First Paper

-- By RohanGrey - 20 Feb 2012

Law is Action

Of the various legal perspectives encountered throughout 1L year, the most persuasive (in my opinion) treated the law as a mode of action. Some adopted a territorial approach, exploring a series of related actions in a single legal dimension. Others adopted a more holistic approach, focusing on how individual actions affected the entire legal ecosystem in ways akin to ripples in a pond or a pebble altering the course of an entire river. All, however, firmly placed the study of "The Law" in the active territory between social structure and individual behavior.

Nonsense Matters

If the law is social action, and lawyers applied theorists thereof, why is so much attention placed on the communicative medium - law speak - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous from a functional point of view? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution.

But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomenon. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.”

Whereof One Cannot Speak...

While the legal system must have some way to overcome the political and expressive limitations of purely functional language, it is likely that transcendental language does more harm than good. As with economists and mathematical economic models, Legal professionals' familiarity with transcendental language enables them to obscure underlying issues and accumulate political power for themselves. By framing legal issues as purely positive questions of language, the legal profession is also able to offload responsibility for addressing social problems onto other actors and social structures. This can be clearly seen in recent debates regarding the debt ceiling and the healthcare law, as well as Chief Justice Roberts' infamous “judges are like umpires” address. It also leads to the legal prioritization of tangible and easily measurable outcomes over more abstract phenomena, as current debates over renewable energy legislation demonstrate.

One response is to promote greater porosity in legal language. By opening our treatment of legal ideas to insights from other social sciences, it is possible to ascribe predictable meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging the dynamic and political nature of the underlying sources of that meaning. Unless this practice is extended to all bodies of knowledge including literature and the arts, however, it is unlikely that such an effort will produce a legal language capable of expressing the totality of human emotion and experience. Moreover, such an approach still fails to address the basic realist critique that human decision-making, including that of legal actors, is driven by subconscious motivations as well as conscious decision-making and as such can never be fully predicted by written code.

A Nation of Men

Is it possible to acknowledge the cracks in the law's objective linguistic veneer without abandoning any distinction between the Rule of Law and raw politics? I believe so, but it requires placing human judgment at the basis of legal-decision making rather than the rules that guide that judgment. “The Law” is, and should be explicitly acknowledged as, a living, breathing institution, albeit it one shaped and guided by interpreted rules. Every individual possesses some degree of lawmaking discretion, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrevocable powers of protest and civil disobedience. The most basic legal question is thus not how to generate the perfect "law", but rather how to use law to allocate decision-making power justly between relevant actors for any particular issue. If we devoted more energy to improving the quality and distribution of discretionary decision-making power and less to devising rules that purport to eliminate discretion from the decision-making process entirely, perhaps we would begin to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the limited tools inherited from preceding generations.