Law and Truth.

• Author: Livingston, Michael A.

By Dennis Patterson.(*) Oxford & New York: Oxford University Press, 1996. Pp. 189. $39.95.

There is a comedy sketch in which a man, looking confused, knocks on several doors in search of his appointment. When he reaches the right office, he is pointed to his chair, which faces a second man, seated behind a large desk and looking supremely confident. "Is this the right room for an argument?" asks the visitor tentatively.

"I've told you once," replies the host.

"No you haven't," says the guest.

"Yes I have," repeats the host.

Eventually, the visitor breaks the chain. "Look, this isn't an argument," he protests, earnestly.

"Yes it is," says the host.

"No it isn't, it's just contradiction," says the visitor.

"No it isn't," says the host.

This goes on, until finally the visitor interjects: "An argument is a connected series of statements to establish a definite proposition . . . contradiction is just the automatic gainsaying of anything the other person says."

"No it isn't," answers the host, pressing a bell to signify the end of the meeting.(1)

Dennis Patterson is here for an argument. Law and Truth,(2) Patterson's most ambitious work to date, is both an intellectual tour de force and a good, old-fashioned street brawl. The book appears to have been modeled on the 1980s comeback tour of the boxer George Foreman, who lined up a new opponent at each match and proceeded to knock all of them out. Patterson devotes a chapter to each of six major schools of contemporary jurisprudence: legal formalism, legal realism, legal positivism, and the jurisprudential theories of Ronald Dworkin, Stanley Fish, and Philip Bobbitt. He explains why each is seriously or fatally flawed and, in the concluding chapter, presents his own alternative formulation. In so doing, he takes on seemingly all of the major figures of contemporary legal thought. Yet, his Conclusion--a powerful defense of law's integrity as a social and argumentative practice--will be appealing and even comforting to many lawyers. It is a potent rejoinder to the various "law and" movements and, I will argue, is consistent with the emerging long-term direction of the legal academy.

Patterson's argument is as simple as it is unique. Existing theories of jurisprudence, ranging from law and economics to Critical Legal Studies (CLS) to the interpretive theories of Dworkin and Fish, are deficient because they rely on nonlegal formulas--e.g., economic efficiency, moral principles, or contemporary literary theory--to determine the truth of propositions of law.(3) In fact, Patterson argues, legal truth is not a matter of any such formulas. Instead, truth is signified by success in the forms of legal argument, which externally generated theories can describe or evaluate but never completely capture.(4) Borrowing from both the later writings of Ludwig Wittgenstein and contemporary analytic and postmodern philosophers, Patterson describes law as a social, argumentative practice with its own rules and integrity, rather than as a second-order activity to be understood in the language of some other discipline.(5) To understand law, per Patterson, is to understand what lawyers actually say and do; contemporary theories obscure or misconstrue this reality and accordingly do more harm than good.

Described in these terms, law and Truth is a sophisticated but somewhat obscure theoretical tract.(6) Its practical implications, however, are striking indeed. Patterson has written a powerful brief for what is essentially a traditional approach to legal teaching and scholarship, an approach that takes seriously conventional legal materials (cases, statutes, and so forth) and has a markedly reduced dependence on nonlegal sources. His book thus provides important theoretical support for those, like Anthony Kronman, who seek to reassert the traditional legal virtues of "prudence" and "practical mason" and prevent law from becoming a mere province of economics or other external disciplines.(7) Although he never uses the term "practical reason," Patterson emphasizes case-by-case balancing of the forms or "modalities" of legal argument, with no single overriding principle determining the outcome. This method has strong intimations of a practical reason approach. Similarly, his emphases on specifically legal materials and arguments suggest that traditional legal scholarship, with its emphases on precisely these materials, is likely to prove most productive, while much of the avant garde legal academy, with its emphasis on nonlegal sources, may essentially be wasting its time.

