The Limitations and Malleability of Legal Arguments
In his chapter Legal Arguments, Stanley Fish explains that because legal arguments are restricted to the self-imposed formalities of the courtroom, relevant information to particular cases is rejected, self-perpetuating and hypocritical adjudications of the law subsist, and, subsequently, a “fictitious” narrative prevails which becomes the framework of discourse. More specifically, and rather surprisingly, Fish claims that is it only because of this fictional narrative that courts are able to remain impartial and fulfill their constitutional duty. For example, even though accounting for a defendant’s criminal history and psychological or sociological profile is relevant to sentencing, the court forbids such tactics, mainly because to be “impartial is to treat all equally, whether they are or not.” In other words, this fictional narrative allows courts to unbiasedly assess the possibility of whether or not the average American would have committed a particular crime at a particular time, despite the fact that unique biographical information is incompatible with averageness. Fish then introduces the “adversary system,” in which both sides arguing a case present all pertinent information – each sides’ competing narrative of the truth – and an adjudicator (judge or jury) determines which story is more believable. Fish acknowledges that this system rewards “verbal gladiators,” or “merchants of doubt,” and thus makes truth susceptible to distortion or manipulation. It is this vulnerability which makes the impartial, “bounded-argument space” setting more appealing to Fish. The current system is not without its flaws, however. Fish identifies the hypocritical and self-rewarding tendency of the law when ruling over First Amendment cases. For example, Fish presents countless cases where the “malleability of the speech/action distinction” is evident, such as Texas v. Johnson and Brandenburg v. Ohio, yet points out that the prevailing logic is that the distinction exists. In other words, the fictional narrative of the courtroom enables hypocritical and self-preferential interpretations of the law which correlate to the fluctuating public opinion of specific actions or speech. Lastly, Fish focuses on contractional law to highlight that despite the prevailing belief that the written word is the final word (at least if it satisfies the parol evidence rule and/or the plain reading rule), the court has repeatedly acknowledged and permitted contractual interpretation and the intent of parties to influence their ruling. Once again, it is this fictional narrative, specifically the “fiction of plain meaning,” which perpetuates this back and forth, and what allows one ruling adhering strictly to freedom of contract to be followed by one adhering to a “strong[er] concept of social duty.” Ultimately, Fish is demonstrating that words have infinite interpretive variability, and can be, in many cases, defective or malleable. The grandeur facade, strict formalities, and strict language of the courtroom provide no defense, for so long as words construct the courtroom it is susceptible to the vulnerabilities and limitations of words themselves.
Lewis Thomas, “On Matters of Doubt”
In his “On Matter of Doubt,” Lewis Thomas argues that the “two cultures” controversy between the sciences and the humanities is a contrived distinction that fails to consider the common ambiguity, mysteriousness, and, ultimately, the motivating “bewilderment” of our human condition which pervades both disciplines and drives every scholar. More specifically, Thomas contends that aside from sharing similarities in this “middle ground,” both cultures continuously, and increasingly, reach across the divide to borrow terminologies or theories that attempt to explain the equally troublesome and obscure nature of humanity. For example, physicists are starting to use “poetically allusive words” such as ‘strangeness color, and flavor,’ to describe aspects of matter and historians are adopting computational strategies to “solve the ambiguities of history.” Thomas worries, however, that as a condition of the indeterminable advancements in 21st Century arts and sciences, scholars are “staying away from [the] ambiguity of being,” and retreating back into their divisive camps where they trick themselves into believing they are diametrically opposed disciplines whose perceptions and approaches towards answering questions of any meaning are antithetical to each others. This polarization, or fantasy that the arts and sciences necessarily “represent two different kinds of intellectual enterprise,” runs the risk of stressing and stretching this divide, which in turn harms any form of cooperation or synergy between disciplines. Nevertheless, Thomas believes that as both disciplines continue to explore the endless complexities and questions that limit and define humanity, they become like partners in the same struggle of finding more questions where they seek answers and seeing less truth where they seek certainty. It is an insightful and important observation Thomas makes, that these publicly diametric fields of study and thought are, in practice, fundamentally exercises set on the same goal, limited by the same constraints, and successful to similar degrees. This is not to say Thomas is nihilistic about humanity’s capabilities in discerning our existence. On the contrary, he does believe that questions about “ourselves and nature… [will be answered] sooner or later.” It is rather that the more difficult questions of our being, our consciousness, our affinity for and ability to create and understand music, as examples, are the questions that require a level of “bewilderment,” digestion, and cooperation between disciplines before they are ever going to be answered. It is this “bewilderment,” humanity’s tendency to marvel at the possibilities of our creation, which drives both disciplines, and it is the same objective, discovering and defining our humanity, which both cultures aim towards achieving. In sum, Thomas urges the “two cultures” to accept their limitations in interpreting humanity’s existence and nature, being to embrace the astonishment and indecipherable nature of our being, and ultimately recognize their similarities as well as each other’s strengths and weaknesses to begin chipping away at the truly meaningful and difficult problems of our time.
Lewis Thomas The Wonderful Mistake
In his “The Wonderful Mistake,” Lewis Thomas argues, quite ironically, that while humanity strives for perfection, it is our biological predisposition to error, specifically DNA’s imperfect mode of replication replete with mistakes, that is the true cause for our evolutionary progress. More specifically, Thomas argues humans would “never have succeeded” if confronted with the task of “designing a similar replicating molecule” to DNA. For example, even though humanity could have, given enough time, developed these molecules, scientists would have never considered “that the thing had to be able to make mistakes.” This observation suggests that all creation is attributable to happenstance, and Thomas acknowledges these mutations towards progression indicate our species and civilizations are one great big “random, totally spontaneous accident.”
