Understanding Legal Understanding-- Part II
Copyright 1993-1999 Jack M. Balkin. All Rights Reserved.
III. Legal Coherence from the Standpoint of the Socially Constructed Subject: Coherence as Rational Reconstructibility
Now we must consider the problem from a different angle. Instead of asking what properties the legal object must have in order to be coherent, we must consider what has to be true of a legal subject in order for the law to be coherent to her. What do legal subjects do when they form judgments of legal coherence and incoherence? What do they bring to the task of legal understanding? What characteristics of subjectivity produce their judgments of legal coherence? Of what features of their thought are judgments of legal coherence the result?
Judgments of legal coherence arise when we understand the law in a particular way. I call this special type of legal understanding rational reconstruction. As explained more fully below, rational reconstruction is the attempt to see reason in legal materials--to view legal materials as a plausible and sensible scheme of human regulation. The experience of legal coherence is the result of our attempt to understand law through the process of rational reconstruction.
Some authors use the term "rational reconstruction" as a test of legal coherence; the law is coherent if it is amenable to rational reconstruction.(29) I do not use the term in this way because this conceals the subject's contribution to legal judgment. Rational reconstruction is not simply a test for properties of or relations between legal norms. It is a way of looking at law.(30) To say that law is amenable to rational reconstruction is to make a claim about both an object and a subject who constructs the object in a particular way so that she may understand it. The law is rationally reconstructible when a legal subject views the law for a certain purpose with a certain result. Implicit in this view is the possibility that she might view the law for a different purpose, or under different circumstances, with a correspondingly different result.
The question of legal coherence is ultimately the question of the conditions of rational reconstructibility. This is a study not only of features of the law, but of how subjects construct the law they understand. Thus, to understand legal coherence we need to ask the following questions:
(1) What is involved in the specific form of understanding called rational reconstruction?
(2) How does this form of understanding differ from other forms of legal understanding?
(3) What features of our experience affect the process of rational reconstruction and hence our judgments about legal coherence?
(4) What effect does the process of rational reconstruction have upon us?
The remainder of the Article will be concerned with these questions.
Consider the common-law doctrines of owner-occupier liability. These doctrines distinguish among the duties that an owner-occupier owes to trespassers, social-guest licensees, and business invitees. We can have many different interpretive attitudes towards these doctrinal distinctions. For example, we can criticize their justice or view them as historical artifacts. We rationally reconstruct these doctrines when we try to understand their point so that we can apply them. We try to imagine the policies and principles that might explain these doctrines and how a reasonable and morally sensitive individual might believe that the doctrines employ sound distinctions. Thus, rational reconstruction is not merely a criterion or test; it is also a purpose for interpreting and an attitude expressed towards the object of interpretation. The attempt to see the point of doctrines, the attempt to envision ourselves as sympathetic advocates for these doctrines so that we can apply them, is the hallmark of the interpretive attitude I call rational reconstruction.
We might rationally reconstruct these doctrines as follows: When people use their land for business purposes, or for the hope of some economic benefit, they should be held to an ordinary standard of due care. However, when they allow others to come onto their property without expectation of economic benefit, or when they invite people onto property that is not generally held open to the public (for example, when they are merely having their friends over for dinner), they should have less stringent obligations. Finally, when a person invades their land without their permission, they should have the lowest duty of all.
We might believe that these distinctions are unjust and that the law should not make them. Yet the goal of rational reconstruction is not to offer our own account of how doctrine should be constructed. It is to bring a charitable attitude towards the legal object and to envision how it could be a reasonable accommodation of principles and policies that are themselves reasonable. It is to see how the application of these doctrines to concrete situations makes sense.(32) If we find ourselves able to provide such an account, we can say that the law is rationally reconstructible even though it does not fully comport with our ideas of justice.(33) When we can successfully take this attitude towards the law of owner-occupier liability, we will say that this body of doctrine is coherent.
I do not mean to make too much of the simple account of owner-occupier liability just proposed. I do not mean to suggest that this is the only account or even the best account that could be given of these doctrines, much less that everyone would agree that I have provided a substantively reasonable account. Indeed, my argument about the nature of legal coherence assumes that some people will disagree and assert that I have not offered a successful rational reconstruction. I am merely suggesting that when we understand law in order to apply it, we bring an attitude of charity towards the law and that in this task we can and do offer principles and policies, grounds of distinction and grounds of similarity, that seem intelligible, workable, and reasonable, even if we are not wholly convinced that they are morally best. The rational reconstruction of law rests on the possibility of taking this attitude and being able to offer such accounts.