Both the intellectual and practical aspects of the traditionalists' perspective thus find echoes in Patterson's book. Moreover, by using the latest in postmodern and analytic philosophy to justify a reliance on traditional sources, Patterson threatens to turn contemporary jurisprudence on its head, casting Kronman and his allies as the true revolutionaries and the various "law and" theorists as representatives of a grand but declining intellectual past. His book thus provides important theoretical ballast for what has been a largely ad hoc response to the invasion of nonlegal disciplines.

This Review focuses on the implications of Law and Truth for statutory interpretation, which has been of interest to me in the past.(8) Here, as elsewhere, Patterson's critique is extreme. According to Law and Truth, the emphasis on interpretation (statutory and otherwise) in contemporary legal theory is misplaced, with scholars tending to exaggerate both the number and significance of instances that require interpretation of legal materials, as opposed to a simple understanding of them.(9) Where interpretation is necessary, scholars do it badly, advancing universal theories (e.g., originalism, purposivism, textualism)(10) that fail to capture the process of case-by-case argument that is the essence of the decisional process. Those scholars whose work Patterson does like, such as William Eskridge, are themselves misunderstood, taken to advance liberal new doctrines when they are in fact preserving the coherence of the traditional forms or "modalities" of legal argument. Statutory interpretation thus provides a microcosm of Patterson's broader critique, which emphasizes the unique nature of legal argument and expresses a high degree of skepticism toward most contemporary legal theory.

Patterson's critique, while radical, is not without precedent. His emphasis on reasoned, case-by-case argument is consistent with the view of statutory interpretation as practical reasoning, a view associated most prominently with Eskridge and Philip Frickey.(11) Patterson's is a very particular kind of practical reasoning, however, emphasizing the role of doctrine and prudence rather than engaging in the usual debate between textualism and historicism and viewing skeptically nonlegal analogies that might influence the interpretation process. While not necessarily leading to different results, Patterson's approach provides an alternative understanding of major cases and suggests a new agenda for statutory interpretation scholars, who would be urged to spend more time reading cases and other legal materials and (perhaps) less time seeking theoretical justification for their particular interpretive approaches. The example of statutory interpretation thus suggests that, while Law and Truth is in many respects a conservative book, it should not be read as a mere apologia for resisting change. Although providing a justification for many traditional methods, Patterson also challenges legal scholars to do their job better, focusing on the actual language of legal argument and resisting the temptation to be what they are not.

Lest it appear that I am unqualifiedly supportive of Patterson's analysis, I must state that I have many serious reservations about Patterson's approach and the broader movement to which it lends implicit support. In particular, I am concerned that a more traditional, "internal" view of law may lead to an excessive conservatism in legal teaching and scholarship, marginalizing unconventional approaches and failing to account for non-incremental, radical legal change, which is frequently driven by external forces. I am also concerned that the resulting scholarship may be dry, missing much of the intellectual and emotional energy of the contemporary "law and" movements. To appreciate these objections, however, it is first necessary to explore Patterson's argument on its own terms. Accordingly, I devote much of this Review to that undertaking.

This Review is arranged in four parts. Part I summarizes Patterson's critique of contemporary jurisprudence and his own theory of law as a social, argumentative practice. Part II discusses his approach to statutory interpretation, as suggested by his broader theoretical passages and treatment of individual cases. Part III evaluates Law and Truth in the context of previous interpretation scholarship, considering how a Pattersonian judge or scholar might approach a case differently from her predecessors and noting the advantages and disadvantages of that approach. Part IV returns to broader themes, considering Patterson's place in legal scholarship generally and, in particular, in the effort to assert practical mason as a dominant theme in the legal academy. The Review concludes by considering the limitations of Patterson's approach, including the danger of delegitimizing nonlegal modes of argument and the difficulty that his theory may have in accounting for revolutionary or non-incremental change in legal ideas and institutions.

I

Law and Truth is a work of demolition and reconstruction. In his introductory chapter, Patterson poses the question that win serve as his underlying theme: What does it mean to say that a proposition of law is true?(12) Chapters Two through Six present five existing answers to this question, each of which Patterson methodically sets up and then, just as methodically, knocks...