Faith in Reason at Yale Law School

• Faith, that doesn't perpetually expose itself to the possibility of unfaith, is merely a convenience.
• Martin Heidegger says believers simply adhere to traditional doctrine, showing indifference rather than questioning.

Yale Law School in 1995

• In 1995, Anthony Kronman the dean of Yale Law School, was interviewed as Yale Law School ranked first in the nation by U.S. News and World Report.
• At the turn of the 20th century, Yale Law School was practically moribund with a small student body.
• The dean, Henry Wade Rogers, was a part-time teacher and the faculty was undistinguished, except for two members.
• Dean Kronman stated that the unifying ethos of Yale Law School was "a faith in the power of reason".
• American law school is unified by faith in the power of reason, unrecognized as such, producing this faith.

The Stakes of Faith in Reason

• Faith in reason is important to American law's integrity.
• The effective existence of reason is a condition for what legal thinkers consider "law" itself.
• The "rule of law" ideal is crucial to contemporary American jurisprudence, meaning ours is "a government of laws not of men".
• Actions of people and government officials should be guided by law, made with open, stable, clear, and general principles.
• Fair procedures, notice, and impartial arbiters must be used.
• Courts and government agencies must be subject to these requirements.
• "Rule of law" virtues require a disciplining mechanism for state agencies, controlling motivations like self-interest, vengeance, hate, and love.
• Reason is essential to the rule of law, checking emotions, interests, and force.
• A breakdown in reason threatens the rule of law.
• Critical legal studies ("cls") advanced claims of indeterminacy where "law" couldn't provide determinate answers.
• Orthodox legal thinkers viewed indeterminacy claims as an attack on the possibility of reason in law.
• Owen Fiss wrote that the indeterminacy claim denies law as a form of rationality.
• Losing reason is a fear of losing control leading to arbitrariness, emotion, self-interest, politics, power, and force taking over.
• Exhaustion of reason means legal actors don't know what they're doing and law is lawless.
• It injures the self-image of legal thinkers and actors to be stripped of legitimacy.
• Without reason, legal actors become practitioners of violence and legal academics are seen as thug-trainers.
• Loss of reason is jurisprudential incontinence and settled immorality.
• It leads to professional and ontological dread, aversion of the gaze, and closing of the mind.
• Soothing magic words like "reasonable balance," "good judgment," and "value choice" are used to maintain legal conversation.
• These words protect reason, the rule of law, and law itself.

The Rule of Reason

• The rule-of-law vision keeps various motivations, interests, and forces in check, presupposing reason is in the driver's seat.
• The belief that law listens when reason speaks is crucial, giving reason a privileged position in law.
• Reason stands superior to authority, experience, convention, tradition, and ethics.
• Legal actors redeem authority, experience, and tradition by demonstrating their grounding in reason.
• Contemporary American legal thinkers prioritize reason over other sources of belief.
• Joseph Raz writes that there is a paradox between reason and authority where being subjected to authority is incompatible with reason.
• Raz formulates the paradox from the point of view of reason and the problem is that authority may lack rationality instead of reason lacking authority.
• Raz's resolution demonstrates that submission to authority can be consistent with reason.
• The formulation reveals the implicit relations of reason and authority and the authority of reason is obviously presumed.
• Reason is accorded a superior position through tacit presumptions.
• Reason is already authorized to keep motivations and behaviors in check, positioned as the source of control and pacification.
• Reason rules over belief, emotions, tradition, power, and politics.
• This "reason as transcendence" enjoys a cognitive privilege over unruly sources of belief and behavior.
• Reason has jurisdiction over the content of the law and is the source of control.
• Reason is depicted as a medium of pacification where inconsistencies and paradoxes are suppressed.
• The task lies in bringing out latent rationality and making it explicit.
• Reason is immanent in the law and also the transcendent arbiter.
• In American law, reason is the grid of intelligibility that enables legal actors to make connections of the law.
• Reason ostensibly enables law makers, appliers, and commentators to select, test, monitor, and map beliefs.
• American legal thinkers and actors celebrate reason, creating a "harmonic convergence" between legal academics and practitioners.
• Legal academics use reason to insist that their word is law.
• Practitioners represent law as reasoned and extend or contract it to include their client's cause or interest.
• Other sources of belief in American law are subordinated to reason, making them more like reason itself.
• Sources of belief such as experience, tradition, and perception are recast in the image of reason.
• Legal materials are reworked for legal interpretation and become increasingly rationalized.
• Rationalization makes other sources of belief more precise, coherent, and integrated through abstraction and reduction.
• The process transforms meanings of authority, experience, tradition, and perception into the ordered propositional aesthetic of reason.
• The hold of experience, tradition, and perception is degraded as they conform to reason.
• Coherence and consistency displace experience and perception in the court of reason.
• Rationalization of American law is seen in the transformation of "authoritative materials."
• American legal thinkers summarize, restate, or reconstruct American law into propositional systematizations.
• Academics systematize law into a juristic science and codification movements happened.
• To produce uniform state laws and create "restatements" of the American Law Institute.
• The drive for rationlization led to the creation of "legal theory".
• The superior position accorded to reason institutes reason as an overarching framework.
• It institutes "the rule of reason" and enables partisans of law to assert the primacy of reason.
• The rationalization of other sources of belief ensures they are comprehensible within the categories, idioms, and grammar of reason.
• Modes of reason are compatible, in its transcendent mode, reason is cast as superior to dogma, bias, prejudice, experience, perception, revelation, and tradition.
• But, the rule of reason also has an immanent mode where legal materials are imbued with reason.

Central Command and the Big Tent

• The two modes are not compatible, but the gestures that establish the two modes of reason are incompatible.
• Reason as transcendence is established through an "exclusionary gesture" that distinguishes and protects reason.
• The exclusionary gesture allows faith that legal materials are organized by reason as central command.
• Reason as immanence works through an "inclusionary gesture" that relaxs the conception of reason.
• The inclusionary gesture extends the realm of reason and appropriates critical claims that reason depends on emotion, belief, and power.
• Reason is a big tent where beliefs are viewed as reasoned aspects of law.
• The rule of reason includes central command and the big tent.
• Central command is pure, closed, formal, univocal, and directive.
• The big tent is practical, open, contextual, polyvocal, and dialogical.
• Commitment to both visions yields tension and conflict.
• The rule of reason is wanting to have cake and eat it.
• American legal thinkers and actors express and negotiate this tension which is seen throughout American law.
• American legal thinkers work on reason by expressing and attempting to resolve this tension leading to disagreement.
• The desire to appear intellectually requires acknowledging the social aspects of reason leading to espousing that in law reason is a big tent.
• The felt need of legal thinkers to say what the law is requires distinguishing reason from horribles, leading to espousing that there is reason to law and it is in central command.
• There is no way to opt for one side or the other and attempts to stabilize this all collapse leading to being mired in dissonance.