l a r t " . In order to keep mankind from a n n i h i l a t i o n , Zeus sent Hermes to convey to mankind aidos, which i s the r e s p e c t f u l acknowledgement of any s u p e r i o r i t y i n others, and dike, or j u s t i c e , i n order that there be p r i n c i p l e s of order. Each person received a share of t h i s " p o l i t i c a l knowledge" and thus community l i f e was made possible. 43 The myth represents the r e l a t i o n of the two constructive propositions. The "knowledge of the c r a f t s " i s the symbolization of man's mastery over a l l experiences. It i s the i n d i v i d u a l c o n t r o l that belongs to each human being. The " p o l i t i c a l a r t " represents the superior logos which succeeds i n mastering the i n f e r i o r logos that belonged to the stage of "knowledge of the c r a f t s " . The a b i l i t y to have a better experience with regard to morals then, belongs to every one in the community by v i r t u e of the fac t that they are a part of the community. It i s i n t h i s l i g h t that we must approach Protagoras' claim pointed out e a r l i e r , that j u s t i c e or morality (dike) i s dependent on opinion (doxa). Because of i t s connotations of dubiousness and i n f e r i o r i t y , "opinion" i s an i n f e l i c i t o u s t r a n s l a t i o n of doxa. A better i n t e r p r e t a t i o n i s "common sense". So, to say that j u s t i c e i s dependent upon doxa i s to say that i t i s i n the realm of common sense. Even today, common sense i s something to which we attach value, We often appeal to and t r u s t common sense, both our own and that of others, e s p e c i a l l y i n making moral decisions. We also recognize that c e r t a i n members of our community have a greater measure of common sense than others, and so we appeal to the wisdom of older and highly respected people when we make hard choices. Every community has some set of moral b e l i e f s . These vary between communities and none are true or f a l s e . But within each community there are people who are wise concerning moral questions. These people determine and r e f l e c t the values of the community i n the way that experts i n other f i e l d s , other possessors of superior logos, determine and r e f l e c t the values of t h e i r areas of wisdom. A farmer acquires common sense about crops. So, too, one can acquire common sense about morals. While Socrates, as we s h a l l see, thought that the e t h i c a l phenomenon i s discovered, i s already existent, Protagoras held that i t i s constructed, 44 that i t i s the work of the w i l l . The business of r a t i o n a l i t y f o r Protagoras i s t h e r e f o r e the a c q u i s i t i o n and e x e r c i s e of the superior logos — the a b i l i t y to appreciate and communicate the exc e l l e n c e (arete) i n the world which we p a r t i c i p a t e i n c r e a t i n g . The fundamental t e s t of our t h i n k i n g i s not the tr u e , but rather the good. Wisdom i s not a set of p r o p o s i t i o n s , but an a b i l i t y to place value i n the best t h i n g s . J u s t as the superior logos concerning other matters i s acquired through i n s t r u c t i o n , p r a c t i c e and experience, so too can the superior logos regarding v i r t u e (arete) a l s o be acquired. T h i s i s the meaning of the S o p h i s t i c c l a i m that v i r t u e can be taught. The teaching of r h e t o r i c was a means, not of ascer-t a i n i n g t r u t h s about m o r a l i t y , but of a c q u i r i n g wisdom, the a b i l i t y to experience i n a b e t t e r , or more v a l u a b l e way. A student of r h e t o r i c learned how to persuade people. He t h e r e f o r e had to be f a m i l i a r w i t h the values t h a t h i s audience al r e a d y h e l d . He had to be f a m i l i a r w i t h the rough order of these v a l u e s . He had to be abl e , by means of the s k i l f u l use of language, to lead an audience to see a s i t u a t i o n i n a s p e c i f i c manner so t h a t the course of a c t i o n advocated would appear, and hence be_, the r i g h t t h i n g to do. T h i s meant t h a t , more than anyone e l s e , the r h e t o r i c i a n had to be f a m i l i a r w i t h the morals of h i s community. This f a m i l i a r i t y l e d him t o the same kind of common sense w i t h regard to v i r t u e of a c t i o n s as that which enables the farmer t o judge the ex c e l l e n c e of crops or farming methods, The d i f f i c u l t y t h a t t h i s d e s c r i p t i o n seems to encounter i s the question concerning r h e t o r i c i a n s who are wrong. How can r h e t o r i c i a n s be experts i n v i r t u e when they urge t h e i r audiences to do unvirtuous things? What the asker of t h i s question does not ap p r e c i a t e i s that there i s no e x t e r n a l standard f o r judging whether the a c t i o n espoused i s r e a l l y v i r t u o u s 45 or not. He must e i t h e r be i n the r h e t o r i c i a n ' s audience, or not. I f he i s , and he c l a i m s that the cause of the speaker i s u n v i r t u o u s , then what he i s saying i s nothing more than t h a t he has not been persuaded. The r h e t o r i c i a n has f a i l e d . H i s r h e t o r i c has been i n e f f e c t i v e . He needs to a c q u i r e more wisdom, a b e t t e r a p p r e c i a t i o n of the v a l u e s which the audience holds. But, suppose that the r e s t of the audience is^ convinced? Then the r h e t o r i c i a n has been e f f e c t i v e , but wrong nonetheless. The response t o t h i s i s easy. According t o whom i s he wrong? The r e s t of the audience apparently t h i n k s that he i s r i g h t . I f only you and few other malcontents disagree, then would not t h i s suggest that you are wrong? No, says Protagoras, there i s no such t h i n g as wrong. There i s only b e t t e r and worse. F i n e , you say, and commence to attempt t o persuade the audience that they should not have been convinced by the r h e t o r i c i a n . To do t h i s you attempt t o get them to r e s t r u c t u r e t h e i r experience i n the way that you do. You t r y to f i n d and appeal to commonly held b e l i e f s . You engage, that i s , i n r h e t o r i c . An analogy might be made to the change i n t h i n k i n g that was occasioned by the development of modern p h y s i c s , From the time of A r i s t o t l e u n t i l that of A l b e r t E i n s t e i n , i t was thought that i t made sense t o speak of absolute time or space. An event could be located w i t h c e r t a i n t y by u s i n g space time coordinates. The theory of r e l a t i v i t y denied that such a l o c a t i n g was p o s s i b l e . E i n s t e i n showed that any determination of a th i n g ' s p o s i t i o n i n both space and time i s contingent upon the i n e r t i a l frame of; reference of the observer. There i s simply no such th i n g as a r i g h t answer to the question of an event':s r e l a t i o n to other things and events. D i f f e r e n t observers w i l l have d i f f e r e n t answers. I t s i m i l a r l y misses the po i n t to ask which moral answer i s r i g h t . The answer depends upon the observer's own moral frame;'.of reference. 46 (To push t h i s analogy one step f u r t h e r , we can t h i n k of E i n s t e i n ' s general theory of r e l a t i v i t y as the r e s o l u t i o n of the "tragedy" of u n c e r t a i n t y posed by the'-special theory, i n the same way as Protagoras' t h i r d p r o p o s i t i o n r e s o l v e s the tragedy posed by h i s f i r s t two statements.) To r e t u r n from t h i s b r i e f d i g r e s s i o n , a l l of the Sophists taught r h e t o r i c . But i t must :not be thought t h a t t h i s was a f a c t u a l or a n a l y t i c study. There i s no set of " v a l i d " r h e t o r i c a l forms t h a t are the analogue of l o g i c a l r u l e s of in f e r e n c e . The study of r h e t o r i c was the a c q u i s i t i o n of a s k i l l , not of knowledge. T h i s s k i l l enabled them t o pursue and create e x c e l l e n c e — i n t h i s way the Sophists taught v i r t u e . The growth i n the p r e - S o c r a t i c philosophy can be seen to be c o n s i s t e n t . For a l l , the universe i s an imp e r c e p t i b l e u n i t y . The p r i n c i p l e that causes i t s m a n i f e s t a t i o n s , or i t s d i s t i n c t o b j e c t s , i s o r i g i n a l l y l i f e i t s e l f , and i s governed by j u s t i c e ( d i k e ) . The cause becomes numbers, and i s mastered by mystic transcedence, or ecstasy. The i n t e r p l a y of opposites i s o f f e r e d as the cause of appearances, and emotions, s t r i f e and then l o v e are the means of c o n t r o l . The i n t r o d u c t i o n of mind as the source of a l l appearance se t s the stage f o r Protagoras' ideas. The universe e x i s t s only as i t i s experienced. But every experience contains i t s opposite. There are t h e r e f o r e no c e r t a i n t i e s i n the un i v e r s e . The " l o g o i i n o p p o s i t i o n " i s a tragedy of the i n t e l l e c t , and the i n t e l l e c t can master i t . Experiences can be "enriched" and t h e i r value preserved. This i s s k i l l which i s acquired through the l e a r n i n g and p r a c t i c e of r h e t o r i c — through the mastery of language and persuasion and the development of common sense. E a r l y Western philosophy had reached a z e n i t h , but i t s most formidable opponents were already brandishing t h e i r weapons. The e x i l e of r h e t o r i c from the a c t i v i t y of se r i o u s t h i n k e r s was set under way by a younger contemporary of Protagoras. The f i r s t and most t e l l i n g blows were st r u c k by Socrates, and h i s student P l a t o . 47 i v Everyone who has encountered P l a t o ' s dialogues i s f a m i l i a r w i t h the contempt which he held f o r the Sophists. He c a r i c a t u r e s them so c r u e l l y that i t i s d i f f i c u l t to understand the high esteem t h a t t h i s group of teachers enjoyed. Why d i d they arouse such venom i n Plato? What s t i r r e d him to the d e m o l i t i o n of t h e i r c r e d i b i l i t y that haunts us to the present day? complex. An important t h i n g t o bear i n mind i s that P l a t o despised n e a r l y every f a c e t of h i s s o c i e t y . We tend to t h i n k of the establishment of d u a l i s t i c meta-physics as an expression of an enlightened Athenian democracy. We a u t o m a t i c a l l y consider " o b j e c t i v i t y " t o be p o s i t i v e and v a l u a b l e — a k i n to Greek concepts of " e q u a l i t y " or " l i b e r t y " . In f a c t , at the time that P l a t o was l a y i n g the founda-t i o n f o r Western r a t i o n a l i t y , Athens was w e l l i n t o d e c l i n e . I t had been con-quered by Sparta and had only r e c e n t l y regained i t s assembly. Barbarians threatened from the North. B i t t e r n e s s and feuding f i l l e d the c o u r t s and assembly as Athenians v a i n l y attempted to stem the ebbing t i d e . In t h i s s i t u a t i o n , P l a t o appears to be more of a r e a c t i o n a r y than a reformer. ... h i s Utopia owes a t l e a s t as much to h i s d i s l i k e s as to h i s d e s i r e s . Had the s o p h i s t s and r h e t o r i c i a n s been the only o b j e c t s of h i s scorn he might not have been d r i v e n to w r i t i n g the Republic. But the p o l i t i c s , poetry, a r t , education, and r e l i g i o n of Athens were a l l wrong — so wrong th a t i t was e a s i e r t o p a i n t a Utopia than s e r i o u s l y to attempt the reformation of Athens. We may say i n the beginning, then, that P l a t o ' s condemnation of r h e t o r i c and r h e t o r i -c i a ns i s merely a small part of h i s condemnation of a l l contemporary So when we consider P l a t o ' s r e j e c t i o n of r h e t o r i c , we should r e c a l l that he a l s o banished l i t i g a t i o n , poetry, most music, other f i n e a r t s , freedom of speech, and most f o r e i g n t r a v e l from h i s Utopian s t a t e . There i s no place The reasons behind P l a t o ' s f e r o c i o u s a t t a c k are both s p e c u l a t i v e and 48 f o r any of these things i n a n a t i o n governed by the a u t h o r i t a r i a n hand of the philosopher-king. The r u l i n g c l a s s of the Athens which P l a t o so despised was the group of c i t i z e n s who employed the Sophists. (The S o p h i s t i c p r a c t i c e of charging fees f o r t h e i r teaching was another source of d i s d a i n t o the a r i s t o c r a t i c P l a t o . ) Sophists taught Athenians the means;:of maintaining power — they taught them the a r t of r h e t o r i c . S o p h i s t r y and r h e t o r i c must t h e r e f o r e , to P l a t o ' s mind, be r e s p o n s i b l e f o r the e v i l t h a t was being perpetrated by the c i t y . The crowning blow must have been the execution of h i s beloved teacher Socrates. Anyone who had caused such a good man t o be k i l l e d must be e v i l . And, i f the teachers of these people claimed to teach v i r t u e and j u s t i c e , w e l l then they must be l i a r s and cheats. P l a t o ' s great f e a r about r h e t o r i c was t h a t i t enabled i t s p r a c t i t i o n e r s to convince others of t h i n g s that were simply "untrue", f o r example, that Socrates ought to be executed. Of course, to say that such a t h i n g i s untrue, i s to say t h a t you don't b e l i e v e i t , t h a t you have not been persuaded. So what bothered P l a t o i s that r h e t o r i c could persuade an audience, and induce i t to an a c t i o n that he b e l i e v e d was wrong. He wanted t o i r r e f u t a b l y e s t a b l i s h that h i s opponents were wrong and that he was r i g h t . He wanted to l i v e i n a s o c i e t y where h i s b e l i e f s , and only h i s b e l i e f s , would be t r a n s l a t e d i n t o a c t i o n . He imagined a s o c i e t y where i t would be impossible f o r anyone's w i l l other than a philosopher's (i..e., one that agreed w i t h him) t o govern d e c i s i o n s . His contempt f o r the general c i t i z e n r y precluded a t t a c h i n g any v a l u e to common sense. But he could not be content w i t h merely p a i n t i n g his p o l i t i c a l Utopia. He had t o develop a p h i l o s o p h i c a l j u s t i -f i c a t i o n f o r h i s suggested r e p u b l i c . He had t o e s t a b l i s h a n a t u r a l order that would v i n d i c a t e h i s d e s i r e d s o c i o - p o l i t i c a l order. 