Faculty Bibliography
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This chapter is an essay, literally an attempt, to present and solve a puzzle about Wesley Newcomb Hohfeld. In addition to being a doctrinal legal scholar, he was – and is justly renowned for his work as – a legal theorist, legal philosopher, and logician operating without, but anticipating, the formal grammar of logic (deontic logic, specifically1). Given the huge influence of his work, he had surprisingly few publications, resulting in a high yield of impact per page – and, indeed, per year of his short life.2 Wesley Hohfeld was also a law professor who had difficulty getting his students to see the value of his method as a tool for learning and mastering legal argument.
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The Logocratic Method, and the Logocratic theory that underwrites it, provide a philosophical explanation of three purposes or goals that arguers have for their arguments: to make arguments that are internally strong (the premises follow from the conclusions, to a greater or lesser degree—greatest degree in valid deductive arguments), or that are dialectically strong (win in some forum of argument competition, as for example in litigation contests of plaintiffs or prosecutors on the one hand, and defendants, on the other), or that are rhetorically strong (effective at persuading a targeted audience). This article presents the basic terms and methods of Logocratic analysis and then uses a case study to illustrate the Logocratic explanation of arguments. Highlights of this explanation are: the use of a (non-moral) virtue (and vice) framework to explicate the three strengths and weaknesses of arguments that are of greatest interest to arguers in many contexts (including but not limited to the context of legal argument), the Logocratic explication of the structure of abduction generally and of legal abduction specifically, the concept of a system of arguments, and the concept of the dynamic interactive virtue (and vice) of arguments—a property of systems of arguments in which the system of arguments as a whole (for example, the set of several arguments typically offered by a plaintiff or by a defendant) is as virtuous (or vicious) as are the component arguments that comprise the system. This is especially important since, according to Logocratic theory (and as illustrated in detail in this paper), some arguments, such as abduction and analogical argument, are themselves comprised of different logical forms (for example, abduction always plays a role within analogical argument, and either deduction or defeasible modus ponens, always plays a role within legal abduction).
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I begin by commending my friend Gary Lawson for his important treatment of the nature of evidence and proof in his book Evidence of the Law. I write, very much, I think, in the spirit of his book and his own agonophilic (I shall explain this concept) style, to question whether his theory of proof hinders its explanatory power by omitting to recognize virtues of arguments other than the one on which he (and, for that matter, most philosophers--he is in good company) focuses, namely, argumentative proofs that produce true or probabilistically warranted propositions. To make my argument I draw on my own theory of the nature of argument and method of analyzing the virtues and vices of argument. I call this method and its supporting theory the Logocratic Method (“LM”). My task in this Lecture is to present enough of the LM-- including two of its concepts central to my critique, “agonophilia” and “agonophobia”--and enough of a re-presentation of what I understand Gary's argument about the nature of proof to be, to raise my question about the explanatory adequacy of Gary's theory.
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Jack Weinstein, Norman Abrams, Scott Brewer & Daniel Medwed, Evidence (Foundation Press 10th ed. 2017).
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"After 20 years, the return of a classic! The 10th edition of Weinstein, Abrams, Brewer and Medwed, Evidence—Cases and Materials (the authors of the previous edition were Weinstein, Mansfield, Abrams and Berger)—to be published in time for classes beginning in the Fall 2017 semester. This book enables teaching of the rules of evidence, with an in-depth understanding achieved by no other casebook. The authors extensively cover rationales for the rules and how they fit into our system of resolving civil disputes as well as handling criminal justice issues in both jury and non-jury contexts. Many books focus on teaching the rules only in a trial practice mode. In this era of fewer trials, the book’s philosophic underpinning is that the best way to teach Evidence is to provide students with a full and in-depth understanding of each rule so as to prepare them to deal with any possible variation on the issues that can arise at the stages of fact-gathering and investigation, or deposition and discovery, or at the stages of trial, or on appeal. The new edition, while as comprehensive and rich in analysis and supporting materials as previous editions, also contains new explanatory material designed to further students’ understanding of the issues. This edition blends the new with the old, representing the latest installment of a casebook with a lineage that dates back to the nineteenth century. The tenth edition retains much of the historical evolution of evidence law from its common law origins through the emergence of the Federal Rules of Evidence and analogous state approaches. In addition, this comprehensive casebook covers new developments in scientific evidence, and applies new insights from fields such as logic and probability." -- Foundation Press
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Scott Brewer, Socrates and Jurisprudence, Regional Symposium on Contemplative Practice in Higher Education, Amherst College (May 2003).
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Regional Symposium on Contemplative Practice in Higher Education
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Scott Brewer, Intellectual Integrity in the Legal Process, Provost's Lecture, SUNY Stony Brook (Spring 2003).
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Provost's Lecture
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Scott Brewer, Is Philosophy in Evidence?, Conference Culture and Inference (Spring 2003).
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Conference Culture and Inference
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Scott Brewer, Speech: "The Examined Life of the Law," The Law Program of the Center for Contemplative Mind in Society (March 2002).
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The Law Program of the Center for Contemplative Mind in Society
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Scott Brewer, Traversing Holmes' Path Toward a Jurisprudence of Logical Form, in "The Path of the Law" and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. 94 (Steven J. Burton ed., 2000).
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Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, in The Philosophy of Legal Reasoning: Logic, Probability, and Presumptions in Legal Reasoning 49 (Scott Brewer ed., Garland 1998).
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Scott Brewer, Pragmatism, Oppression, and the Flight to Substance, in The Philosophy of Legal Reasoning: Evolution and Revolution in Theories of Legal Reasoning 105 (Scott Brewer ed., Garland 1998).
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Scott Brewer, Rational Force of Legal Argument by Anthology, in The Philosophy of Legal Reasoning 49 (Scott Brewer ed., Garland 1998).
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Scott Brewer, Quelques Raisonnements Theoriques sur des Raisonnements Pratiques a Propos du Rasionnement Theorique, in Fondements Naturels de l'Ethique 267 (Jean-Pierre Changeux ed., Editions Odile Jacob 1991).
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Scott, Brewer, Note: Figuring the Law: Holism and Tropological Inference in Legal Interpretation, 97 Yale L.J. 823 (1988).
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