Consider our rational reconstruction of owner-occupier liability. We might criticize this account in the following way: It makes no sense for the defendant's duty to exercise due care to depend on the plaintiff's status as trespasser, licensee, or invitee. Absence of an expectation of economic benefit to defendants does not justify limiting the duty to licensees and trespassers. After all, we hold defendants liable for failure to exercise due care in automobile accidents even if they have no economic relationship to their victims or are complete strangers. Similarly, the fact that the plaintiff is a wrongdoer does not eliminate the defendant's duty to exercise due care in automobile accidents unless the plaintiff's wrongdoing is the proximate cause of her injury, so that it was foreseeable from the nature of the plaintiff's conduct that she would be injured. This cannot be said of all cases of trespassing. Hence, we might argue, the doctrines of owner-occupier liability are unprincipled because they draw arbitrary distinctions between individuals and situations. They are not rationally reconstructible and therefore are not normatively coherent.(35)
Just as rational reconstruction involves an attempt to see the substantive rationality emanating from the law, rational deconstruction attempts to recognize how law has failed to live up to the standards of substantive rationality. Rational deconstruction attacks what rational reconstruction defends. To critique a set of doctrines as unprincipled is to critique a proposed rational reconstruction of them; hence, rational deconstruction seeks to show that candidates for rational reconstruction of an area of law are unsatisfactory.
Rational deconstruction of doctrine operates through an appeal to other principles or policies, either implicit or explicit. When we say that a proposed reconstruction of doctrine fails, we are not making a claim about logical contradiction. We are claiming that legal distinctions and similarities have not been adequately justified. When we say that the explanations are not reasonable, we really appeal to standards of justice and sound policy. We appeal to distinctions that would be just, similarities that would be sound. Once again, although coherence and actual justification are not identical, the only way that we can demonstrate incoherence is by an appeal to standards of actual justification. Rational deconstruction makes an argument about a failure of substantive rationality that must employ its own conception of substantive rationality; it offers an argument about justice that invokes its own conceptions of what could be just.
In this way the interpretive stances of rational reconstruction and rational deconstruction employ the dialectic between hypothetical and actual justification. Rational reconstruction constructs a scheme of hypothetical justification by bona fide principles and policies, which is more than logical consistency but less than actual justification; rational deconstruction denies hypothetical justification but proceeds through an attack based on actual justification.
It is important not to confuse these two dialectics. Actual and hypothetical justification are criteria for judging whether legal doctrines are coherent or incoherent. They are tests that an object of interpretation has to meet in order to say that a certain property (coherence) is true of it. In contrast, rational reconstruction and rational deconstruction are interpretive attitudes we have about the legal system; they are the ways in which we look at legal doctrines, which in turn give rise to judgments of coherence and incoherence. The dialectic of actual and hypothetical justification means that we alternate between criteria for legal judgment. The dialectic of rational reconstruction and rational deconstruction means that we alternate between ways of looking at the legal system--sometimes as the repository of a coherent substantive rationality and sometimes as a jumble of conflicting principles and policies.
Although I have described these two interpretive stances as separate, they actually depend upon each other. Rational reconstruction of legal doctrine requires the tools of rational deconstruction in two senses. First, many different accounts of legal doctrine are logically consistent, but not all of them involve morally satisfying principles and policies. Therefore, in constructing a rational reconstruction of doctrine, we must have some way of choosing among the different accounts of the principles and policies that could be said to emanate from existing legal doctrines. Our tool for sorting and judging is rational deconstruction. We reject explanations of legal materials if they seem unprincipled or morally unsatisfying. Rational deconstruction resembles the sculptor's tools that allow her to uncover the statue buried in a block of marble. The sculptor constructs a work of art, but she must do so by eliminating what is inconsistent with her artistic vision. To create she must eliminate; to construct, she must deconstruct. So too the rational reconstructor only achieves her goal by the use of rational deconstruction.
