LEGAL THEORY

The Talent Code (Coyle)

Part 1: Deep Practice
Chapter 1: The Sweet Spot
Shared facial expression: Clint Eastwood
Conventional explanation of talent: nature and nurture (wrong)
Deep practice: struggling in certain targeted ways operating at the edges of your ability, where you
make mistakes makes you smarter; experiences where youre forced to slow down, make errors and
correct them end up making you swift and graceful without your realizing it
o The more we generate impulses, encountering and overcoming difficulties, the more scaffolding
[myelin] we build. The more scaffolding we build, the faster we learn.
o The trick is to choose a goal just beyond your present abilities; to target the struggle. Thrashing
blindly doesnt help. Reaching does. Theres an optimal gap between what you know and what
youre trying to do. When you find that sweet spot, learning takes off.
Chapter anecdotes: Clarissa, Brazilian soccer/futsal players, Edwin Links The Blue Box

Chapter 2: The Deep Practice Cell

Myelin: key to talking, reading, learning skills, and being human
o Every human movement, thought, or feeling is a precisely timed electric signal traveling
through a chain of neurons a circuit of nerve fibers. Myelin is the insulation that wraps these
nerve fibers and increases signal strength, speed, and accuracy. The more we fire a particular
circuit, the more myelin optimizes the circuit, and the stronger, faster, and more fluent our
movements and thoughts become.
Skill is myelin insulation that wraps neural circuits and that grows according to certain signals.
All actions are really the result of electrical impulses sent along chains of nerve fibers. The more we
develop a skill circuit, the less were aware that were using it.
Supporter cells called oligodendrocytes and astrocytes sense the nerve firing and respond by wrapping
more myelin on the fiber that fires. The more the nerve fibers, the more myelin wraps around it. The
more myelin wraps around it, the faster the signals travel. Myelin also has the capacity to regulate
velocity, speeding or occasionally even slowing signals so they hit synapses at the optimal time.
Synaptical changes remain key to learning, but myelin plays a massive role in how that learning
manifests itself.
Struggle is not optional; it is neurologically required: in order to get your skill circuit to fire optimally,
you must by definition fire the circuit sub-optimally. You must make mistakes and pay attention to
those mistakes; you must slowly teach your circuit. You must also keep firing that circuit i.e.
practicing in order to keep myelin functioning properly.
Summary: The firing of the circuit is paramount (repetition is key). Myelin is universal (it grows
according to the same rules). Myelin wraps it doesnt unwrap (only age or disease can un-insulate a
skill circuit). Age matters (critical periods happen wherein the brain is extraordinarily receptive to
learning new skills).
Andrew Ericsson and his colleagues established the tenet that every expert in every field is the result of
around 10,000 hours of committed practice, or deliberate practice. This is essentially the same as deep
practice, except deliberate practice refers to the mental state, not myelin. The Ten-Year, Ten-Thousand-
Hour rule implies that all skills are built using the same fundamental mechanism, and further that the
mechanism involves physiological limits from which no one is exempt. The true expertise of geniuses,
 however, resides in their ability to deep-practice obsessively, even when it doesnt necessarily look like
theyre practicing. They have an innate, obsessive desire to improve the rage to master.
Formula for expertise: deep practice x 10,000 hours = world-class skill

Chapter 3: The Bronts, the Z-Boys, and the Renaissance

The Bront sisters wrote Jane Eyre (Charlotte Bront), Wuthering Heights (Emily Bront), Agnes Grey
(Anne Bront), and The Tenant of Wildfell Hall (Anne Bront). However, they were not born
geniuses. Rather, they wrote a great deal in a variety of forms, and were initially not very good writers.
They became great writers not in spite of the fact that they started out immature and imitative, but
because they were willing to spend vast amounts of time and energy being immature and imitative,
building myelin in the confined, safe space of their little books.
The Z-Boys were exceptional skaters from Venice, California, who became great not because of innate
giftedness, but because they practiced in empty swimming pools (which served as a skill-incubator).
David Banks wrote a short paper entitled The Problem of Excess Genius, wherein he detailed how
geniuses tend to appear in clusters, such as in Athens (440 BC 380 BC), Florence (1440 1490), and
London (1570 1640), for which is there seemed to be no rational explanation. As it turns out, however,
Florence was the epicenter for craft guilds, which were designed to grow talent via the apprenticeship
system. An apprentice directly worked under the tutelage and supervision of the master, who
frequently assumed rights as the childs legal guardian. They created a chain of mentoring, much akin
to todays social networking. These apprentices were therefore products of the systematic production of
excellence (e.g. Michelangelo, mentored by Ghirlandaio; produced the Pieta at 24).
Genes are not cosmic playing cards. They are evolution-tested instruction books that build the
immensely complicated machines that are us. They contain the blueprints to our physical bodies, but
are forced to deal with a unique design challenge when it comes to behavior, as human beings
encounter dangers, opportunities, and novel experiences. To address this, they contain instructions to
build our circuitry with preset urges, proclivities, and instincts. Guided by these preset neural
programs, we navigate toward a solution. For higher skills, however, genes built millions of tiny
broadband installers and distributed them throughout the circuits of the brain (myelin). Whatever
circuits are fired most, and most urgently, are the ones where the installers will go. This system is
flexible, responsive, and economical, because it gives human beings the innate potential to earn skill
where they need it. We are myelin beings.