49 Now, e s s e n t i a l to the p u b l i c acceptance of r u l e by philosopher-kings, i s the perception that i t i s the only good r u l e . As I e a r l i e r pointed out, the standard which the Greeks a p p l i e d to p h i l o s o p h i c a l s p e c u l a t i o n was q u a l i t y or a e s t h e t i c appeal. U n l i k e today, when we conceive of philosophy as a s p i r i n g to t r u t h , i n Greece i t a s p i r e d to the good. P l a t o ' s t a s k was a c c o r d i n g l y to show how h i s philosophers were the s o l e persons capable of a t t a i n i n g the good, how h i s t h e o r i e s and b e l i e f s were the only " v i r t u o u s " t h e o r i e s . R e c a l l t h a t , u n t i l t h i s moment, every philosophy t e s t i f i e d i n one way or another to man's c r e a t i v e or p a r t i c i p a t o r y r o l e i n the s t r u c t u r e of the world. The i d e a l of a s i n g l e u n i v e r s a l l y held v i s i o n of the universe was incompatible w i t h personal p a r t i c i p a t i o n . P l a t o ' s g i g a n t i c leap was to deny t h i s p a r t i c i p a t i o n . In order to give h i s b e l i e f s u n i v e r s a l a c c e p t a b i l i t y , he removed them from the realm of o p i n i o n or common sense, and enshrined them as t r u t h . Truth had h i t h e r t o a p p l i e d only to the fundamental, i n e f f a b l e One. P l a t o expanded i t i n t o the world of appearances by means of h i s theory of forms. His u n i v e r s a l forms were r e l a t e d h i e r a r c h i c a l l y both to the good and to appearances. The only means of g a i n i n g access to the good was t o transcend the changing world of appearances and conduct your s p e c u l a t i o n s o l e l y at the l e v e l of a b s t r a c t and u n i v e r s a l forms. By r e s t r i c t i n g the domain of thought to the l e v e l of a b s t r a c t u n i v e r s a l s , P l a t o sought to e l i m i n a t e the value of i n d i -v i d u a l p a r t i c i p a t i o n . His b i f u r c a t i o n of r e a l i t y enabled him to e s t a b l i s h the quest f o r t r u t h as the sole v i r t u o u s goal of thought. Now, such a c l a i m would be f a r l e s s p l a u s i b l e t o P l a t o ' s contem-p o r a r i e s than i t i s to modern o b j e c t i v i s m . He t h e r e f o r e had to embark upon one of the greatest p u b l i c r e l a t i o n s e f f o r t s of a l l time. He set out to market the t r u t h , to an age that b e l i e v e d only i n the good. 50 I r o n i c a l l y , i t was Socrates' execution that gave Plato h i s best "argument" f o r truth's elevation. Throughout the dialogues, Socrates i s presented as the most noble of men. Unlike the p i c t u r e that i s painted by Aristophanes and Xenophone, the Platonic Socrates i s i d e a l i z e d to the l i m i t of c r e d i b i l i t y . He epitomizes the s e l f l e s s pursuit of the highest i d e a l — truth. Socrates' death i n the name of truth eulogized i t s value more e f f e c -t i v e l y than any l o g i c a l a n alysis could ever hope to. In the same way that the d e s c r i p t i o n of C h r i s t ' s death was to enshrine humility and love of God, Plato's presentation of Socrates' death elevated the love of t r u t h to a p o s i t i o n where i t became the exclusive avenue to the good. Plato had taken the f i r s t step i n h i s break with the r a t i o n a l i t y of h i s times. But h i s mission was not yet complete. He needed a means by which one could discover the truth, Rhetoric obviously could not serve, for i t was the servant of the Sophists, the d e f i l e r s of t r u t h , the s c e p t i c s . They had used r h e t o r i c as a t o o l to cloak t h e i r r e a l motives for persecuting Socrates. If r h e t o r i c could be used to accomplish e v i l , then i t could not be trusted to obtain truth, to a t t a i n v i r t u e . Plato turned to an older t r a d i t i o n to supply the basis of h i s method. Pythagoreanism had developed a means of describing the universe based upon the deductive r i g o r of mathematics. Plato stripped away the e c s t a t i c or passionate aspect of mathematics that lay behind the Pythagorean use of numbers, and claimed that t h i s method of reasoning gave exclusive insight into the pre-existent truth, He a l s o contended the a p p l i c a t i o n of d e f i n i t i o n and' deduction was better suited to conversation between two "seekers of t r u t h , " where r i g o r could be maintained by b r i e f questions and answers, than to lengthy monologues and orations where questionable statements were slipped by i n order to contribute to the t o t a l e f f e c t . D i a l e c t i c was the only worthy method of describing the universe, the only trustworthy kind of philosophy. 51 In h i s a t t a c k s on r h e t o r i c , P l a t o causes v a r i o u s Sophists to submit to the d i a l e c t i c a l probings of Socrates. Answers are put i n t o the mouths of the i n t e r l o c u t o r s that make arguing w i t h the Sophists l i k e shooting f i s h i n a b a r r e l f o r the wise and noble Socrates. 23 In the Gorgias, Socrates i s t a l k i n g to the Sophist Gorgias i n an attempt, he says, to d i s c o v e r whether a youth should employ Gorgias' s e r v i c e s . Socrates s t a r t s by i n s i s t i n g that r h e t o r i c be de f i n e d , and i t s uses enumerated. He gets Gorgias to agree that r h e t o r i c i s the a r t of persuasion, and that i t gives no r e a l knowledge (episteme) but only opinion (doxa). Simply by g i v i n g t h i s d e f i n i t i o n , P l a t o has l a i d the groundwork f o r h i s d e s t r u c t i o n of r h e t o r i c . Sophists do not l i m i t t h e i r study t o o p i n i o n because of an i n a b i l i t y to d i s -cover t r u t h . They r a t h e r studied the workings of o p i n i o n because i t c o n s t i -t u t e s r e a l i t y -— a l l b e l i e f s are the r e s u l t of man's mastery over the logos i n o p p o s i t i o n . Gorgias does not point t h i s out to Socrates, although we know that 24 h i s philosophy was s i m i l a r t o that of Protagoras. Instead, he defends r h e t o r i c by r e f e r r i n g to i t s u s e f u l n e s s . He argues t h a t r h e t o r i c can be used to make people t h i n k i n the r i g h t way or i n the way that i s most d e s i r a b l e . But, once the b e l i e f has been introduced that there i s a body of knowledge that i s i n a c c e s s i b l e to r h e t o r i c , then any defense on the grounds of usefulness i s bound to appear tenuous and dishonourable. To r e f e r again to Protagoras, r h e t o r i c increases the q u a l i t y of the logos used to construct and adjudge experience. The a c q u i s i t i o n of the superior logos enables one to cr e a t e , not merely discover or teach the best values. Socrates a t t a c k s Gorgias w i t h the a s s e r t i o n that r h e t o r i c can never r e a l l y r e s u l t i n r i g h t and j u s t behaviour unless the speaker already has c l e a r and true knowledge of Tightness and j u s t i c e — which, by d e f i n i t i o n , cannot come from r h e t o r i c . 52 As proof t h a t the Sophists r e a l l y don't know what they are p r o f e s s i n g to teach, Socrates r e f e r s to the f a c t that so many of the Sophists and t h e i r students perform e v i l a c t s . T h i s r e f l e c t s Socrates' problematic b e l i e f that a l l e v i l a c t i o n s are the r e s u l t of ignorance about r i g h t and wrong. I f the Sophists r e a l l y imparted v i r t u e , t h e i r students would be f a r more v i r t u o u s people than they i n f a c t were. Now, the r e a l Gorgias would c e r t a i n l y have not acceded to the statement that v i r t u e flows from knowledge. Indeed, he would have denied the existence of knowledge and s a i d that whether an a c t i o n i s r i g h t or wrong depends upon opinion . R h e t o r i c improves a person's c a p a c i t y f o r opinions as w e l l as h i s a p p r e c i a t i o n of the o p i n i o n of h i s p a r t i c u l a r community. That a person chooses to do what h i s community deems wrong i s very p o s s i b l e , and i n no way i n c o n s i s t e n t w i t h h i s teaching. Socrates i n s i s t s t h a t , without a grounding on knowledge of the t r u t h , the r h e t o r i c i a n i s merely pandering. His a c t i v i t y i s to r e a l philosophy as cookery i s to the a r t of medicine, or as cosmetics are to the a r t of p h y s i c a l f i t n e s s . He g i v e s to the audience what i t wants r a t h e r than what i s b e n e f i c i a l to i t . T h i s suggests the one way the r h e t o r i c can be noble. P l a t o proposes at the end of the Gorgias t h a t the t r u e r h e t o r i c i a n would seek t o improve the people, r a t h e r than j u s t please them. But i n order t o improve the people, i t i s not s u f f i c i e n t to d e a l w i t h t h e i r o p i n i o n s , one must communicate the t r u t h . Thus the only worthwhile r h e t o r i c i s one which conveys the t r u t h . 25 This i s the main idea pursued i n another d i a l o g u e , the Phaedrus. Socrates o u t l i n e s the requirements of a worthwhile r h e t o r i c , and enunciates as the f i r s t r u l e of good speaking. The mind of the speaker should know the t r u t h of what he i s going to say . , . There never i s nor w i l l there ever, be a r e a l a r t of speaking which i s unconnected w i t h the truth.26 53 So any person who aspires to r h e t o r i c must, i f h i s c a l l i n g i s to be noble, f i r s t acquire the a b i l i t y to disc e r n t r u t h — he must be a philosopher. It i s important to r e c a l l that a fundamental part of Plato's epistemology i s h i s theory of d i a l e c t i c . Only the method of two persons seeking the truth through conversation enables one to r e c a l l the tr u t h about the eternal forms. While Plato f i r s t s t ipulated truth as the ultimate c r i t e r i o n of r a t i o n a l i t y , he c e r t a i n l y d i f f e r s from the modern idea of how we a t t a i n t r u t h . This was invented a short time l a t e r by A r i s t o t l e . Before leaving Plato, i t i s necessary to summarize the change that he made from the philosophers that had preceded him. A l l of them, from Thales to Protagoras believed that the universe was fundamentally unknowable. R a t i o n a l i t y was devoted towards constructing theories or performing actions so that they had arete, v i r t u e , excellence, q u a l i t y . The good was the ultimate goal of t h e i r thought and ac t i o n . Man played a cre a t i v e r o l e i n the world by v i r t u e of being i n the world. Plato said, no, the only way to aspire to the good i s to determine the t r u t h . The p r i c e that i s paid when one acquires the true as an ultimate goal i s the existence of a l i v e d - i n and f r e e l y chosen world. If there i s trut h , there i s o b j e c t i v i t y . Things are as they are, no matter what we think about i t . Man i s no longer master of a l l things. He has l o s t h i s freedom and i s now the slave of f a c t s , Plato's b e l i e f i n truth and h i s theory of forms had another e f f e c t that warrants mentioning. If t r u t h was the sole avenue to v i r t u e or excellence, and i f truth could not be known i n the world of appearances, of p a r t i c u l a r s i t u a t i o n s , then the only valuable thinking concerned the general world of forms. But often the aspects of our experiences which make them valuable or meaningful to us are the "non-essential features," and our personal responses to these features. By stressing that only the most general features of the 54 world are v a l u a b l e , P l a t o stymied much of the wonder, the j o y that r e s u l t s from p a r t i c i p a t i o n i n a l i v e d - i n universe. I t i s as though our group of f l e d g -l i n g p a i n t e r s were t o l d that the only v a l u a b l e p a i n t i n g s were ones which dis p l a y e d no personal techniques, but only a uniform commitment to the un-adorned shapes of thin g s around them. I t i s l i t t l e wonder th a t P l a t o ' s p o l i -t i c a l Utopia appears so austere and oppressive. But the same a u s t e r i t y now applied to p h i l o s o p h i c a l t h i n k i n g , as only the most a b s t r a c t q u a l i t i e s of t h i n g s became v a l u a b l e and u n i f o r m i t y r a t h e r than q u a l i t y became the i d e a l . I t was t h i s s t i p u l a t i o n that only t h i s s t y l e , t h i s f a s h i o n of u n i v e r s a l i z a t i o n was v a l u a b l e that led to the near e l i m i n a t i o n of the passion that had motivated the p r a c t i c e of mathematics. C l e a r l y , the p r e - S o c r a t i c s had had the c a p a c i t y to make a b s t r a c t i o n s and u n i v e r s a l statements. The very use of speech neces-s i t a t e s the a b i l i t y to manipulate signs that are not wholly t i e d to t h e i r r e f e r e n t s , But, whereas the pre-Socrates had perceived t h i s a b i l i t y to be the source of human mastery over the cosmos, P l a t o used u n i v e r s a l s to subjugate the human w i l l . Whereas they had been used a e s t h e t i c a l l y to a s p i r e to the good, P l a t o used them l o g i c a l l y , to " d i s c o v e r " the t r u t h . Once one has the t r u t h , then he i s j u s t i f i e d i n using any means to f o r c e other people to "know" the same f a c t s . I l l o g i c , r h e t o r i c , and even p o e t i c device may be used, and indeed are used by P l a t o i n h i s a t t a c k s on r h e t o r i c . I t i s h i s m a s t e r f u l a b i l i t y w i t h the techniques of the Sophists that makes h i s a t t a c k s so convincing to us (or, should I say, p e r s u a s i v e ) . .,. the triumph of the P l a t o n i c Socrates i s not a triumph of l o g i c over o r a t o r y . John Stuart M i l l has put t h i s c l e a r l y : 'This great dialogue the Gorgias f u l l of j u s t thoughts and f i n e observations on human nature, i s , i n mere arguments, one of the weakest of P l a t o ' s works. I t i s not by i t s l o g i c but by i t s that i t produces i t s e f f e c t s ; not by i n s t r u c t i n g the understanding, but by working on the f e e l i n g s and imagination.'27 55 I t i s i r o n i c that i t was P l a t o ' s r h e t o r i c which brought about r h e t o r i c ' s long r e j e c t i o n by a l l " s e r i o u s " t h i n k e r s . But wh i l e Socrates and P l a t o combined to e l e v a t e t r u t h to the l e v e l of v i r t u e , i t was l e f t t o A r i s t o t l e to demote the good below the t r u e , and t o put the f i n a l stake i n r h e t o r i c ' s heart. A r i s t o t l e d i d not share P l a t o ' s h o s t i l i t y to r h e t o r i c . In f a c t , he taught i t h i m s e l f , w h i l e he was s t i l l e n r o l l e d i n the academy. He devoted a long and systematic t r e a t i s e to i t and thereby had the same major i n f l u e n c e on the subsequent study of r h e t o r i c that he had on so many other s u b j e c t s . But i n the very act of studying i t , however, A r i s t o t l e k i l l e d r h e t o r i c . He d i d t h i s by making i t the object of h i s s c i e n t i f i c a n a l y s i s . A r i s t o t l e begins the T r e a t i s e on Rhe t o r i c w i t h the statement that 28 r h e t o r i c i s the counterpart of d i a l e c t i c . Now A r i s t o t l e b e l i e v e d that r h e t o r i c was a part of p r a c t i c a l wisdom w h i l e d i a l e c t i c was a part of theore-t i c a l wisdom. P r a c t i c a l wisdom was concerned w i t h a c t i o n , whereas only theo-r e t i c a l wisdom deals w i t h t r u t h . D i a l e c t i c and r h e t o r i c are a l i k e i n that they both d e a l w i t h speech i n t e r a c t i o n s , but d i a l e c t i c i s t o r h e t o r i c as t h e o r e t i c a l i s to p r a c t i c a l , as t r u t h i s to a c t i o n . In order to understand the dev a s t a t i n g impact that t h i s had, one must r e c a l l that P l a t o had elevated the t r u e t o the l e v e l of the good. The good s t i l l maintained i t s s t a t i o n at the top of the h i e r a r c h y of being. But now i t could only be reached through true knowledge of the forms. One obtained true knowledge through the use of d i a l e c t i c . A r i s t o t l e had acquired P l a t o ' s b e l i e f i n the t r u t h . But he r e j e c t e d d i a l e c t i c as the method through which i t was r e a l i z e d , In i t s place he s u b s t i t u t e d s c i e n t i f i c demonstration. A l l 56 knowledge was gained through the l o g i c a l and systematic study of nature — of appearance. D i a l e c t i c was merely a method f o r communicating the t r u t h s t h a t had been discovered and f o r t e s t i n g one's reasoning. Jeager w r i t e s t h a t "when the theory of Forms was abandoned (by A r i s t o t l e ) being and va l u e f e l l a p a r t , and d i a l e c t i c thereby l o s t i t s d i r e c t 29 s i g n i f i c a n c e f o r human l i f e , which to P l a t o was an e s s e n t i a l f e a t u r e of i t " . When A r i s t o t l e turned h i s s c i e n t i f i c a t t e n t i o n t o r h e t o r i c , then, h i s study became a study of the f a c t s of r h e t o r i c . H i s study was a l i e n a t e d from r h e t o r i c ' s v a lue, because he was not concerned w i t h v a l u e , he was con-cerned w i t h t r u t h , The Sophists' study of r h e t o r i c had been completely d i f f e r e n t . For them the only t r u t h was what was created. The a c q u i s i t i o n of r h e t o r i c was the a c q u i s i t i o n of a s k i l l by which one s t r u c t u r e d the world i n a v a l u a b l e way. I t was not a method by which one discovered or merely communicated a separate and p r e - e x i s t e n t t r u t h . Thinking of r h e t o r i c as an acquired s k i l l r a t h e r than as a body of f a c t s enables us to understand why A r i s t o t l e ' s study was so misguided. Think, fo r example, of l e a r n i n g to r i d e a b i c y c l e . A number of