Second, when we rationally reconstruct the law, we often find that we must classify certain legal materials (for example, certain judicial decisions) as anomalies. Even when we judge the law as rationally reconstructible according to a certain story, we will discover that certain parts of it do not fit that story. So we may acknowledge that part of the existing corpus of legal materials are exceptions, mistakes, or wrongly decided cases. Hence, we have two decisions to make: first, whether there are anomalies, and second, which part of the existing legal materials will be considered the anomaly and which part the "real" or "correct" portion of the law that conforms to our story. Different stories will assign these roles to different parts of the legal corpus. Our belief in the rational reconstruction of the law requires us to show that anomalies are exceptional elements of an otherwise coherent whole, elements that could be excised without doing irreparable damage to the fabric of the law. If anomalies are like warts that detract from the beauty of a face, different stories about law may make the same decision a wart or a beauty mark. Indeed, what seemed to be a wart in one story might under another be a central feature of the face. Our belief in the rational reconstruction of the law requires us to show that anomalies are indeed anomalous--that they are like a wart as opposed to a nose. Thus our rational reconstruction--our story of the principles and policies behind the law--must purport to tell us what is central and what is peripheral in legal doctrine.
In order to tell what is anomalous and what is central to our story, we need the tools of rational deconstruction. Through rational deconstruction we decide that two parts of the existing corpus cannot live together in a coherent scheme of principles and policies and that we must choose between them. Rational reconstruction thus makes use of rational deconstruction not only in determining which consistent sets of principles and policies could serve as a rational reconstruction, but also in deciding which parts of the legal corpus must be explained by the rational reconstruction and which parts can be jettisoned as mistaken. There is no rational reconstruction, in other words, without rational deconstruction, just as there is no cup without the void it encloses, and no statue without the space that surrounds it.
If the task of rational reconstruction depends on the prior use of rational deconstruction, the reverse is also true: all rational deconstruction depends on some alternative successful rational reconstruction of existing doctrinal distinctions and similarities, or upon a set of distinctions and similarities that do not presently exist in law but that could exist in a law that is yet to be. To accuse legal doctrine of incoherence is to imagine a set of legal doctrines that might be coherent; to assert that explanations of existing doctrine are not reasonable is to appeal to distinctions and similarities that could be reasonable. If rational reconstruction achieves its aims by rational deconstruction, rational deconstruction lives off the hope of a future rational reconstruction to which the sorry present might aspire.
These distinctions are not always clearly made in current jurisprudential writing. In his discussion of legal coherence, for example, Joseph Raz assumes that coherence is a property of law revealed through the preferred perspective of orthodox jurisprudence, the "internal point of view." It is irrelevant that the law lacks coherence from any other perspective. "Given the admitted priority of the participant's point of view," Raz argues, "even the [outside] observer, in order to acquire a sound understanding of the law, must understand it as it would be seen by a participant. If it must be coherent to a participant then coherent it is."(36)
The difficulties here are twofold. First, there are many different types of "participants": laypeople and professional elites, for example. Within the category of professional elites there are litigators, judges, bureaucrats, academics, and so on. Thus, there can be more than one "internal perspective" because there are many different social groups who regard legal rules as norms for conduct. If these different groups disagree about their perceptions of legal coherence, their disagreements must be resolved in some fashion.(37)
Second, within each group of participants there are many different purposes for understanding the legal system, such as predicting what other legal officials will do, arguing for legal reform, or understanding the practical effects of legal norms. These forms of understanding raise the issue of coherence in different ways, and for some of them coherence may even be irrelevant. Thus, there can be more than one "internal perspective," because people who regard legal rules as norms for conduct can have more than one purpose in understanding law.
Consider five different purposes for understanding the law. First, we may wish merely to make sense of the law as a coherent scheme of regulation in order to learn it or apply it. Second, we may want to predict what other legal actors will do. Third, we may wish to describe the law in order to persuade others to interpret the law in our favor. Fourth, we may offer a critical portrait of existing law in the hope of persuading others to change the law. Fifth, we may wish to understand law in terms of its practical effects rather than in terms of the content of its doctrines. Professional elites adopt all of these purposes in understanding law; laypeople adopt some or all of them. Moreover, this list is not intended to be exhaustive; there are doubtless other purposes in legal understanding as well. The point is that "understanding law" encompasses many activities. In each of these activities we approach the law in different ways.
When we seek to make sense of the law in order to learn or apply it, we employ rational reconstruction. Yet rational reconstruction cannot serve all of the other purposes of legal understanding. For example, it does not always accurately predict the behavior of legal officials, and it cannot tell us the practical effects of legal norms.
Furthermore, although rational reconstruction asks us to attempt to see the law as a coherent scheme of regulation, other forms of understanding do not impose such a requirement. Thus, in predicting what legal officials will do, we do not always expect that their actions will comport with our own judgments about the most coherent or the most just continuation of the law. We may think that a certain line of cases should be continued in a particular way, but we may doubt that authoritative decisionmakers will agree. On the contrary, we may believe that they will introduce an undesirable incoherence into the law. When we attempt to persuade judges or other legal decisionmakers to interpret law in our favor, the most persuasive account of law for that audience may leave the law far less coherent than we would like, but our goal is to appeal to the decisionmaker's view of coherence, not our own.(38)
When our goal is to persuade others to change the law, our account of law may be specifically designed to show it as partly incoherent, because one of the ways we may seek to convince others to change existing doctrine is to demonstrate its incoherence or the superior coherence of our proposed solution. Here we employ the tools of rational deconstruction. Similarly, when we criticize the decisions of legal authorities, we do not always endeavor to portray the law in its most coherent light. Rather, our goal is to point out its inadequacies.
Finally, if our concern is the practical effects of legal norms, questions of coherence or incoherence may be wholly irrelevant. Because one cannot know the practical effects or practices of application of a legal doctrine in advance, there is no guarantee that the result will be normatively coherent. Moreover, one purpose of studying the effects of legal norms in practice may be to offer critiques based on the arbitrary results we discover.
To be sure, each of the above varieties of legal understanding may intersect with and make use of rational reconstruction. Our predictions about the behavior of legal decisionmakers and our attempts to persuade them may require us to imagine how they would rationally reconstruct the law; if their beliefs are similar to our own, then our own rational reconstruction of legal norms will be helpful in this task. Conversely, if our goal is to persuade others to change the law, we may appeal to an alternative that is rationally reconstructible, at least in the eyes of our audience.(39) Finally, we may find rational reconstruction useful even in our study of the practical effects of doctrines in action. One way to understand the law's effects is to look at the content of authoritative legal norms. Rational reconstruction may be helpful in this enterprise, although a prediction of how others will rationally reconstruct the law may be even more helpful.
Nevertheless, these forms of legal understanding are distinct from rational reconstruction. In predicting what legal decisionmakers will do or in attempting to persuade them to decide in our favor, we must bow to the values and predilections of the legal decisionmakers we attend to. Implicit in our attempts to critique the law and persuade others to change it is a claim that the law is not as coherent as it could be. Our search for the effects of law necessarily contemplates the possibility, which the realists made famous, of a divergence between "law on the books" and law in action. We may not be able to deduce the effects of the legal system from the content of the legal norms that form the subject of rational reconstruction. Even our ability to predict what a particular legal decisionmaker will do (i.e., that Justice S will vote to strike down a particular affirmative action program) does not necessarily result in knowledge of the effects of the decisionmaker's act (i.e., the social consequences of holding such affirmative action programs unconstitutional). What people do is not the same as the effects of what they do. One can know the first without knowing the second.
Although we can see connections between the activity and attitude of rational reconstruction and other purposes in legal understanding, we should not assume that rational reconstruction is the master form of legal understanding to which all other forms are subsidiary. One could also see rational reconstruction depending in part on other forms of legal understanding. I have already noted rational reconstruction's debt to the tools of rational deconstruction. Similarly, in order to decide whether legal norms are rationally reconstructible, we may need to understand how they would be applied by others, and we must gauge their practical effects in the real world.
Instead of viewing rational reconstruction as the central case of legal understanding, accompanied by a set of auxiliary or special forms of legal understanding parasitic on it, I propose a different picture: a set of differentiated yet mutually dependent forms of legal understanding that we employ as the need arises to make sense of the world around us. We must not forget that our understanding of law is always in the larger service of making the social world coherent to ourselves. From this perspective, it makes sense to think of legal understanding as a set of related hermeneutic instruments or devices. Thus, legal understanding is less a single entity than a set of complementary tools we employ in the larger task of social understanding.(40) Rational reconstruction then becomes simply one of many devices in our hermeneutical toolbox, a form of understanding that nevertheless may rely upon and interact with others even as they rely upon and interact with it. Legal understanding, then, is a complicated encounter with the social world in which we employ whatever tools of understanding seem appropriate to the task at hand.
