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Thomas Crocker School of Law University of South Carolina April 21, 2006 Friday, 4:00pm-6:00pm Nursing, Room 127 THIS TALK HAS BEEN RESCHEDULED FOR FALL 2006 DUE TO SCHEDULING CONFLICTS Our dominant representation of justice is the Roman goddess Justitia blindfolded, holding scales and a sword. Where we might expect the judicial gaze to be most piercing, seeking after the truth of a matter, seeing through the obfuscating lawyer's rhetoric to discern the true nature of things, we find Justice blinded. The representation of Justice blinded suggests, among other things, that the visual orientation of legal practice — what can and cannot be seen as well as what is and is not seen within the practice — is central to an understanding of the practice. Indeed, the scope of judicial vision is central to Ronald Dworkin's Herculean project of seeing law as an integrated, coherent totality under a practice of integrity. By contrast to Dworkin's attempt to see law as a totality, there are two forms of blindness on which Ludwig Wittgenstein focuses that are relevant, I argue, to understanding the nature of blindness as a way of judicial seeing. The first occurs when a person is capable of seeing an object, but incapable of seeing it in a certain light — what Wittgenstein calls "aspect blindness." The second is Wittgenstein's more often discussed notion of "following a rule blindly." Wittgenstein's response to the skeptic — that we obey rules blindly — does not, I suggest, vindicate Justice blinded as a kind of critically unreflective stance. Thus, claims about interpretive indeterminacy in the law are overwrought. Justice is not in its nature the sort of thing which should lead to unreflective, blind adherence to practice or rule. There are blindnesses, no doubt, and mechanical exercises analogous to Stanley Fish's example of "throwing strikes and keeping them of bases." But justice is not something that in itself can always be "followed blindly" because as Wittgenstein demonstrates rules are not fully determinate guides. Dworkin, however, is troubled by the prospect of judicial un-constraint and indeterminacy, and seeks to ground law in a totality, eschewing the gradual and the partial for the immediate and complete. In my talk, I will trace the conflict between partiality and totality, blindness and vision, in Wittgenstein and Dworkin's thought. Following Wittgenstein, I argue that just as no practice is everywhere circumscribed by rules (e.g., how high to throw the ball in tennis when serving), the practice of judging is not everywhere circumscribed and cannot be seen as a totality. It is a practice always open to the possibility of interruption and hesitancy that comes with noticing a new aspect — of seeing a legal problem in an entirely new and different light or being jolted out of blind adherence to rule. My conclusion it would seem is unavoidably partial and inevitably blind.  |
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