For some days now, so-called discussions have been occurring throughout the intertubes concerning “free speech.” Built upon years of confusion produced largely by the popular press, these discussions are almost all completely worthless, except from the standpoint of giving some people good (even self-righteous) feelz, and other people headaches. Attempts to explain by those who do have the legal background—law degrees, special training, courtroom experience—have been met with anything from disagreement to outright scorn.
Interestingly, some of this comes even from people who consider themselves experts in their own fields, such as anthropologists, and the Twitterati (who consider themselves experts on everything). Not that the two groups are necessarily identical: I’m just singling out two groups.
Key to the beliefs espoused by non-lawyers that they are as capable of evaluating statements about the legal aspects of “free speech” as are lawyers seems to (at least partly) rest upon a misunderstanding of the so-called fallacious “appeal to authority.” Philosophers can perhaps take almost as large a portion of blame for this sad state of affairs as can the rhetoricians. In the Western philosophical tradition, which is largely eschewed by modern Social Justice Warriors (SJWs), except when it comes to using Western philosophico-rhetorical tools like the so-called “appeal to authority fallacy” to shut down experts who oppose them, the argumentum ad verecundiam has been taught (at least) for centuries.
It has been misunderstood for just as long.
More Back Story for This Article
My decision to write this article arose out of a Facebook exchange. A friend, who is an anthropologist, had posted a thoroughly confused article by Katherine Cross, who may be a sociologist.
My friend posted the article to Facebook along with this comment:
What free speech is and is not. Let’s not get this confused.
After reading the article, I said,
You mean the way this article writer is?
A little back-and-forth ensued with my friend saying, “No. The writer has it correct,” and me offering to shred my law degree and my (totally worthless for anything but showing that I am not thought stupid on First Amendment issues by at least one group of law professors) Witkin Award for a First Amendment course I took in law school. I had intended at that point to write a blog article on “free speech,” but Scott Greenfield and I began a short email correspondence about this conversation, after which he beat me to the punch.
In any event, this resulted in a response of “Appeal to Authority?” to which I responded:
[T]he law is based on the appeal to authority. We call it precedent. Learning the acceptable ways to do it is why we go to law school. Some of us learn better than others, and pass the test to become lawyers.
I could have said that better; indeed, this article is meant to do so.
Finally, I said,
Arguments about humanity are a little different than arguments about law. Arguments about humanity aren’t prescribed, like law is.
And I could have said that much better: in fact, my point was perhaps so poorly made as to be almost wrong. I was challenged to explain that statement, and ultimately decided to write this blog post.
The “Argument from Authority Fallacy” Fallacy
The idea that anything that smacks of an “argument from authority” is a fallacy is itself frequently fallacious. Especially when it comes to the law, which actually depends on arguments from authority.
John Locke, in An Essay Concerning Human Understanding, in the Chapter on “Reason,” identified four degrees of reason, and said,
The first is, to allege the opinions of men, whose parts, learning, eminency, power, or some other cause has gained a name, and settled their reputation in the common esteem with some kind of authority. When men are established in any kind of dignity, it is thought a breach of modesty for others to derogate any way from it, and question the authority of men who are in possession of it. This is apt to be censured, as carrying with it too much pride, when a man does not readily yield to the determination of approved authors, which is wont to be received with respect and submission by others: and it is looked upon as insolence, for a man to set up and adhere to his own opinion against the current stream of antiquity; or to put it in the balance against that of some learned doctor, or otherwise approved writer. Whoever backs his tenets with such authorities, thinks he ought thereby to carry the cause, and is ready to style it impudence in any one who shall stand out against them.
As Locke notes, this method of “reasoning” is considered by some inappropriate, insolent, wrong. From this—and the apparently derogatory phrase “thinks he ought thereby”—it seems, we have developed the idea that appealing to authorities (that is, experts) is fallacious.
But Locke did not say it was a fallacy to appeal to authority. His statement is cautionary. In fact, appeals to authority, when there is reason to believe those authorities know what they are talking about are not only completely appropriate, but unless one is going to somehow become an expert on every possible area of knowledge all by one’s lonesome, they are necessary. What’s important to remember, as this Introduction to Logic says, is that it is not fallacious to rely on authorities; only to rely on improper authorities. In fact,
Ad verecundiam arguments are not necessarily fallacious even if the appropriate authorities are found to be mistaken.
For example, while (appellate) courts overturn opinions that they deem to have been wrong, until they do so, those opinions must be followed by lower courts, or courts that aren’t overruling them, or attorneys who cannot overrule anything, as if they were right. The opinion itself might be wrong, but the appeal to authority that says, “we have to do it this way because the opinion says so,” is right; it is clearly not fallacious to do what the opinion says must be done “because it’s the law.”