The plurality of forms of legal understanding may explain the persistence of the predictive theory of law--that law is what the courts will do--despite the repeated criticisms that have been levelled at it.(41) Jurisprudence professors wrongly seek to judge the predictive theory as a unitary jurisprudential theory. But the predictive "theory" of law is not a jurisprudential theory at all; prediction is simply one purposive activity among many others that individuals use to understand law. One might think that this approach to law articulated a theory of "what law is" only if one forgot the purposive and situated component of all legal understanding; that is to say, only if one forgot the subject's essential contributions to the cultural object it perceives. Of course, this is precisely the occupational hazard of traditional jurisprudence. In this way the person who understands law for the purpose of rational reconstruction and the person who understands law for the purpose of prediction might each believe that they are engaged in the same enterprise--describing law's nature--and that the other party is mistaken in her assertions. In fact, each is merely projecting her situated, purpose-driven subjectivity onto the object of their study and giving it the name of "the theory of law."(42) Similarly, explaining law wholly in terms of rational reconstruction offers no more of a unitary theory of law than the predictive theory; rational reconstruction is merely one among many purposes in understanding law and can claim neither primacy nor the title of "the internal perspective."
This analysis might also explain why the debate between positivism and some forms of natural law theory also seems never-ending. I am not concerned here with natural law theories that claim that law is simply that which is just, but rather those theories that claim that moral reasoning is inextricably linked to law and legal understanding.(43) These theories are projections of the experience of rational reconstruction, in which we must view the law as the embodiment of substantive reason. The law appears to have a moral component because the very form of understanding through which we apprehend law in order to apply it to concrete cases requires us to imbue law with substantive rationality. Yet once again, this experience of a moral component does not reveal the nature of law so much as the nature of the projection of our subjectivity onto the legal object of our understanding. Other purposes in understanding law need not imbue law with substantive rationality and therefore need not produce the same hermeneutic effect. The natural law advocate is correct that law is inescapably linked to morality only to the extent that a certain activity of legal understanding requires us to see it in that light, but the advocate is incorrect in deeming that form of understanding central or exclusively revelatory of the nature of law.
We must resist the dual temptation of believing in a single internal perspective that reveals the nature of law and then identifying that perspective with rational reconstruction. The temptation arises because rational reconstruction seems to match the type of legal understanding judges employ when they apply the law. The judge's purpose in understanding law is to make sense of a jumbled mass of precedents, statutes, and administrative regulations and to infer from these a coherent scheme of legal regulation that she can apply to the case before her. However, because there are many different purposes in understanding law, and many different social roles in which legal understanding occurs, we cannot pick out one form of understanding practiced by particular legal elites and bestow upon it the title of "the internal perspective"--the perspective that, as Raz contends,(44) reveals the nature of law and determines its coherence or incoherence.(45)
Belief in a single internal perspective and its identification with rational reconstruction has several unfortunate ideological effects.(46) First, it makes the other purposes of legal understanding and the other social roles in which understanding occurs irrelevant, conflates them with rational reconstruction, or else relegates them to a peripheral and dependent status. To the extent that alternative forms of legal understanding are recognized, they are depicted as deviations from or modifications of legal understanding that must be understood in terms of their variance from the norm and that may not contradict its conclusions.
Second, this identification makes invisible the subject's contribution to the particular form of legal understanding dubbed "the internal perspective." It divorces this form of understanding from both the purpose giving rise to it and the social group employing that purpose. It presents rational reconstruction employed by judges and other legal elites as legal understanding simpliciter, unconnected to a particular purpose or position. It portrays rational reconstruction as an understanding that does not impose "special" purposes like prediction, political activism, or social scientific study on the legal object, but simply observes the legal object as it is. The social role and purpose of the judge engaged in rational reconstruction become the hidden norm of legal understanding against which all other forms of legal understanding are seen as special pleading, deviant, irrelevant, or mistaken. Simultaneously, the contributions of the judge's social role and purpose are projected onto the law and given the name "the nature of law."
