Let’s look at the legal profession through the lens of a new science of values in hopes of encouraging it to more deeply consider the moral dimensions of law. Beginning in a personal way, let me suggest you work on trying to be more aware of when you’re behaving in one of three ways when relating to others: 1. As a Feeler; 2. As a Doer, and 3. As a Thinker. Just-Feeling (F) is paying attention to the individuality and uniqueness of the other person, perhaps to the exclusion of Doing or Thinking anything. Just-Doing (D) is acting perhaps to the exclusion of Feeling or Thinking. Just-Thinking (T) is planning, calculating and maneuvering with rules and formulas; perhaps to the exclusion of Feeling or Doing. You might also ask yourself “Am I a Feeler, a Doer or a Thinker at the moment…and will this get me what I want?” At any given moment, there is the question of whether you can afford to be one or the other, and whether your FDT priorities and combinations are working for you.
Now consider the example of the boxer fighting in a ring, who must balance moves towards, moves away and moves against the opponent to win the match. You in turn, will be at your very best when your F D T sensitivities, balance and order of influence best meet the demands of the situation / moment. It will also help if you can easily and comfortably return to your “Feeler-self.” It’s best to make this your mental and emotional “center,” or “home-base.” Such thoughts, and the science behind it, is the subject and focus / concern of axiological psychology.
Do you suppose an awareness of these three ways of perceiving, acting and feeling might help you get the good things in life for yourself? Do you suppose it could make a difference when it comes to making law, reading law, and interpreting the Constitution? Whether it is a question of abortion or any other question of law, do you think a knowledge of the sensitivity, balance and order of influence of these basic ways of acting in the world have a place in the education of lawyers? Is there any profession that couldn’t benefit from this awareness, grounded in a scientific approach to values and morals?
Uncertainty surrounds the question of whether the Supreme Court will one day strike down the 1973 Roe v. Wade decision that legalized abortion. Do you suppose this uncertainty is related to the failure of law, and the public, to have a deeper understanding of the moral dimensions of law? Does the public suffer from a measure of moral blindness, which gets institutionalized in the profession of law? Are we to assume there are problems with the law that should concern us? If recent developments are any indication, perhaps we should be concerned.
Legal Reasoning on Trial:
Supreme Court Justice Anthony Scalia’s book, Reading Law (2012) deserves our attention. Retired Supreme Court Justice Sandra Day O’Connor’s book, The Majesty of the Law (2003), deserves our attention; as does her web sponsored iCivics offering civic lessons and videogames to students and teachers. Such efforts reflect public concerns about the law and the judicial proceedings of nine Supreme Court Justices whose decisions profoundly, perhaps disproportionately, impact the lives of millions. Has the time come for citizens to pay more attention to the education of lawyers and judges, given their judicial and legislative roles in our society?
Reading Law is a conservative, top-down approach meant to strengthen the law. It offers “textualism” as a method to achieve this end. What is textualism? It's an approach to reading and interpreting law that focuses like a laser on interpreting law and the constitution as written and understood at the time it was written. It largely rejects the idea of a dynamic and living Constitution whose interpretation needs to take into account complex changes in society. I hope you get that it’s an approach which could one day take a bite out of your right to an abortion.
David B. Rivkin reviewed Reading Law in the August 29, 2012 edition of The Wall Street Journal. He writes about the author’s “moral commitment” to finding the original meaning and intent of the law and Constitution which includes using the method of textualism. I accept that under some circumstances textualism is a useful tool, as revealed in the history of law. I believe this approach can help to guard against the risk that “the reader of law” will substitute ideas for those given by “the writer of law.” However, the usefulness of this method depends on the presence of law’s missing link which is conspicuously absent from Reading Law and Rivkin’s review of the book.
Because of advances in natural science and technology, society is changing faster than ever and becoming more complex. With the discovery of axiological science, we may now contemplate, and better understand, the moral dimensions of law...with a precision that never existed before: I call this new science law’s missing link! Given this understanding, do you agree that the law could benefit from this new science of values? Do you believe that changes in society make the integration of axiological science and law more urgent than ever? Do you think that changes in society, since September 17, 1787, are consistent with the ancient wisdom of the Greek philosopher Heraclitus who said “you can never step in the same river twice?” Does this reference to change amount to a critique of textualism? Much “water” has passed under the bridge between 1787 and today, and our global population has increased exponentially. Do you think the integration of axiological science with textualism, yielding "axiological textualism," might be a safer way to apply this interpretive discipline?
Let us not forget, the Constitution has already undergone twenty-seven changes, by amendment, in order to keep up with changes in society. Does this make it a dynamic and living document challenging us to take into consideration the modern context? This does raise the question of how to do so safely. This is the concern of Justice Scalia. However, might the more elegant approch be axiological textualism? Do you suppose this approach, combining law with the science of values and morals, can strengthen legal reasoning and the court’s interpretation of the Constitution? Do you think that what I call “axiological-textualism” is the way to keep Justice Scalia’s conservative approach honest? Do you believe axiological science can help the law bridge the growing divide between liberal and conservative ideologies influencing law? Do you think a "marriage" of axiological science and law might minimize the influence of political spin and personalities? Do you think the science of values (axiological science) will help resolve the endless pro-choice vs. pro-life debates following the 1973 Roe v. Wade decision to legalize abortion? Do you think axiological science can help resolve the following issues born of these endless debates? 1. The question of whether the Supreme Court should repeal Roe v. Wade? 2. How should the court define fetal viability? 3. Is the court’s process of legal reasoning (i.e., adjudication) flawed in some way by not taking into consideration the moral dimensions of law, and science of values? 4. What is the role of religion? 5. What is the definition of a person? 6. Do you think these issues constitute the unfinished business of law?
“Law’s Missing Link” Revisited:
I’ve equated law’s missing link with the new science of values called axiological science. My goal is to encourage law schools to debate this question and hopefully move in the direction of including axiological science in the education of lawyers. Do you believe law schools have a professional obligation to do this? Do you think doing so will produce a new breed of lawyer and judge more in touch with the complexities of social change while engaged in reading the law and interpreting the Constitution? Is Justice Anthony Scalia’s top-down textualism to be considered dangerous without the discipline of axiological science? Do you believe axiological science is also capable of enriching Justice O’Connor’s bottom-up approach of civics education? Do you believe the synergies of law and axiological science can promote greater understanding and respect for the law?
For 500 years humankind has experienced the one-sided (i.e., asymmetrical) evolution of natural philosophy into natural science without the evolution of moral philosophy into moral science. Examples include the evolution of natural philosophies like alchemy and astrology into the natural sciences of chemistry and astronomy respectively. This occurred while the evolution (transformation) of moral philosophy into moral science remained stalled for centuries. This delay, this accident of history, has given low-tech moral pigmies high-tech nuclear weapons. Do you think this assessment is too harsh? Humankind has managed to survive so far, but has much catching up to do. The field of law is no exception; for it also is a victim of this advance of natural science without moral science, and it has much catching up to do.
I will leave Justice Anthony Scalia’s “57 canons” and “13 falsities,” unfolding in the pages of Reading Law, to tomorrow’s new breed of axiological lawyers and axiological judges. In the meantime, the emergence of axiological science is a big deal whose time has come. I hope this abbreviated glimpse into a vision of tomorrow’s law today will encourage others to get involved with integrating the precision language of value science with the education of lawyers and the reading of law.
© Dr. Leon Pomeroy, Ph.D.
We learned our ABCs and 123s. The time has come to learn our FDTs.