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Making Men Moral: Civil Liberties and Public Morality . By Robert P. George. New York: Oxford University Press, 1993. 241p. $42.00.

Like rhetoric, dialectic does not possess the apodeictic certainty of logic. Nevertheless, like logic but unlike rhetoric, dialectic seeks both finality and legitimacy in its judgments. In order to secure finality and legitimacy, dialectical tribunals develop doctrines that distribute to one side the presumption (e.g., of truth); to the other side they allocate the burden of proof. The side with which the presumption rests enters the argument greatly advantaged, for it can rely on the argumentfrom-ignorance. Their opponents, on the other hand, bear the burden of proof and so must present a positive argument. In the American legal system, the burden of proof rests invariably with prosecutions in criminal cases, while defendants enjoy the presumption of innocence. Civil courts distribute the burden of proof to plaintiffs and the presumption of nonliability to defendants. But in constitutional law, Gaskins argues, the Supreme Court exercises considerable latitude in distributing presumptions and burdens. Reviewing primarily cases involving due process and affirmative action, Gaskins identifies such assignments as the principal instrument with which recent Supreme Courts condition the outcomes of subsequent case law and thereby effectively establish public policy. Burden-shifting strategies appear likewise in academic and other professional discourses. Gaskins shows burden shifting to be the primary discursive strategy of the Critical Legal Studies movement in particular and among deconstructionists more generally. The movement's representatives offer few reasoned justification for their heterodox views. Indeed, most of them deeply suspect that claims to reasoned justification are rhetorical camouflage for ideological preferences. In exposing these preferences, deconstructive critics shift burdens of proof onto prevailing orthodoxies that would otherwise claim presumptive truth for their positions. Whether critical legal scholars acquired this technique from their law school mentors (as Gaskins asserts) or the practice reflects a rhetorical tradition more deeply embedded in Western scholarship (as he argues later), Gaskins rightly locates the argument-from-ignorance at the heart of the deconstructive enterprise. Examining the relationship between public regulatory policy and science, Gaskins questions whether the latter requires quasi-judicial tribunals to adjudicate scientific issues that impinge on public policy decisions. In the postpositivist period, of course, science will not issue final judgments. At least, scientific judgments cloaked in the claim to finality would, for most scientists, lack legitimacy. In the post-Popperian era, moreover, science now finds itself incapable even of pointing to a body of thus far irrefuted hypotheses. Where scientists divide on scientific issues with policy relevance (e.g., regarding ecological matters), advocates on either side of a policy debate can muster scientific support in order to defer to their opponents the burden of proof. Gaskins observes that by failing to institutionalize scientific tribunals, advocates of judicialized science lost an opportunity to impose finality upon factual disputes involving scientific questions. Yet he does not consider the obvious dangers thereby avoided. Scientific authority might be salvaged (for scientists, if not for policymakers) by relocating scientific truth to a postulated transcendental plane beyond the reach of practical human activity. Ethical authority, after all, has risen by descending from just such a plane. But the liberal theorists whom Gaskins reviews postulate their own, idiosyncratic transcendental tribunal for ethical judgment. On the earthly plane of practical judgment (as in the decisions of bioethics panels), this diversity creates immense scope for strategically allocating presumptions and burdens. Gaskins finds in Kant's Critique of Pure Reason the foundational source for burden shifting. In his famous antinomies, Kant deploys parallel arguments-from-ignorance to establish the strict separation of scientific and ethical discourse—of facts and values. Only now, two centuries later, have we begun to breach this attractive, yet fundamentally mistaken, conceptual divide. Hegel first recognized the error in his later work, and Gaskins devotes his final chapter to an exigesis of the framework for recovering reason embedded in Hegel's Science of Logic—a framework, Gaskins reveals, that guides his exposition from the beginning. While Gaskins's account of Hegel's dialectical logic is difficult, most readers will find it far more accessible than the original. In the end, Gaskins' readers will want more. They will wish, for instance, that he had returned, armed with his dialectical method, to the practical controversies discussed earlier in the book. How, specifically, would the dialectical approach resolve or otherwise affect the controversies that rage currently in the law schools? How would it affect constitutional interpretations or ethical judgments regarding medical practices? Some readers will also wish Gaskins had considered a wider range of controversies. How would a dialectical understanding of scientific controversies affect the ad hoc tribunals that review manuscripts for publication, particularly in the theoretically pluralistic social sciences? Moreover, some might wish Gaskins had attended to argumentative discourses—like negotiations—that occur in the absence of arbitrating tribunals. Do presumptions and burdens shift with greater rapidity where no institutional mechanisms exist for enforcing them? Would a dialectical understanding of rational controversy among the parties help to produce outcomes that each would find just? This wish list reflects more the provocative nature of Gaskins's contribution than any real deficiency. The exposition is elegantly crafted and difficult to put down. Its concerns address many of the specialities of our discipline. Students of constitutional law will find illuminating Gaskins's accounts of the judicial discourse surrounding affirmative action and due process. Political theorists will find utility in his comparisons of contemporary liberal theories. Students of bioethics and of public policy, particularly environmental policy, will find helpful his accounts of discursive strategies in their fields. Finally, the work will also prove useful to those political methodologists who recognize their responsibility to attend to the discursive conditions under which truth claims are argued and warranted.