Ronald Dworkin's theory of law as integrity exemplifies these confusions. Dworkin identifies legal understanding with judicial methods of rational reconstruction; indeed, his goal is to explain the internal experience of judging and to reveal the ideals that lie behind judicial practice.(47) There is nothing wrong with offering a normative or descriptive theory of judicial understanding if it is understood and labeled as such. The problem is that Dworkin believes that explicating this form of legal understanding also explicates the nature of law, or, in Dworkin's language, when "propositions of law are true."(48)
To speak in this way makes the subject, her purposes, and her preconceptions disappear from view. Interpretation has become purposeless and subjectless. For all of his concern with the interpretive character of law, Dworkin's theory depends on making the contributions of subjectivity invisible to the discourse of jurisprudence. The fact that judges are socially situated individuals who interpret the law for a particular purpose and bring a particular set of sociological and ideological predispositions to their acts of understanding becomes irrelevant to Dworkin's discussion of legal understanding. By assigning the contributions of subjectivity to the nature of law, Dworkin makes these contributions invisible and all-powerful. Hence, Dworkin is able to exclude all sociological or ideological analysis--the very analysis of what the subject does bring to the object of understanding--as "external critiques" that can tell us nothing about the nature of law. So hermetically (and hermeneutically) sealed is Dworkin's universe that it becomes impossible to object that the concerns of judges occupy only one rather limited position in the constellation of legal reality and the forms of legal understanding.
This error is compounded by Dworkin's general approach to interpreting social practices, of which legal understanding is only a special case. According to Dworkin, interpretation of social practices is always "constructive interpretation"--an attempt to identify the point of a social practice and to see it in its best light.(49) In this way Dworkin obscures not only the many different forms of legal understanding, but also the many different forms of nonlegal understanding. After all, not all forms of social understanding portray the object of interpretation in its best light. When we describe the injustices of our society in order to convince others of the need for change, we do not attempt to view the object of interpretation in the best possible light; similarly, when we criticize a work of art as badly conceived and executed, we do not describe it in its best light. In both cases, we seek to expose its flaws, blindnesses, and incoherences. This is not rational reconstruction but rational deconstruction. Dworkin's constructive interpretation is not the only form of cultural understanding. It is cultural understanding for a particular purpose; it is one of the many different activities that are collectively called understanding.
In fact, the plurality of forms of cultural understanding is revealed by Dworkin's own practices of argument in Law's Empire; his theory of interpretation is undermined by attending to what he actually does, rather than what he says he is doing. Although Dworkin insists upon the primacy of constructive interpretation, he does not practice what he preaches, nor could he, given the multiple purposes of understanding. When he describes and criticizes the work of the Critical Legal Studies movement, for example, constructive interpretation and interpretive charity are thrown out the window.(50) Rather, his quite understandable purpose is to point out the inaccuracies and flaws in theories whose conclusions cast doubt on his own. Dworkin may justly be criticized for failing to offer the strongest account of CLS positions before attacking them, which is merely to say that he employs the principles of constructive interpretation and charity inconsistently and opportunistically.(51) But there is a more important objection: he has failed to acknowledge that having offered the strongest account of a position, an important and distinct purpose in understanding is to recognize the flaws and mistakes in the object of interpretation. In legal understanding, this is the moment of rational deconstruction.
That jurisprudential scholarship might identify the nature of law with elite legal understandings of rational reconstruction makes perfect sense from a critical perspective. It is yet another example of the legal subject projecting the contributions of her subjectivity--her social situation and purposes for understanding--onto the object she seeks to understand. Rational reconstruction is how students of law are taught to understand law, how litigators are taught to argue law, and how judges are expected to write law. Rational reconstruction is the most conspicuous form of legal understanding employed by professional elites, and, more particularly, by the most powerful and central of professional elites, the judiciary. It therefore becomes what legal understanding is.(52)
Although there is nothing wrong with elites employing distinctive forms of understanding, a difficulty arises when these elites assume that a particular form of legal understanding discloses the real nature of the legal system. By forgetting the different purposes of understanding and the socially situated nature of understanding, they may elevate a particular form of understanding, useful as it may be in a particular context and for a particular purpose, to a universal status.(53) When jurisprudential discussions assume that the activity of rational reconstruction discloses the true properties of the legal system, they engage in this error. That is why attention to the subject of legal understanding is helpful: it asks us to think about who is understanding the law and for what purposes. It reminds us that there is no understanding of the social world without a subject who understands and a purpose for understanding, and hence no understanding of the social world without the contributions of subjectivity.
