LOVING TRUTH AND LOVING LAWYERING
Michael Sean Quinn*
One
of the most significant American philosophers of the late Twentieth Century and
on into the early 21st Century is Harry G. Frankfurt. His best-known book for the general audience
is entitled ON BULLSHIT (2005), and a helpful book it is. He followed that one
with another entitled ON TRUTH (2006). It is more professionally and
professorially philosophical, but it is still readable and worth reading, even
for lawyers—indeed, especially by lawyers.
Most
philosophers who focus on epistemology, are concerned with the nature of
knowledge, and—of course—one of the necessary conditions for a person’s having knowledge
of a proposition is that the proposition be true. Hence, epistemologists are
concerned with the nature of truth. There are different theories about that.
Two of Frankfurt’s Major Themes
Frankfurt
is not interested in that matter in this book. He is not interested in what
makes one’s believing a true proposition knowledge. Traditionally, knowledge has been termed
“justified true belief”; thus, in ON TRUTH, Frankfurt is not interested in what
constitutes justification of this sort.
He
is interested in why civilized society and persons in general care about,
believe to be important, and value truth. Significantly, Frankfurt rejects the idea of
“’truth’ relativism” (my phrase), as all objective people must. The idea of truth relativism is captured in popular culture in the sentence,
“Something can be true for me and not for you,” “Something can be true for you
and its opposite be true for me,” and so
forth.
Why,
he asks, is truth, as opposed to lies, fakery and bullshit, so important? In
any case, he says of truth relativists, virtually
all “postmodern” thinkers that they are “shameless antagonists of common
sense.” Thus, the profound centrality of truth to human flourishing is a matter
of common sense, and—of course—he is right.
In Frankfurt’s view—and mine—human beings in
general owe truth “obligatory deference and respect.” All propositions which purport to describe or
make assertions about facts are true or false, “period.” This truth, the one just asserted in the
previous sentence, has nothing to do with a proposition having acknowledged or
known evidence, nothing to do with believing the proposition, having high
regard for it, embracing it, loving it, or any other state of mind. A
proposition’s being true has nothing to do with one’s attitude toward it.
So
why do we—why does a social order, a civilization—have this obligation to respect,
promote, and love truth. He gives
several reasons.
First,
if we do not know and try to know truths, we cannot know whether we are doing
reasonable things, have reasonable goals, makes reasonable decisions to achieve
our goals.
Second,
the same point is true of societies, as well as individuals and groups of
individuals.
Third,
if societies do not encourage respect for and the finding of truth, those
societies—whole civilizations—will “fall.”
“[S]ocieties
cannot afford to tolerate anyone or anything that fosters [“dissembling,”
“sheer mendacity,” or] a slovenly indifference to the distinction between true
and false. Much less can they indulge the shabby, narcissistic pretense that
being true to the facts is less important than being ‘true to oneself.’ If
there is any attitude that is inherently antithetical
to a decent and orderly social life, that is it.”
Perhaps
most interestingly, Frankfurt recognizes that human beings have a propensity
for being unreasonable. (One social
commentator of our times has suggested, profoundly that humans are devoted to
“untruth, many because we want answers which look reasonable, are easy to
formulate and become conventional. He says that “conventional wisdom is almost
always false. Robert J. Samuelson, UNTRUTH: Why the Conventional Wisdom is (Almost
Always) Wrong (2001).) Notice that Frankfurt is not saying that the propensity humans have toward being unreasonable is their only propensity or even their strongest propensity. Even truth relativists have some respect for truth and considerable faith in some truths.)
So how
and why do (and should) we humans have, keep, and value truth? Frankfurt’s
view, without reference to the history of philosophy which he does discuss in
his book, is that human beings are internally possessed with a kind of love, namely,
a love of rationality. This love is central to the human character. In a sense it is part of a universal essence
shared by all relatively sane human creatures.
Although he doesn’t actually say the following, I’ll say it for
him. (I may sometime say more about the academic-philosophical side of Frankfurt’s views on truth another time in a blag/blawg
entitled “Spinoza and the Modern Lawyer.”)
Anyone
who denies that the love of truth is part of a human essence is him/her-self
making a claim with is either true or false; this kind of claim will be made
only in the context of advocacy of some sort, an so the person that expounds
this—in my view—absurd view, will care about whether it is true or false. It’s “truth value” will mean something to
him/her. If that person is wrong, s/he has not grasped the true nature of
reality and everyone cares about this. Loving truth is part of what it is to be a
rational animal. Here is a remark of Frankfurt: “The notions of truth and of
factuality are indispensable, then, for imbuing the exercise of rationality
with meaningful substance. They are indispensable even for understanding the
very concept of rationality itself. Without them, the concept [of rationality]
would have no meaning, and rationality itself (whatever it might turn out to
be, if anything, in such deprived conditions) would be of little use.”
Elsewhere
he points out that “there are close relationships between the notion of truth and the notions of trust and confidence.” Without there being truths and without A having a
commitment truth, there can be no foundation for a relationship of trust and
confidence running from B to A. Obviously, the relationship between truth and
lawyering emerges right here.
The
truth is that there is no proposition about reality which can be true for me
but false for you. Propositions about reality either assert truths or they do
not. Epistemic relativism is nonsense,
and not only is false, but cannot be true.
If A believes p, while B
believes ~p then it is not possible
for them both to be right, though neither may know whether p is true or false.