Chapter 4: The Three Rules of Deep Practice

The Holy Shit Effect (HSE): heady mix of disbelief, admiration, and envy we feel when talent suddenly
appears out of nowhere; operates in one direction, wherein the observer is dumbstruck, amazed, and
bewildered, while the talents owner is unsurprised, even blas
Skill consists of identifying important elements and grouping them into a meaningful framework in a
process called chunking.
Rule 1: Chunk it up.
o The instinct to slow down and break skills into their components is universal. First, participants
look at the task as a whole as one big chunk, the megacircuit. Second, they divide it into its
smallest possible chunks. Third, they play with down, slowing the action, then speeding it up,
to learn its inner architecture.
o Absorb the whole thing, as a single coherent entity.
Anecdotes: Li Ping copying Roger Federers backhand; Ray LaMontagne becoming a
singer after holing himself up in his apartment for 2 years; Spartak Tennis Clubs
imitatsiya or rallying in slow motion with an imaginary ball
 o Break it into chunks.
Anecdote: Meadowmount school taking chunking to the extreme in order to speed up
learning
o Slow it down.
Going slow allows you to attend more closely to errors, creating a higher degree of
precision with each firing and when it comes to growing myelin, precision is
everything. Going slow also helps the practice to develop something more important: a
working perception of the skills internal blueprints the shape and rhythm of the
interlocking skill circuits.
Self-regulation: when people observe, judge, and strategize their own performance or
coach themselves
Practice allows us to develop something more important than skill a detailed
conceptual understanding that allows us to control and adapt our performance, fix
problems, and customize our circuits to new situations.
Clicking in: what deep practice feels like
Rule 2: Repeat it.
o Practice is the best teacher. There is no substitute for attentive repetition. There is nothing more
effective in building skill than executing the action, firing the impulse down the nerve fiber,
fixing errors, honing the circuit.
o The surest way to diminish the skills of a superstar talent (aside from inflicting an injury) is to
not let them practice for a month. Myelin is living tissue, and is in a constant cycle of breakdown
and repair, which is why daily practice matters, especially as we get older.
o With conventional practice, more is always better. But with deep practice, spending time is only
effective if youre still in the sweet spot at the edge of your capabilities, attentively building and
honing capabilities. Ericssons research shows that most world-class experts practice between 3
to 5 hours a day, no matter what skill they pursue. When you depart the deep-practice zone, you
might as well quit.
Rule 3: Learn to feel it.
o One must get a balance point where you can sense the errors when they come. To avoid the
mistakes, first you have to feel them immediately.
o Its possible to sense the telltale set of secondary feelings associated with acquiring new skills
the myelin version of feeling the burn. It evokes a feeling of reaching, falling short, and
reaching again. Its the feeling of straining toward a target and falling just short, called divine
dissatisfaction that productive, uncomfortable terrain located just beyond our current
abilities, where our reach exceeds our grasp.
o Deep practice is not simply about struggling; its about seeking out a particular struggle, which
involves a cycle of distinct actions (pick a target; reach for it; evaluate the gap between the target
and the reach; return to step one). It might be more aptly named the bittersweet spot. However,
one of the most useful features of myelin is that it permits any circuit to be insulated, even those
of experiences we might not enjoy at first.
o Anecdote: struggling babies

Which Meditation is Best for You? (Bodri)

Meditation a practice of mental resting with open awareness wherein you learn how to detach from
thoughts so that you can ultimately detach from their impelling grip on you; a way to give the thinking
mind a rest and take a deliberate break from the stream of thoughts that constantly flow in and out of
our minds
 The type of meditation method that is best for you is dependent on your mental makeup and
psychology. The method you hate will probably hate the most. Bodri recommends at least 45 minutes
each time to get results.
Through meditation, anyone can cultivate a mental realm of blissful clarity, peace, calm and well-being.
This involves lowering the volume control of internal dialogue in order to arrive at that stillness,
quiet or emptiness.
Methods:
o Adding meditation methods taxing your mind with so much required concentration that the
mind, when it can concentrate no more, gives up the strain of continued one-pointed
concentration; mind gives up and abandons thoughts altogether to produce a quiet realm of
mental emptiness (e.g. mandala visualization practices)
o Mantra recitation method (japa meditation in India) continued recital of a religious prayer in
tune with the breath coupled with listening to sounds recited over and over again; wandering
thought mind eventually silenced through continuous listening until mental silence appears,
and awareness of that empty silence remains
o Subtraction methods letting go of thoughts directly so that the mind abandons layers of
thoughts and eventually enters into a state free from mental disturbances entirely
o Breathing practices (pranayama) cultivated together with thought-free meditation; idea is to
reach a peaceful state where breath and consciousness both calm and become one
o Cessation-contemplation practices (shamatha-vipassana practice) watching thoughts without
getting involved with them, so that eventually, watching without following the thoughts and
giving them energy will cause them to die down; one reaches a silent mental gap that will reveal
the true empty nature of the mind
o Strong concentration strongly concentrating one-pointedly on a thought so that all wandering
thoughts surrounding that selected thought or image subside into silence
o Zen looking within (through introspective observation, investigation and watching) to try and
find the true nature of the mind itself by abandoning everything that isnt the mind; thoughts
are not the mind but fleeting images that appear in the true empty mind for just an instant and
then pass away
Practice + effort + time + patience = result

Conversations of Nan Huai Chin and Peter Senge

Terms:
o Anapana meditation shared practices; shared by and known to non-Buddhists in the pursuit
for calmness of the mind (Samadhi)
o Prajna accomplishment of wisdom; attainable only by Anapana meditation
o Ana breathing in
o Apana breathing out
o Xi/Hsi stillness or rest; growing; standing still
A fetus has momentum that powers life through expansion and contraction, or the phenomenon of
birth-and-death, which continues seamlessly. The fetus does not breathe through the nose or pores; its
life is sustained by a continuous movement of expansion and contraction, or how energy functions. The
goal of Anapana meditation is to cultivate that movement, not to cultivate the in-and-out of
respiratory breathing.
Cultivating Xi is a practice to break away from the birth-and-death cycle.
Breathing can be divided into 4 categories: panting (short and rapid breathing), unhurried breathing
(wind), Qi/Chi (deep and quiet breathing) and Xi (complete stillness or resting)
 For the average person, Xi occurs only briefly during meditation or sleeping. Very quickly, the in-and-
out breathing resumes.
Yoga schools teach students to hold the breath at the area of the lower abdomen (dantian). This is not
Qi at all, but playing with wind. The abdomen should actually contract when inhaling to maximize
force (striking with a loud huh!). When one reaches the state of Xi, the body will be filled with Qi.
There will be no breathing in-and-out. Once the mind moves, the Qi follows.
The ones who have mastered the practice of meditation will attest that breathing takes place in the
navel area, quite by itself, instead of the lungs.
When a child grows up (especially after the first sexual experience), the natural habit of Qi breathing is
broken, and he starts to breathe with the lungs, only half-breathing. To achieve longevity in life,
however, navel breathing is the starting point.
The mind and the Xi are 2 distinct matters; if your every thought is in union with Xi, you will then have
achieved a high level of concentration in meditation. The mind drives the Qi.
During a sitting meditation, if one can fill his lower body and then the 4 limbs with Qi, followed by the
cessation of breathing in the nose, one will then experience the state of Xi.
Samadhi is achievable only through the union of the mind and Xi. When your body is filled with Xi,
you are aware of it. To be aware of it is to be aware of the interval during which one neither inhales nor
exhales. When the mind arises in tandem with the Xi, you will feel the Qi, that energy, all over your
body.