However, Thomas provides a less cynical interpretation in his etymological definition of “error,” in which the old root means “to wander about, looking for something.” It seems this “something” could very well be perfection, and that our brains were “bound to develop…sooner or later” to ultimately conceive humanity in its complex and error-prone ways. This lighter interpretation is noteworthy for it poses a challenge to the seemingly inherent perfectionism of humanity, in which “we prefer sticking to the point, and insuring ourselves against change.” Thomas reveals that it is not perfectionism, but a perfect imperfectionism that governs and limits humanity’s progress. While accepting this reality is difficult, Thomas encourages his audience to recognize the beauty it has created: “the City of Paris, the State of Iowa, Cambridge University,” and more. Without this biological propensity to err, humanity could expect to still be “living out colorless lives in hummocks of algal mats.”
I am inclined to propose my own question on this matter. It seems that nature is engaged in a continuous and unstoppable cycle of creation, in which good mistakes persist and bad ones invariably are eliminated. I wonder if humanity is the pinnacle of nature’s creativity, or rather an example of its best mistakes. Of course I do not mean this in the “survival of the fittest attitude,” although we seem to be winning in that regard, but rather in terms of our cognitive and emotional abilities. It seems we are of too complex a nature to, through imperfect methods, perfectly replicate again; so I ask, are we the best nature can do?
In her “Says Who? Teaching and Questioning the Rules of Grammar,” Anne Curzan argues that educators must teach Standard English and its prescriptive grammar usages as an additive to the spoken dialects of students so as to adhere to a critical pedagogy that encourages students to inform themselves about their language use without diminishing their distinct language identities. More specifically, she believes that teachers ought to familiarize themselves with language fundamentals so as to moderate insightful and genuine conversation about prescriptive grammar usage. For example, Curzan advocates for students to question the rule prohibiting the of “they as a singular generic pronoun” and instead consciously employ it when they feel reason too. While this certainly is a loosening of the “rules,” she is not proposing abandoning Standard English as the academic or journalistic standard in its entirety. Instead, Curzan believes that educating students in the origin of stylistic and grammatical practices will empower them to make effective writing decisions. Furthermore, she contends that prescriptive grammar usage is largely preferential and subject to teacher’s idiosyncrasies or immediate knowledge of the rules. Therefore, she argues that a zero-tolerance policy towards non-Standard English writing is foolish, if not unfair. For example, the sentence adverb hopefully, as in “Hopefully, he says yes,” is considered by many grammarians as incorrect…despite the fact that comparable adverbs such as mercifully are widely accepted. Such inconsistencies, Curzan argues, begs the question “Says Who?” and necessitates classroom investigation of the origin of certain prescriptive grammar usages as well as the authorities, such as the “Usage Panel,” who dictate them.
Additionally, Curzan explores the differences between descriptive grammar and prescriptive grammar. She latches onto contractions as an example of how language need not be Standard English to be coherent or acceptable in discourse. Such language variations, in her eyes, should not necessarily be disqualified or excluded from appropriate Standard English practices. In fact, it appears to Curzan that it is only these differences in language, the words or styles of different dialects, that are shown any attention when debating about “proper” or “correct” English. Curzan feels that only focusing on these differences unintentionally creates a status divide between those rules or styles which are deemed proper and those which are not. For instance ain’t is just as ridiculous as aren’t, yet the former is deemed illogical, dumb, and wrong, whereas the latter is permissible. She claims that when teachers make these arbitrary distinctions without considering the reason behind the use of the word, it not only hinders critical pedagogy and destroys the evolutionary process of a living language, but also mistakenly characterizes other language variations as “nonstandard, illogical, sloppy, wrong.” Ultimately, in calling for a pedagogical change in the way we learn and engage writing, Curzan is challenging the current repressive pedagogy of English departments which worship arbitrary and, at times, ahistorical standards of grammar usage.
In his article “Plagiarism is Not a Big Moral Deal,” Stanley Fish argues that academics wrongfully treat plagiarism as a philosophical issue in hopes of upholding notions of originality and single authorship – foundational ideals to their professions – when instead they should recognize the practice as simply a violation of arbitrary convention. More specifically, Fish argues that while numerous assaults on the concepts of originality or single authorship have been made, these assaults do not disqualify plagiarism as a concept insofar as it is a foundational principle of institutions which regulate themselves and are therefore entitled to adjudicate within their jurisdiction. For example, he writes that while plagiarism is not an offense to the universe, it is still punishable because “if you’re in our house, you’ve got to play by our rules.” In other words, offenders of this decorum are justly held accountable because, while they are not committing any heinous crimes, they are breaking the conventions of the communities that they willingly join.
Fish acknowledges, however, that plagiarism is a difficult concept for many people outside the communities which enforce it to grapple their minds around. It requires learning conventions, whether or not one agrees with it, as well as experience, to understand the notion of not repeating one’s ideas without attribution. He describes plagiarism as a “learned sin,” but one that students “fail…to understand” in its entirety. This is attributable to the ambiguity of its foundational argument that ideas and words can belong to individuals. Fish identifies this notion of single authorship to the recent “invention of the bourgeoisie culture obsessed with individualism.” While he does not go so far as to enforce this argument, Fish does acknowledge its appeal in many academic circles, which he argues only confuses the legitimacy of the notion of plagiarism. Ultimately, then, while Dr. Fish does not believe plagiarism is a moral wrong, he does recognize and concede that the practice of punishing plagiarism is widespread among select communities and therefore warranted in the scope of maintaining the etiquette and conventions of those communities.