f u t i l e attempts are made, a person who already knows how to r i d e g i v e s " t i p s " , and g r a d u a l l y you acquire a f e e l f o r the a c t i v i t y . In order to do t h i s you must " l e a r n " hundreds of s ubtle muscle movements and " r u l e s " which t e l l you what to do i n case of va r i o u s c o n t i n g e n c i e s . And yet i t would be s t r e t c h i n g c r e d i b i l i t y beyond a l l acceptable l i m i t s to suggest that l e a r n i n g to r i d e a b i c y c l e i s l e a r n i n g that fo r example: The r u l e observed by the c y c l i s t i s t h i s . When he s t a r t s f a l l i n g to the r i g h t he turns the handlebars to the r i g h t , so that the course of the b i c y c l e i s d e f l e c t e d along a curve towards the r i g h t . T h i s r e s u l t s i n a c e n t r i f u g a l f o r c e pushing the c y c l i s t to the l e f t and o f f s e t s the g r a v i t a t i o n a l f o r c e dragging him down to the r i g h t . T h i s manoeuvre p r e s e n t l y throws the c y c l i s t out of balance to the l e f t , which he counteracts by t u r n i n g the handlebars t o the l e f t ; and so he continues to keep himself i n balance by winding along a s e r i e s of 57 appropriate curvatures, A simple analysis shows that for a given angle of unbalance the curvature of each winding i s inversely proportional to the square of the speed at which the c y c l i s t i s proceeding,30 This i s exactly what A r i s t o t l e attempts to do i n h i s T r e a t i s e on Rhetoric. He i d e n t i f i e s , categorizes, and names hundreds of persuasive techniques. And yet, i f someone could not persuade before he read i t , i t i s quite c e r t a i n that the most he would have gotten from A r i s t o t l e i s an extensive set of t i p s . By separating f a c t and value, and then t r e a t i n g r h e t o r i c as a f a c t , A r i s t o t l e robbed i t of a l l value. From being the author of r e a l i t y , i t became merely a small and r e l a t i v e l y unimportant part of the world. It was separated from what r e a l l y counted — the pursuit of truth. It i s as though someone wrote an exhaustive s c i e n t i f i c analysis of how to r i d e a b i c y c l e , but then argued that the only places r e a l l y worth going to are accessible by foot. If you can get there by foot, i t ' s unnecessary and dishonourable to use your b i c y c l e . And, i f you can only get there by b i c y c l e , then i t i s n ' t worth going there at a l l . But, because there are those who w i l l i n s i s t on r i d i n g b i c y c l e s , i t i s acceptable to study how i t i s done. It would be s u r p r i s i n g i f i n t e r e s t i n the work of b i c y c l e a n alysis persisted f or very long. The A r i s t o t e l i a n method combined with the P l a t o n i c b e l i e f i n t r u t h had the e f f e c t of making a l l r a t i o n a l study somewhat pedestrian. The places that could be walked to, the objects of s c i e n t i f i c demonstration were explored, re-explored, and re-explored again. This l e f t whole universes that had been rendered i n a c c e s s i b l e . Many have attempted to walk to the universe of value. But legs just won't make i t . Many others have denied that values " r e a l l y " e x i s t at a l l . They are more d i f f i c u l t to fo r g i v e . But surely our imagination and f e e l i n g s yearn for the s k i l l that was taught by the Sophists, to acquire the a b i l i t y to structure the world i n a virtuous way. The c r e a t i v e r o l e of the i n t e l l e c t , the p a r t i c i p a t o r y r o l e of r a t i o n a l i t y can only be f u l l y engaged once the good regains i t s place above the true i n our day-to-day thinking. 58 ** v i ** In the introduction to t h i s chapter, I spoke of embarking on an adventure. This adventure s t i l l l i e s ahead. For many years Western thinking has assumed that r a t i o n a l i t y n e c e s s a r i l y involves the search for t r u t h . Accordingly, a l l of our r a t i o n a l endeavours have sought to r e f l e c t the truth. A l l of our ph i l o s o p h i c a l controversies have revolved around questions of how we can discover t r u t h . Even i n areas such as ethics and aest h e t i c s , p h i l o -sophers have concerned themselves mainly with the tru t h , through asking such questions as whether moral propositions are true or f a l s e , or whether a c e r t a i n method ensures true moral or aesthetic opinions. Many scholars have begun to question the dictum that r a t i o n a l i t y i s prim a r i l y concerned with o b j e c t i v i t y and t r u t h . This i s r e f l e c t e d i n the works of the e x i s t e n t i a l i s t s and phenomenologists. I t has been advanced i n various forms for several years by such philosophers of science as Michael Polanyi, Thomas Kuhn and Paul K. Feyerabend. The s o c i a l sciences are at long l a s t beginning to appreciate a s i m i l a r point and are r e j e c t i n g the various l i n g e r i n g forms of behaviourism. But, i n jurisprudence, most scholars s t i l l see l e g a l d e c i s i o n making as a process of determining what the law i s . Judges are s t i l l expected to discover a pre-existing r i g h t answer, and apply i t . The e n t i r e controversy between natural and p o s i t i v e law can be seen as merely an argument about the trut h . This b e l i e f i n t r u t h i s made most manifest i n formalizations, for the very act of formalizing proceeds on the assumption that reasoning i s a "tru t h preserving" a c t i v i t y . It furthermore wrests the r a t i o n a l mind out of i t s e x i s t e n t i a l s i t u a t i o n by stating that the s p e c i f i c or p a r t i c u l a r content of any si t u a t i o n can be ignored without precluding a f u l l understanding of the law as i t applies to that s i t u a t i o n . 59 This b e l i e f , that the general t r u t h i s more important than the values which inhere i n the p a r t i c u l a r f a c t s , has been traced to the b e l i e f i n 31 " u n i v e r s a l i z a b i l i t y " . In f a c t , the c r i s i s i n modern law, the i n a b i l i t y to e s t a b l i s h a connection between law and j u s t i c e , between obedience and author-i t y , has been traced to an "archetypal clash between two opposing paradigms that reside i n our psyches' 1. One of these two archetypes i s described as r e l a t i n g to the " p o s i t i v i s t i c , w i l l - o r i e n t e d , p a t r i a r c h a l l e g a l system". The second i s based upon a supposed psychological need to believe i n u n i v e r s a l i t y . C l e a r l y , both of these "archetypes" are based on the assumption of t r u t h . True statements about what the law i s are found by r e f e r r i n g either to the w i l l of the patriarch-sovereign, or by r e f e r r i n g to u n i v e r s a l truths of nature. My p o s i t i o n i s that characterizing the s i t u a t i o n i n t h i s way ignores the p o s s i b i l i t y of another v i s i o n of r a t i o n a l i t y , precludes our attending to what may well be another "archetypal" b e l i e f . R a t i o n a l i t y i s the quest for the good, for q u a l i t y , for excellence. Truth i s i l l u s o r y and of l e s s importance than v i r t u e . I s h a l l make a couple of quick points before concluding t h i s chapter. The f i r s t i s that to understand the ancient or p r i m i t i v e "status or kinship" l e g a l systems i n a truth-oriented fashion, as Smith and Weisstaub seem to, i s to miss the point that, i n such s o c i e t i e s , things such as laws, status, tabus and so on are d i r e c t features of the experienced world. To think of the members of these s o c i e t i e s as using t h e i r sovereigns as methods for ascertaining what the law r e a l l y i s , i s to ignore the c r e a t i v e p a r t i c i p a t i o n that these " p r i m i t i v e s " employed in the structure of t h e i r world. The second point concerns " u n i v e r s a l i z a b i l i t y " . It i s claimed that Eudoxus' proposition concerning r a t i o s i n E u c l i d ' s f i f t h book i s the f i r s t example of the notion of the u n i v e r s a l l y quantified v a r i a b l e , and that t h i s 60 n o t i o n u n d e r l i e s the idea of j u s t i c e . Eudoxus was a student of P l a t o — a contemporary of A r i s t o t l e . H i s p r i n c i p l e of u n i v e r s a l i t y was constructed on h i s master's a u t h o r i t a r i a n metaphysics. The s h i f t from the good to the tru e  preceded and made p o s s i b l e Eudoxus' u n i v e r s a l l y q u a n t i f i e d v a r i a b l e . But;:prior to Eudoxus, p r i o r to P l a t o , philosophers were engaged i n systematic and profound r e f l e c t i o n t h a t c e r t a i n l y d e a l t w i t h u n i v e r s a l concepts, i n c l u d i n g that of j u s t i c e . But, because they d i d not c l a i m the a b i l i t y to construct u n i v e r s a l l y t r u e statements about j u s t i c e , they are today dismissed as p r i m i t i v e and unimportant. Besides h i s destruction of r h e t o r i c , h i s Utopian s t a t e and theory of forms, P l a t o a l s o s t i p u l a t e d some t r u t h s about astronomy. He i n s i s t e d t h a t the cosmos c o n s i s t e d of p e r f e c t spheres moving i n p e r f e c t c i r c l e s at uniform speeds. Coupled w i t h A r i s t o t e l i a n g e o c e n t r i c i t y and p h y s i c s , t h i s paradigm exerted a s t r a n g l e h o l d on cosmological thought that was only broken by the 32 " i r r a t i o n a l " arguments of Johannes Ke p l e r , and G a l i l e o G a l i l e i , two thousand years l a t e r . Could i t be that P l a t o ' s s t i p u l a t i o n that r a t i o n a l i t y be based on t r u t h , coupled w i t h A r i s t o t e l i a n s c i e n t i s m , has exerted a s i m i l a r s t r a n g l e -hold on our r a t i o n a l thought? Can we expect that our desperate c l i n g i n g to t r u t h w i l l be viewed by our descendents w i t h the same scorn that we smugly l e v e l against G a l i l e o ' s c l e r i c a l opponents? 61 -- CHAPTER THREE — Seeing t h i n g s i n a d i f f e r e n t way does not occur i n stages. We don't move from one perception t o another i n a s e r i e s of s m a l l , safe steps. Rather, once the new seed has been planted, and taken h o l d , i t springs i n t o f u l l bloom w i t h a w i l l seemingly of i t s own. I t r e q u i r e s a plunge, a leap. A r t i s t s and p s y c h o l o g i s t s have long been aware of the a c t i v e r o l e played by the observer i n the experiencing of many kinds of perceptions. They know that order i s o f t e n p r o j e c t e d onto random or ambiguous p a t t e r n s . Most people are aware of many of these so c a l l e d o p t i c a l i l l u s i o n s . They know that we can see forms i n i n k b l o t s , and i n clouds. But no one argues about whether the patterns are r e a l l y t h e r e . C h i l d r e n spend many happy hours t r y i n g t o get t h e i r f r i e n d s or parents to see the clouds i n t h e i r way, and i n t u r n t o see them themselves i n new and p l e a s i n g ways. "Look, i t ' s a cow! See, there i s i t s head, that over there t h a t ' s one horn, and there's the other, and over there there's i t s t a i l . See i t ? See i t ? " "Yeah, I see t h a t , but look instead of those being horns, look at them as towers, and then that t h i n g down there i s a drawbridge — see? I t ' s a c a s t l e ! " Which i s i t ? I s the cloud r e a l l y a cow, or a c a s t l e ? No one would take such a question s e r i o u s l y . S t i l l l e s s would we t o l e r a t e someone e x p l a i n i n g to the c h i l d r e n that i t i s n e i t h e r . That the cloud's shape i s a more or l e s s random aggregation of condensed water vapour t h a t assumes the shape d i c t a t e d by va r i o u s m e t e o r o l o g i c a l .and p h y s i c a l f o r c e s . A person who d i d would be seen as dry, pedantic and i r r e v e l e n t — a boor who ruined innocent fun, who took the magic out of a c h i l d ' s afternoon. 62 Most of us have seen "degraded" Images of high c o n t r a s t photographs. Look at Figure I . At f i r s t glance, i t i s a meaningless jumble of nondescript shapes. But, i f you s t a r e at i t f o r a short w h i l e , a p i c t u r e begins to emerge. The process i s hastened g r e a t l y i f someone t e l l s you t h a t i t i s a dalmation dog on a bed of leaves. Look, here i s the head, i t ' s f a c i n g away from us, and here i s the l i n e of i t s back ... Suddenly the e n t i r e p i c t u r e c l e a r s before your eyes. Of course, t h a t ' s what i t is.' You have j u s t acquired a s k i l l — the a b i l i t y to "make sense" out of t h i s p i c t u r e . Your experience has been enriched, deepened. But I c e r t a i n l y have not "proved" anything to you. Now look away from the p i c t u r e f o r a minute, a day, a week, a year. When you look at i t again, you w i l l s t i l l be able t o make out the dog. Not only has your immediate experience, but your c a p a c i t y f o r f u t u r e experience has been improved. In f a c t , you w i l l probably have a c e r t a i n amount of d i f f i -c u l t y seeing the p i c t u r e the way you d i d before you were taught to see the dog. I t i s as though, faced w i t h the choice of seeing chaos or order, your eye of i t s own accord sees order. With some e f f o r t you can f o r c e the v i s i o n of chaos to reappear. Relax and the dog snaps back. I t i s t h i s which might lead us to say that i t i s r e a l l y a p i c t u r e of a dog. But what j u s t i f i c a t i o n , or p o i n t i s there t o such a claim? I t can be seen as a dog, but when you f i r s t saw i t , i t was chaos. What does the c l a i m t h a t i t was r e a l l y a dog, even then, amount to? Surely nothing at a l l . T h is point i s c l e a r e r i f we t h i n k about the next three f i g u r e s . I s Figure I I r e a l l y a goblet or two f a c i n g p r o f i l e s ? I s Figure I I I r e a l l y an old woman or a young woman? Which way does the cube i n F i g u r e IV r e a l l y face? These are a l l p o i n t l e s s questions. Neither i s r e a l . Both, are r e a l . F i r s t one i s r e a l , and then the other. I t doesn't matter anymore than the " r e a l " shape of the cloud matters. 62a FIGURE I I I FIGURE IV 63 And yet, despite the absence of " r e a l i t y " that these images have, they r e t a i n t h e i r f a s c i n a t i o n . There i s a joy, an e x h i l a r a t i o n almost, that comes with the r e a l i z a t i o n that you c o n t r o l the pattern. It i s akin to the exh i l a r a t i o n that comes from solving a problem or a puzzle. What are the next two l e t t e r s i n the following sequence: 0, T, T, F, F, S, S? At f i r s t glance there simply i s no sequence. Any answer, or no answer seems r i g h t . "X, Y." "A, B." Why not? Well, because there i s no pattern evinced by X, Y or by A, B. You must be able to see the ex i s t i n g pattern, i n order to continue i t . Most people t r y to solve t h i s puzzle by assigning numerical values to each l e t t e r based on t h e i r a l p h a b e t i c a l order. "Let's see. '0' i s the f i f t e e n t h l e t t e r , and 'T' i s the, umm twentieth, and 'F! i s the sixth and 'S' i s the nineteenth, — 15, 20, 20, 6, 6, 19, 19 — AARRGH'. S t i l l no pattern." In f a c t , even the information that the " r i g h t " answer i s 'E, N' does not imme-d i a t e l y help. F i r s t the person must look at the problem i n a new way. "The '0' stands for 'one'; 'T' for 'two', 'T' for three ... Oh, I_ get i t : 'eight, nine' -- 'E, N'." Now, t r y to see the pattern i n the old way. It i s very d i f f i c u l t . Having learned a way of ordering the perception, i t i s tough to disorder i t . But one can re-order i t , i f a new way of developing a pattern can be shown. I have l i t t l e doubt that someone with mathematical aplomb could devise a function which would generate the numbers 15, 20, 20, 6, 6, 19, 19. This function could then give the next two values as numbers which would r e s u l t i n two d i f f e r e n t l e t t e r s than E, N. Which answer would be rig h t ? If I have overly laboured t h i s point, i t i s because I f e e l i t i s both important, and d i f f i c u l t . In f a c t , I think that i t i s t h i s request, "look at i t t h i s way" that characterizes most human development innovation. 