Epistemology (Internet Encyclopedia of Philosophy)

Epistemology the study of knowledge; comes from Greek episteme meaning knowledge and
logos meaning study/science of
Kinds of knowledge:
o Procedural knowledge competence or know-how (e.g. how to ride a bicycle)
o Acquaintance knowledge familiarity with persons
o Propositional knowledge focuses on propositions (something which can be expressed by a
declarative sentence, and which purports to describe a fact or a state of affairs); knowledge-
that (e.g. scientific or mathematical knowledge; geographical knowledge; self-knowledge)
One goal of the study of epistemology is to determine the criteria for knowledge so that
we can know what we can or cannot be known.
Types of propositional knowledge:
Non-empirical or a priori knowledge possible independently of, or prior to, any
experience, and requires only the use of reason (e.g. logical truths, abstract
claims)
Empirical or a posteriori knowledge possible only subsequent, or posterior, to
certain sense experiences, in addition to the use of reason (e.g. color, shape)
Individual knowledge
Collective knowledge
General characterization of propositional knowledge: belief, truth, and justification
o Belief: Knowledge exists in ones mind, and unthinking things cannot know anything.
Knowledge is a specific kind of mental state, and knowledge is a kind of belief. If one has no
beliefs about a particular matter, one cannot have knowledge about it.
Occurrent beliefs those which the individual is actively entertaining
Non-occurrent beliefs background knowledge not being entertained at a particular
time; constitutes a majority of human knowledge
 o Truth: Belief is necessary, but not sufficient, for knowledge. To acquire knowledge, we must
increase our stock of true beliefs and minimize our false beliefs. The most typical purpose of
beliefs is to describe or capture the way things actually are, in that when one forms a belief, one
is seeking a match between ones mind and the world. We sometimes fail to achieve such a
match. Truth is therefore a condition of knowledge; that is, if a belief is not true, it cannot
constitute knowledge.
o Justification: Knowledge requires factual belief, but not all true beliefs constitute knowledge;
only true beliefs arrived at in the right way constitute knowledge. Sound reasoning and solid
evidence seem to be the way to acquire knowledge in the right way, in order to make a belief
justified. There must be sufficient basis to serve as justification. To constitute knowledge, a belief
must be both true and justified. Because of luck, a belief can be unjustified yet true, and because
of human fallibility, a belief can be justified yet false. Truth and justification are therefore 2
independent conditions of beliefs.

An Enquiry Concerning Human Understanding (Hume)

Part 1, Section 4: Skeptical doubts about the operations of the understanding
All the objects of human reason or enquiry fall naturally into 2 kinds: relations of ideas and matters of
fact. Relations of ideas include every statement that is either intuitively or demonstratively certain (e.g.
geometry, algebra, arithmetic). They can be discovered purely by thinking, with no need to attend to
anything that actually exists anywhere in the universe. Matters of fact are propositions about what
exists and what is the case, which are not established in the same way, as the contrary of every matter of
fact is still possible. It would be a waste of time to demonstrate their falsehood.
All reasonings about matters of fact seem to be based on the relation of cause and effect. When we
reason this way, we suppose that the present fact is connected with the one that we infer from it. If
there were nothing to bind the two facts together, the inference of one from the other would be utterly
shaky.
Knowledge about causes is never acquired through a priori reasoning, and always comes from our
experience of finding that particular objects are constantly associated with one other. The qualities of an
object that appear to the senses never reveal the causes that produced the object or the effects that it will
have; nor can our reason, unaided by experience, ever draw any conclusion about real existence and
matters of fact. Absolutely all the laws of nature and operations of bodies can be known only by
experience.
This line of reasoning seems less obvious when applied to events that we have been familiar with all
our lives, those that are like the whole course of nature, or those that are supposed to depend on the
simple perceptible qualities of objects.
Every effect is a distinct event from its cause. The mind cannot possibly find the effect in the supposed
cause, for the effect is totally different from the cause and therefore can never be discovered in it. There
isnt the slightest hope of reaching any conclusions about causes and effects without the help of
experience.

Section 7: The idea of necessary connection

The chief obstacle to our making advances in the human or metaphysical sciences is the obscurity of the
ideas and the ambiguity of the terms (e.g. power, force, energy, necessary connection).
All our ideas are mere copies of our impressions, so it is impossible for us to think of anything that we
havent previously felt through either our external or our internal senses. In order to avoid ambiguity or
obscurity, we must produce the impressions or original sentiments from which the ideas were copied.
 Looking at external objects, we are never able to discover any power or necessary connection, any
quality that ties the effect to the cause and makes it an infallible consequence of it. All we find is that
the one event does in fact follow the other. When we experience something for the first time, we can
never conjecture what effect will result from it. No material thing ever reveals through its sensible
qualities any power or energy, or gives us a basis for thinking it will produce anything or be followed
by any other item that we could call its effect.
Are the ideas of power or necessary connection therefore derived from our reflection on the operations
of our own minds and thus copied from some internal impression? We are conscious of internal power
all the time (i.e. will, volition). Such is an idea of reflection, since it arises from reflecting on the
operations of our own mind, and on the command that is exercised by will over the organs of the body
and faculties of the soul.
The influence of volition over the organs of the body can be known only by experience; it can never be
foreseen from any apparent energy or power in the cause which connects it with the effect and makes
the effect absolutely certain to follow. We are never immediately conscious of how our body follows the
command of our will, so much so that we can never discover it.
o One proposed explanation is the union of mind and body, wherein a supposed spiritual
substance gets so much influence over a material substance that most refined thought can drive
large portions matter. But if we perceived any power or energy in our own will just by being
conscious of it, we would know this power and know its connection.
o We know from experience that we dont have an equal command over all the organs of the body,
although we may not always know why. We would, however, know why the authority of will
over the organs of the body is kept within certain limits if we possessed such power. We
therefore learn the influence of our will from experience alone, and experience teaches us how
one event constantly follows another, without instructing us in the secret connection that binds
them together.
o In voluntary motion, the immediate object of the power is not the body part that is moved, but
certain muscles and nerves and animal spirits. If the original power were felt, it would be
known. Knowing a power is knowing it as a the-power-to-produce-x for some specific x and
vice versa. If the effect isnt known in advance, the power cant be known or felt.
o Our idea of power is therefore not copied from any feeling or consciousness of power within
ourselves when we get our limbs to perform their normal functions. It is, however, unknown
and inconceivable.
The same arguments show that command of the will gives us no real idea of force or energy.
o When we know a power, we know what is about the cause that enables it to produce the effect.
To know the power, we must know both the cause and effect and the relation between them.
o Like its command over the body, the minds command over itself is limited, and these limits are
not known by reason or any acquaintance with the nature of cause and effect, but only by
experience and observation.
o This self-command is very different at different times. Volition is an act of the mind, but we
need solid experiential evidence to show that such extraordinary effects ever result from a
simple act of volition.
o During extraordinary phenomena (e.g. earthquakes, plague, and other strange events), men
usually fall back on some invisible thinking cause as the immediate cause of the event that
surprises them and cannot be accounted for through the common powers of nature. However, it
can be seen that the energy of the cause is no more intelligible in the most familiar events than it
is in the most unusual ones. We only learn by experience the frequent conjunction of things
without every being able to grasp anything like a connection between them.
 o Some philosophers hold that an intelligent mind is the immediate and sole cause of every event
that appears in nature, not merely the ultimate and original cause of all events or the immediate
and sole cause of seemingly miraculous events. These causes are nothing but occasions, and the
true and direct cause of every effect is not any power or force in nature but a volition of the
supreme being. Some extend the same inference to the internal operations of the mind itself,
saying that our mental vision or conception of ideas is nothing but a revelation made to us by
our Maker. They overlook the fact that by this theory they diminish instead of magnify the
grandeur of the divide attributes they celebrate. Gods delegating some power to lesser
creatures surely shows him as more powerful than would his producing everything by his own
immediate volition.
Throughout the whole of nature there seems not to be a single instance of connection that is
conceivable by us. The only possible source left is repetition. If events of one kind have always in all
instances been associated with events of some other kind, we no longer shrink from predicting an event
of the latter kind when we experience one of the former kind, hence cause and effect. The feeling or
impression from which we derive our idea of power or necessary connection is a feeling that
accompanies the imaginations habitual move from observing one event to expecting another of the
kind that usually follows it. So when we say that one event is connected with another, all we mean is
that they have come to be connected in our thought so that were willing to conduct this inference
through which they are taken to be proofs of each others existence.
Cause an event followed by another, where all events similar to the first are followed by events similar
to the second; where if the first event hadnt occurred the second wouldnt have occurred either; an
event followed by another, where the appearance of the former always conveys the thought to the latter.
The idea of power or necessary connection is therefore copied from the impression of a custom-induced
cause and effect.