The Framework of Authority
What makes someone an “authority”? The short answer is “anyone who knows more than you do on a particular subject.”
Courts follow this rule to a ridiculous degree. They step on the slope that says “anyone who knows more than jurors do on a particular subject” and slip all the way down to “whoever is deemed by a judge to know more than jurors do on a particular subject.”
They aren’t necessarily—or even often—the same thing, at least when it comes to criminal law. The court rule leads to such idiotic atrocities as cops being deemed experts on gangs, including the history, sociology, habits, primary activities, etc., of gangs. In fact, so enamored are judges (and jurors) to this particular brand of an appeal to an improper authority that when defense attorneys hire people who really are experts on gangs, the cops’ uninformed opinions are usually taken over those of the real experts.
This makes sense only to those who have either not really thought about things, or who have so little education themselves that they don’t understand how people get to know the things they know to become experts.
Ignoring that real experts are ignored, at best this court rule endorses a view that anyone who is exposed to something you haven’t been exposed to is an expert on the matter. That, quite frankly, is just bullshit. It’s akin to saying that if you watch a lot of race cars, and someone else who also watches car races tells you what he (or she, but gang cops are usually males) has seen, you’re an expert on how race cars work. Or, as I once pointed out after voir dire of a cop proffered as a so-called “gang expert”:
In his job, he practices shooting his gun, engages in “vehicle” pursuits, tackles fleeing bad guys, arrests a lot of people, writes tons of police reports. Does that make him an expert on ballistics? physics? bad guys? spelling and grammar?
By the way, the prosecutor proposed that under the law pertaining to experts, it did. Arguably, he was right in that the law is frequently deemed to say that an expert is “anyone who knows more than jurors do on a particular subject.” That shows you just how fucked up the law is.
But true expertise is not based on simply having watched a lot of cars, or firing a lot of guns, or writing a lot of reports. Would you trust a doctor whose training consisted of nothing but watching a lot of sick people die?
No. You want someone who has learned a discipline, like medicine. Not someone whose degree comes from Wikipedia, but someone who has learned from real and reputable sources. Such persons are properly deemed experts because they don’t just know what a race car looks like going around the track, but they understand some of the things like aerodynamics, air-fuel ratios, torque—I’m not a race car expert, so I can’t be more detailed than this. Medical experts don’t just watch people, or learn from other “health experts” on Twitter. They spend years studying the framework upon which medical knowledge is built: biology, chemistry, calculus, and other sciences. And then they start to study “medicine,” or specific things pertaining to what is known about what makes people healthy or sick. Some specialize, and begin to focus on a particular thing, like “everything you always wanted to know about kidneys, but were afraid to ask.”
Each discipline has its own framework of knowledge that must be mastered. Different types of disciplines require different levels—and types—of study in order to master those frameworks. And, finally, some disciplines can be pursued in different ways, for different purposes. You can become a pretty damn good cook by cooking a lot. But if you want to become a chef, you’re almost certainly going to have years worth of focused, specialized training to learn the framework. You can be a fairly decent photographer without studying the rule of thirds, understanding the inverse-square law of light, or other even more sophisticated issues relating to photography and photographic equipment.
Anyone who said that a father who cooked all the family meals for 20 or 30 years knew more than a certified chef would rightly be deemed ignorant. Most of us would prefer to hire the professional photographer who studied his craft rather than having Uncle Joe shoot our wedding. And you can read all the books on home health, vitamins, exercise; take care of as many sick family members as you like, but only an idiot would come to you for diagnosis and treatment after a rapid 40-pound loss of weight accompanied by anal bleeding.
How Law Is Different
I mentioned that I said,
Arguments about humanity are a little different than arguments about law. Arguments about humanity aren’t prescribed, like law is.
What I meant by that is that when someone (who may be an expert on “humanity,” whatever that may mean) says something about humanity, they are at best talking about something that has been “proven” to be true; i.e., is generally accepted by the relevant experts as not currently refutable. Or they may be hypothesizing, which will require investigation to prove the “truth” thereof. It’s not as if an anthropologist says, “This is how things are going to be with humanity” because the anthropologist deems that it will be.
Law is different. Laws state specifically that certain things will be, or not. Sometimes, they say why.
Basic legal principles like those under the rubric of “rule of law,” and stare decisis, require adherence to what the laws have stated, or to what courts have said those laws mean. In some cases, based primarily on the imprecision of language, there may be arguments over what those laws say, or what they mean, but there are rules for how that gets decided, too.