64 Perhaps i t i s c l e a r t h a t t h i s kind of a process goes on when a p a i n t e r p a i n t s a p i c t u r e . "Look at the world t h i s way," says Van Gogh. "Or t h i s way," says Rembrandt. Which i s the r i g h t way? What a f o o l i s h question! A r t i s an e x h o r t a t i o n , an i n v i t a t i o n , a plea to s t r u c t u r e your per-ceptions i n a c e r t a i n way. I t i s an i n v i t a t i o n to deepen your own experience, and, by sharing i n the experience of the a r t i s t , to enter i n t o a communion w i t h a f e l l o w human being. To d e c l i n e to do this,* to say, " I refuse to see th i n g s i n any way but my own unless you prove that yours i s the r i g h t way" i s to miss the e n t i r e point of the a r t . I t i s t o lock oneself i n one's own room, and to re f u s e to explore the view from the r e s t of the c a s t l e . When a poet i n v i t e s us to see "the garden i n a young g i r l ' s eyes", i t i s nonsense tO'refuse because gardens aren't r e a l l y i n young g i r l ' s eyes. When a novel asks us to suspend our d i s b e l i e f , we do so i n the expe c t a t i o n of an enjoyable or worthwhile experience. " I don't read Sherlock Holmes books because he never e x i s t e d " i s not an appropriate response to the genius of Arthur Conan Doyle. See things as though there could be a Holmes, and you w i l l (perhaps) e n r i c h your l i f e by some small measure. Look a t things t h i s way instead of that way. Th i s i s the plea not only of the c h i l d l o o k i n g at clouds, nor of the p a i n t e r , poet and playwright. I t i s a l s o the i n v i t a t i o n of the great s c i e n t i f i c innovators. "Look at th i n g s as though the sun instead of the ea r t h l i e s at the centre of the un i v e r s e , " G a l i l e o urged. He d i d not, he could not prove that i t d i d . But he pleaded, he c a j o l e d , he urged and he s t a t e d , "the sun i s i n the centre. Look at th i n g s that way and see what you see." Because of h i s persuasive power, people d i d t r y to see things i n h i s way. They d i d not l e t f a c t s , or r a t i o n a l i t y , stand i n t h e i r way. They chose t o see th i n g s i n a c e r t a i n way, and the f a c t s 65 a s s o c i a t e d w i t h that way appeared to support t h e i r d e c i s i o n . Once you t r y t o see the cow i n the sky, her t a i l and horns appear of t h e i r own accord. "Look at thin g s t h i s way. Suppose that the v e l o c i t y of l i g h t i s constant r e g a r d l e s s of the observer's i n e r t i a l frame of r e f e r e n c e , " said E i n s t e i n . "How would the universe look then?" He d i d not, he could not prove that l i g h t behaved i n such a strange, c o u n t e r - i n t u i t i v e way. But those who were persuaded by h i s genius to t r y and see t h i n g s that way experienced the deep emotional appeal of r e l a t i v i s t i c p h ysics. They learned to s t r u c t u r e t h e i r concepts i n such a way as to c o n s t a n t l y support t h e i r i n i t i a l d e c i s i o n . Once you p i c k out the dalmation, you can see the leaves and t r e e s without any help from me. The f u l l i m p l i c a t i o n s of a given v i s i o n of the world are not n e c e s s a r i l y known to the person who f i r s t proposes or " p o p u l a r i z e s " i t . A maxim of a r t c r i t i c i s m i s to " t r u s t the a r t , not the a r t i s t . " Are Ingmar Bergman or Woody A l l e n aware of a l l of the symbolic meanings i n t h e i r f i l m s ? I t doen't matter. They g i v e us a v i s i o n . What we see w i t h that v i s i o n i s up to us, not to them. Thi s paper, both what has gone before and what w i l l f o l l o w , i s not a safe, sure, step-by-step argument, I t i s an i n v i t a t i o n , an e x h o r t a t i o n to look at t h i n g s i n a d i f f e r e n t way. I t i s a p l e a , not a proof. What i f r a t i o n a l i t y i s not the quest f o r t r u t h ? What i f v i r t u e , e x c e l l e n c e , q u a l i t y , i s the g o a l of r a t i o n a l thought? How would t h i n g s look t o us then? •k* ±± it* I b e l i e v e that i t was A l f r e d North Whitehead who s a i d that a l l of Western philosophy i s a g l o s s on P l a t o and A r i s t o t l e . T h i s i s because n e a r l y every subsequent t h i n k e r has spent the vast m a j o r i t y of h i s or her time and 66 energy e x p l o r i n g , examining and e x p o s t u l a t i n g the foundations and r a m i f i c a t i o n s of d i f f e r e n t ways of a c q u i r i n g knowledge. The u n d e r l y i n g theme i n a l l has been t r u t h — how we f i n d i t , what i t i s , and what we do w i t h i t . I have proposed that philosophy, and p a r t i c u l a r l y l e g a l philosophy, would do w e l l to attempt to progress by means of a r e c u l e r pour mieux sauter, that i t draw back t o leap. Imagine a philosophy that had developed and matured without the P l a t o n i c e n c y c l i c a l to t r u t h . Imagine a philosophy that i s grounded on the i n t e l l e c t u a l foundations l a i d by the M i l e s i a n s , the Pythagoreans and the Sophists. The f i r s t step, and the one which must be c o n s t a n t l y borne i n mind, i s that the r e j e c t i o n of the u l t i m a t e value w i t h which t r u t h was imbued, means the end of our s l a v e r y to f a c t s , t o r e a l i t y . But t h i s newfound freedom i s not an unmixed b l e s s i n g . In f a c t , i t i s p r e c i s e l y the r e a l i z a t i o n that there i s no t r u t h , no " o b j e c t i v i t y " and no order i n the world that i s at the root of the e x i s t e n -t i a l i s t ' s d e s p a i r . When suddenly confronted w i t h the r e a l i z a t i o n that the universe has no inherent meaning, man's immediate r e a c t i o n i s one of f e a r , of d e s p a i r , of angst. The comforting v i s i o n s provided by r e l i g i o n and science evaporate, l e a v i n g us to f a c e the c h i l l wind of chaos. The numbing pessimism of much of the work of Jean Paul S a r t r e , A l b e r t Camus, Ingmar Bergman and others captures and confronts us w i t h t h i s d e s p a i r . Too many of the people who have f e l t t h i s despair have become i t s v i c t i m s . L i k e the born slave who i s suddenly emancipated without the means or t r a i n i n g to l i v e i n a world where one must fend f o r h i m s e l f , people have escaped the shackles of t r u t h only to s i n k i n t o s p i r i t u a l and emotional d e s t i -t u t i o n , without v a l u e s , without j o y and without f u l f i l l m e n t . 67 The task of e x i s t e n t i a l i s m since i t s inception has been to f i n d a source of comfort and a v i s i o n of happiness i n the face of tragedy and despair. This task has e s p e c i a l l y been undertaken by such r e l i g i o u s e x i s t e n t i a l i s t s as Gabriel Marcel and Martin Buber. The despair of e x i s t e n t i a l i s m has been f e l t by most people who come into contact with i t s voice. It appeals to some i n t u i t i o n that seems to be u n i v e r s a l . I suggest that i t was exactly t h i s despair that Protagoras was considering i n h i s presentation of the " l o g o i i n opposition". There i s a tragedy of the i n t e l l e c t involved i n the apprehension that everything contains i t s own negation, that a l l i s chaos, R e c a l l , though, that Protagoras' r e s o l u -t i o n of t h i s uncertainty was not doubt, despair and cynicism. He prescribed two more maxims: "Man i s the master of a l l things. Man has the a b i l i t y for acquiring the superior capacity for understanding." In f a c t , one of the f i r s t of the " e x i s t e n t i a l i s t " writers can be seen to have these same three themes running through most of h i s work. It was early i n h i s career that F r e i d r i c h Nietzsche issued h i s r e j e c t i o n of the world of f a c t s : L i f e no argument: We have arranged for ourselves a world in which we are able to l i v e — with the p o s t u l a t i o n of bodies, l i n e s , surfaces, causes and e f f e c t s , motion and r e s t , form and content: without these a r t i c l e s of f a i t h nobody could now endure to live'. But that does not yet mean they are something proved and demonstrated. Ultimate scepticism: What; then i n the l a s t resort are the truths of mankind? They are the i r r e f u t a b l e err or s'of mankind . These words have not only a s i m i l a r message as that propounded by Protagoras so many years before, they are written i n a v i r t u a l l y i d e n t i c a l s t y l e . But the s i m i l a r i t y between Protagoras and Nietzche does not end here. Protagoras used h i s statement of uncertainty concerning the gods' existence or non-existence i n order to emphasize his "scepticism". Nietzche used a s i m i l a r image: God i s dead. Reading t h i s statement makes us shudder. 68 It i s one thing to believe that God does not e x i s t . It i s quite another to suggest that he no longer e x i s t s because we have k i l l e d him. With the death of God comes the death of order, the death of reason, the r i s e of n i h i l i s m . His a t t i t u d e towards t r u t h led Nietzche to emphasize the paradoxes which he saw a l l around him i n the world, A l l Nietzche's statements seem to be abrogated by others. To be s e l f - c o n t r a d i c t o r y i s thoroughly c h a r a c t e r i s t i c of him. For every judgement one can nearly always f i n d an opposite judgement. It  seems as i f he has two opinions about everything.? [emphasis added"] D i s s o i l o g o i . Nietzche devoted many of h i s pages not merely asserting, but painstakingly f o r c i n g the reader to perceive each of the opposing r e a l i t i e s i n the world. But he was j u s t as v i v i d i n h i s v i s i o n of how to escape from n i h i l i s m . Everyone, everything, has the w i l l to power. Man can order, can c o n t r o l the nature of h i s universe because of h i s place i n the universe. He i s not a slave to f a c t s . F a i l i n g to r e a l i z e h i s "mastery over a l l things," man stagnates as mere man. The triumphant cry i s that he can transcend man, he can become Superman. He can conduct h i s mastery of the universe i n a superior, a better way. It i s to t h i s he should s t r i v e ; should aspire. Protagoras' man of superior logos has become Nietzche's Superman. That Nietzche so resembles the pre-Socratic t r a d i t i o n i s made yet more i n t e r e s t i n g when we r e a l i z e that, i n h i s study of c l a s s i c a l philology i n Greek and Roman l i t e r a t u r e , he was confronted with the study of r h e t o r i c . I t acquired a c e n t r a l p o s i t i o n i n h i s study and conducted l e c t u r e s on the h i s t o r y of Greek r h e t o r i c as well as on r h e t o r i c i t s e l f . This f a s c i n a t i o n would c e r t a i n l y have brought him face to face with the work of the Sophists, but from a rheto-r i c a l perspective rather than from a l o g i c a l , a n a l y t i c point of view. He would not so casually dismiss t h e i r work in the way that philosophy had long since learned to do, and so could gain unique i n s p i r a t i o n from h i s study. 69 Other circumstances intervened to dampen the i n f l u e n c e that Nietzche might have had. For Nietzche was not of h i s time. The mid to l a t e nineteenth century was a time of adherence to the o l d r e l i g i o n s or of wholesale conversion to the new ones of science and i n d u s t r y . V i r t u a l l y no one e l s e was saying the s o r t s of th i n g s that Nietzche went on about. Unable t o shake the dogma of t r u t h , Nietzche's w r i t i n g s and paradoxes appeared t o be the s h r i l l babblings of a madman confronted by the t e r r o r s of h i s own i n s a n i t y . H i s concept of the w i l l to power and h i s idea of supermen were c l e a r signs of megalomania. His subsequent l i n g e r i n g i n , an asylum due to the ravages of s y p h i l i s , madness caused by s i n , v i n d i c a t e d h i s - r e j e c t i o n . I t i s l i t t l e wonder that h i s work was useable by those other madmen of Germany — the N a z i s . In t h e i r aftermath, the European t h i n k e r s reverted t o the stance of despair and n i h i l i s m t h a t c h a r a c t e r i z e s so much e x i s t e n t i a l thought. The madness that appears i n Nietzche's w r i t i n g s needs more r e f l e c t i o n than can be given to i t here. For he wrestl e d w i t h t r u t h at a time when he was i t s sole a s s a i l a n t . T h i s , of n e c e s s i t y , caused a s t r a i n , a b r u i s e that p e r s i s t e d i n h i s s p i r i t u n t i l the end. S t i l l , much of h i s "madness" i s apparent only to our truth-obsessed eyes. Once we have repudiated the P l a t o n i c v i s i o n , Nietzche's begins to l o s e some of i t s appearance of i n s a n i t y and acquires an aura of deep i n s i g h t . I t i s the other view that begins to f a l t e r and stammer, t o appear, f r a n k l y , q u i t e mad. ** i i i ** Science and s c i e n t i f i c thought never disproved i t s c r i t i c s , i t merely ignored them. Thus, u n t i l q u i t e r e c e n t l y , the advocates of a non-objective r a t i o n a l i t y have had very l i t t l e p o s i t i v e impact on the philosophy of science. 70 One of the reasons f o r t h i s i s the very common b e l i e f t h a t the only way to be r a t i o n a l i s to be l o g i c a l and o b j e c t i v e . C r i t i c s of o b j e c t i v i t y have thus tended to dismiss r a t i o n a l i t y and to seek other, u s u a l l y a r t i s t i c modes of expression. They, i n t u r n , have been dismissed by o b j e c t i v i s t s f o r being emotional and i r r a t i o n a l . I t i s the theme of t h i s paper that one can r e j e c t o b j e c t i v i t y , and yet r e t a i n r a t i o n a l i t y . T his i s because r a t i o n a l i t y i s more than the a b i l i t y to use l o g i c , i t i n c l u d e s foremost the a b i l i t y to use language. Language can be used to prove, to please and to persuade. The f i r s t i s l o g i c and the second poetry. The t h i r d i s the one which has been maligned and ignored f o r more than 2000 years. I t i s r h e t o r i c — the c r a f t of the Sophists and the root of r a t i o n a l i t y , u n t i l P l a t o turned i t s power onto i t s e l f . R h e t o r i c i s p r e s e n t l y undergoing i t s f i r s t major r e v i v a l s i n c e the seventeenth century, and the f i r s t t hat has sought to f u l l y r e s t o r e i t to i t s ol d p o s i t i o n of respect. I t must be c l e a r t h a t by " r h e t o r i c " I mean something more than the ornamentation of speech or the a r t of the o r a t o r . These are c e r t a i n l y p a r t s of r h e t o r i c , but i t goes much f u r t h e r than t h a t . W r i t e r s on r h e t o r i c have often f a l l e n i n t o the t rap l a i d by Socrates f o r Gorgias. "Before we begin t a l k i n g about r h e t o r i c , s u r e l y i t must be d e f i n e d . We must have a guide by which we can c l e a r l y d i s t i n g u i s h t h a t which i s r h e t o r i c from that which i s not, before we can even consider i n v e s t i g a t i n g i t s v a l u e . " But some t h i n g s , as the f i c t i o n a l i z e d Gorgias found to h i s chagrin and embarrassment, are simply incapable of p r e c i s e d e f i n i t i o n . To P l a t o t h i s made them wo r t h l e s s , and incapable of being included w i t h i n the a r t of the philosopher. P l a t o would be r i g h t i f the only goal of the philosopher were to seek t r u t h . But, i f i t i s to seek q u a l i t y , then the need f o r c e r t a i n d e f i n i -t i o n vanishes. There are so many v a l u a b l e p a r t s of our l i v e s t h a t defy 71 d e f i n i t i o n , that such a state of a f f a i r s shouldn't surprise us. What i s love, Socrates? What about a r t , Socrates, or beauty? None of these can be defined. Plato i s driven to either eliminating them, or implausibly d e f i n i n g them as the s t r i v i n g for t r u t h . A l l values are one for Plato, but not for l i f e . Rhetoric i s r e a l , but not capable of clear and precise d e f i n i t i o n . It can, however, be described i n various ways. Things can be said about i t . It most c e r t a i n l y i s p r i m a r i l y concerned with speech, spoken and written, although there are those who would include n o n - l i n g u i s t i c communications such as gestures, the clenched f i s t or the protest march. The core of r h e t o r i c i s i t s persuasiveness. I t s c l a s s i c a l d e f i n i t i o n i s "the art of speaking convincingly and w e l l . " Rhetoric i s the theory of argumentation: "... they study of the d i s c u r s i v e techniques allowing us to induce or to increase the mind's adherence to the theses presented f o r i t s 3 assent." Rhetoric i s a verbal a r t . It concerns public utterances which are designed to produce some kind of e f f e c t on other people. I t i s the use of 4 language by subjects to r e l a t e to each other. Rhetoric i s the " r a t i o n a l e of informative and suasory discourse" — the s t r i v i n g f o r informed opinion rather than s c i e n t i f i c demonstration. It seeks to "adjust ideas to people and people to ideas. It studies how people come to beli e v e that which they believe, not through immediate sense v e r i f i c a t i o n , but by inference from the opinions of others, Perhaps my favourite d e f i n i t i o n i s the shortest — "Rhetoric i s the study of how people change each other's minds. The perception of r e a l i t y i s determined by the i n t e r a c t i o n of the mind and the world, One who can change minds, can by that f a c t alone influence r e a l i t y . He escapes from the dilemma of o b j e c t i v i t y versus n i h i l i s m , by openly and a c t i v e l y imposing and affirming some valuable v i s i o n of the universe. 