The contributions of political and moral belief to our judgments of coherence and incoherence are most obvious when they produce disagreement. Yet our political and moral beliefs help construct our judgments of legal coherence even when there is considerable consensus. The social construction of subjectivity produces consensus by creating individuals who think, act, and believe in roughly similar ways. Our judgments of political morality are part of the hermeneutical baggage we bring with us in our attempt to understand the legal system; we should not confuse the fact that each of us brings similar baggage with the claim that we bring no baggage at all.
In like fashion, we must resist the temptation to see political ideology as merely an obstacle or hindrance to our understanding of law. Our political and moral beliefs are necessary tools of legal understanding--they make judgments of normative coherence and incoherence possible. Hence, political ideology does not simply distort or detract from legal understanding; it actively assists in the construction of the legal object of interpretation, both in the case in which we disagree with others and the case in which we agree, both in the case in which the coherence of legal doctrines is disputable and the case in which their coherence seems so obvious that it goes without saying.
If we are not aware of the content of legal norms in many different parts of the law, they cannot figure into our awareness of possible sources of moral conflict and normative incoherence. Moreover, if our knowledge is focused in a few areas of law, our opinions about the coherence of other parts of the law and of the legal system as a whole are likely to be informed by our opinions and our experience of the limited areas we do know.(58) Our judgments about the coherence of the legal system therefore must derive largely from our image of the legal system, an image shaped as much by our ignorance as by our knowledge. We judge based on what we know and do not know, and, equally importantly, on what we do not know we do not know.
Our judgments of legal coherence and incoherence are affected not only by our knowledge of legal doctrines, but also by the amount of cognitive effort we have put into considering the normative consistency among the doctrines we do know. After all, justifications that make sense to us at first glance often become problematic on further reflection, and vice versa.(59) However, most people (law professors included) have not thought very hard about the various justifications for the content of most legal doctrines; indeed, they may have neither the time nor the ability to consider all of the possible justifications or conflicts among justifications that might be offered within the many areas of legal doctrine.(60)
The problem is magnified when we move from considerations of coherence in a specific area of law to questions of coherence across doctrinal areas or the legal system as a whole. Few people have considered all the possible conflicts among rules across different areas of law. Compartmentalization of law into different subject areas probably exacerbates this phenomenon; we simply do not think to ask whether the way we argue in tort law is consistent with the principles we use in the law of trusts and estates, the law of mineral rights, or the law of mass communication. In any case, it may well be impossible for any one person or group of persons to develop a global justification and reconciliation of legal materials or a comprehensive understanding of the law's effects. Because we cannot conceive of the legal system as a totality, and because we cannot hope to subject all of the different aspects of the legal system to the most searching analysis, we must fall back on assumptions about the coherence of the legal system based on our limited experiences and our existing ideological commitments. Hence, our judgments about the coherence of the legal system or parts thereof may be as much matters of faith and ideological presupposition as the consequence of reasoned analysis. We construct an imagined legal system from equal parts of ignorance and experience, and it is against this image that we test our visions of justice. Our judgments of coherence are not simply judgments about properties of the legal system, but rather judgments of imaginative reconstructions of the legal system as it is believed to exist. The constructed object of interpretation is also the constructed object of our imagination.
This conclusion may seem unsatisfying because we naturally assume that there is a fact of the matter about the coherence of the law quite apart from the intrusions of subjectivity. But subjectivity is not an intrusion into law--it is a constitution of law. Thus, there is a fact of the matter about legal coherence, but it is of a quite different sort. The fact of the matter is that legal coherence is the product of a hermeneutic interaction. It is the result rather than the object of a process of understanding.
The inseparability of legal coherence from subjectivity has two important consequences. First, our experience of legal coherence is necessarily grounded in our social situation and in the manner in which we encounter the law. We occupy different positions in society and experience the legal system in different ways. Understandings of the legal system differ for a trial judge in a court of general jurisdiction, a practicing tax attorney, a recidivist criminal, a twenty-three-year-old secretary who has never received any more serious legal sanction than a parking ticket, a businessperson in the midst of a child custody battle, a social scientist, a first-year law student, and a professor of jurisprudence. Merely to list these different social situations is to note the many possible forms of legal understanding and the many different sorts of experiences that individuals can have. Rather than viewing this plurality of experiences as distractions from legal understanding, we should recognize that this is what legal understanding consists in. There are no subjectless encounters with the law.
