Wisdom and reason in law

Smith, S. D. (2017). Wisdom and reason in law. University of Colorado Law Review, 88, 301-429.

Abstract: Some three decades ago, upon taking a job at the University of Colorado, I read some of the work of my new colleague Robert Nagel. One short but trenchant essay - one that I have pondered and cited repeatedly in the years since - was called "Rationalism in Constitutional Law." 1 In the course of a cogent critique of modern Supreme Court jurisprudence (a critique that the Justices didn't read, I'm afraid, or at least didn't demonstrably learn from), Bob observed that the "rationalism" that increasingly dominated constitutional decisions "does not exhaust the available methods of moral and intellectual inquiry. It is not the same as insight, creativity, wisdom, vision, instinct, or empathy." 2 Bob's observation is surely correct, I think, although some might add that we do not necessarily want the Justices to attempt some of the arts or methods on Bob's list. "Creativity" is perhaps not something we want courts to attempt - arguably we have suffered from far too much of this in recent years - and interesting discussions have been held about the virtues but also the possible abuses of "empathy" in judicial decision making. One quality we presumably would like to see in judges, though, is "wisdom." Bob suggested that wisdom is not the same thing as reason, or at least as instrumental reason; but how do these gifts or operations differ? Is wisdom something like a fortunate instinct that falls short of reason, or perhaps a gift.

 

Read the article: Smith, S. D. (2017). Wisdom and reason in law. University of Colorado Law Review, 88, 301-429.



(Something interesting I found)Posted:Apr 01 2017, 12:00 AM by jlmatelski
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