Article by Harry W. Jones
On every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons . . . . He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion . . . .
The words just quoted are from a great political document, John Stuart Mill's essay On Liberty. I found them compellingly persuasive when I first read them a half-century ago, and I find them so today. The freedoms of speech, press, assembly, and petition guaranteed against abridgment by the first and fourteenth amendments, although liberties belonging to individuals, have their great justification in social necessity. John Doe's constitutional right to advocate dissenting and perhaps intensely unpopular views on public questions is guaranteed to him not just because a stifling of his utterance would be frustrating and perhaps psychically damaging to Doe as an individual, but because you and I, and others who are inclined to take the generally accepted view on these questions, cannot be sure of the soundness of our position until we have heard Doe out and weighed his reasons against our own. Political discourse, under the ground rules of American constitutionalism, is a contentious and uninhibited social process—one best described, to use the old-fashioned term, as a dialectic.
In law, too, we learn very early on that we cannot be sure of the soundness of our opinions if we "do not so much as know" the reasons that might be put forth on the other side. This humbling and therefore profoundly enlightening truth about the problematic nature of legal reality is brought home to the law student the first time she participates in a case-method law class, because a case-method class, when properly managed, is an exercise in group dialectic, that is, a process in which opposing views are brought out and the student encouraged to make an informed judgment between them. Who of us, in his or her student days, has not had the experience of coming to class with a strongly held view of the "true" interpretation of an assigned case or group of cases only to be brought to a very different position by heretofore unconsidered arguments advanced by other members of the class? For that matter, is there a law teacher who has never been forced to similar changes of mind by his students' reasoned and vigorous objections to conclusions the law teacher had arrived at in the solitude of pre-class preparation? My own course notebooks, which tend to be a foot thick in courses I have taught ten times or more, carry scribbled corrections on almost every page recording the instances—at once embarrassing and exhilirating—in which my students have convinced me, in the course of classroom dialectic, that interpretations I had reached through many hours of solitary study would not stand up under the test of group discussion and disputation.
In the sciences, the best test of the truth of an experimentally tried hypothesis is whether the experiment will yield the same result when replicated by one's scientific peers. In law—where our experiments have to be largely imaginary—the best available test of the "truth" of an idea or proposition is whether it can be explained in intelligible words and, once explained, win the considered acceptance of qualified persons other than the original proponent. I think this is true of legal scholarship; I suggest that it is at least equally true of the decisions and opinions of the appellate courts. The livelier the discourse, the more open and genuinely collegial the exchange and opposition of ideas among the members of the court, the better reasoned the court's decision is likely to be. And better reasoned decisions are, by and large, sounder decisions in their consequences, for the law and for society. Targets are hit more often by deliberate aim than by happy accident.
About the Author
Harry W. Jones. Cardozo Professor Emeritus of Jurisprudence, Columbia University.
Citation
54 Tul. L. Rev. 541 (1980)