Legal and Philosophical Fictions: At the Line Where the Two Become One

Abstract

Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decision making. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought – one that has its roots in pre-Socratic rhetoric and philosophy.

This paper traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and elated Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always ‘make the weaker argument the stronger.’ I contend that taking these Protagorean notions seriously – perhaps even more seriously than self-avowed anti-foundationalists customarily do – leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable.