I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law -- should be fun.My question for the opening post in this series is "what is 'Law'?"
Here's the questions for this post: Which approach - formalism or realism - better accounts for "law" and for the role of "law" in society? As Christians living in a post-industrial, scientific, and/or postmodern age, are there approaches to "law" we can adopt without falling into either an extreme formalism or an extreme legal realism?
Many people respond to this question with what legal scholars would call a "formalist" definition: law is a set of rules or principles that govern behavior. This sort of definition raises important questions about the sources of "law" and the functions of a legal system.
In the Western tradition, "law" historically was rooted in metaphysics - for the Greeks, in the realm of pure thought (Plato's "forms"); for the Romans, in the divine authority of the Emperor; and for Christendom, in God, particularly as God's will was mediated through the Church, reason, and the King. During the Enlightenment, "law" was still mostly conceived of in formalist terms, but the primary source of law became reason, or "Natural Law." This is why the Declaration of Independence grounds universal human rights in the "Laws of Nature and of Nature's God."
By the late Nineteenth Century, however, many legal scholars and jurists had come to recognize that the supposedly universal foundations for formalistic law were neither universal nor secure. Broadly speaking, this skepticism was in accord with post-Enlightenment intellectual history. These scholars and jurists began to develop what we now call a "realist" definition of "law."
A famous text in the development of "legal realism" is Oliver Wendell Holmes' essay "The Path of the Law." In that essay, Holmes views the law from the perspective of a "bad man" - a person whose conduct might run afoul of the law. According to Holmes, the "bad man" cares nothing about whether "law" is grounded in reason, God, or Natural Law. The "bad man's" only concern is whether, and to what extent, a particular judge or jury will punish him for his actions. As Holmes eloquently put it, "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."
In short, viewed from the "bad man's" perspective, "law" is merely a social construct used to produce whatever social outcome the judge or jury deems desirable. References to reason, God, or Natural Law in relation to "law" are superfluous at best.
The "realist" approach has had a profound effect on Western jurisprudence. The dominant perspectives reflected in American legal education, including "law and economics" and "critical legal studies," have roots in legal realism. Few law professors today would identify themselves as formalists (though in some circles there is a move towards a "new formalism"). In most law school classrooms, including my own, judicial precedents are analyzed to examine the policy motivations behind the rules adopted by the court, not primarily to extract from them universal principles of law.
Which approach - formalism or realism - better accounts for "law" and for the role of "law" in society? As Christians living in a post-industrial, scientific, and/or postmodern age, are there approaches to "law" we can adopt without falling into either an extreme formalism or an extreme legal realism?
Further reading:
Larry Solum's "Legal Theory Blog" includes an excellent entry on formalism vs. instrumentalism (realism).
Oliver Wendell Holmes' essay "The Path of the Law" is available online and as a part of a useful collection titled "The Canon of American Legal Thought."
Harold J. Berman's two-volume Law and Revolution: The Formation of the Western Legal Tradition
and Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition
is a magisterial treatment of how Christianity shaped early
Western notions of law.
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This looks like it will be an interesting series.
We've clearly come a long way since the time our judges believed that it was their job to apply some natural common law that was pre-existing, and which they were merely to attempt to discover. That sort of idea sounds very foreign to us now, and it was obviously very naive.
Some judges today still have the idea that all they need to do is, in an unbiased way, apply the statutes and common law that have been handed to them. When a federal judge decribed his role to me that way, I suggested that it is impossible to separate yourself from your biases, since we are all the product of our experiences. When those experiences are diverse, you will inevitably have different approaches. And there is often not one "right" answer. The best we can do is recognize our biases and try not to let them affect our decisions in a "negative way" (whatever that means!)
So a retreat from natural law, and move toward realism, has been a good thing, IMO. I'm all in favor of combining this with the understanding that God is the source of all authority, and that there are some laws that are more just than others. But many Christians (particularly conservatives) tend to take that idea way too far when they approach law.
I've been a civil litigator for about 17 years, now, and I'm a regular Jesus Creed reader. I'm going to be following this series with great interest.
A few initial observations:
1. Like every other lawyer that I know, I am trained to think within a system that is ordinarily characterized as "realism," which is chiefly exemplified by the "law and economics" perspective. In fact, I can't imagine a modern legal "world" that functions any other way.
2. But I'm not quite so sure that the "law and economics" foundation is rooted in realism. What this perspective is ultimately doing is trying to grease the wheels of the Western economic system. The law of contracts ensures that people can rely on the bargains they make with others, encouraging commerce, and the law of torts ensures that we can all feel safe to engage in commerce - both production and consumption - with an expectation that others will compensate us if their wrongful (usually, unreasonable) actions injure us. In that sense, I believe that there is an ultimate ideological "god" that is being served in that system, and that it may - in fact - be yet another formalistic system in disguise.
3. To answer Scott's (?) question in the last paragraph, I think there is a certain paradox that is at play in the "Christian" perspective of law. On the one hand, we are very suspicious of law because of its capacity to perpetuate systems of greed and other "social constructs" that are ultimately associated with the powers. Jesus' refusal to become a "judge" in a civil dispute in Luke 12, and his subsequent parable are a great case in point.
