So one way of getting at this is to think about two very different views of what happens when people disagree in politics. On one account, and this is really the, the Standard Enlightenment account that we've looked at from Descartes to, to Kant to the early Rawls is that. People can agree on general principles. People can agree, you know, on freedom is good. Equality is good. What they can't agree on is the details. And so we might say people can agree, for instance, when we were talking earlier about Rawls that the, the general idea of justice makes sense. Look at it from the perspective of the least advantaged, the principle of insufficient reason behind the veil of ignorance and all that, that the devil is in the details. Once you start to get down to trying to apply this, well, we don't all agree about risk. Some people are more risk embracing than others. We don't all agree on whether it would be dangerous to live in, without government, so on and so forth. But, so, we can agree on general principles. But when, when it really comes to applying them, that's when we run into all of this conflict. And the general principles are useless because they by themselves can't resolve the issues that cause people to have conflict. And that, as I said, is the standard view of the matter. But there's another view which starts from a very different place, and this is the political not metaphysical view. That the there are many paths to agreement. If we don't ask people why they're reaching a particular destination. That as long as we focus on just what agreement we need for the purpose at hand, we don't need to get agreement on metaphysical questions. When we talked about metaphysics, you brought up religion. Well, some people are religious, some are not. When we talked about natural law, we said that even people who agree that there's natural law don't agree on what it is. They want no, they don't agree on what would happen if they tripped over it. So we're going to talk about three thinkers now. Amartya Sen, the Nobel Prize winning Indian economist. Cass Sunstein, a, a legal theorist who until recently was in the Obama administration and has now gone back to Harvard. And the mature Rawls, the Rawls, the post-metaphysical Rawls. And they all have slightly different variance of this way of thinking, the second way of thinking. That is much less philosophically demanding than the enlightenment aspiration to come up with scientific principles of politics that can beat out the contenders and win the, the, the philosophical high ground, as it were. So let, let's just start digging into this by thinking about lawyers. Sunstein, as I said, is a lawyer. When you, when I, I've, I've asked, I've asked up there on the slide. What is it, what is it? How do lawyers reason? What do lawyers do when they go to court? What they trying to do? >> They're trying to come up with a winning argument. They're trying to come up with a winning argument. What, what makes an argument a winning argument. >> He's persuasive. >> Persuade to who? >> Sorry? >> Persuade who? >> The jury. >> The jury or the judge. Yeah. That's what counts, right? And nothing else matters. You're just trying to get your client off or you're trying to. You know, get your client to prevail against somebody else's client. That's all lawyers, that what lawyers do. Right? And what, how, how do they go about that? What is their principle, for. >> A lawyer wants to win. And he'll use any argument that works. >> Any arguments that work, right. One, one one famous joke about lawyers is they said, if the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither are on your side, sow confusion. Right? This is how lawyers think. They're, they're, they're hired guns that play to win, right? Another example would be, you know? This is sort of stylized example. A lawyer comes in and says, my client couldn't have killed her, your honor, because he wasn't there. And even if he was there, your honor, he couldn't have killed her because she wasn't there. And even if they were both there, he couldn't have done it, your honor because he saw his brother do it. >> [LAUGH] >> So this is sort of extreme formulation but just to underscore. It's not quite what the political, metaphysical people have in mind but it's close. This notion that whatever argument is going to prevail is all that really matters. So another way of putting this is that what I mean by lawyer's reasoning is a kind of authoritative argument. As Louis Brandeis said in a famous case many decades ago. He said, it's more important that the applicable law be settled than it be settled right. Ironically, that was in a descent. But nonetheless, I think it's very much one of the principles of Anglo-American reasoning about the law. It's more important that people accept that it's the right answer. That it's authoritative than that it's authoritative for the right reasons. Unlike European law, which often focuses on getting agreement about the right reasons in a way that the Anglo-American system does not. But just to give you an example of, of how the differences can play out. 1973 the Supreme Court passed a that handed down a decision, a famous decision, in Roe versus Wade, recognizing a woman's right to an abortion as constitutionally protected. The difficulty was that they invoked the notion of