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 practice of law as a mode of action rather than a theoretical exercise. Some measured 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 approach, focusing on how individual actions – such as Judge Weinfeld's requirement that partners remain on call for the entire day that their case is scheduled – 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 itself play? Are all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and therefore worthy of abandonment? Perhaps not. In contrast to words with near-universally accepted definitions, transcendental words such as “justice,” “reasonable” and “property” serve as proxies for otherwise inarticulable ideas. They are linguistic “black holes,” absorbing and releasing particles of meaning in a state of perpetual flux. This flux creates a limited semantic space in the otherwise tight working vocabulary of the law that facilitates discussion of subjective values and complex structures and forces.

While not completely valueless, transcendental language also brings its own problems. Important or 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 context can be used to refer to taxation, the absolute protection of exclusionary property rights, or an absence of legal intervention whatsoever. Such tensions are typically only resolved when a particular definition (or family of definitions) defeats its competitors and achieves widespread acceptance, or the term is replaced entirely in a Kuhnian-style paradigm-shift and the process of defining the indefinable begun again from scratch. The latter outcome explains how one generation's struggle over “economic rights” may become the next generation's struggle between “a fair go,” and “personal liberty.”

Whereof One Cannot Speak...

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 transcendental language does more harm than good. Similar to how sophisticated computer programs facilitate neoliberal economists' ongoing obsession with reductive mathematical modeling, transcendental language enables complex legal issues to be approached as purely positivistic or scientific questions. So long as the real variables are correctly inputed, the story goes, the answer will be discoverable in the language of the law itself.

This mischaracterization enables legal actors to downplay the flexibility available to them and the legal system itself while offloading responsibility for social problems onto non-legal 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 easily measurable phenomena at the expense of less directly observable but potentially more important forces, as current debates over renewable energy legislation demonstrate.

One response to the latter problem 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 ground the meaning of transcendental terms such as “efficiency” and “intent” in non-legal authority while simultaneously acknowledging such terms lack intrinsic or functional 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 expressed in written code.

A Nation of Men, Not Laws

But if we abandon faith in the sanctuary of language, what remains upon which to structure our legal system? In short, people. “The Law” is, and should be explicitly acknowledged as, a living, breathing, human institution. Every individual possesses some degree of legal power depending on their position in society, from judges, attorneys, bureaucrats and lawmakers to citizens and even non-citizens, who retain irrecovable powers of protest and civil disobedience. The most basic legal question is thus not how to create a just law, but rather how to structure the overall distribution of discretionary lawmaking power between various actors in society.

If lawmakers pay greater attention to the structures of social power and the character of the individuals operating within it, I think we will find that many social problems begin to solve themselves. Such an approach is also likely to foster greater wisdom and empathy by prioritizing observation and interaction with communities and their participants alongside theorization and application of the law itself. Perhaps most importantly, a social paradigm that acknowledges we are fundamentally a nation of men (and women) and not laws we will ensure that problems like poverty, sickness, unemployment and violence are attacked with the full force of human imagination and potential rather than just the tools inherited from preceding generations.