Abstract
Compiled by Nomi Stolzenberg, University of Southern California Gould School of Law, USA
Upon reaching the thirty-year point in one’s academic career, it becomes possible to see more clearly what one has been up to all along. In my case, that means recognizing that the very first subject that attracted my attention – “secular humanism” – would turn out to be a lifelong subject of study, even though most of the time I was pursuing it I thought I was investigating other things. Along the way, my understanding of what the fight over secularism and humanism (and the relationship between those two things) is all about was immeasurably deepened by two major works in the field of the history of science.
Lorraine Daston, Classical Probability and the Enlightenment (Princeton University Press, 1988). Daston’s intellectual history of the emergence of mathematical probability in the middle of the seventeenth century begins by asking, “What was the intellectual seed crystal introduced during this critical period that permitted ambient and often ancient ways of thinking about chance to coalesce into mathematical form?” Taking note that the “protracted religious controversies that wracked Europe during the sixteenth and seventeenth centuries … persuade[d] an increasing number of thinkers of the vanity of human pretensions to certainty,” Daston shows that “the works of the early probabilists turn out to be more about equity than about chances, and more about expectations than about probabilities,” ideas, she says, “that came largely from law.” Daston’s focus on the “legal borrowings” out of which the science of probability was built helped me to understand the centrality of probabilism and “subjective certainty” to law.
Amos Funkenstein, Theology and the Scientific Imagination From the Middle Ages to the Seventeenth Century (Princeton University Press, 1989). Published just one year after Daston’s book, Funkenstein’s volume connects the story of the struggle to come to terms with the “vanity of human pretensions to certainty” to the larger story of the origins of modern science. Excavating a tradition of thought he calls “secularist theology,” Funkenstein not only explodes the dichotomy between science and religion. He also brings to light the distinctive logic with which the justification for modern scientific practices – and for modern political practices – is derived from theological doctrines that posited human beings lack the capacity to attain objective knowledge. Funkenstein shows that these doctrines further posited that God accommodates to the limitations of human cognition by permitting people to substitute imperfect, culturally contingent, merely probabilistic, man-made “knowledge” for the absolute (divine) truth. Put more simply, they posited the necessity of secular knowledge and secular law.
Kathy Eden, Hermeneutics and the Rhetorical Tradition: Chapters in the Ancient Legacy and Its Humanist Reception (Yale University Press, 2005). Eden’s slender volume is the perfect companion to Funkenstein’s magisterial tome. It covers much of the same territory, focusing on the initial absorption of the classical principle of accommodation into Jewish and Christian thought, which produced the doctrine of “divine accommodation.” According to this doctrine, the inability to truly know God’s law renders human beings the authors of their own law. Tracing its evolution into the philosophy of humanism, these studies make clear the extent to which pragmatism, pluralism, and proceduralism, alongside probabilism, emanated from the principle of divine accommodation.
Lon Fuller, Legal Fictions (Stanford University Press, 1967). Pragmatism is also the subject of Lon Fuller’s marvelous little study of legal fictions. Originally published as a series of law review articles in the early 1930s, it revolves around the German philosopher Hans Vaihinger, whose book, The Philosophy of As If, briefly took the intellectual world by storm. Fuller’s application of Vaihinger’s philosophy to law is a modern-day illustration of how legal practices of pragmatic truth-telling and fictive fact-finding circulate into the philosophy of knowledge and then back into law, recapitulating the processes that were the subject of Daston’s early work.
Kwame Anthony Appiah, As If: Idealization and Ideals (Harvard University Press, 2017). Sadly, Vaihinger’s work has long been forgotten. Imagine my delight, then, to learn that Appiah has just come out with a new book which, like Fuller’s, makes Vaihinger’s philosophy of “as if” the crux of his own examination of the use of “strategic untruth” and the centrality of the imagination to science, morality, and everyday life. Since the book has just come out, I have not yet read it and do not know how, or if, it treats law. But I am excited to read it, and excited further by the return to Vaihinger, which signals a reemergence of the pragmatic tradition, which may yet lead to a greater appreciation of its religious and legal roots and its humanist and secularist fruits.