Book Review: Analysis of Knowledge and Valuation

Abstract

Most of our judges and law professors spend a large part of their lives justifying or criticizing various human arrangements known as legal rules or decisions, and yet when the circuit of their tasks is interrupted by an inquiry into just what it is that they are doing when they justify or criticize, they are apt to react with more heat than light. For the intellectual fashion of our times requires them to hold that justification and criticism are matters of personal emotion and uncertainty, while the dictates of their profession require them also to maintain that what they are doing has a firm basis in certain and objective truth. Faced with the modern version of Samson's riddle - how to draw the honey of objective certainty from the lions of passion and emotion our jurists have offered three divergent answers, none of which can command much respect. Some have denied that there can be any certainty or objectivity in law, but the most energetic of these, upon donning judicial robes, has had to profess an appeal to something more than the uncertainties of his own subjective emotions when he has reversed the decision of a lower court. At the other extreme, there are a few judges and law teachers who, under the influence of Thomism, Marxism, or some other absolutistic metaphysics, insist that the certainties of law are properly derivable from the certainties of morality. But the great majority of those who write professorial texts or judicial opinions try to save the certainty of law and the uncertainty of ethics by denying that law and ethics have any necessary connection with one another.