Nothing about the law in this sense is “discovered,” or hypothesized; it is prescribed. Someone may come up with a new and persuasive argument for why the law should change, or be interpreted differently in different situations. But they aren’t discovering something in the sense that an anthropologist (specifically an archaeologist) discovers a new bone, or finds evidence of a lost culture, or even hypothesizes about (say) power structures in an already-known culture. The anthropologist may invent a new theory, but the anthropologist isn’t inventing some other thing that did not previously exist; the anthropologist is coming up with a new way to explain or describe something that already exists.
Lawyers are not archaeologists unearthing previously unknown laws, which numbers of other lawyers then can use. They may be said to “unearth” a new argument, which if persuasive enough changes some portion of the legal framework resulting in a new prescription, in the sense of “the action of laying down authoritative rules or directions.” But they aren’t “finding” some legal thing that no one knew existed.
This isn’t changed just because more complex legal issues, with a richer textual history, require involvement of those who have not just the ability to read a specific legal text (statute, court opinion, treatise), and not just a knowledge of the context (predecessor texts, position within conceptual framework of both past and current related texts, and other related laws), but an understanding of the system of law itself.
As to that last point, I’m talking about things like standards of review, legal procedures, and presumptions, (among other things) which are themselves also based on previously prescribed rules. So another thing that makes law different from some other discipline (like anthropology) is that law actually prescribes how you get to think about, and “do,” law. But while there is some foundational knowledge involved in “doing anthropology,” I’m not aware that there is anything that says “your theory, which appears to have very high explanatory value, is incorrect because you didn’t follow the proper procedure.”
Again, law is not “discovered.” It is not something that happened on its own by means we have to figure out, like Darwin did with On the Origin of Species. Learning these things is a matter of studying “law” generally, and “the laws” of a particular jurisdiction in which one plans to practice; studying things that exist because we made them exist.
How Law is the Same
Here we circle back both to what I said in the section on frameworks, as well as to my comment that my original statement about how law is different was poorly stated, and “almost wrong.” The lines I implied between making “arguments about humanity” and “arguments about law” aren’t quite as well-demarcated as I’ve implied.
There are ways in which the study of law, the making of pronouncements about the law, and arguing about the law with people who are not trained as lawyers is the same as studying humanity, making pronouncements related to humanity, and arguing about humanity with people who are not trained in…whatever being trained in “humanity” might mean. Let’s just say “anthropology” to delineate things a little better.
There is a body of knowledge, starting (as I mentioned above) with some very basic foundational knowledge, that people must have to intelligently argue about anthropology. If you haven’t learned it, you might as well concoct your anthropological theories the way astrology “experts” do: just make shit up, and convince people to buy into it. And the more you move beyond the foundations of anthropology, the more your expertise is going to matter, relative to the non-expert. Law is the same.
Similarly—again showing the implied lines aren’t as sharp as initially implied—there are different schools of thought in anthropology: diffusionism, evolutionism, Marxist anthropology, cultural relativism, etc. Law is the same: there are different schools of thought in law: textualism, originalism, the “living Constitution,” and so on.
In anthropology, there are thinkers with whom you should be familiar: Benedict, Boas, Geertz, Levi-Strauss, Mead, Radcliff-Brown, and so on; in law, Black, Marshall, Brandeis, Brennan, Holmes, Black (again).
Conclusion
This article is so damned long now that I’m fighting with myself over whether I should split it into parts. But, to be frank, I don’t like doing that, so I hope you’re still here. (Or maybe you skipped to here, which would be a bummer, because I think you missed some good shit.)
Whether you agree with me that law is different than other disciplines, like anthropology, or you disagree, and think they’re the same, I think my ultimate point still stands. If an actual lawyer, and especially one whose work focuses on constitutional issues, says that a non-lawyer’s article about a constitutionally-enshrined principle like “free speech”—and I could easily do a whole ‘nuther article on what that phrase even means—is confused, there’s a better-than-pretty-damn-good chance that it’s confused.
Why? Because being educated in a particular field matters. Because law—as opposed to the text of a particular law—isn’t just something you can Google. And because not only should you not hire an anthropologist to defend your right to free speech in a court of law, even if you did, it wouldn’t be allowed, and that law came into being for reasons very much like what I’ve written above.
So who needs lawyers? I guess it depends on what you really want. But if what you want is an informed commentary on law, you probably need a lawyer. If you’re in a situation where you need to (legally, as opposed to just arguing with someone) defend your right to free speech, you need a lawyer. And if you go to court for any other reason? You can try to defend yourself because you know oh so much better than a lawyer, but doing that would be like asking an anthropologist how to treat your sudden 40-pound weight loss and anal bleeding.
At that point, somebody is going to be pulling things out of their ass.