privacy. They said women have an, a right to privacy. And as many critics of that decision said at the time, privacy, the word privacy appears nowhere in the United States Constitution. And so there was a lot of criticism of Roe versus Wade on that grounds. And then others came along and they said, well we should have used the log, the, that Justice Blackman made a mistake. He really should have appealed to the idea of equality, women's equality. And that requiring women not to have abortions was a, was an inegalitarian demand. And equality is protected in the 14th Amendment. And so really, it should have been equal protection rather than privacy in defending a woman's right to choose. And if they had done that, the opinion would have seemed more legitimate. And because they didn't do that, it was not seen to be legitimate. And this, this battle raged for many years until 1992, when the court again confronted the abortion question. And they, they looked at this sort of underlying philosophical basis, jurisprudential basis for abortion. And they said, you know what? It's two decades have gone by. This is now the accepted law of the land. Maybe if we were confronting the decision today, we wouldn't affirm this privacy idea. But we're just going to go with what in American law is called the Doctrine of Stare decisis, the idea that it's already been decided. People's lives, people's expectations have been built around the idea that there is this right. So we're just going to draw a line under it, and be done with it. And not any longer engage the question of why there might be a right to abortion. And this is an example of what I would call post metaphysical reasoning. Right? This notion of stare decisis. You, you just give up on the question of persuading the different people about the right grounds for the decision. Everybody can have their own theory of that. We just don't need them to agree. Right? So consider another example of this when people argue about the Constitution. Some people say the Constitution is valid because of the original intent of the framers. Justice Scalia is famous for this view of so-called originalism. Other people say no, it's valid because it's the contract that was agreed to at the time. It was enacted through the process. It was ratified. [COUGH] That is what gives the Constitution its validity. Others who are unimpressed maybe by those two arguments say the Constitution is important because it affirms the rule of law. And you can't have a society operate without the rule of law, and that's what's important about the Constitution. Still others say, no, the Constitution's there to protect minority rights. That there's the problem of tyranny of the majority in democratic systems and you need constitutional constraints. I could probably have put up three or four other reasons why people who like the Constitution think that it's a good idea, think that it's important. And these justifications might not, be consistent with one another, right? So somebody who affirms the rule of law argument might be completely unimpressed by the contractarian idea saying we, why should we be bound by a contract made hundreds of years ago. Whatever objection they might have. But the point is they all agree that it's authoritative. Doesn't really matter why they think it is. At the end of the day, they're going to obey it. They're going to obey it as interpreted by the relevant authorities. Okay. And that is the notion that we're trying to hammer home here. That it doesn't matter why people affirm it but rather that they affirm it. Let's talk a little bit about Sen. He is also very much a, a partisan of this kind of political not metaphysical move. And so he, he gives an example from the 18th century of the philosopher Edmund Burke. Edmund Burke had it in for somebody called Warren Hastings in the British Parliament. And he wanted him impeached. So Burke stands up and he makes a speech. He says, I impeach Warren Hastings, Esquire, of high crimes and misdemeanors. I impeach him in the name of the Commons of Great Britain in Parliament assembled, whose Parliamentary trust he has betrayed. I impeach him in the name of all of the Commons of Great Britain, whose national character he has dishonored. I impeach him in the name of the people of India, whose rights, laws and liberties he has subverted, whose properties he has destroyed, whose country he has laid waste and desolate. I impeach him in the name and by virtue of those eternal laws of justice which he has violated. I impeach him in the name of human nature itself, which he has cruelly outraged, injured and oppressed, in both sexes, in every age, rank, situation and condition of life. You get the idea that he didn't much like Hastings, right? You're tempted to ask, you know? Well, what is it you don't like about him Edmund? >> [LAUGH] >> But so this is the notion of, of an argument that is so over-determined that you can get there by just about any, any path you want to take. Right. It's completely overdetermined. You're going to, you don't need to win every one of those arguments. You just need to win one of them. Another example Sen gives is the US invasion of Iraq, which Sen is convinced was a very bad idea. In 2003 we're talking about, not in 1991. And he's, he, again, he wants to say, while you could convince some people it