Reason and public discourse: what can we learn from Socrates?

• Author: Burton, Kelly Fitzsimmons

And this is another strong argument in law, Nihil quod est contra rationem est licitum ; for reason is the life of the law, nay the common law itselfe is nothing else but reason ; which is to be understood of an artifician perfection of reason, gotten by long study, observation, and experience, and not of every man's naturall reason ; for, Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law in England is ; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason. (1)

--Edward Coke

The Greek culture of the Sophists had developed out of all the Greek instincts; it belongs to the culture of the Periclean age as necessarily as Plato does not: it has its predecessors in Heraclitus, in Democritus, in the scientific types of the old philosophy; it finds expression in, e.g., the high culture of Thucydides. And--it has ultimately shown itself to be right: every advance in epistemological and moral knowledge has reinstated the Sophists--Our contemporary way of thinking is to a great extent Heraclitean, Democritean, and Protagorean: it suffices to say Protagorean, because Protagoras represented a synthesis of Heraclitus and Democritus. (2)

--Friedrich Nietzsche

1. REASON AS LAW PERFECTED VS. SOPHISTRY AND SKEPTICISM

   Edward Coke (1552-1634), English common law barrister, judge, and politician, (3) says the common law is reason perfected. Coke speaks from a rich common law tradition in which legal decisions are the application of reason as wisdom. Coke's common law, which is the backdrop of the founding documents of the United States and its legal system, assumes a common culture from which one reasons to appeal to practical decisions for the common good of the nation. Common culture serves as the common ground for Coke and other common law judges. Common law works in rendering legal decisions where there are certain basic beliefs that are held in common within a culture. These basic beliefs are not questioned, but serve as a basis for practical decision making.

   Something has happened between Coke's day and ours, namely the modern period, in which many commonly accepted beliefs have been called into question in the areas of epistemology, metaphysics, ethics, and law. Previously accepted answers to basic questions in these areas have been rejected, as seen in the quote by Nietzsche: "Our contemporary way of thinking is to a great extent Heraclitean, Democritean, and Protagorean: it suffices to say Protagorean, because Protagoras represented a synthesis of Heraclitus and Democritus." (4) This rejection has led to widespread skepticism, an accepted naturalism, and ethical relativism with implications for legal pragmatism in our day. Common law, based upon common culture, no longer seems viable. And yet, Coke's insight that law is reason perfected, has a ring of truth. Today we do not see law as reason perfected. Rather, law seems to be the height of pragmatism, a kind of Rawlsian public reason (5) applied to contentious issues that cannot be settled by any other institution of culture. At the highest level--the Supreme Court--law has become the strong arm of the minority seeking "social justice" as may be seen in the recent Obergefell v. Hodges decision. (6)

   In order to return to a view of law as reason perfected, law will need to be grounded in something deeper than common culture, which is non-existent in a "global" community. In a pluralistic context, law must be grounded in reason itself and in human nature as fundamentally rational. The purpose of this paper is to explore reason as the source of common ground for public discourse and to begin to develop a method for public discourse where there are deep disagreements, including legal challenges, based upon a previously skeptical era in which Socrates addresses similar problems. In Plato's dialogue, Theaetetus, Socrates argues against the "Heraclitean, Democritean, and Protagorean" view that Nietzsche lauds in the modern age. If reason may be established as a source of common ground, and human beings are rational beings, then reason is a source of authority to which all human beings may appeal. In addition, reason as common ground is a foundation upon which law may be established and we can then say again with Coke, that law is reason perfected.

2. THE PROBLEM OF SKEPTICISM

   Distinctions are being blurred everywhere around us. We hear claims such as "no one can really know," "there are no essential natures in things," "human beings are infinitely malleable," "there are no objective moral standards," "what's good for you is good for you; what's good for me is good for me," "there is no knowledge, only power." These are popular skeptical claims. This is how skepticism is often expressed in contemporary public discourse. These popular skeptical claims are also conversation stoppers. They stem from much deeper philosophical skepticism that has gone unresolved since the modern British empirical philosophers of John Locke, (7) George Berkeley, (8) and David Hume. (9) Western philosophy has been dominated by empiricism, (10) which ultimately results in skepticism, (11) for at least the past 300 years. The dominance of empiricism, resulting in skepticism, has contributed to the breakdown of contemporary public discourse.

   Presently there is not a commonly held source of authority in the public sphere. (12) Many of the sources that would claim authority for public discourse--such as common sense, intuition, science, and tradition--are based upon experience, and each leads to skepticism. Empiricism, the view that all of our knowledge is through sense experience, is the dominant epistemology of our day. Yet, empiricism always leads to skepticism. In the sciences, the scientific method only leads to a high probability of truth, not to certainty. When science is honest, it cannot comment on philosophical questions, which are non-empirical. When not being fully honest, science goes beyond what is empirically verifiable to make philosophical assumptions about the nature of ultimate reality (i.e., there is no God, or there is no soul that is separate from our brain), further contributing to skepticism. Skepticism in a philosophical sense is the view that knowledge is not possible. To put it another way, skepticism assumes that nothing is clear to reason. Skepticism is the result of a lack of a common source of authority in the public realm.

   The purpose of this paper is to explore the possibility of reason as a source of common ground and authority for public discourse. Ours is not the first skeptical age resulting from a dominant empiricism and a loss of common authority. Plato, through the character of Socrates, dealt with related problems in his day. This paper will examine Plato's response to skepticism and resulting relativism, nominalism, and sophistry through a close reading of his dialogue, Theaetetus. The goal of this paper is to explore the possibility of using Plato's responses to the challenges of skepticism in his day as an entry to addressing the skepticism of our own day. In addition, by examining the ways in which Socrates engages in dialogue, a method for public discourse and a common source of authority will be derived.

   Prior to examining Plato, we should look at the problem of skepticism in more detail. Why is skepticism such a challenge? Why do so many think that knowledge is not possible? Empiricism is the view that all of our knowledge comes through sensory data. Sensory data is particular to the individual and is not shared. So all the individual person may be certain of is what they receive through their senses. Your perception through the senses is unique to you. What is perceived by me is unique to me. These experiences are not shared, and so a shared body of knowledge beyond personal experience is probabilistic at best, and at worst is not possible.

   Often times naturalism (that all that exists is the material world) (13) and non-essentialism (that being has no essential qualities) in metaphysics are assumed by the empiricist. Since we cannot sense non-physical realities, such as the soul or God, they are assumed to be unknowable or even nonexistent. In addition, physical reality, which may be perceived by one's senses, is assumed to have no essential properties that may be known. Matter is always changing, so there is nothing that is permanent in the world that our senses detect. In addition, our sense organs are also changing which makes grasping anything permanent very problematic.

   When there is no objective way for knowing what reality is like, and nature is all that exists, and the physical world is ever changing and objects have no essential nature, there is no objective grounding for ethics. Thus, empiricism in epistemology results in relativism (14) in ethics. Relativism is the view that the good is determined by the individual. Or relativism could be based on what a society determines. In either version of relativism (individual or social), there is no shared view of the good for all human beings. A lack of common public authority results in a lack of a shared view of the common good for human beings. With the lack of a common source of authority in the public realm, the means to persuasion becomes propaganda and a will to power. This will to power is often played out by appeal to the legal system to enact new law or to change the existing law.

3. SOCRATES VS. EMPIRICISM AND ITS SKEPTICAL IMPLICATIONS

   In the dialogue Theaetetus, Plato (through the character of...