Common Sense, Rationality and the Legal Process

Abstract

Our organizer and moderator, Peter Tillers, asked that I address the topic of common sense, rationality, and the legal process. As you know, everything in the law is controversial, and thus it is not surprising that there are at least two possible explanations for why he did this. One school of thought holds that Professor Tillers believes that I am the walking embodiment of common sense and rationality, and thus that my remarks here, whatever the content, would be an exemplar of just what he asked me to talk about. The other school of thought holds just the opposite: that the reason for the request was that the probability of my saying anything commonsensical, indeed, maybe even coherent, was just about zero. This state of affairs may seem problematic, but in fact it is a testament to the deep insight of our esteemed organizer (this being perhaps the only true proposition in this entire string of sounds that I am now emitting!), because in either case these remarks may be an exemplar, even though there may be disagreement as to what they are exemplifying. Leave it to Professor Tillers to detect Chomsky-like deep structures to our inquiries and to find an efficient way to put the matter before the assembly. By the way, although I certainly would not suggest that I know which of these schools is correct, I do think there is some good evidence before us. Who in his right mind, in the midst of the intellectual feast that we are consuming, would agree to give any remarks that would disturb the consumption of the well-deserved nutritional feast before you, the likely result of which is surely to be either intellectual or physiological indigestion, or both? And while I am on the topic of people being in a tough spot, we should all extend our deepest sympathies to Professor MacCrimmon who will soon be called upon to try to make some sense of all this. Heroic duty if ever there were any.