Debunking Hume

Humes analysis:

Objects arise predictably Observation (T)

Therefore I think there is a cause Observation (T)
However, such cause cannot be observed Observation (T)
Nor deduced Deduction (T)
The only sources of truth are observation and Guess (MT) where Kant disagrees
deduction
Therefore cause doesnt really exist Questionable
It is only an imputation Questionable

Humes conclusion that causation is merely an imputation is false, otherwise the world would not exist.

Refutation of Humes theory of causation:

Things arise Observation (T)

They arise in a specific correlation to other things Observation (T)
They arise either with a cause or without a cause Deduction (T)
If not caused, then things will arise randomly Deduction (T)
 Or universally Deduction (T)
Or not at all Deduction (T)
But this will contradict specific assertions Deduction (T)
Therefore, things have a cause Deduction (T)

If our procedure is correct, it is impossible for Hume to be correct.

Confessions of a Philosopher (Magee/Kant)

According to Kant, if reason leads us into self-contradiction and impasse, reality cannot correspond to
it, and therefore it cannot be possible even in principle for us to understand reality by the use of reason
alone. Experience is no more able than reason to give us knowledge of independent reality, since the
congruence of our sense-perceptions with external objects can never be validated. We cannot form any
conception of objects independently of the categories of experience and thought, all of which are
subject-dependent. All the ways we have of perceiving objects sight, sound, touch, taste, smell are
such as cannot exist independently of sensory and nervous systems.
Kant supposed that scientific knowledge was uniquely certain, as it consisted of a combination of 2
processes, neither of which admitted of error direct observation and logical deduction. Direct
observation was done not just on one occasion by one person, but observations repeated systematically
by that person and then checked systematically by others. Logical deduction was derived from
observation-statements. Science, therefore, consisted of immediate observation plus logic.
According to Hume, causal connection is something whose existence is not only unobservable but
impossible to derive logically from anything that is observable. All we observe are the two events, but
not some third entity forming a necessary connection, which also cannot be logically derived. It
therefore had no empirical or logical foundation. However, Kant saw that without such a causal
connection, there would be no possibility of an empirical world. Yet we do know that such a world
exists, and therefore causal connection must necessarily exist, and therefore the empirical world has
indispensable features that are neither observable nor logically deducible, and a there must be another
basis for reliable knowledge the forms of all possible experience.
The whole nature of the world as we experience it is dependent on the nature of our apparatus for
experiencing, with the inevitable consequence that things as they appear to us are not the same as
things as they are in themselves. The forms of all possible experience are contingent, and only what
these nets catch will be ours, and only what they can catch can be ours. This is not to say that nothing
outside those limits can exist, but only that if it does exist, we have no way of apprehending it.
Prior to Kant, philosophers had distinguished 2 forms of meaningful utterance: synthetic propositions
(utterances about the empirical world that were always contingent and falsifiable; truth of which could
only be know a posteriori or after receiving experience) and analytic propositions (truth could be
known a priori or in advance of experience). According to Hume, all significant propositions must
either be synthetic and a posteriori or analytic and a priori, but Kant proposed the synthetic a priori
proposition. These are meaningful only as applied to the world of experience and possible experience,
and for that reason are synthetic, but they are known to be true in advance of all possible experience,
and for that reason are a priori. However, Kants solution was deemed not to have addressed Humes
problem.
Human beings are embodied and our bodies are equipped with certain mental and sensory apparatus,
such that all experience must come to us through it. However, untranscendable limits to the world of
possible experience are set by the nature of the apparatus we have. As far as we can ever know, there is
no limit to what can exist outside the possibility of our knowledge, but one of the infinitely many
possibilities is that there is nothing outside the possibility of our knowledge.
 Kant believed that there is an independent reality outside the world of all possible experience, which he
called the world of the noumenal, the world of things as they are in themselves, and of reality as it is in
itself. He called the world as it appears to us, or the directly known world of actual experience, the
world of phenomena. The latter is a world of material objects in space and time, the world of common
sense and science, or the empirical world.
Causal connections can exist only between objects in the phenomenal world, and there can never be a
causal connection between an object of possible experience and something that lies permanently
outside the possibility of experience. If objects do exist in themselves independently of us, they cannot
be the cause of our experiences.
Space and time are characteristics of a world of appearances only, and are what Kant calls our forms of
sensibility, which are our frameworks for gathering experience. If objects as we experience them exist
independently, there is no way we can ever be justified in feeling sure that our experiences conform to
them and give us accurate representations of them.
Kant posits that instead of assuming that knowledge must conform to objects, we must look at the
situation from the opposite end, in terms of objects conforming to knowledge. Knowing in reality
knowing as actually experienced and lived does not start from the object and then somehow make its
way to becoming experience in a subject. It starts as experience in a subject.
We can only ever experience objects through the mental, sensory and other apparatus that we have for
doing so, and in terms of the forms and modes and categories mediated by that apparatus. These
represent reality in terms determined by their own nature; and that is all they can ever do; and this
constitutes the only experience and the only knowledge we can ever have. Some objects, however, are
outside the possibility of apprehension, and precisely because reality exists independently of all
possible experience it remains permanently hidden.
The error at the heart of the entire empiricist tradition is what might be called the reification of
experience, the mistaking of experience for reality, the mis-taking of epistemology for ontology. They
regard total reality as having the character of experience or thought or consciousness, and as being
synthesized either by our minds or some sort of general Mind.
Kant believed that what happens within this world is governed entirely by scientific laws, but this gives
rise to a problem: If the movements of all material objects in space and time are causally interconnected
and governed by scientific laws, does that mean that human beings in space and time have no freedom
of action? Kant then resolved this by saying that moral concepts and categories exist and are taken by
us to have meaning, such that we must actually believe that we have free will. Human beings are not
physical bodies only but also something else; and the constituent of our being that freely directs some
of the movements of our bodies is not in the empirical world, although our bodies are. We have a sense
of what we ought or ought not to do, what is right or wrong, a sense of duty, choice, obligation and
integrity. Ought implies can. If no human being ever had freedom of action, all moral propositions
would be false. Those acts of will cannot occur in the empirical world, so that part of our being that
chooses and decides has its existence in some way such that it is not part of the empirical world.
Kant believed that there had to be something outside the realm of our possible knowledge, but that
what that something was could never be an object of knowledge for us. We shall never break though
that barrier as long as we are human, which means that there cannot be any such thing as specifically
religious or theological knowledge, or any modes of thought at all that attempt to go beyond the
possibility of experience. This defeats the tenets of both religion and atheism, because if we can never
know that there is not a God, people who regard themselves as knowing there is not a God make
exactly the same mistake as people who regard themselves as knowing that there is. (There is nothing
unscientific about trusting something that may be true and yet is incapable of being known. Kant said
that he ruled out knowledge in order to make room for faith.)
Debunking Kant

