Wednesday, January 13, 2010

Fish, Stanley. "The True Answer and the Right Answer." THINK AGAIN BLOG. NEW YORK TIMES January 11, 2010.

The right answer is the answer a system invested in its own machinery will recognize no matter what the true facts may be. . . .  This is almost always the case in the law, especially in a legal system like ours that privileges procedure over substance. Lawyers know that what they have to do is find the legal rubric that will allow them to frame an issue in such a way that when the system’s questions are posed, the right answer, not the true answer, will be generated. Courts sometimes explicitly announce that the procedurally correct answer is preferable to the true answer, which is, legally, of no interest at all. . . .

Should we go off the right standard and return to the true standard? A nice idea, but one that imagines a world where the judgments reached by systems are tested against a truth that is independent of any system. Where would that truth come from, how would it be identified and how could the endless disputes about what it is be resolved? (The law’s project is to hold such disputes at bay.) It is because there are no answers to these questions that we will have to settle for the truths that systems create, deliver and validate in a sequence that may be reassuring but is finally without a foundation.

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