First Paper

-- By RohanGrey - 20 Feb 2012

Law is Action

Of the various legal perspectives encountered throughout my 1L year, the most persuasive treated the law as a mode of action rather than a theoretical activity. Some approached the law quantitatively, adding together every statutory declaration, contractual formation and judicial decision to provide a static snapshot of some aspect of the legal system. Others adopted a more dynamic and qualitative view, 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 law in the active territory between social structure and individual behavior.

Nonsense Matters

If law is social action, and lawyers applied theorists thereof, what role does legal language play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to uncontroversial and functional words, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for the evolving and otherwise indefinable values of those who use them. Their use creates limited semantic ambiguity in the otherwise tight working vocabulary of the law to facilitate evolving political understandings and changes in complex social structures and forces.

Transcendental language, however, also brings its own problems. Politically significant and highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape. This is the case today with the word “efficiency,” for example, which depending on the individual may refer to the pursuit of progressive taxation, absolute exclusionary property rights, or an absence of legal intervention in exchange processes whatsoever. Such tensions are typically resolved when a particular interpretation (or family of interpretations) achieves 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...

Thus, while there is a clear need for the legal system to address the expressive limitations of functional language, there is good reason to believe that recourse to transcendental language does more harm than good. Similar to how sophisticated computer models facilitate neoliberal economists' ongoing obsession with reductive theories, transcendental language enables the legal community to ignore underlying political ideologies and approach complex legal issues as purely positivistic or scientific questions. This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto other actors. 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 legitimate meaning to transcendental terms such as “efficiency” and “intent” while simultaneously acknowledging their dynamic and political nature. 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 expressed in written code.

A Nation of Laws Through Men

Is it possible to acknowledge the cracks in the law's 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 established rules. Every individual possesses some degree of lawmaking power, 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 distill the law down to a perfect logical formula, but rather how to optimally divide legal power between relevant actors for any particular issue. If we paid greater attention to the quality of human decision-making and less to devising rules that purport to eliminate humans from the legal decision-making process entirely, then we would be free to tackle problems like poverty, sickness, unemployment and violence with the full force of human imagination and potential rather than just the formal tools inherited from preceding generations.