Kants analysis:

Objects arise predictably Observation (T)

Therefore I think there is a cause Observation (T)
However, such cause cannot be observed Observation (T)
Nor deduced Deduction (T)
But if cause does not exist, then objects wont Deduction (T)
arise predictably
Therefore cause exists Deduction (T)
Therefore there must be other sources of truth Deduction (T)
It cannot be consciousness because objects are Induction (MT)
external
Therefore it must be the forms of sensibilities Questionable

There must be a cause, but it cannot be itself (because the thing already exists), it cannot be another
object (because there is no necessary connection, and this runs counter to the predictability of the
world), and it cannot arise randomly (because it would make no sense). The cause must therefore be
consciousness (e.g. dreaming), as it is the only viable option that has not been ruled out.

Refutation of Kants epistemology, affirmation of Humes epistemology, and refutation of ontology of both:

The cause can either be mind or not mind Deduction (T)

If not mind, they are self-caused or other-caused Deduction (T)
If self-caused, what for the cause Deduction (T)
If other-caused, then randomness Deduction (T)
But this will contradict specific correlations Deduction (T)
Therefore, they are caused by mind Deduction (T)

arise

no cause (refuted by
cause
specific correlations)

mind not mind

self-caused (refuted
by deduction)

other-caused
(refuted by specific
correlations)
 Kants epistemology: observation, deduction, and sensibilities
Kant and Humes ontology: how things appear to me

Course in General Linguistics (Saussure)

Chapter 1: Nature of the Linguistic Sign
Language is not merely a naming process. The linguistic unit is a double entity, one formed by the
associating of 2 terms. The linguistic sign unites, not a thing and a name, but a concept and a sound-
image (psychological imprint of the sound; the impression it makes on our senses).
The combination of a concept and a sound-image is a sign. This designates the whole. Concept should
be replaced by signified, and sound-image should be replaced by signifier.
Principle 1: The Arbitrary Nature of the Sign Every means of expression used in society is based on
collective behavior or convention. It is this rule and not the intrinsic value of gestures that obliges one to
use them, and language, as the most complex and universal of all systems of expression is no exception.
o The word symbol has been used to designate the linguistic sign (signifier). Saussure opposes the
use of the word for this definition, as it is never wholly arbitrary.
o Arbitrary means that it is unmotivated, in that it actually has no natural connection with the
signified.
o Onomatopoeia and interjections might be arguments against the arbitrariness of language.
However, these are not organic elements of a linguistic system and are much fewer in number.
To a certain extent, they are also chosen somewhat arbitrarily, for they are only approximate and
more or less conventional imitations of certain sounds and are subject to the same evolution that
other words undergo.
Principle 2: The Linear Nature of the Signifier The signifier, being auditory, represents a span, which
is measurable in a single dimension (line).
o Auditory signifiers have at their command only the dimension of time. Their elements are
presented in succession; they form a chain. The syllable and its accent constitute only one
phonational act.

Chapter 2: Immutability and Mutability of the Sign

Immutability The signifier is fixed, not free, with respect to the linguistic community that uses it. The
masses have no voice in the matter, and the signifier chose by language could be replaced by no other.
No individual, even if he willed it, could modify in any way at all the choice that has been made; the
community itself cannot control so much as a single word; it is bound to the existing language.
o Language always appears as a heritage of the preceding period. No society knows or has ever
known a language other than as a product inherited from preceding generations, and one to be
accepted as such. A particular language-state is always the product of historical forces, which
explain why the sign is unchangeable and resists any arbitrary substitution.
o Factors contributing to immutability:
arbitrary nature of the sign language lacks the necessary basis needed as grounds for
discussion)
multiplicity of signs necessary to form any language difficult to replace a system when
linguistic signs are numberless
over-complexity of the system language can only be grasped through reflection and the
ones who use it daily are ignorant of it, such that specialists are necessary to conceive
changes)
 collective inertia toward innovation language is at every moment everybodys concern;
amenable to initiative but checked by both the weight of the collectivity and time;
follows no law other than that of tradition
Mutability Time ensures the more or less rapid change of linguistic signs. The sign is exposed to
alteration because it perpetuates itself. Change always results in a shift in the relationship between the
signified and the signifier.
o Language is radically powerless to defend itself against the forces which from one moment to
the next are shifting the relationship between the signified and the signifier. This is a
consequence of the arbitrary nature of the sign. Language is limited by nothing in the choice of
means, for nothing would prevent the associating of any idea whatsoever with just any
sequence of sounds.
o As it is a product of both the social force and time, no one can change anything in it, and on the
other hand, the arbitrariness of its signs entails the freedom of establishing just any relationship
between phonetic substance and ideas. Each of the two elements united in the sign maintains its
own life to a degree unknown elsewhere, and that language changes, or rather evolves, under
the influence of all the forces which can affect either sounds or meanings.
o From the moment language fulfills its mission and becomes property of everyone, control is lost.
Continuity in time is coupled to change in time.
o The causes of continuity are a priori within the scope of the observer, but the causes of change
in time are not. Time changes all things, including language. The thing which keeps language
from being a simple convention that can be modified at the whim of interested parties is the
action of time combined with the social force.
o Language needs a community of speakers coupled with usage over time. Language is no longer
free, for time will allow the social forces at work on it to carry out their effects. Continuity
cancels freedom, but also necessarily implies change.

