Introduction to Symposium: Reasoning from Literature

Abstract

We often ask of law whether it succeeds at judging and organizing society. We ask: "Is this law good?" or "Does this law work as intended?" One way of thinking about whether law succeeds (is "good") is if instead of dominance and oppression from law, given its reasons for benefiting some and burdening others, we feel that it is understandable and honorable. As Lief Carter and Tom Burke have written, "[t]he whole point of the rule of law is to set standards of governance that transcend individual moral feelings." To them, and to me, a central question of legal reasoning is not whether we, as legal subjects, like the result law provides, but whether the reasons provided for the result make the best kind of sense. Too often we might hear from students, clients or the popular media that this or that law makes no sense. An author asks a copyright lawyer, "What do you mean I can't reprint parts of my own book in this new article I'm writing? It's my book, isn't it?" The author finds it difficult to make sense of a copyright law that protects the publisher's rights over her own when it comes to an original work of expression that she herself created and from which the publisher is nonetheless benefiting. There might be reasons for this law that the author does not know, but the experience of "this is unfair" or "this makes no sense to me as the author" floods the conversation between client and lawyer. Or, a student asks the question, "Why is a state or federal government immune from suit, even if they violate the law?" and, despite a discussion of the relevant constitutional provisions, statutes and case law, the student continues to ask this same question unsatisfied with the legal reasons provided. She states with certainty, "A state should pay for damages it causes to its citizens for violating its laws." This student cannot imagine a set of circumstances - and is unconvinced by those the professor sets forth - that justifies a state failing to make a citizen whole when it breaks the law.