72 The power of language, the magic of the word has been appreciated since a n t i q u i t y . In an e a r l i e r chapter, I described the Greek b e l i e f that the use of language was the source of the world of appearances. Power over language gave power over the world. In most cultures, magic was associated with the use of words, The Judaeo-Christian God performed cr e a t i o n by the use of speech. He spoke the words, and i t was done. Man's mastery of the world began with Adam and Eve's task of naming the animals and plants. And when God became f l e s h , the word became C h r i s t , But while the use of language by man gives him power over r e a l i t y , t h i s does not mean that r e a l i t y i s a r b i t r a r y or whimsical. Language i s not a r b i t r a r y although neither i s i t necessary. It i s conventional, h i s t o r i c a l and valuable. An i n d i v i d u a l using language i s committing himself to something ."supra-personal'.'. Language i s a covenant between i t s users. One i s not f r e e to use i t i n j u s t any way he pleases. If he t r i e s to, no one w i l l understand him, and he w i l l no longer be speaking, but merely making noises. Within the commitment entailed by the use of language, there i s s t i l l s u f f i c i e n t l a t i t u d e f o r an i n d i v i d u a l to develop h i s langauge, to p a r t i c i p a t e i n the world he shares with those around him. R e a l i t y i s seen to be the shared v i s i o n of a community, where i t can vary between members and yet r e t a i n a common core that i s apprehended by nearly a l l of them. This i s a l l very unclear, and d i f f i c u l t to describe. This i s because of our d i f f i c u l t y i n understanding ourselves both as complete wholes 8 and as mere parts of a. larger whole. I create my own world. My r e a l i t y e x i s t s on i t s own, a separate e n t i t y , with me i n the centre. But the nature of my r e a l i t y i s determined to a great extent by my language and my culture, i t s values and i t s h i s t o r y . To the extent that many of us share these things, we share the same r e a l i t y . To the extent that we d i f f e r , we occupy d i f f e r e n t 73 worlds. By bringing me to change my values and b e l i e f s , you bring me to change r e a l i t y . But the r e a l i t i e s that are av a i l a b l e , the range of possible choices i f you w i l l , i s i t s e l f influenced h i s t o r i c a l l y and c u l t u r a l l y . Rhetoric i s the use of language to a f f e c t the nature of r e a l i t y . It accomplishes t h i s task by aff i r m i n g and appealing to values. Values determine the nature of the world i n a l l aspects of human experience. Rhetoric i s thus ubiquitous. It i s not an i n c i d e n t a l or acci d e n t a l addition to r a t i o n a l i t y , any more than the apprehension of q u a l i t y i n the world i s a superfluous addition to objective knowledge. Rhetoric recognizes the strength of the f i c t i o n s men l i v e by, as well as those they l i v e under, and i t aims to f o r t i f y one and explode the other. Rhetoric aims at what i s worth doing, what i s worth t r y i n g . It i s concerned with values, and values are established with the aid of imaginative r e a l i z a t i o n , not through r a t i o n a l determination alone; and they gain t h e i r force through emotional animantion.9 It i s the e c s t a t i c , emotional release which accompanies the contem-pl a t i o n of nature that motivates i n t e l l e c t u a l development. The acceptance of any d e s c r i p t i o n of the world i s grounded upon aesthetic or moral values. This passionate, r h e t o r i c a l aspect of our knowledge i s b r i l l i a n t l y described by Michael Polanyi i n h i s landmark book Personal Knowledge: Towards a Post  C r i t i c a l P h i l o s o p h y . ^ He defines the goal of knowledge as "the apprehension of a r a t i o -n a l i t y which commands our respect and arouses our contemplative admiration." Like Feyerabend, he argues that i t was the aesthetic excellence, the q u a l i t y of the Copernican and E i n s t e i n i a n theories that led to t h e i r acceptance. The act of knowing always involves an app r a i s a l , a statement of value preferences that leads to some view of the world. It i s i n the acceptance or r e j e c t i o n of t h i s a p p r aisal that a theory or claim i s accepted or re j e c t e d . Conversely, 74 i t i s by appealing to commonly held v a l u e s and making arguments based on them that one gets others t o see the values i n v o l v e d . A s c i e n t i s t uses r h e t o r i c to get others to share h i s a p p r a i s a l . The task of i n t e l l e c t u a l a c t i v i t y i s the i m p o s i t i o n and contemplation of order i n the unive r s e . Truth-oriented philosophy says that the universe has an order independent of i t s p e r c e p t i o n , and our task i s t o discover i t . But t h i s i s never what has been done. We c r e a t e p l e a s i n g orders of the u n i -verse because doing so s a t i s f i e s the passionate nature of our i n t e l l e c t . The c r e a t i v e power of the p a i n t e r or poet i s the j o y of the s c i e n t i s t or mathematician: A s c i e n t i f i c theory which c a l l s a t t e n t i o n t o i t s own beauty, and p a r t l y r e l i e s on i t f o r c l a i m i n g to represent e m p i r i c a l r e a l i t y , i s a k i n to a work of a r t which c a l l s a t t e n t i o n to i t s own beauty as a token of a r t i s t i c r e a l i t y . I t i s a k i n a l s o to the m y s t i c a l con-templation of nature: a k i n s h i p shown h i s t o r i c a l l y i n the Pytha-gorean o r i g i n s of t h e o r e t i c a l science. More g e n e r a l l y , science, by v i r t u e of i t s passionate note, f i n d s i t s place among the great sjstems of utterances which t r y to evoke and impose c o r r e c t modes  of f e e l i n g . In teaching i t s own kinds of formal e x c e l l e n c e , science f u n c t i o n s l i k e a r t , r e l i g i o n , m o r a l i t y , law and other c o n s t i t u e n t s of c u l t u r e . I I [emphasis added] Does t h i s mean th a t a l l s c i e n t i f i c t h e o r i e s are equal, that there i s no reason f o r d e s i g n a t i n g some as superior and others as simply f o o l i s h ? Not at a l l . The suggestion i s rat h e r that no theory i s superior by v i r t u e of being t r u e , or f o o l i s h because f a l s e . But some t h e o r i e s are c e r t a i n l y b e t t e r than others, j u s t as some p a i n t i n g s or some novels are superi o r to others. Arguments are sometimes made t h a t , because there i s no way of o b j e c t i v e l y proving that one piece of a r t i s superior to another, t h e r e f o r e a l l such claims are merely the expression of s u b j e c t i v e r e a c t i o n . "This i s a b e t t e r p a i n t i n g than t h a t " means nothing more than " I l i k e t h i s one b e t t e r than t h a t . " But no one i s e n t i t l e d to say that the t h i n g s they l i k e are b e t t e r than others, To do so i s snobbish at best and a u t h o r i t a r i a n at worst. 75 This argument, much as i t appeals to our e g a l i t a r i a n i n s t i n c t s , simply does not accord w i t h the way that we do experience t h i n g s , In f a c t , we do say th a t Bach i s b e t t e r than d i s c o , that Ingmar Berman i s a b e t t e r f i l m d i r e c t o r than Russ Meyer, or t h a t French wine i s b e t t e r than B r i t i s h Columbian. Everyone b e l i e v e s these statements or some statements l i k e them. How i s i t p o s s i b l e to hold such b e l i e f s , and yet not be compelled to d e f i n e q u a l i t y o b j e c t i v e l y ? A key idea i n separating apprehension of a t h i n g ' s q u a l i t y f r o n one's 12 l i k i n g or d i s l i k i n g of i t , i s that of the connoisseur. Connoiseurs are experts i n t a s t e . They are a u t h o r i t i e s i n f i e l d s where there are no f a c t s upon which to ground and j u s t i f y o p i n i o n s . Not many people u n c r i t i c a l l y accept a l l the opinions of a l l connoisseurs. But i t s t i l l makes sense to speak of the a u t h o r i t y of a connoisseur's o p i n i o n . 13 John Scharr described some u s e f u l i n s i g h t s concerning the concept of a u t h o r i t y . He d i s t i n g u i s h e s between two kinds of a u t h o r i t y . There i s the a u t h o r i t y that compels someone to do something by sheer f o r c e , the a u t h o r i t y of the loaded gun, of c o e r c i o n and of f e a r . Quite d i f f e r e n t i s the a u t h o r i t y possessed by an older and wiser f r i e n d , or a f a t h e r , or a community e l d e r , or a teacher. This a u t h o r i t y flows from respect f o r t h a t person's superior experience and wisdom, I t i n v o l v e s f a i t h and commitment by the person recog-n i z i n g the a u t h o r i t y , who acknowledges the a u t h o r i t y f r e e l y and without coe r c i o n . The l a t t e r i s the a u t h o r i t y exercised by the connoisseur i n h i s f i e l d of e x p e r t i s e . How does a person come to be recognized as a connoisseur? Not s u r p r i s i n g l y , there i s no o b j e c t i v e or c e r t a i n t e s t by which we can separate the " r e a l " connoisseur from the pretender. U s u a l l y , however, a connoisseur w i l l be a person w i t h a l a r g e amount of experience w i t h whatever he i s a con-noisseur of. This i s i n s t r u c t i v e , f or i t indicates that being a connoisseur i s an acquired s k i l l . Like other s k i l l s , i t i s normally acquired through pr a c t i c e and co r r e c t i o n by another person with that s k i l l . Even i f r u l e s can be formulated which describe the s k i l l , knowledge of these r u l e s does not e n t a i l i t s possession nor v i c e versa. We need the authority of connoisseurs, because we are simply incapa ble of acquiring f i r s t h a n d knowledge of a l l that we believe. ... a society may be said to have a c u l t u r a l l i f e only to the extent to which i t respects c u l t u r a l excellence. As i n science, t h i s appreciation can r a r e l y be the expression of a f i r s t - h a n d judgement. The humanities, the a r t s , the various r e l i g i o n s , are a l l extensive and highly d i f f e r e n t i a t e d aggregates of which no one can f u l l y understand and judge more than a t i n y f r a c t i o n . Yet each of us respects very much larger areas of these c u l t u r a l domains. I know for example that Dante's Divine Comedy i s a great poem though I have read very l i t t l e of i t , and I respect Beethoven's genius for music though I am almost deaf to music. These are genuine second-hand appreciations, formed i n the same way in which s c i e n t i s t s appreciate the whole of science and i n which the public follows s u i t . Indirect appreciations of t h i s kind are, again, the roots through which society as a whole nurtures c u l t u r a l l i f e . By following t h e i r chosen i n t e l l e c t u a l leaders, the non-experts can even p a r t i c i p a t e up to, a point i n the works of these leaders and beyond t h i s i n the whole range of culture accredited by them.-'-^  Now, to recognize a person as a connoisseur, i s not n e c e s s a r i l y to agree with him. If a connoisseur advances a judgement, we have a large choice of possible responses. We may agree with him that the object i s good, i s of high q u a l i t y , and f i n d that we l i k e i t . Or we may agree that i t i s good, but s t i l l d i s l i k e i t . I recognize that Ingmar Bergmanfilms, symphony music and Bushmills' I r i s h whiskey are a l l very good. But I don't l i k e them. This i s i n no way inconsistent. Or, I could disagree with the judgement that the object i s good (and l i k e i t or not). But, i f I disagree with a connoisseur's judgement, then there i s some sort of onus upon me to either give reasons for my_ opinion or else show that he i s not r e a l l y a connoisseur. If I choose the l a t t e r 77 course, I am showing that h i s claims r e a l l y ought not to have the a u t h o r i t y which he claims f o r them. Keep i n mind th a t there i s no such onus i f I j u s t d i s l i k e the object i n question, but do not o f f e r an o p i n i o n on i t s v a l u e . In f a c t , being a connoisseur i s not a s t a t e which one suddenly a t t a i n s . I t i s a continuum that depends upon the l e v e l of a u t h o r i t y that one's opinions command. As you a s s e r t your o p i n i o n s , you are c l a i m i n g t h i s a u t h o r i t y . Connoisseurship must be recognized by others. I t i s of n e c e s s i t y i n t e r p e r s o n a l . This i s how i t transcends mere s u b j e c t i v i t y . How does one c l a i m t h i s a u t h o r i t y ? I already i n d i c a t e d one way — to r e f e r to one's extensive experience w i t h wine or p a i n t i n g or novels i s a prima f a c i e c l a i m to a u t h o r i t y . Another way i s to g i v e reasons f o r your opinion . You might say, "I've t a s t e d hundreds of wines and I can t e l l t hat t h i s i s an e x c e l l e n t one." Or, you might say, "The balance of bouquet and sweetness w i t h colour and c l a r i t y makes t h i s a good wine." You couldn't j u s t say, " I am a connoisseur and t h i s i s a good wine." That i s , you c o u l d , but your c l a i m would not have much a u t h o r i t y . A connoisseur i s s a i d t o appreciate q u a l i t y . " L i k i n g " i s s u b j e c t i v e , and perhaps a r b i t r a r y . " A p p r e c i a t i o n " i s not s u b j e c t i v e , i t i s i n t e r p e r s o n a l and based upon reasons, I t i s not o b j e c t i v e , but n e i t h e r i s i t i r r a t i o n a l . I t i s a s k i l l than can be acquired, that can be taught. While " a p p r e c i a t i n g " and " l i k i n g " are q u i t e d i f f e r e n t , they can be r e l a t e d . I do tend to l i k e t h i n g s I appreciate.