Chapter 4: Linguistic Value

Language is organized thought coupled with sound. Ideas and sounds are the 2 elements involved in
its functioning. Language allows us to make a clear-cut, consistent distinction between 2 ideas. The
linguistic fact can be pictured in its totality i.e. language as a series of contiguous subdivisions
marked off on both the indefinite plane of jumbled ideas and the equally vague plane of sounds. It is
the link between thought and sound, the domain of articulations. The combination of thought and
sound produces a form, not a substance.
The social fact (community) alone can create a linguistic system due to the arbitrary nature of the sign.
The community is necessary if values that owe their existence solely to usage and general acceptance
are to be set up; by himself the individual is incapable of fixing a single value.
Linguistic value as seen from a conceptual viewpoint shows the distinction between value and
signification. Language is a system of interdependent terms in which the value of each term results
solely from the simultaneous presence of the others (meaning signs only make sense vis--vis other
signs).
o All values are composed of a dissimilar thing that can be exchanged for the thing of which the
value is to be determined, and of similar things that can be compared with the thing of which
the value is to be determined. A word can be exchanged for an idea (dissimilar) and compared
with another word (similar). Its value is therefore not fixed so long as it can be exchanged for a
given concept, i.e. that it has this or that signification. Being part of a system, it is endowed not
only with signification but also and especially with a value.
 o Within the same language, all words used to express related ideas limit each other reciprocally.
Conversely, some words are enriched through contact with others. The value of any term is
determined by its environment.
o If words stood for pre-existing concepts, they would all have exact equivalents in meaning from
one language to the next, but this is not true. Instead of pre-existing ideas, we find values
emanating from the system. Concepts are purely differential and defined not by their positive
content but negatively by their relations with the other terms of the system.
Linguistic value as seen from a material viewpoint shows that phonic differences make it possible to
distinguish a word from all others, for differences carry signification. Signs function not through
their intrinsic value, but through their relative position.
o It is impossible for a sound alone, a material element, to belong to language. The same is true for
linguistic signifiers, which are constituted not only by its material substance but by the
differences that separate its sound-image from all others.
The sign considered in its totality is something positive. In language there are only differences
without positive terms. Language has neither ideas nor sounds that existed before the linguistic system,
but only conceptual and phonic differences that have issued from the system.
o The statement that everything in language is negative is true only if the signified and the
signifier are considered separately, as when the sign is considered in its totality, it is something
positive in its own class. The combination of the signified and the signifier is a positive fact.
o When we compare signs positive terms with each other, we can no longer speak of
difference. Between them is only opposition.
o A unit is a segment of the spoken chain that corresponds to a certain concept. The characteristics
of the unit blend with the unit itself. Whatever distinguishes one sign from the others
constitutes it. Difference makes character just as it makes value and the unit.
o Language is a form and not a substance.

Class Notes
Saussures source of truth: language
o Consists of signs which are arbitrary; makes thought distinct
o Consciousness: segmenting thoughts is arbitrary and may vary for everyone no absolute
truths
o Because arbitrary, reality is just an opinion postmodernism
Even if it is true that language is the basis of our reality, deduction refutes that language is the cause of
things (because mind).

Science: Conjectures and Refutations (Popper)

Science v. pseudo-science: often differentiated from one another by determining if the field uses an
empirical or pseudo-empirical method, proceeding from observation or experiment
o Popper argues: This is not enough. There are fields that use empirical evidence, but are not
scientific (e.g. astrology).
Popper analyzed 3 theories: Marxs theory of history, Freuds psycho-analysis, and Adlers individual
psychology. He posits that they are so different from physical theories, such as Newtons theory of
gravity and Einsteins theory of relativity.
Poppers thesis statement: These 3 theories posed as sciences, but have more in common with
primitive myths than with science, and are closer to astrology than astronomy.
o This is because the world is full of verifications of the theories, meaning various world events
could be observed and used to confirm the theories correctness simply by adjusting the way
 in which the theories were applied. In reality, however, if it confirms everything, it confirms
nothing. It simply meant cases could be interpreted in light of the theory.
Application: Marxs supporters twisted the theory whenever it was faced with
refutations that a social revolution was coming. The 2 psychoanalytic theories could be
used to analyze any sort of human behavior, and no human example could contradict
them.
o In real theories of real sciences (like Einsteins and Newtons), if observation shows that the
predicted event is definitely absent, the theory is refuted, because it is incompatible with certain
possible results of observation. These theories are falsifiable, in a way that the 3 theories above
are not. Because of such nature, these are risky predictions as they are refutable by observable
evidence, in a way that Marxs, Freuds, and Adlers theories are not.
o Every good scientific theory is a prohibition, meaning it forbids certain things to happen. The
more it forbids, the better it is. If a theory is not refutable by any conceivable event, it is
nonscientific. The genuine test of a theory is to falsify or refute it, genuine meaning it can be
presented as a serious but unsuccessful attempt to falsify the theory. The criterion of scientific
status of a theory is its falsifiability, refutability, or testability (through observable
phenomena).

Class Notes
The test of scientific-ness is falsifiability. A theory can only be falsified or verified through observation.
Falsifiability verifiability: What you cannot observe, you cannot verify. Many of the scientific theories
we accept as true are not verifiable but are falsifiable. Any causal claim is never verifiable but is
falsifiable. (Verifiable means it can be conclusively proven through observation, while falsifiable means it
can be conclusively disproven through observation.)
Examples:
o Aliens exist. verifiable, not falsifiable (verified by seeing an alien; cannot be falsified by never
seeing an alien)
o There is life after death. verifiable, not falsifiable (verified by having consciousness after
death to observe that life still exists; cannot be falsified if there is no consciousness as there is no
apparatus for observation)
o Consciousness is the cause. (Saussure) falsifiable (cannot see consciousness but you know
you are conscious; the status of an object is not the status of consciousness, so consciousness is
not the cause)
o Gravity waves not verifiable, but falsifiable (cannot be seen or observed so not verifiable; can
someday observe something that will disprove Einsteins theory)
o It will be sunny tomorrow. verifiable and falsifiable (can be seen or observed; can be
disproved by rain tomorrow)

Between Linguistic Universalism and Linguistic Relativism: Perspectives on Human Understandings of

