Location
Brock University
Document Type
Paper
Start Date
15-5-1997 9:00 AM
End Date
17-5-1997 5:00 PM
Abstract
Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decisionmaking. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought—one that has its roots in pre-Socratic rhetoric and philosophy. My presentation traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and related Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always "make the weaker argument the stronger." I contend that taking these Protagorean notions seriously—perhaps even more seriously than self-avowed anti-foundationalists customarily do—leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable.
Creative Commons License
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Response to Submission
Christopher W. Tindale, Commntary on Dzialo
Reader's Reactions
Christopher W. Tindale, Commntary on Dzialo (May 1997)
Included in
Legal and Philosophical Fictions: At the Line Where the Two Become One
Brock University
Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decisionmaking. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought—one that has its roots in pre-Socratic rhetoric and philosophy. My presentation traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and related Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always "make the weaker argument the stronger." I contend that taking these Protagorean notions seriously—perhaps even more seriously than self-avowed anti-foundationalists customarily do—leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable.
