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344 Chapter 15
The second problem is the response of the legal philosopher to the
recognition that the inheritance of a common world does not forestall error.
(Nor need it!) For while we are indeed endowed with a broad array of
mutually-supporting beliefs, theories, conditions and standards, we cannot
claim that this inheritance is a seamless whole, that all our beliefs are true.
Only a hopelessly naïve epistemologist would entertain such a proposition. As
Donald Davidson notes: ‘Error is what gives belief its point.’ 6 Across the
broad domain of social practices, however, we can claim to possess ‘endless
true beliefs’. 7 Of course, it does not follow that the practices themselves are
entirely coherent. Our practices, traditions, institutions and truth
propositions are, as Cohen writes:
… the result, not of legislative design by a single acting on behalf of a coherent
system of values, but of conflicts among individuals acting on behalf of
diverse values and ambitions. And unlike the produce of a supreme legislative
design, the outcomes of such a history are not likely to be a set of coherent
social practices that completely conform to a single scheme of values. 8
The problem with the theorist who reifies theory is that she mistakes these
‘faults, fizzures and heterogeneous layers’ within a practice as a problem
with the practice – and its usefulness – as a whole. Take for example,
Einstein’s contributions to the birth of both relativity theory and quantum
mechanics. No working physicist argues that Einstein’s views were wrong
– in the main – about either basis for modern physics. And yet, on particular
points, Einstein’s views about both have been proven incorrect.
The third form of bewitchment, as Wittgenstein would have it in many
of his ‘just so’ stories, is that we first form theories and then test these
theories against experience. (Not so says Wittgenstein.) It is essential that
we get our order of priority straight. Once a practice is established (through
trial and error), we might wish, upon reflection, to test its assumptions
through experiments that do or do not confirm aspects of the practice’s
usefulness. But that is not how those who reify theory operate. Think again
about Wittgenstein’s various aperçu:
Whence comes the idea that the beginning of a series is a visible section of rails
invisibly laid to infinity? And infinitely long rails correspond to the unlimited
application of a rule (para 218) ... But if something of this sort were the case,
how would it help? No; my description only made sense if it was to be
understood symbolically – I should have said: This is how it strikes me ... The
word ‘agreement’ and the word ‘rule’ are closely related to one another, they
are cousins. If I teach anyone the use of the one word, he learns the use of the
other with it (para 224) ... and they agree in the language they use. That is not
agreement in opinions but in a form of life (para 241) ... If language is to be a
6 D Davidson ‘Thought and talk’ in Inquiries into truth and interpretation (1984) 155 168.
7 As above.
8
J Cohen ‘Review: Michael Walzer’s Spheres of justice’ (1986) 83/8 The Journal of Philosophy 457
465.