4. On the other hand, it is quite difficult to read - say - Romans 13, and not conclude that the law plays an important role in maintaining social order in a fallen world.
5. ...which raises an interesting point. Is Romans 13 espousing a formal or realistic perspective of law? Without trying to exegete the text in this already overly long comment, I think I could make a pretty good argument that, as usual, Paul is articulating a third perspective that is neither, both, and much, much more.
Looking forward to reading more in this series.
Like others, I am also interested in the interplay between pragmatic, consequentialist, formalist, realist, utilitarian notions and so on. I have seen similar patterns and tensions in play in epistemology, ethics and even aesthetics. The manner in which I have come to understand such interplay has been largely influenced by the American pragmatist tradition, primarily Charles Sanders Peirce and William James, who were in the Harvard Metaphysical Club with Oliver Wendell Holmes, Jr.
Prompted by this post, I wrote a short essay laying out how these different approaches might be profitably related. Those who are interested can look at it here:
The Fugue: truth, beauty, goodness & unity
Basically, it explores pragmatism as a "test" and not a "theory" of truth.We can also distinguish between realism as associated with both metaphysical and moral realisms, which is somewhat related to correspondence theory and foundational epistemology, and that realism which has a more pragmatic connotation, which means to be realistic, or to have appropriate expectations, such as when we talk about political realism. I am gathering that legal realism belongs to the pragmatic brand?
I have not studied Holmes, in particular, or the law, in general, but have only delved a little into such questions as how much moral reality and legal reality should overlap. My approach to that has been informed by John Courtney Murray and I thus buy into the notion that good jurisprudence is ordered mainly toward the maintenance of the public order (contra an extreme social conservatism, for example). I hope at some point we can cover such matters.
I am glad Professor Opderbeck is able to lead such a discussion and am anxious to revise and reform my notions of how all of these epistemic, aesthetic, moral, legal and political realities interact. Professor, I value your contributions on other threads and your clarity, goodwill and good sense.
John (#19) -- thanks!
Maybe I'll sketch this out in a little more detail in a future post, but here is one thing I've been thinking about. I'm drawn to virtue ethics. Within virtue ethics, one of the cardinal virtues is phronesis, or "practical reason." Practical reason, I think, subsumes consequentialist thinking. It is right, good and necessary to consider the consequences of any action, and so social welfare analysis, law-and-economics, etc. are valuable tools. But these tools fit within a broader teleological ethic. Calculating social welfare is only the beginning, not the end, of any ethical analysis.
dopderbeck (#20) I resonate with the implications of the distinctions you are drawing, such as between beginning and end, and the concepts you employ, such as subsumes and necessary (but not sufficient).
My calculus similarly distinguishes between means and ends such that, for example, the normative "moment" is a means and the evaluative "moment" posits the end. We also need a descriptive moment, which describes and identifies the moral reality in question.
If in our descriptive moment, we are describing what the reality involves, then our evaluative moment will evaluate its significance - asking what this reality means to me, or better yet, to us? We then travel from the is to the ought in our normative moment, as norms suggest the best ways to either acquire or avoid the reality, mindful of the classical distinctions between higher and lesser goods, real and apparent goods, a discernment that inheres in an aretaic or virtue ethical stance. Think What? Why? How?
That we "should" want what is "really" good for us, provides the self-evident prescriptive premise that can be coupled to a sound descriptive premise such that we can then reason our way to a sound prescriptive conclusion, moving from facts to values, from our ontological "is" to our deontological "ought."
So, I'm inclined to suggest that our moral-practical reasoning includes an aretaic moment (descriptive), a deontological moment (normative) and a teleological moment (evaluative), each with autonomous methods (asking different questions), each necessary but none sufficient, hence, all axiologically-integral. There is also an interpretive moment, where our religious or ideological stances come into play, including our metaphysical conceptions. In a pluralistic society, we needn't bracket our religious beliefs or metaphysics, however, we do need to translate them into a lingua franca or common idiom in order for them to have any normative impetus for others.
My calculus then, is that the normative mediates between the descriptive and the interpretive to effect the evaluative. And I see this pattern playing out in epistemology, aesthetics, ethics and other human value-realizations. (Peirce had said that the normative sciences mediate between phenomenology and metaphysics. Robert Cummings Neville provides the axiological slant. I combined their approaches into my calculus with my neologisms.) One could just as easily say that the deontological mediates between the cosmological and the ontological to effect the axiological.
Or, that the semiotic mediates between the theoretic and the heuristic to effect the dogmatic, where the semiotic entails concepts that are non-negotiable if meaning itself is to remain possible (think philosophy), where the theoretic involves concepts already negotiated by a pluralistic community of value-inquiry (think science), where the heuristic represents concepts still-in-negotiation (think metaphysics) and the dogmatic represents concepts yet to be negotiated between different communities of value-inquiry (think whatever you want [wink]). (At least this is the executive summary of my joint project with theologian Amos Yong.)
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