Reality (Kone)
Diversity: most striking feature of language
Structuralism (general) practice of studying phenomena (e.g. society, minds, literature, language) as
systems of connected wholes based on the idea that the structures of these things affect the way they
function; based on the premise that the way in which humans understand reality is a consequence or
side effect of the structures studied by such disciplines (e.g. anthropology, philosophy, psychoanalysis)
o Kone argues: This is flawed in the very presupposition on which it is built, namely that a fixed
and universal structure applicable to all cultural systems exists.
 Linguistic structuralism studies structure underlying language in an attempt to understand our
experience of reality; aims to uncover the general or universal conditions which must apply to the
grammar of all human languages
o Kone argues: This existence of an innate and universal mental structure is a false presupposition
as well.
Semiology (Saussure) - based on the premise that the meaning of human actions and objects must be
generated, consciously or unconsciously, by an underlying system of distinctions and conventions
o Applying this to language, the acts of speaking, reading and writing, must be the result of an
underlying structure of rules that define the culturally orthodox way of using language in
other words, rules that define what can be said in a given language and how. Language is
governed by a culturally defined system of rules. Consciousness brings about language and
not the other way around.
o Saussure dubbed the activity of using language parole and the prescriptive structure
langue. Langue is an overarching structure of a system of signs (signifier + signified), which is
arbitrary in nature.
o Kone argues: Saussure is wrong, because if langue is both social and fixed, it presupposes a
uniform speech-community with a common linguistic resource. However, even within
communities, there are different linguistic structures with different social values, as affected by
race and class. History shows that language is actually highly vulnerable to change, and people
are actually highly involved in the process of sign creation, which is often not arbitrary or
random.
Examples: People can change the signifiers used to denote a concept (like fat to
overweight; instances of political correctness). They can coin new words that can be
incorporated into everyday speech (like web, emoji, vape). They can use
onomatopoeias to make a sound appropriate for a concept (like bang, click,
thump).
Semiology argues that our way of using language is determined by a collective, fixed
structure which is arbitrary, but this does not hold up in practice, as language is not
collected, not fixed, and not free from human interference.
Post-structuralism (Barthes) language as a way to analyze cultural artefacts; provides that signs which
construct our language are themselves constructed by a larger sign system, meaning the relation
between signifier and signified is therefore not fixed, and that there is a second-order semiological
system, in which a sign (that is, the combination of any kind of representation and a corresponding
concept) from the first-order system becomes only a signifier in the second (thus producing a
metalanguage)
o A metalanguage is akin to the interpretation of signs so that they can mean many other things
other than what was meant by the maker of the sign. It is determined by culture, experience,
identity, political background, etc., which shows that the language system can never be a fixed
one.
o This second-order signified is a myth, used mostly by the bourgeoisie to make their own
ideological view of the world seem like a natural fact; to naturalize a particular kind of class
culture. This means such myths are created by the powerful in order to spread their own ideas
and propagate their own culture, thinking, and power. However, these myths are all merely
cultural constructs.
o Barthes also argued that the signifier is always floating, slipping from one use to another. The
chain of signifiers is endless, and they do not always lead to the same signified, thus there is no
 language-independent meaning, no absolute truth. There is no objective world outside of the
myth, and there is no perspective from which to begin to understand human conceptuality.
o Kone argues: This is the ideological extreme opposite of linguistic structuralism, and it is also
wrong, as the conclusion is just as unrealistic.
Kones thesis statement: Neither the universalist view of Saussure nor the relativist view of Barthes
provide us with a realistic understanding of human conceptuality; rather, the answer should be sought
in the pluralist theories of Boas, Sapir and Whorf, who argued that characteristics of ones language
can affect other aspects of life and must be taken into account. (Somewhat the midway point between
linguistic universalism and relativism.)
Truth relativism no absolute truths; truth is always relative to a particular frame of reference, such as
language or culture
Linguistic relativism (Boas, Sapir, Whorf) - reality, at least our reality, is linguistic through and
through and that our concepts are a product of our language
o Boas argued that our ideas and conceptions are only true so far as civilization goes, but
acknowledged that speakers of very different language can be very similar in social structure.
Whorf argued that there is a clear distinction between what is possible to think (unlimited) and
what people habitually think (influenced and limited by their language). The world is not a
chaos of relativity, but simply fundamentally plural. Sapir first coined the term linguistic
relativity as a reference to Einsteins theory of relativity. He argued that a difference in
language like in position and velocity implies a difference in point of view or perspective,
and must be taken into account. This difference is a result of the effect language has on an
individuals conceptual learning pattern, meaning our grammar of a language structures our
experience of the world and leads the user to unconscious, typical ways of thinking.
o The real world is largely but unconsciously built up on the language habits of the group. No 2
languages are ever sufficiently similar to be considered as representing the same social reality.
Language differences imply differences among lived words, but it is possible to convey the same
concept in two languages. Language does not ultimately determine thought, but is a part of a social
reality. Language is not the epitome of culture, but an integral part of it that cannot be neglected
when analyzing perceptions of reality within that culture.

Class Notes
For both linguistic determinism (or structuralism) and linguistic post-structuralism, language is reality.
However, for the former, even if the signifier-signified is arbitrary, it is still controlled by structure. For
the latter, there is free play and the signified can be anything we want it to be.
In linguistic pluralism (or relativism), language is a part of social reality. For Kone, the other 2 theories
do not explain human conceptuality. There is a relationship between concept and language wherein
there can be concepts independent of language, hence language is just a part of conceptuality.

Mentalese [from The Language Instinct] (Pinker)

1984 has come and gone, but Orwell also made a darker prediction: In 2050, there would be no Winston
Smiths (protagonist rebelled against the government called Big Brother) and Newspeak would be
the ultimate technology for thought control. It would make all other modes of thought impossible by
giving exact and often very subtle expression to every meaning that a Party member could properly
wish to express, while excluding all other meanings and also the possibility of arriving at them by
indirect methods. This would be done by eliminating undesirable words and by stripping such words
as remained of unorthodox meanings, and so far as possible of all secondary meanings whatever. But
this would be done only [in] so far as thought is dependent on words.
 The idea that thought is the same thing as language is an example of what can be called a conventional
absurdity: a statement that goes against all common sense but that everyone believes because they
dimly recall having heard it somewhere and because it is so pregnant with implications.
Linguistic determinism was developed by Sapir and Whorf. Whorf once said that we dissect nature
along lines laid down by our native languages. There is an implied and unstated agreement in this
dissection, but its terms are absolutely obligatory; we cannot talk at all except by subscribing to the
organization and classification of data which the agreement decrees.
o Pinker argues: Whorf is wrong. The more his arguments are analyzed, the less sense they make.
While the Apache language he studied is very different from the English language, it does not
prove that their way of thinking is utterly unlike our own way of thinking. This applies to all
other languages as well
People can be forgiven for overrating language. Such overrating manifests when languageless people
surface (such as those who cannot speak and hear) and the first priority is to teach them language, not
to study how they manage without it. There are also other languageless beings who can reason about
space, time objects, number, rate, causality, and categories: babies, monkeys, and human adults who
claim their best thinking is done without language.
o Babies 5-month old babies can do simple arithmetic to a certain extent. Babies notice a change
in the quantity of objects and this holds their interest.
o Monkeys Monkeys can somewhat identify mother-and-infant and brother-and-sister
relationships. They were not merely relying on physical resemblance or on the sheer number of
hours spent with those other monkeys, but on something subtler in the history of their
interaction (i.e. experience and recognition of kin).
o Creative people They insist that their most inspired moments were thought not in words but
in mental images. This applied to Samuel Taylor Coolidge (poet), Joan Didion (writer), and
Albert Einstein (scientist). Visual thinking uses not language but a mental graphics system, with
operations that rotate, scan, zoom, pan, displace, and fill in patterns of contours.
Anecdotes: universally done way of choosing colors in a spectrum; Hopi concept of time containing
tense, metaphors for time, units of time, and ways to quantify units of time; Great Eskimo Vocabulary
Hoax (not 200 words for snow; only 2 in reality); Ildefonso (intelligent man who could not speak or hear
but was then taught to sign; Hellen Keller-like)

