Summary and Review of my recently published book — The Dialectical Path of Law
Practically speaking there are many tools that we can use as lawyers. Many of them are not thought paradigms but incredibly useful. Others are thought paradigm such as using mnemonics to memorize elements in law school or while studying for the bar. Likewise litigators can use rhetorical devices to help persuade an audience for elicit a response they are looking for in a deposition.
This book suggests a less used paradigm in law could be used — the philosophy of Hegelian dialectics. The concept of a dialectic lies between a thought paradigm and a rhetorical device but at the same time is neither in that it is a way to find out what already exists — sort of like the research engines many lawyers use. But, instead of an enigmatic or nebulous rhetorical rule, Hegel’s dialectics set out a rigid method. This book aims to define and apply Hegel’s method to several areas of law while suggesting this method could apply in other areas of law as well.
An example of dialectics in action in the law appears uniquely in bankruptcy law. The following is an elementary summary and understanding of bankruptcy law. But it illustrates the concept of dialectic in action. Both substantively and practically, courts struggle between creditors rights and debtors rights. Frequently academics suggest a middle ground. Using dialectics would suggest a different approach that may sound in kind as a middle ground but does not reach the same result.
The rights of the creditors and the debtor become denied, yet at the same time yet respected and accepted at the same time. This denial and acceptance occur when the debtor loses his property to the court to pay off the debtors. This is a form of denial of the debtor’s rights. But at the same time the creditors do not get paid everything they are owed. This occurs as a denial to the creditor. Indeed frequently, only pro rata is based on how much the debtor’s property was worth. Likewise, future debts of the debtor (usually) are all extinguished. This represents acceptance and respect for the debtor. What is interesting is that there is an acceptance and respect of the debtor’s rights at the same time while the creditors’ rights are respected and denied. This all occurs simultaneously. This example of both rights being respected and rejected shows a use of dialectic.
Perhaps this bankruptcy example appears readily available to a bankruptcy practitioner, but taking a step back to examine every aspect of bankruptcy law with this paradigm could produce insightful results.
The Dialectical Path of Law does not discuss bankruptcy law. The book lays out dialectical thinking in the context of international tax law and corporate law. This is done by taking different aspects of those respective fields of law that seem entirely contradictory and then showing how they are similar — but at the same time without disregarding their key theoretical properties. Specifically, the book examined the dialectics inherent in the OECD’s international tax and transfer pricing policy and risk valuation rules compared to the U.S. tax policies.
Often, law school education focuses on teaching how to create a framework of analyzing law. That is to say, the purpose of teaching often zeros on how to analyze the facts of a case to see if it fits into an XYZ paradigm of tort elements. However, frequently even statutory and regulatory interpretation classes do not ask us to think about the trajectory of law. Dialectical thinking is philosophical but it can help a lawyer in practice — maybe outside practice too.
Charles Lincoln is currently a Ph.D. candidate studying and researching international tax law at the University of Groningen (Dutch: Rijksuniversiteit Groningen) in The Netherlands. Specifically, Lincoln’s research focuses on a comparison of the United States Commerce Clause’s (U.S. Constitution, Article I, Section 8, Clause 3) case law on the “dormant commerce clause” in relation to tax law with European case law dealing with analogous issues. Lincoln received LL.M in tax law from Boston University in 2018 and an Advanced LL.M. from the University of Amsterdam (Dutch: Universiteit van Amsterdam) in international tax law in 2017. Lincoln may be reached at charlesedwardandrewlincolniv (a) post.harvard.edu.
The Dialectical Path of Law is available on Amazon, Barnes & Noble, and with the publisher — Rowan & Littlefield.
© Charles Edward Andrew Lincoln IV