(and v i c e versa) — I tend t o d i s l i k e what I don't ap p r e c i a t e (and v i c e v e r s a ) . But t h i s r e l a t i o n i s not necessary, i s r a r e l y s t a b l e , and can be a f f e c t e d by my w i l l . When a connoisseur a p p r e c i a t e s the q u a l i t y of something, what he i s a p p r e c i a t i n g i s the craftsmanship that went i n t o the c r e a t i o n of the t h i n g . Another way of seeing the r e l a t i o n s h i p between the craftsman and the connoisseur i s t h i s : A craftsman i s capable of doing something w i t h the q u a l i t y which a connoisseur can a p p r e c i a t e . C l e a r l y everybody i s a craftsman t o the extent they perform a s k i l l w e l l , a connoisseur t o the extent they can appreciate a w e l l performed s k i l l . Science i s incapable of designing a S t r a d i v a r i u s v i o l i n , or d i s t i n -g uishing the q u a l i t y of i t s sound. There i s no o b j e c t i v e t e s t f o r q u a l i t y . That does not make q u a l i t y any l e s s r e a l . In f a c t , i t i s j u s t the kind of a p p r e c i a t i o n that l i e s a t the core of s c i e n t i f i c r a t i o n a l i t y . When a theory i s appreciated and advocated by a s c i e n t i s t , i t i s h i s experience and f a m i l i a r i t y w i t h h i s area that g i v e s him the a b i l i t y t o a p p r e c i a t e the a e s t h e t i c , f u l f i l l i n g v i r t u e s of the theory. A s c i e n t i f i c innovator i s a craftsman. He designs h i s t h e o r i e s so that they w i l l be appreciated by the community of s c i e n t i f i c connoisseurs. Now, because science i s a h i s t o r i c a l i n s t i t u t i o n , there are c e r t a i n v i r t u e s that are c o n v e n t i o n a l l y accepted as very important. These i n c l u d e elegance, s i m p l i c i t y , consistency, f r u i t f u l n e s s , et c e t e r a . But, r a t h e r than viewing these c r i t e r i a as a e s t h e t i c dimensions, P l a t o n i c a l l y i n s p i r e d science has enthroned them as o b j e c t i v e guarantors of t r u t h . P a ul K. Feyerabend's suggestion i s that other values be recognized i n order that more t h e o r i e s be generated and our experience deepened and enriched. Suppose the p o e t i c i n s t i t u t i o n s t i p u l a t e d t h a t a l l poems must have c e r t a i n formal c h a r a c t e r i s t i c s or be worthless. Or that music d i c t a t e d that only symphony was v a l u a b l e , Or t h a t p a i n t i n g denied any v i r t u e to s u r r e a l i s m or r e a l i s m f o r that matter. We view such attempts when they occur as a u t h o r i t a r i a n s t i f l i n g of the c r e a t i v e impulse. We f e a r that i t leads to a r t i s t i c impoverishment and s t e r i l i t y . Yet we t o l e r a t e t h i s very a u t h o r i t a r i a n i s m i n science, i n much 79 philosophy and, yes, i n law. We should f e a r i n t e l l e c t u a l impoverishment and s t e r i l i t y , yet we p e r s i s t . Why? W e l l , because of t r u t h . The connoisseur i s the man of superior logos. He has the c a p a c i t y f o r a greater or deeper experience. A wine connoisseur can detect f l a v o u r s that novices cannot. A b a l l e t connoisseur can see movements and elements of beauty that do not e x i s t f o r a person who has no f a m i l i a r i t y with:.:the dance. A hockey f a n sees e x c i t i n g plays and e x h i b i t i o n s of s k i l l that are i n v i s i b l e to the f i r s t - t i m e spectator, A s c i e n t i s t sees s c i e n t i f i c v a l u e and importance i n . theory that i s incomprehensible to someone who has not had h i s t r a i n i n g . And the lawyer — he sees j u s t i c e i n a d e c i s i o n t h a t seems unjust on the surface, he can a p p r e c i a t e l e g a l v a l u e ... Before I approach t h i s point any f u r t h e r , I should summarize my argument thus f a r , i n the hope of e s t a b l i s h i n g some kind of order. There i s no such t h i n g as o b j e c t i v i t y . T h i s does not mean that every-th i n g i s chaotic and v a l u e l e s s . For man has the power to impose order upon the universe. He does t h i s through the use of language. Language gives man power to create the world which i s perceived. Language enables i t s users to i n f l u e n c e the way that others perceive the world. I t makes the c r e a t i o n of the u n i v e r s e a communal, c u l t u r a l a c t i v i t y . Because language i s shared by many, i t i s not purely s u b j e c t i v e , S i m i l a r l y , the a b i l i t y to i n f l u e n c e r e a l i t y by means of language i s not a b s o l u t e , or without bounds. I t i s l i m i t e d t o the t h i n g s that people can be persuaded of. R h e t o r i c i s the use of language to persuade people to see the world i n a given way. I t concerns v a l u e s and the e f f e c t of values on our perceptions and t h e r e f o r e our d e c i s i o n s . By appealing to commonly held values and b e l i e f s , i t transcends mere s u b j e c t i v i t y . I t i s " i n t e r s u b j e c t i v e " , but c e r t a i n l y not o b j e c t i v e . 80 Because values are normally held i n common, communities have "experts" i n the values of v a r i o u s areas of endeavour. E x p e r t i s e can be acq u i r e d , i t can a l s o be taught, Thus, people's a b i l i t y to impose order on the world can be improved or enhanced. The c r i t e r i a f o r whether t h i s has occurred are determined by the recognized a u t h o r i t i e s i n a given f i e l d . These experts can be challenged, but t h i s r e q u i r e s g i v i n g reasons, appealing t o va l u e s , being persuasive, R h e t o r i c i s thus always used to e s t a b l i s h a new v i s i o n or theory, as w e l l as to defend an o l d one. I t i s i n t i m a t e l y connected to connoisseurship, to a u t h o r i t y , to superior logos. Something i s made more va l u a b l e by people choosing to consider i t more v a l u a b l e . T h i s choice i s not a r b i t r a r y or i r r a t i o n a l . I t i s t i e d to other values —• c u l t u r a l and p e r s o n a l , h i s t o r i c , p s y c h o l o g i c a l and s o c i o l o g i c a l . The choice i s always there. Sometimes i t i s more conscious, sometimes l e s s . Rhetoric seeks t o move i t s audience to choose c e r t a i n v a l u e s and to order the world a c c o r d i n g l y . By seeking to order the world v a l u a b l y , i t i s i n h e r e n t l y e t h i c a l . By using language and reasons to b r i n g t h i s about, i t i s i n h e r e n t l y r a t i o n a l . S c i e n t i f i c thought p o s i t e d i t s value on the b a s i s of i t s r e f u s a l to consider v a l u e s , but only t r u t h . R h e t o r i c a l thought p o s i t s i t s value on the b a s i s of i t s avowal to stem from and appeal to our a p p r e c i a t i o n of q u a l i t y , of value. * * * * Many pages ago, I asked how the law could be v a l u a b l e i f i t was impossible f o r i t to be o b j e c t i v e . I went on to show that not only the law, but a l l other areas of human endeavour, i n c l u d i n g science, are of n e c e s s i t y non*-objective, nonr-logical. Must we conclude from t h i s that r a t i o n a l i t y 81 ... i s e n t i r e l y incompetent i n those areas which elude c a l c u l a t i o n and that, where neither experiment nor l o g i c a l deduction i s i n a p o s i t i o n to f u r n i s h the s o l u t i o n of a problem we can but abandon ourselves to i r r a t i o n a l forces, i n s t i n c t s , suggestion, or even violence?15 Such a fear i s only j u s t i f i e d i f r a t i o n a l i t y i s l i m i t e d to seeking the r i g h t answer, But I have proposed that we see r a t i o n a l i t y rather as a quest for q u a l i t y , the search f o r , the best answer. Logic i s reasoning devoted to truth. Rhetoric i s reasoning devoted to value. It i s the path which s k i r t s both absolute c e r t a i n t y , and absolute doubt. Law i s valuable to the extent that i t seeks, and f i n d s , the best answer. The b e l i e f i n o b j e c t i v i t y entailed the b e l i e f that the best answer was the r i g h t answer. The r i g h t answer must be found with c e r t a i n t y , with l o g i c . Values are subject to neither c e r t a i n t y nor l o g i c . Therefore they could not play any r o l e in l e g a l d e c i s i o n making. Of course t h i s i s not s t r i c t l y true. Values such as c e r t a i n t y , p r e d i c t a b i l i t y and consistency are constantly c i t e d and given as reasons f o r decisions. These are the values of science. The error i s thinking that these are the most important, or the only values. In claiming that the law was s c i e n t i f i c , by appealing to these sorts of values, the law was being r h e t o r i c a l . It was es t a b l i s h i n g i t s own value by appealing to the commonly held values of science. The trouble i s , of course, the s c i e n t i f i c values are not the only, nor the most important values that we have. I have said that the s c i e n t i f i c values are important because they tend to a t t a i n the ultimate value — t r u t h . But there i s no such thing as objective t r u t h . I keep repeating t h i s strange claim, i n the hope that i t becomes more pl a u s i b l e as I proceed. If we turn to our common experience, though, we can e a s i l y see that t r u t h i s not our ultimate value at a l l . There are commonly held b e l i e f s that the t r u t h should not be 82 pursued i n every s i t u a t i o n . I t i s moral f o r a person to l i e i n order to spare another needless p a i n , f o r example not to t e l l a c h i l d about the death of h i s or her parents. I t i s oft e n acceptable, and expected, to complement a person's dress or cooking, when you r e a l l y don't care f o r e i t h e r . " S o c i a l convention", we c a l l i t . I t i s o f t e n acceptable and expected to l i e i n order to protect a f r i e n d or r e l a t i v e . I t i s c e r t a i n l y acceptable, and expected, f o r a captured s o l d i e r to l i e to h i s enemy captors. Kindness, e t i q u e t t e , l o y a l t y , l o v e , p a t r i o t i s m . A l l are v i r t u e s which can, i n c e r t a i n s i t u a t i o n s , outrank the value of t r u t h . Because the law claims i t makes i t s d e c i s i o n s o l e l y on the b a s i s of t r u t h and l o g i c , two un d e s i r a b l e e f f e c t s o f t e n occur. The court makes a d e c i s i o n i n such a way as to undermine values which most people hold more d e a r l y than t r u t h i n the given s i t u a t i o n . (The Canadian e v i d e n t i a r y r u l e t h a t accepts evidence no matter how i t was obtained, i f i t i s r e l e v a n t and r e l i a b l e , r e s u l t s i n many such d e c i s i o n s , ) Or the court makes a d e c i s i o n on the b a s i s of values other than o b j e c t i v e ones, but g i v e s i t s reasons as though the d e c i -sion r e a l l y were o b j e c t i v e and v a l u e - f r e e . T h i s leads to tangled and f o o l i s h reasoning, o b f u s c a t i o n and concealment of the r e a l determining v a l u e s , and la y s the court wide open t o charges of hypocrisy. Both of these s i t u a t i o n s r e s u l t i n the increase of cyn i c i s m towards the law, and the decrease of i t s perceived v a l u e . Law i s v a l u a b l e to the extent t h a t i t s d e c i s i o n s are j u s t . So much e f f o r t and energy has been spent attempting to d e f i n e j u s t i c e , that i t appears to be one of the most d i f f i c u l t and e l u s i v e concepts we have. I do not intend to d e f i n e j u s t i c e , But I s h a l l point out that i t i s the q u a l i t y that we see i n d e c i s i o n s that we agree w i t h . I f we have been persuaded by the reasons given f o r a d e c i s i o n , we say that i t i s j u s t . I f we have not been persuaded (and we don't agree w i t h the d e c i s i o n f o r other reasons) then we say that i t i s u n j u s t . 83 The n o t i o n that j u s t i c e i s connected w i t h the reasons f o r d e c i s i o n i s not a new one. I t i s e x a c t l y t h i s which leads us to d e s c r i b e the reasons f o r a d e c i s i o n as i t s j u s t i f i c a t i o n . Now, where the only i d e a l s of the law are those of o b j e c t i v i t y , reference to the r u l e s and t h e i r l o g i c a l d e r i v a t i o n becomes the s o l e means of j u s t i f i c a t i o n . T h i s stems from the b e l i e f t h a t j u s t d e c i s i o n s are those made i n accordance w i t h c l e a r and o b j e c t i v e r u l e s . I t has been described as the p r i n c i p l e of formal j u s t i c e . U n f o r t u n a t e l y , t h i s b e l i e f gives us no grounds f o r determining whether the r u l e i t s e l f i s j u s t . Furthermore, s i n c e most cases t u r n , not merely on the a p p l i c a t i o n of a r u l e , but rather on i t s i n t e r p r e t a t i o n or c h a r a c t e r i z a t i o n , l o g i c a l reason-ing and formal j u s t i c e f a i l i n t h e i r attempt t o j u s t i f y the d e c i s i o n . Yet l e g a l judgements o f t e n are persuasive, they do persuade us that the d e c i s i o n i s j u s t . Stephen Toulmin has explored t h i s w i t h h i s a n a l y s i s of moral reasoning, Toulmin has pointed out that i n the f i e l d of law-court argument, lawyers and judges have developed t h e i r own patterns and r u l e s of r a t i o n a l a c t i v i t y , f o r which the f i e l d of reference i s t h e i r own f i e l d of p r a c t i c e . The law has found t h a t acceptable and workable standards of r a t i o n a l proof e x i s t without being s y l l o -g i s t i c a l l y proper and i n d u c t i v e l y p e r f e c t . J u s t i c e i s b e l i e v e d  to be served. 17 [emphasis added]] Toulmin and most other w r i t e r s on " l e g a l l o g i c " , seem to t h i n k that l e g a l reasoning i s r a t i o n a l to the extent that i t measures up to i t s own standards of l o g i c , which may d i f f e r from other "more r i g o r o u s " types of l o g i c . What they don't appreciate i s that law i s not j u s t t o the extent to which i t  measures up to some standard of r a t i o n a l i t y , r a t h e r i t i s r a t i o n a l to the  extent that i t persuades people that i t i s j u s t . Such persuasion r e s t s inhe-r e n t l y on appeal to v a r i o u s v a l u e s . C o n s i d e r a t i o n of values i s not l o g i c a l , but r h e t o r i c a l . Therefore law i s j u s t , law i s v a l u a b l e because i t i s r h e t o r i c a l . 84 Rhet o r i c seeks to persuade others to make a c e r t a i n d e c i s i o n . I t does t h i s by appealing to values t h a t are held by, or can be induced and a m p l i f i e d i n the audience. I t would be a mistake though, to t h i n k that r h e t o r i c could be reduced to a set of r u l e s , or t r i c k s . "Means to persuade f o r a l l occasions." Persuasion i s always the i n t e r a c t i o n between r e a l , unique people i n r e a l , unique s i t u a t i o n s . I t i s almost never u n i v e r s a l ; i t i s not capable of f o r m a l i z a t i o n . The incompleteness of the image of man as a cr e a t u r e who should make use of formal reason only can be demonstrated i n another way. I t i s a truism that l o g i c i s a subject without a subject matter. That i s to say, l o g i c i s a set of r u l e s and devices that are a p p l i c a b l e whatever the data. As the science of the forms Of reasoning, i t i s a means of i n t e r p r e t i n g and u t i l i z i n g the subject matters of the va r i o u s f i e l d s which do have t h e i r proper contents. F a c t s from science or h i s t o r y or l i t e r a t u r e f o r example, may serve i n the establishment of an i n d u c t i v e g e n e r a l i z a t i o n . S i m i l a r f a c t s may be fed i n t o a s y l l o g i s m . Logic i s merely the mechanism f o r o r g a n i -z i n g the data of other provinces of knowledge. Now i t f o l l o w s from t h i s t r u t h that i f a man could convert himself i n t o a pure l o g i c machine or t h i n k i n g machine, he would have no s p e c i a l r e l a t i o n to any body of knowledge. A l l would be g r i s t f o r h i s m i l l as the phrase goes, He would have no i n c l i n a t i o n , no p a r t i a l i t y , no p a r t i c u l a r a f f e c t i o n . H i s mind would work upon one t h i n g as i n d i f f e r e n t l y as upon another. He would be an e v i s c e r a t e d c r e a t u r e , or a depassionated one, standing i n the same r e l a t i o n s h i p t o the r e a l i t i e s of the world as the t h i n k i n g technique stands to the data on which i t i s employed. He would be a t h i n k i n g robot, a concept which h o r r i f i e s us p r e c i s e l y because the robot has nothing to t h i n k about. A co n f i r m a t i o n of t h i s t r u t h l i e s i n the f a c t that r h e t o r i c can never be reduced to symbology. Logic i s i n c r e a s i n g l y becoming "symbolic l o g i c ; " that i s i t s tendency. But r h e t o r i c always comes to us i n w e l l - f l e s h e d words, and that i s because i t must d e a l w i t h the world, the t h i c k n e s s , stubborness, and power of i t . 