Frankfurt, Truth, and the Modern Lawyer
Virtually
all lawyers recognize the centrality of truth to their practices. Virtually all
lawyers recognize that the fiduciary relationship they have with their clients
requires the existence of actual truths be recognized—indeed, assumed—and that
this outlook is necessary to truth and confidence. This truth, however, does not entail that
lawyers must always tell their clients the truth, in the sense that they must
never say anything false.
Of
course, lawyers can make intellectual and/or empirical errors, inform their
clients of what they think is true and be wrong. It is not even true that
lawyers should never lie to their clients, although this kind of action is
rarely permissible and universally rejected, at least on rhetorical surfaces.
(I will discuss Frankfurt’s view on lying in another blog and connect it up to
lying lawyering entitled “Frankfurt On Falsity, Lying and Lawyering.”)
It
is also the case that many propositions which appear to be true actually are
not. This fact—this truth—has nothing to
do with where there are true proposition and whether they are important. In my view, it is unfortunately that we
humans do not always qualify what we say about statements regarding precision
measurements. The value of π is seldom what people say or think it is. Indeed,
the exact value of this number probably cannot be stated. It addition, if I say that the length of a
football field is 100 yds, in the abstract what I am saying is absolutely true.
If I say that the length of this football field is exactly 100 yrds, I am
almost certainly wrong. How can and
should lawyer handle this type of probably falsity in dealing with their
clients? How does the real estate lawyer deal with the exact size of property
when a previous deed gets the actual size wrong by 1/100th of a
square inch?
I
do not regard this as a very serious problem, and Frankfurt may not see it as a
problem at all. The problems is that it
is sometimes necessary “technically” to admit that a proposition is not
exactly, completely, or absolutely true, but is nearly so and that under the
practical circumstances should be accepted as true and called “true.” This is
particularly true in litigation contexts where witnesses are sworn to tell the
truth, the whole truth, and nothing but the truth. If the term “truth” is taken
in its “absolute” sense, a witness would be, from a “practical” point of view,
asserting nothing but true propositions, but from an absolute point of view
asserting one false proposition after another—indeed, nothing but false
propositions.
(At
the same time, it is important to keep in mind that, even though the ideas of
absolute and practical truth must be distinguished, that distinction does not
imply the truth of the idea that a proposition can be true for me but false for you. Truth and falsity are still to be
distinguished from beliefs. The need for
distinguishing between absolute truth and close truth depending on context does
not create, sustained, reinforce the pernicious idea of “truth relativism”
referred to above.)
Here
is what I think is a problem for some lawyers about truth. The lawyers I have
in mind are the litigators. Justice is a
central value in lawyering because it is a central value in any legal system in
every civilized society, e.g., the USA. Lawyers have a fundamental commitment
to valuing justice. It is part of who they are.
It is part of the honorable lawyer’s essence to value, and therefore commits
him/her-self to justice. The opposite is inconsistent with real lawyering,
where the opposite is having a commitment to the obtaining of injustice.
But
many if not most litigators do not actually do this. This is a necessary truth
for any advocacy system of litigation. A
lawyer cannot be fully committed to functioning satisfactorily in an adversary
system and at the same time be committed to the obtaining of justice. Justice
and truth are closely connected.
This
conclusion is entailed by the fact that in an adversary system the duty of the
lawyer is to zealously advocate the truth of whatever propositions there are
which support what the client takes to be its interests, subject to some
exceptions found in legal rules. But
this means that it does not matter whether these propositions are true or
false. The litigating lawyer, subject to
certain limits, is required to ignore the fact that propositions s/he is
advocating are false. Again, subject to
legally specified limits, a lawyer can be required to advocate propositions he
knows to be false. This lawyer is
required to permit “justice-deciders,” e.g., judges, to believe relevant
propositions the litigating lawyer knows to be other than true.
The
rules of professional ethics, e.g., the ABA’s MODEL RULES OF PROFESSIONAL
CONDUCT, rules which can be thought of (paradoxically) as judicially enacted
quasi-statutes regulating the conduct of lawyers when functioning as lawyers,
says this:
“[1] A lawyer. . . is. . . an officer of the legal
system and a public citizen having special responsibility for the quality of
justice. . . . [8]. . . . [A] lawyer can be a zealous advocate on behalf of a
client and at the same time assume that justice is being done.”
Both the passages just quoted are
found in the PREAMBLE AND SCOPE SECTION—Preamble: A Lawyer’s Responsibility.”
This is a contradiction is it is taken to be true that the obtaining of truth
is central to the obtaining of justice.
(Now
I have to grant that I have left something important out of the quotation of
[8] and that is this: “A lawyer’s responsibilities as a representative of
clients, an officer of the legal system and a public citizen are usually
harmonious. Thus, when an opposing party is well represented. . . .”) I made this omission to focus on the heart of
the matter. The clause I omitted is destructive. First, it is impossible to
tell whether and opposing party is well represented before decisions are made
about truth. Second, the phrase “well represented” is too vague to be helpful.
And third, in my 35 years of experience,
I have never heard of a lawyer restricting his/her advocacy when the
opposing party was not well represented or was pro se.
In
the minds of lawyers—working in “adversarial systems”–winning is close to or almost
“everything,” at least. Thus, the
practice of law in such systems requires the admission that there is such a
thing as truth, that there are truths, that there are false propositions, that
there are lies, and that epistemic relativism is false. But, in adversarial legal systems, truth
itself is not a central value in the profession. If truth itself is not central to the system,
then truthfulness isn’t either. . . not really.
*Michael Sean Quinn
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