was a bad idea because Saddam Hussein had nothing to do with Al Qaeda or with 9/11. You can convince other people it was a bad idea because the intelligence claiming that there were weapons of mass destruction in Iraq was faulty. And you can convince still other people that it was a bad idea because you can't impose democracy with a barrel of a gun. And the Bush administration was just silly for thinking that you could. Again, the point is you don't have to persuade people of all of these arguments. You only have to persuade them of any one of these arguments. Right. And so this is, again that, that you, you find the argument that works. The lawyer's reasoning. What, what is going to be the winning case. That's really what matters. Take your pick. Right. So just to give one other example of this. That in 1978 there's a opinion handed down by the United States Supreme Court. In the University of California versus Bakke. So Bakke was somebody who had applied for admission to the University of California Davis Medical School. And had lost out because of an affirmative action quota for minority applicants. That is so say. Bakke's board scores were higher than the board scores of the minority applicants who had been admitted. And the court struck down the affirmative action plan. And there, there was a welter of opinions. There were five or six different opinions written by the justices. And you couldn't tell why they converged on this result. You couldn't say what five justices, since the Supreme Court goes with majority rule. But there was not clear agreement among five of them about the reasoning why. All we knew at the end of the Bakke decision was that some forms of affirmative action would be okay but not quotas. Right. But you couldn't get a coherent story again about why they thought. There, there wasn't one reason that all, that even five of them agreed upon. Never mind the rest of them. Let's talk about Cass Sunstein. His bumper sticker is a notion of incompletely theorized agreement. And, so his, his example is what do you think happens when a, a faculty has to promote somebody to tenure or not. They have a faculty meeting. What do you think goes on in the room? >> [LAUGH] Internal politics. [LAUGH] >> Okay, well unpack that a little bit. What do you mean? >> Yeah, well basically that although there is some set of criterias for why someone should get the tenure. >> Scholarship, teaching, service, reputation, all those things matter. Yeah. Collegiality. >> And we don't. We don't know basically what is going to overweight. Like which kind of opinion, and it's kind of a gamble. Like a PHD omission. >> Okay, but so they deliberate and they deliberate. >> Mm-hm. >> And then what do you think happens? >> And they do not agree and they vote. >> They vote. Eventually they vote, right? And let's suppose its a majority rule, rule. Maybe they have a majority rule. And a majority says yes. So let's say, you know, eight say yes and four say no or five say no. >> The winner takes it all. [LAUGH] >> Yeah. Sunstein's point is the eight who say yes might not agree on why they're saying yes, right? One might think the scholarship is great. The other one, another one might think, well the scholarship's not that great but teaching is more important. The third one might think the scholarship's not that great but there isn't any really great scholarship in this field. And it's important that we have this field. And they won't persuade one another of those considerations. Right? Well, if you think about Congress enacting a statute. Same thing, right? You gotta get enough votes to pass the statute. But if, if you had to get those congressmen and congresswomen to agree on why they were voting to pass it, forget it. Just never ever going to happen. Right? But Sunstein's point is we don't need it to happen, right? We just don't need it to happen. All we need in the end of the day is for them to agree, right? >> Yeah. >> Yeah. >> But I have one question. Like, what then in case of a jury voting and if you are trialing someone for murder? >> Mm-hm. >> And we just have enough votes to say no? >> So that's. >> He's not guilty. It can be problematic, right? >> So that's a very interesting example. Because jurors are not required to explain their votes. And so it could be that, you know, they're told that you've gotta be persuaded beyond a reasonable doubt that the prosecution has carried its burden and proved the elements of the crime. And maybe some are persuaded. And others might think, you know, I don't trust people with a moustache. And that attorney has a moustache. I just don't believe people who have a moustache. And if that is the case there it is. They can they can get off for that reason, right? Or be convicted for that reason. So that is actually what happens in, in courts. Or, and, you know, there are, there are people in America and anywhere where they have a jury system. Most countries don't have jury systems any more. But they're, they're so-called jury consultants. And they are, they sell their services to defenses and to prosecutors. Because they, they claim to be experts on being able to figure out what will move jurors. What, what what will push their buttons. And so they advise attorneys. They're just trying to win. They're just trying to win, right? That's all they're trying to do.