1 8 R h e t o r i c i s the way i n which we i n s e r t content i n t o our reasoning. I t i s i r o n i c that l o g i c a l thought, i n i t s s i n g l e minded devotion to t r u t h , i s o l a t e d i t s e l f from the very world concerning which i t sought understanding. T h i s i s seen c l e a r l y i n the d e f i n i t i o n of formal j u s t i c e o f f e r e d by J . C. Smith: Any judgement made i n regard t o a p a r t i c u l a r s i t u a t i o n , that a p a r t i c u l a r person i s or i s not l e g a l l y o b l i g a t e d to do a p a r t i c u l a r a c t , l o g i c a l l y e n t a i l s that the judgement instances a r u l e of law such that anyone i n a r e l e v a n t l y s i m i l a r s i t u a t i o n i s or i s not l e g a l l y o b l i g a t e d to do the same act ... The p r i n c i p l e of u n i v e r s a l i z a b i l i t y e n t a i l s t h a t : What i s r i g h t f o r A must be r i g h t f o r B, granted r e l e v a n t l y s i m i l a r circumstances.19 85 T e r r i f i c . More than 2000 years of i n t e l l e c t u a l , objective develop-ment have yielded t h i s " t r u t h " . J u s t i c e means tre a t i n g " r e l e v a n t l y s i m i l a r " s i t u a t i o n s i n the same way. But the world does not contain " r e l e v a n t l y s i m i l a r " s i t u a t i o n s . It contains only chaos. " S i m i l a r i t y " i s the r e s u l t of the p a r t i c i p a t i n g i n t e l l e c t , Now, surely we can a l l agree that there i s s i m i l a r i t y i n the world. Af t e r a l l , a b a l l _is l i k e a b a l l , and a tree l i k e a tree. But b a l l s are also s i m i l a r to rocks, and to paperweights, and to tumbleweeds, and to frightened porcupines and to hundreds of other things. I can't treat b a l l s the same way as a l l of these things.' You don't have to, Professor Smith assures us, you only have to treat r e l e v a n t l y similar things in the same way. Oh. Is the b a l l r e l e v a n t l y s i m i l a r to a rock, or a paper weight, or ... I suppose i f a b a l l were found i n a b o t t l e of gingerbeer, i t might be r e l e v a n t l y s i m i l a r to a s n a i l . Maybe even i n a bo t t l e of whiskey. Or a glass of milk. The head spins. P a r t i c u l a r l y when we remember that the law doesn't only consider easy things l i k e b a l l s , and trees, and weapons, and possession, i t al s o deals with r i g h t s , and duties and p r i v i l e g e s , How do we even detect the s i m i l a r i t i e s between these con-structs upon constructs, l e t alone t e l l which ones are relevant? The spinning head boggles for a while, and then, l i k e so many that consider these problems, ju s t shuts i t s e l f o f f . The world does not contain " r e l e v a n t l y s i m i l a r " s i t u a t i o n s . These always involve the choice of some way of structuring the world, the imposi-t i o n of some order, the pursuit of some values. Detecting "relevant s i m i l a r i t y " can never be objective. 'It must always involve b e l i e f s and passions. Yet i t i s exactly here that the r e a l d e c i s i o n takes place. No one argues against t r e a t i n g the same s i t u a t i o n i n the same way. Every challenge to the j u s t i c e of a dec i s i o n i s rather whether the si t u a t i o n s are similar or not. Every 86 l e g a l judgement amounts to a j u s t i f i c a t i o n f o r t r e a t i n g t h i s case as though i t were more r e l e v a n t l y s i m i l a r to t h i s one, than to that one. Rules cannot i d e n t i f y r e l e v a n t s i m i l a r i t y , they presuppose i t . T h i s i s why r u l e s work w e l l i n easy cases, where everyone agrees about r e l e v a n t s i m i l a r i t y , and not at a l l i n hard cases, where questions of j u s t i c e are invoked. Smith's d e s c r i p t i o n of formal j u s t i c e t e l l s us e x a c t l y nothing about j u s t i c e , because i t can only be invoked a f t e r the d e c i s i o n has been made. He seems to t h i n k that we appreciate law f o r i t s formal, l o g i c a l c h a r a c t e r i s t i c s . That's where he t h i n k s j u s t i c e l i e s . I t h i n k that t h i s i s e x a c t l y wrong. We appreciate law f o r the i n t i m a t e way i n which i t a f f e c t s our l i v e s and our passions. J u s t i c e i s the q u a l i t y perceived i n the law. One of the unhappy e f f e c t s of the b e l i e f that the law i s not con-cerned w i t h the r e a l , unique f e a t u r e s of s i t u a t i o n s , but only w i t h the m y t h i c a l , formal, o b j e c t i v e aspects, i s that important values are d i s p l a c e d or f o r g o t t e n . Wexler mentions a case which i s merely a good example of a lamentably common s i t u a t i o n . An e l d e r l y woman boarding a bus f e l l and hurt h e r s e l f when the d r i v e r s t a r t e d away too suddenly. The case was decided on the b a s i s of whether her senior c i t i z e n ' s pass was a c o n t r a c t , or a l i c e n s e . "What happened to the old l a d y ? " Wexler asks, "The bus d r i v e r ' s n a s t i n e s s , 20 the bus?" These have a l l vanished i n t o the limbo reserved f o r i r r e l e v a n t s i m i l a r i t i e s . Such cases appear unjust p r e c i s e l y because we have not been per-suaded that the f e a t u r e s concentrated on are the r e l e v a n t ones, or that those ignored should be ignored. The law simply proceeds i n i t s o b j e c t i v i s t way, because of i t s naive f a i t h i n p s e u d o - s c i e n t i f i c g e n e r a l i z a t i o n s : As someone has r e c e n t l y pointed out, i t was not merely the apple which f e l l w i t h Newton. An apple ready to f a l l i s presumably r i p e , shapely, coloured, t e x t u r e d , and p o t e n t i a l l y t a s t y . But 87 these 'secondary' t r a i t s are p r e c i s e l y those the legend ignores ... Al s o lowered was man's c a p a c i t y f o r understanding t h i s f r u i t of the e a r t h not merely as an example of mass descending, but a l s o as an item of sustenance and of sensory enjoyment.21 By o b s e s s i v e l y pursuing an o b j e c t i v e v i s i o n of r a t i o n a l i t y , the law decreases i t s c a p a c i t y f o r being r e l e v a n t to r e a l human values and concerns. I f i t i s to a s p i r e to the value i t r e q u i r e s to avoid becoming wholly c o e r c i v e and a r b i t r a r y , i t must commence to openly de c l a r e i t s nature as value laden, j u s t and r h e t o r i c a l . I have been arguing that we should see that the law i s v a l u a b l e , not t o the extent to which i t i s o b j e c t i v e and l o g i c a l , but r a t h e r to the extent that i t i s " i n t e r s u b j e c t i v e " and persuasive. I t should, t h e r e f o r e , stop pretending and openly d e c l a r e i t s e l f t o be based upon personal value judgements and r h e t o r i c a l j u s t i f i c a t i o n . There w i l l be a tremendous r e l u c -tance t o take t h i s suggestion s e r i o u s l y . Part of t h i s i s because of the c l i n g i n g to t r u t h t o which I have so oft e n a l l u d e d . But much of i t i s due to the f e a r which people have of r h e t o r i c . I t i s probably i n e v i t a b l e that we w i l l f e a r those who have power, because we cannot be sure that they w i l l e x e r c i s e t h i s power i n a way which i s b e n e f i c i a l to us. I t was p r e c i s e l y t h i s f e a r which l e d P l a t o to elev a t e l o g i c above r h e t o r i c so many years ago (and thereby appropriate the power f o r the "good guys"). Gary Cronkhite s t a t e s the charge, and h i s answer to i t , i n the f o l l o w i n g e x c e l l e n t example of r h e t o r i c : R h e t o r i c creates a v e r b a l e l i t e capable of manipulating the masses,  p u t t i n g the masses at the mercy of such e t h i c s as that e l i t e may deem appropriate f o r i t s purposes ... " R h e t o r i c " appears i n the modern p u b l i c press almost e x c l u s i v e l y as a p e r j o r a t i v e term ... 88 Why? One reason i s that the r h e t o r i c i a n i s i n a poor p o s i t i o n t o defend h i m s e l f , a p o s i t i o n a k i n to that of a w i t c h on t r i a l i n c o l o n i a l Salem. I f he says nothing, i t can be assumed he has ho defense. I f he defends himself w i t h the t o o l s of h i s trade, h i s d e t r a c t o r can say, i n essence: "Methinks the lady doth p r o t e s t not only too much but too w e l l ; i f the s o p h i s t i c d e v i l were not i n her she could not be so eloquent i n defense of her honour." A second and f a r more d i s t u r b i n g ; r e a s o n , p l a i n l y put, i s that the c i r c u m s t a n t i a l evidence i n favour of the charge i s overwhelming... ... while the accusation had been there too o f t e n i n the past, i t i s not inherent i n the nature of r h e t o r i c : a r h e t o r i c which i n -cludes the study of the r a t i o n a l bases f o r b e l i e f i n a s o c i e t y which nurtures and r e c i p r o c a l l y depends upon i n d i v i d u a l freedom of choice i s n e c e s s a r i l y e t h i c a l . Put s u c c i n c t l y , the t h e s i s of t h i s a r t i c l e i s t hat the best a n t i d o t e f o r a s o p h i s t i c rhetor i s a s o p h i s t i c a t e d  rhetoree, and we had best get .at the business of producing such an  a n t i d o t e . ^ ^emphasis h i s j The law w i l l i n e v i t a b l y make i t s d e c i s i o n s on the b a s i s of v a l u e s , and thus w i l l i n e v i t a b l y r e l y on persuasion and r h e t o r i c both i n making those d e c i s i o n s and i n subsequently j u s t i f y i n g them. Claiming otherwise does not change t h i s . I t simply conceals the r e a l process, emphasizes the wrong values, and d i v e r t s meaningful c r i t i c i s m . The best a n t i d o t e f o r the misuse of r h e t o r i c by l e g a l d e c i s i o n makers i s the development of r h e t o r i c a l l y sophis-t i c a t e d judges, lawyers, p r o f e s s o r s , students — and most important, the p u b l i c . What, then are the general ways i n which a r h e t o r i c a l s o p h i s t i c a t i o n would a l t e r our view of the law? The f i r s t r e a l i z a t i o n would concern the a u t h o r i t y of our judges. I t would fl o w not from h i s p o s i t i o n of p o l i t i c a l power, nor from h i s l o g i c a l a b i l i t y (both of which would presumably be present). His a u t h o r i t y would be based upon h i s s k i l l as a connoisseur and craftsman  of both l e g a l argument and moral judgement. He would need to be a connoisseur i n order to appreciate and choose between opposing arguments, and among appar-e n t l y r e l e v a n t cases and s t a t u t e s . He would need to be a craftsman i n order to w r i t e reasons f o r h i s d e c i s i o n s which persuade us that i t was the best, the j u s t course to take. L i k e a connoisseur, h i s a u t h o r i t y w i l l stem both from 89 his experience, and from h i s reasons. He must be able to appeal to values held by h i s audience. Like a craftsman, h i s task w i l l be to perform h i s task i n an emotionally or a e s t h e t i c a l l y pleasing way. His c r e a t i v e respon-s i b i l i t y i s to qu a l i t y , which, i n law, we c a l l j u s t i c e . The l e g a l p r i n c i p l e s which he applies and appeals to as j u s t i f i c a t i o n are not o b j e c t i v e l y e x i s t i n g r u l e s , but are value preferences. The way that he arranges these, depends on h i s personality, h i s b e l i e f s , and the audience to whom he i s responsible. The b e l i e f that the law i s objective and r u l e governed has led to the myth of l e g a l reasoning. This amounts to nothing more than the b e l i e f widely held by the public as well as the profession, that only a highly trained, e x t r a o r d i n a r i l y i n t e l l i g e n t e l i t e i s capable of deter-mining whether or not a l e g a l d e c i s i o n i s j u s t . The i n e v i t a b l e r e s u l t s of t h i s b e l i e f i s that j u d i c i a l reasons, the j u s t i f i c a t i o n s of decisions, are directed almost s o l e l y to t h i s e l i t e audience. This audience i s the l e g a l profession, the exact group which has been inculcated with the l e g a l i s t i c ideology. F i r s t we create an audience with a s p e c i a l set of values, then we j u s t i f y our decisions to only that audience. But, as St. Thomas pointed out, the law i s the business of the whole people. It exists for the benefit of a l l , hence i t should, i n order to be seen as j u s t , aspire and respond to the values of the whole people. It must contain a good  measure of common sense. The members of the l e g a l profession must be people of superior logos. They must acquire the a b i l i t y to structure the .legal cosmos i n a valuable way. They must be accountable to the whole community, for t h e i r decisions a f f e c t the whole community. They must be able to r e f e r to, and in turn structure the moral perspective of t h e i r c u l t u r e . Rhetoric i s the pathway to a l l of these s k i l l s . But, as I pointed out, learning r h e t o r i c must 90 be l i k e l e a r n i n g to r i d e .a b i c y c l e . Memorization of r u l e s and c a t e g o r i e s and t h e i r names w i l l not a s s i s t anyone who has not learned to persuade r e a l people. Legal education should g i v e up i t s f o o l i s h preoccupation w i t h r u l e s and l e g a l reasoning, and devote i t s e l f to argument, and persuasion. Judge-ments should be examined f o r t h e i r j u s t i c e , not t h e i r systematic nature. Students should persuade and be persuaded and then r e f l e c t on how these thing s happened. Every moment should be devoted t o advocacy, r a t h e r than j u s t a few hours at moot court time. Remember, I am not suggesting that there i s a " r h e t o r i c a l method" that a judge can apply t o ensure that h i s d e c i s i o n i s the best one. I am suggesting that a judge has the duty to honestly seek what appears t o be the best d e c i s i o n as measured by the values that he deems important, and then to openly s t a t e what these values are and how they j u s t i f y h i s d e c i s i o n . Despite how i t appears, t h i s gives judges no more " d i s c r e t i o n " than they already e x e r c i s e . What i t does do i s i n s i s t that they be r e s p o n s i b l e f o r t h e i r d i s c r e t i o n , which they never w i l l be so long as they deny that i t e x i s t s . To say that they must be r e s p o n s i b l e f o r t h e i r d i s c r e t i o n merely means that they must persuade us that they exercised i t p r o p e r l y . Law i s r a t i o n a l because i t i n v o l v e s the use of language to seek the best s o l u t i o n , and then to j u s t i f y t h i s choice. A great i r o n y r e s u l t e d from the law's attempted emulation of science. By pretending that judges discovered rather than created the law, by s t a t i n g that i t was applying the r i g h t answer rather than pursuing the best course of a c t i o n , i t reduced i t s a b i l i t y to j u s t i f y i t s d e c i s i o n s , i t refused to pay much a t t e n t i o n to non-objective v a l u e s , and consequently became lejss r a t h e r than more r a t i o n a l . The tragedy i s that the law could and should provide us w i t h a f a r be t t e r model of r a t i o n a l i t y than science, before which the law has so eagerly 91 p r o s t r a t e d i t s e l f . For whereas sc i e n c e , or a r t or even morals are r a r e l y compelled to make d e c i s i o n s , the law must always decide. A judge i s never f r e e to d e c l i n e making a d e c i s i o n on the b a s i s that both sides o f f e r good reasons, Nor can he decide randomly. He must choose, and he must, i d e a l l y , give reasons to j u s t i f y h i s choice. F a i l u r e to do t h i s c o n s t i t u t e s a " d e n i a l of j u s t i c e " . What b e t t e r ground f o r r a t i o n a l persuasion to f l u o r i s h ! The h i s t o r y and e v o l u t i o n of the law can thus be seen as the evo-l u t i o n of man s t r i v i n g to be r a t i o n a l i n the face of u n c e r t a i n t y and necessary choice. Law should assume t h i s mantle, and s t r i v e to become a paradigm of r a t i o n a l i t y , of seeking the best course of a c t i o n . There are those who w i l l respond w i t h horror t o my idea that a r h e t o r i c a l l y s k i l l e d judge produces j u s t i c e . I t i s c e r t a i n l y p o s s i b l e to imagine a judge w r i t i n g an eloquent defense of an unjust d e c i s i o n . But would we not say of t h i s judge that he was not persuasive. He d i d not persuade us that h i s d e c i s i o n was j u s t , even though h i s eloquence was superb. And, i f he persuaded others, w e l l , they are mistaken. The d e c i s i o n i s not a good d e c i s i o n , because i t i n f r i n g e s t h i s value or that v a l u e . H i t l e r was persua-s i v e but e v i l . And I can persuade you that t h i s i s so. He had no respect f o r human l i f e . The law i s one of the most important moral and c u l t u r a l a r t i f a c t s of any c u l t u r e . We should r e a l i z e t h a t , l i k e p a i n t i n g s , l i t e r a t u r e , a r c h i -t e c t u r e , music, law i s a d e s c r i p t i o n of ourselves and an eulogy to the values that i t expresses. Things always begin to resemble t h e i r d e s c r i p t i o n . Eulo-gized values become the r e a l v a l u e s . I f we want to be a good, and j u s t people, we must al l o w the law to p r o f e s s e d l y a s p i r e to goodness and j u s t i c e . 