Response or Comment
Several different, if related, questions are swirling about in this fascinating and wide‐ranging symposium. One question asks whether “law” is “autonomous.” A second inquires into the “determinacy” of “legal doctrine.” Yet a third concerns whether there are ever legally correct answers to legal questions. I take this third question to be equivalent to asking whether legal propositions are truth‐apt and, if so, whether any are true.
If I read him correctly, this third question is the focus of Professor Leo Katz's characteristically inventive and thought‐provoking contribution, Nine Takes on Indeterminacy, with Special Emphasis on the Criminal Law. What Professor Katz calls “the skeptical thesis” is the contention that no legal propositions are true. It is the contention, in other words, that statements of the form “the law prohibits φing” and “it is legally permissible to ψ” are never true. Professor Katz does not affirm the skeptical thesis. Rather, by drawing on a well‐known article on the criminal law authored nearly thirty‐five years ago by Mark Kelman, and offering nine “perspectives” of his own, Professor Katz aims to show that there are good grounds both to affirm and to deny global legal skepticism.
I believe that global legal skepticism is false, which is to say that some statements of the form “the law prohibits φing” are true. I cannot offer, in this very limited space, affirmative arguments against global legal skepticism. Instead, I explain why none of Professor Katz's nine perspectives provides the support for global legal skepticism—what I will henceforth often call “skepticism,” for short—that he claims.
Berman, Mitchell N., "Some Skepticism About Skepticism: A Comment on Katz" (2015). Faculty Scholarship at Penn Law. 1583.