Critical Legal Theory Today (Balkin)

Relationship between law and justice: Law legitimates power, both just and unjust power. This is the
source of nested opposition between law and justice. Law is never perfectly just in fact, it is often not
very just at all.
Legitimate can mean 2 things: to bring power under the rule of law so that it is (sufficiently) just,
impartial, or otherwise worthy of respect or to apologize for or mystify the exercise of power so that it
seems to be just, impartial and worthy of respect whether or not that is so
o Law legitimates power in both senses of the word. The very acts of making, interpreting, and
applying law produce and proliferate new forms of just and unjust power.
A critical theory of law must be concerned with how law might succeed in furthering justice as it is
with how law disguises injustice. Older models of ideology do not do justice to laws versatile powers
of legitimation. Law does not merely mask or apologize for power; it creates new forms and methods
for exercising it. Law proliferates power by making itself true in the world. Law makes a world, one in
which and through which we live, act, imagine, desire and believe.
 A critical theory views law ambivalently as a method for legitimating the exercise of power in society,
meaning it sees it as having strengths or effects on both sides, having beneficial and harmful aspects. It
views law pejoratively as an ideological practice for mystifying and legitimating injustice.
Relationship between law and politics: This refers to laws relationship to the many different forms of
power economic, social, cultural, political, military and technological that law might constrain,
enable or propagate. Politics refers to peoples contrasting visions and to the values that they want to
realize or recognize in public life, and the power to realize or recognize those values and visions. Law
has its own methods of proliferating its own power, through legal concepts, legal institutions, legal
culture, legal education, legal officers, and the legal profession.
o Law is not simply politics. Law constructs a new kind of power, that of legal knowledge and
institutions, that hopes to become indispensable to every other form. Legal institutions and legal
argument facilitate the exercise of power while tempering and redirecting them. Law
simultaneously channels and facilitates, restrains and multiplies the different forms of power in
society while proliferating its own forms of power, its own professional culture and its own
authority. This complicated relationship between law and power is laws relative autonomy.
o Critical legal scholars saw little value in laws relative autonomy, arguing that if law were only
relatively autonomous in this way, law would usually tend to reflect the most powerful interests
in society at the expense of weaker interests. This can be done by shaping the content, force, and
application of law, which could only be done by the most powerful.
o However, this is only half the story. Laws plasticity and indeterminancy might help disguise
and mystify injustices, but they might also promote adaptability and facilitate progress. Law
also serves as a discourse of ideas and ideals that can limit, channel and transform the interests
of the powerful, sometimes in unexpected ways that the powerful can not fully control. This
means law and legal culture can also become political resources for limiting and channeling
what powerful people and institutions can do.
o Recourse to law forces the powerful to talk in terms in which the powerless can also participate
and can also make claims. By choosing to speak in the language of law, powerful people and
interests can sometimes be called to account because they try to legitimate what they are doing
in those terms. Feminists and critical race theory scholars pointed out that rights discourse and
rule of law values were among the few resources that disempowered people had.6 Rule of law
and rights talk were potentially emancipatory discourses. They were potentially emancipatory
discourses that allowed people to speak out against and to restrain the worst excesses of power.
o A critical approach must always be self-critical it must recognize that how we make and apply
legal theory arises out of the circumstances in which we recognize problems and articulate
solutions. If a critical theory of law looks different today than it appeared thirty years ago, that
is because the world itself looks different.
Example: During the Watergate scandal of the Nixon administration and the Civil Rights
Revolution, the law could not have succeeded without political mobilization and
political will behind it. But law was a key institutional medium and the language of
rights a key discourse through which progress was achieved.
o The problem today is not that liberal theories of law mask deep injustices, but that the rule of
law itself has been cavalierly discarded in the quest for political power.
Example: Bush v. Gore invented a novel legal theory that did not justify its remedy of
stopping all recounts and which will probably not apply to any future decisions. The
Bush administration then used the war on terror as an excuse to commit multiple human
rights violations, which he excused by manipulating the law and its application.
 However, even while professional discourses and institutions of law assisted these
actions, they also provided methods for restraining the Administrations worst excesses.
o The focus of a critical approach to lawand its ambivalent conception will inevitably shift as
we introduce it into new contexts of judgment. Legal culture and institutions are valuable to
critical theories of law because they are a way of doing politics, in the sense of shaping,
restraining, and challenging power. The rule of law, like liberty or equality, is a political value. It
is a value one struggles for and struggles with.

Class Notes
Nested opposition
o logical opposites e.g. black and not black
o conceptual opposites e.g. black and white
For conceptual opposites, an interdependence exists.
o Steps to change the signified of a signifier:
Identify the conceptual opposites.
Identify the express and implied assertions.
Deconstruct, then show why they are actually nested oppositions. (One must incorporate
the oppositions in the deconstruction to show interdependence.)
o Example:
Men do not cry (signifier).
Conceptual opposites: Men do not cry. Women cry.
Express and implied assertions. Crying is a sign of weakness. Women cry because they
are weak and emotionally unstable. Men do not cry because they are not weak and are
emotionally stable.
Deconstruct: Men do not cry because they do not want to be unattractive to women.
(shows interdependence; changes power dynamic)
Balkin argued that law and justice are nested oppositions, because law has a legitimized function (i.e.
he deconstructed the idea that they are conceptual opposites and showed they are actually nested
oppositions by changing the relationship and power dynamic between the two concepts).
Pejorative concept of law: Law is a discourse of rights and is a part of reality. The Marxist view of law is
that people in power control the law to perpetuate their power.
o Balkin argues: This pejorative conception is wrong, because law and power are not nested
oppositions. People in power may use the law to equalize themselves with those in power. The
use of signifiers tacks them to that assertion, meaning the poor and oppressed must change the
signified to not be trapped by the discourse (i.e. they must deconstruct the law and legal terms
to be able to emancipate themselves from the oppressive conception of law that the powerful
have created).
o An example of this is Obergefell v. Hodges. The justices of the main opinion used the concepts of
due process and equal protection (as signifiers) to equalize gays with straights, but changed the
signified of the terms in order to alter the power dynamics in society. This means that they used
age-old concepts and re-interpreted or deconstructed them in order to forward an advocacy.
Relative autonomy of law: Law perpetuates those in power, but only to a certain degree, because it can
also be used against them to equalize the power relations in society (relatively pejorative).