92 NOTES TO CHAPTER ONE 1. David Hume, An Enquiry Concerning Human Understanding i n the English  Philosophers from Bacon to M i l l , ed. by Edwin A. Burtt, (New York, The Modern Library, 1939), p.689.. 2. The many followers of S i r K a r l Popper w i l l claim that I have ignored h i s theory of f a l s i f i c a t i o n , which states that theories are not confirmed, but rather f a l s i f i e d . Experiments are designed, i n t h i s view, not to confirm a theory, but rather to f a l s i f y i t . As Feyerabend (infra) and others have pointed out, Popper's theory does not save empiricism. It i s , furthermore, subject to a l l of the c r i t i c i s m s l e v e l l e d at more t r a d i t i o n a l forms of positivism. For these reasons, I have not given i t the attention that some might think that i t deserves. 3. Of the many writers who have influenced my ideas, two, Paul K. Feyerabend and Michael Polanyi, are referred to s p e c i f i c a l l y below. Another book which has had an immeasureable impact upon a l l of my thinking i s Zen and the Art of Motorcycle Maintenance by Robert P i r s i g , (New York, Bantam Books, 1974). As should be obvious to anyone who has read that f i n e work, P i r s i g ' s influence i s present throughout t h i s t h e s i s . 4. Michael Polanyi, Personal Knowledge: Towards a P o s t - C r i t i c a l Philosophy, (New York and Evanston, Harper and Row, 1958), p.3. 5. Paul K. Feyerabend, Against Method: Outline of an A n a r c h i s t i c Theory of  Knowledge, (London, N.L.B., 1975), p.23. 6. Arthur Koestler, The Sleepwalkers: A History of Man's Changing V i s i o n  of the Universe, (London, Penguin Books, 1959), p.444. 7. Paul K. Feyerabend, op. c i t . , p.81. 8. i b i d , p.143. 9. See, f o r example, Thomas Kuhn, The Structure of S c i e n t i f i c Revolutions, (Chicago, 1962). 10. My favou r i t e i s Arthur Koestler i n , for example, The Ghost i n the Machine, (London, Picador Books, 1967). 11. J u d i t h Shklar, Legalism, (Cambridge, Mass., Harvard U n i v e r s i t y Press, 1964). 12. i b i d , p.4-5. 13. Paul K. Feyerabend, cp. c i t . 14. Steve Wexler, "Discre t i o n : The Unacknowledged Side of Law", (1975), 25 U of T Law Journal, 120. 15. Shklar, op. c i t . , p.38. 93 16. Wexler, op. c i t . , p.148. 17. i b i d , p.160. 18. Paul K. Feyerabend, op, c i t . , p.153. NOTES TO CHAPTER TWO 1. J . C. Smith, "The The o r e t i c a l Constructs of Western Contractual Law", Northrop and Livingston, ( e d i t o r s ) , Cross-Cultural Understanding:  Epistemology i n Anthropology, (1964), pp.261^262. 2. Through the course of t h i s paper, I often include the Greek word f or the concept under discussion. I do not mean to suggest by t h i s that I am versed i n the Greek language. Rather, I found i t to be a conve-nient method for keeping track of ideas that the Greek mind was i n t i -mately f a m i l i a r with, but that E n g l i s h can only imperfectly capture by using a series or set of more or l e s s separate concepts. I have also, for the most part, used English l e t t e r s rather than Greek l e t t e r s . Where I have used Greek, i t i s because the book that gave me the word used only Greek, and I have been incapable of t r a n s l i t e r a t i n g . 3. Arthur Koestler, The Sleepwalkers, p.25. 4. I mean to include, perhaps inaccurately, the Bacchic r e l i g i o n s i n my use of the word "Orphism". 5. Bertrand R u s s e l l , A History of Western Philosophy, (New York, Simon and Schuster, 1945), p.33. 6. Arthur Koestler, The Sleepwalkers, p.38. 7. Bertrand R u s s e l l , op. c i t . , p.44. 8. F r i t j o f Capra, The Tao of Physics, (U.S.A., Bantam Books, 1975), pp.103-104. 9. Everett Lee Hunt, "Plato and A r i s t o t l e on Rhetoric and Rhetoricians", i n Howes, (e d i t o r ) , H i s t o r i c a l Studies of Rhetoric and Rhetoricians, (Ithaca, New York, C o r n e l l U n i v e r s i t y Press, 1961), p.19. 10. i b i d , pp.21-22. 11. quoted by Hunt, i b i d , p.27. 12. I acquired most of the information on Protagoras from the excellent book, The Sophists, by Mario Untersteiner, translated from the I t a l i a n by Kathleen Freeman, (New York, Phi l o s o p h i c a l L i b r a r y , 1954). 13. Quoted by Samuel I J s s e l i n g , Rhetoric and Philosophy i n C o n f l i c t : An  H i s t o r i c a l Survey, translated by Paul Dunphy, (The Hague, Martinus N i j h o f f , 1976), pp.18-19. 94 14. Untersteiner, op. c i t . , p.23. 15. i b i d , p.27. 16. i b i d , p.31. 17. For example, see R u s s e l l , op. c i t . , p.77. 18. Untersteiner, op. c i t . , p.42. —1 \ 19. Plato, Theaetetus 166 D f f . , i n The Older Sophists, edited by Rosemond Kent Sprague, (Columbia, South Carolina, U n i v e r s i t y of South Car o l i n a , 1972), p.14. 20. Untersteiner, op. c i t . , p.55. 21. Related by Plato i n The Protagoras, translated by W.K.C. Guthrie, (London, Penguin Books, 1956), 320 D f f . pp.52-53. 22. Hunt, op. c i t . , p.33. 23. Plato, Gorgias, translated by Walter Hamilton, (London, Penguin Books, 1960). 24. See Untersteiner, op. c i t . , Chapters IV-IX. 25. Plato, Phaedrus, translated by W. C. Helmbold and W. G. Rabinowitz, (Indianapolis ',. Bobbs-Merr i l l Company Ltd., 1956). 26. Plato, Phaedrus, op. c i t . , 262, p.50. 27. Hunt, op. c i t . , p.45, 28. A r i s t o t l e , T r e a t i s e on Rhetoric, translated by Theodore Buckley, (London, George B e l l and Sons, 1890), p . l . 29. Oscar L. Brownstein, " A r i s t o t l e and the R h e t o r i c a l Process", i n Walter R. Fisher, ( e d i t o r ) , Rhetoric: A T r a d i t i o n i n T r a n s i t i o n , (Ann Arbor, Michigan State U n i v e r s i t y Press, 1974). 30. Michael Polanyi, op. c i t . , pp.49-50. 31. J . C. Smith and David N. Weisstub, "The Evolution of Western Legal Consciousness", unpublished. 32. See Koestler, The Sleepwalkers, op. c i t . NOTES TO CHAPTER THREE 1. F r i e d r i c h Nietzche, Thus Spoke Zarathustra, translated by R. J . Hollingdale, (London, Penguin Books, 1961), p.14. 95 2. Samuel I J s s e l i n g , op. c i t . , p.104. 3. Chaim Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A Tr e a t i s e on  Argumentation, translated by John Wilkinson and P u r c e l l Weaver, (Notre Dame and London, U n i v e r s i t y of Notre Dame Press, 1969), p.4. 4. Marie Nichols, "The Humane T r a d i t i o n i n Rhetoric" i n Rhetoric: A  Tr a d i t i o n i n T r a n s i t i o n , edited by Walter R. Fisher, (Ann Arbor, Michigan State U n i v e r s i t y Press, 1974), p.180. 5. Donald C. Bryant, Rhetoric: I t s Scope and Function, i n Fisher, op. c i t . , pp.199, 202, 211. 6. Gary Cronkhite, "Rhetoric, A Study i n Psychoepistomological Communication", i n Fisher, op. c i t . , p.262. 7. Wayne C. Booth, "Rhetoric Today: A Polemical Excursion", i n The Prospect of Rhetoric: Report of the National Development Project, (Englewood C l i f f s , New Jersey, P r e n t i c e - H a l l Inc., 1971), p.95. 8. Koestler, The Ghost i n the Machine, op. c i t . 9. Bryant, op. c i t . , p,214. 10. See Note 4, Chapter One. 11. Polanyi, op. c i t . , p. 133. 12. This i s a key idea i n Polanyi's book. 13. John Scharr,"Some Reflections on Authority", New American Review, Vol. 8, (1970), pp.44-80. 14. Polanyi, op. c i t . , p.221. 15. Perelman and Olbrechts-Tyteca, op. c i t . , p.3. 16. See S i s s e l a Bok, Lying: Moral Choice i n Pub l i c - P r i v a t e L i f e , (New York and Toronto, Random House, 1978). 17. K a r l Wallace, "The Fundamentals of Rhetoric", i n Black & B i t z e r , op. c i t . , p.15. 18. Richard M. Weaver, Language isSermonic: Richard M. Weaver on the Nature  of Rhetoric, edited by Richard L. Hohannsen, Rennard Strickland and Ralph T. Eubanks, (Baton Rouge, Louisiana, State U n i v e r s i t y Press, 1970), pp.207-208. 19. J . C. Smith, Legal Obligation, (Toronto and Buffalo, U n i v e r s i t y of Toronto Press, 1976), p.89. 20. Wexler, op. c i t . , p.181, 21. Nichols, op. c i t . , p.189. 22. Cronkhite, op. c i t . , pp.261-262, 96 BIBLIOGRAPHY A l l e n , Reginald E. (ed.), Greek Philosophy: Thales to A r i s t o t l e , New York, The Free Press, 1966. A r i s t o t l e , T r e a t i s e on Rhetoric, translated by Theodore Buckley, 3rd ed., London, George B e l l and Sons, 1890. Baird, A. Craig, Rhetoric: A Philosophical Inquiry, New York, Ronald Press Co., 1965. Bi t z e r , Lloyd F., and Black, Edwin (ed.), The Prospect of Rhetoric: Report  of the National Developmental Project, Englewood C l i f f s , New Jersey, Pr e n t i c e - H a l l Inc., 1971. Bok, S i s s e l a , Lying: Moral Choice i n Public-Private L i f e , New York and Toronto, Random House, 1978. Capra, F r i t j o f , The Tao of Physics: An Explanation of the P a r a l l e l s between  Modern Physics and Eastern Mysticism, New York, Toronto and London, Bantam Books, 1975. Chaneles, Sol and Snyder, Jerome, That P e s t i l e n t Cosmetic, Rhetoric, New York, Grossman Publishers, 1972. Chatterjee, Satischandra, and Dhirendramohen, Datta, An Introduction to  Indian Philosophy, 7th ed., Calcutta, U n i v e r s i t y of Calcutta, 1968. Cohn, George, E x i s t e n t i a l i s m and Legal Science, translated by George H. Kendal, New York, Oceana Publications Ltd., 1967. Dixon, Peter, Rhetoric, London, Methuen and Co. Ltd., 1971. Feyerabend, Paul K., Against Method: Outline of an A n a r c h i s t i c Theory of  Knowledge, London, N.L.B., 1975. Fisher, Walter R. (ed.), Rhetoric: A T r a d i t i o n i n T r a n s i t i o n , Ann Arbor, Michigan State U n i v e r s i t y Press, 1974. Grandy, Richard E., Theories and Observation i n Science, New Jersey, Prentice-H a l l Inc., 1973. Harrington, Elbert W. , Rhetoric and the S c i e n t i f i c Method of Inquiry: A Study  of Invention, Boulder, U n i v e r s i t y of Colorado Press, Dec. 1948. Horowitz, Joseph, Lav? and Logic: A C r i t i c a l Account of Legal Argument, New York, Vienna, Springer-Verlag, 1972. Howes, Raymond F. (ed.), H i s t o r i c a l Studies of Rhetoric and Rhetoricians, Ithaca, New York, C o r n e l l U n i v e r s i t y Press, 1961. 97 Hughes, Graham (ed.)> Law, Reason and J u s t i c e : Essays i n Legal Philosophy, New York, New York U n i v e r s i t y Press, 1969. Hume, David, An Enquiry Concerning Human Understanding, i n The English Philosophers from Bacon to M i l l , edited by Edwin A. Burtt, New York, The Modern Library, 1939. I J s s e l i n g , Samuel I., Rhetoric and Philosophy: An H i s t o r i c a l Survey, The Hague, Martinus N i j h o f f , 1976. Koestler, Arthur, The Ghost i n the Machine, London, Pan Books, 1967. Koestler, Arthur, The Sleepwalkers: A History of Man's Changing V i s i o n of  the Universe, London, Penguin Books, 1959. Kuhn, Thomas, The Structure of S c i e n t i f i c Revolutions, Chicago, 1962. Lindsay, Peter H. and Norman, Donald A., Human Information Processing, An Introduction to Psychology, New York and London, Academic Press, 1972. Nietzche, F r i e d r i c h , Thus Spoke Zarathustra, translated by R. J . Hollingdale, London, Penguin Books, 1961. Northrop, F.S.C., The Logic of the Sciences and the Humanities, Cleveland and New York, World Publishing Co., 1947. Ong, Walter J . , Rhetoric, Romance, and Technology: Studies i n the Interaction  of Expression and Culture, Ithaca and London, Cor n e l l U n i v e r s i t y Press, 1971. Perelman, Chaim, The Idea of J u s t i c e and the Problem of Argument, translated by John P e t r i e , London and Henley, Routledge and Kegan Paul, 1963. Perelman, Chaim and Olbrechts-Tyteca, L., The New Rhetoric: A T r e a t i s e on  Argumentation, translated by John Wilkinson and P u r c e l l Weaver, Notre Dame, London, U n i v e r s i t y of Notre Dame Press, 1969 ( o r i g i n a l l y published as La Nouvelle Rhetorique: T r a i t e de 1'Argumentation, Presses U n i v e r s i t a i r e s de France, 1958). Perry, Thomas D., Moral Reasoning and Truth: An Essay i n Philosophy and  Jurisprudence, Oxford, Clarendon Press, 1976. P i r s i g , Robert M., Zen and the Art of Motorcycle Maintenance: An Inquiry  into Values, Toronto, New York, London, Bantam Books, 1974. Plato, Gorgias, translated by Walter Hamilton, London, Penguin Books, 1960. Plato, Phaedrus, translated by W. C. Helmbold, and W. G. Rabinowitz, Indianopolis, New York, Bobbs-Merrell Co. Inc., 1956. Plato, Protagoras and Meno, translated by W.K.C. Guthrie, London, Penguin Books, 1960. 98 P o l a n y i , M i c h a e l , Personal Knowledge: Towards a Post C r i t i c a l P h i l i s o p h y , New York, and Evanston, Harper and Row, 1958. Richards, I . A., The Philosophy of R h e t o r i c , New York, London, Oxford Univer-s i t y Press, 1936. R u s s e l l , Bertrand, A H i s t o r y of Western Philosophy, New York, Simon and Schuster, 1945. Scharr, John, "Some R e f l e c t i o n s on A u t h o r i t y " , New American Review, V o l . 8, 1970. Shklar, J u d i t h , Legalism, Cambridge, Mass., Harvard U n i v e r s i t y Press, 1964. Smith, J . C , Legal O b l i g a t i o n , Toronto and B u f f a l o , U n i v e r s i t y of Toronto Press, 1976. Smith, J . C , "The T h e o r e t i c a l Constructs of Western C o n t r a c t u a l Law", edite d by Northrop and L i v i n g s t o n , C r o s s - C u l t u r a l Understanding: Epistemology  i n Anthropology, 1964. Smith, Robert W., The A r t of R h e t o r i c i n A l e x a n d r i a . I t s Theory and P r a c t i c e  i n the Ancient World, The Hague, Martinus N i j h o f f , 1974. Sprague, Rosamond Ketn, The Older Sophists, Columbia, S. C , U n i v e r s i t y of South C a r o l i n a Press, 1972. Stone, J u l i u s , L egal System and Lawyer's Reasonings, London, Stevens and Sons L t d . , 1964. Toulmin, Stephen E., An Examination of the Place of Reason i n E t h i c s , Cambridge, 1950. U n t e r s t e i n e r , Mario, The Sophists, t r a n s l a t e d by Kathleen Freeman, New York, P h i l o s o p h i c a l L i b r a r y , 1954. Weaver, Richard, The E t h i c s of R h e t o r i c , Chicago, Henry Regneny Co., 1965. Weaver, Richard, Language i s Sermonic: Richard M. Weaver on the Nature of  R h e t o r i c , edited by Richard L. Hohannsen, Rennard S t r i c k l a n d and Ralph T. Eubanks, Baton Rouge, L o u i s i a n a State U n i v e r s i t y P r e s s , 1970. Wexler, Steve, " D i s c r e t i o n : The Unacknowledged Side of Law", (1975), 25 U n i v e r s i t y of Toronto Law J o u r n a l 120. 

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