In Steven Smith’s first chapter of Law’s Quandary, entitled “Just Words?,” he asks, rather pointedly, what is “the law”? To expound this question further, we could ask whether our talk about the law matches our ontological perception of the law. Put more loquaciously, we talk the talk, but can we walk the walk? (Ontology, which might also be loosely called metaphysics, is the study of being and existence. We use language to describe what “exists.” When we speak of objects or concepts, we presume that they actually exist.) So, for lawyers, the question becomes, is our talk of the law “just words,” or does the law truly exist? Do we really believe in the law, or do we just pretend that we do? These questions served as the launching point for LPS’s discussion on Thursday, October 26th.
The language employed in legal discourse is dynamic; we can persuade judges to accept one of a number of competing views by using compelling, logically-structured legal arguments. What is particularly confounding, so far as law and ontology are concerned, is that the language of the law may be manipulated so as to result in conflicting judicial opinions. As Smith puts it, “[t]here is (or isn’t) a right to abortion. The law does (or doesn’t) give a remedy for the infliction of emotional distress.” (p. 19). In the spirit of ontological exploration, then, we ask, does the law exist? If not, why do we still act as though it does? Is legal discourse nothing but nonsensical talk, or is there substance to what we call “the law”? In Smith’s own words, “can we actually give an account connecting that discourse to reality–that is, to our ontological catalogues that set forth what we believe to be real?” (p. 19).
Supposing that it is true — that we give lip service to what we call “the law,” but don’t actually believe in it — Smith posits that all is not lost. We may not be able to give an account of what the law is, but perhaps we believe in it on at least a fundamental level. If nothing else, we should acknowledge the disconnect between belief and reality, and ‘fess up to our ontological charades.
LPS members examined the questions raised in chapters one and two of Law’s Quandary, and expanded upon those preliminary questions by tying into the discussion their own experiences and perceptions about law and ontology.
A brief overview of the discussion follows after the “jump” (click on the link to continue reading).
