Friday, October 9, 2015
Today is the Feast of Blessed John Henry Newman (the date of his conversion in 1845). Newman is the towering Catholic intellectual figure of the nineteenth century, but he seems to me unduly neglected outside of somewhat narrow historical and theological circles. For those of us working on broadly legal, moral, and political questions, the fact that Newman wrote little directly on what we would conventionally term "ethics" or "political theory" explains a good deal of that neglect (as he wrote late in his life, "I feel myself to be so little of a judge on political and even social questions").
But in addition to his magnificent sermons, The Idea of a University, and other occasional writings, there is a feature of Newman's thought that might be an important consideration for how legal scholars go about making arguments and how legal arguments come to have persuasive force. It is Newman's account in The Grammar of Assent (and also earlier in such places as Sermon 13 of his Oxford University Sermons) that acceptance of an argument depends on a variety of prior beliefs and dispositions of the person considering the argument. As Alasdair MacIntyre summarizes Newman's view in God, Philosophy, Universities: A Selective History of the Catholic Philosophical Tradition (2009):
Newman himself contended that arguments—outside mathematics and formal logic—do not have compelling force as such, and he therefore spoke of such arguments as probable rather than demonstrative. A probable argument is one that may be found compelling by one individual, but not by another because of the different antecedent background beliefs that each brings to her or his evaluation of that argument. It is these background beliefs—what Newman called “that large outfit of existing thoughts, principles, likings, desires, and hopes, which make me what I am” [Grammar of Assent, Ch. 10, §2]—that make us find a particular probable argument compelling or not. So how we respond to an argument may be a test of us and not only of the argument. We have to become the kind of person who is open to just those arguments that directs us toward the truth. And if, because of our character and our antecedent beliefs, we fail to be open to the truth, this failure will determine our philosophical as well as our other stances. But which then are the arguments that direct us toward the truth?
They will be, if Newman’s conclusions in The Idea of a University are correct, arguments that enable us to integrate our theological understanding of the created universe with the understanding of each of the different aspects of that universe that is afforded by the enquiries of each of the secular disciplines, by Newman’s old age an ever-growing multiplicity of independent and wide-ranging enquiries in the natural and social sciences as well as in the humanities (pp. 149-50).
There is much more to say, of course, but my modest suggestion for now is that Newman makes a vital point here about how reason (including legal reasoning) operates. Legal arguments are neither mathematically demonstrative (as I suppose a caricature of legal formalism would have it) nor radically under-determined and relativistic. As first-year law students come to figure out (ideally before final exams), learning about the law is neither a mechanical application of memorized rules to cases nor a free-for-all exercise in which any answer is as good as the next. Legal concepts such as "intent," "equal protection," and "rights" have a range of possible meanings, some better and legally more persuasive than others. A lot of academic debate (not to mention debates in the wider political culture) proceeds as if making arguments to each other were a matter of simply showing that x is true or that y is mistaken. But if we take seriously what Newman argues about arguments, persuading others depends on a complex set of background considerations and, ultimately, on one's character and the integration of one's beliefs.