Second, our experience of legal coherence or incoherence is dynamic. Our experience of the content of the legal system changes over time as we have new experiences, engage in deeper analyses of possible conflicts of value between doctrines, and become aware of the effects of doctrines in action. Our judgments about and understandings of the legal system are always in a process of change. Our continuing experience as individuals in a legal system changes our understandings as to what is in the system, whether particular distinctions and similarities are tenable or untenable, and so on. Legal understanding, and hence legal judgment, is always in a process of flux.(61) It is dynamic, not static, because our knowledge and experience of the object of understanding is dynamic.
One might hope to avoid these conclusions by employing an "ideal observer" theory of legal coherence. Under this theory, we would say that the law is coherent if it would appear coherent to an ideal observer.(62) Thus, although some individuals might incorrectly perceive certain elements of the law as coherent or incoherent, they are mistaken to the extent that their conclusions diverge from those of an ideal observer of law. An ideal observer theory would preserve the subject's centrality to legal understanding while simultaneously offering a standard of objectivity that abstracts away from subjectivity.
The ideal observer view is attractive because it points, however obliquely, to a number of sound intuitions about our experience of the law. First, our views of the law are revisable. Upon further reflection, and given further information, we may sometimes change our minds as to whether a distinction is tenable or untenable, whether a doctrine is just or unjust, and so on.(63) Second, we know that some judgments about the law are better than others, although it does not necessarily follow that all judgments for all purposes in understanding law can be ranked in order from best to worst.(64) Third, we generally believe that legal judgments are better when the individual who makes them has access to more information, and has thought a lot about the issues involved.(65)
The postulation of an ideal observer is an extrapolation from these three eminently sensible views about legal judgment. The extrapolation itself, however, is misguided. Just because our views about law are revisable does not mean that there is a final unrevisable view. Just because some legal judgments are better than others does not mean that there must always be a single judgment that is better than all others. Finally, just because more thought and more information generally lead to better judgments does not mean that taking infinite time and possessing all information leads to a univocal, correct judgment.
More importantly, the ideal observer theory fails to grasp the nature of legal knowledge. Knowledge of a cultural artifact like law must always result from our situatedness in a particular social and historical tradition.(66) This situatedness is not a hindrance to cultural understanding but rather the ground of its possibility.(67) The problem of legal understanding is a special case of the problem of human understanding of culture generally. Cultural traditions constitute us as human and make possible our understanding of culture. Hence human beings are always part of culture and not merely disinterested spectators. Even when we attempt to understand a culture that is not our own, we bring our own "cultural software" as necessary tools of understanding. We always understand from a historical and cultural position, just as we always measure velocity or acceleration from a particular point in space. Without a place to start from, we cannot understand anything at all.
It follows that if the understanding of the ideal observer is truly a human understanding, she too must be the product of a particular history and a particular cultural situation. However, this is precisely what an ideal observer theory resists, because it assumes that historical and cultural situatedness is a bias that must be neutralized or abstracted away. The ideal observer approach views as an obstacle to understanding what is in fact a condition of understanding.
If the ideal observer's understanding is truly a human one, we must ask several questions about this observer: Of what culture is she a part? What is her history? What are the wellsprings of her understanding? Merely attempting to answer these questions with respect to an ideal observer shows the limitations of the theory. Shall we say that the ideal observer lives in no culture at all? Then how is she able to understand any culture? Shall we say that the ideal observer comes from a perfect culture? Which culture is that? Shall we say instead that she comes from our culture? If so, what is it about our culture that makes it ideal? Our culture is not homogenous; from what part of our culture does the ideal observer come? If this part is the ideal, does this mean that the other parts of our culture are less than ideal? Similarly, we might wonder, what experiences has the ideal observer had? Shall we say that the ideal observer has had every experience? If she has, what experience does she currently have, since one cannot have all experiences simultaneously?
We are faced with a dilemma. To imagine an ideal observer is either to imagine a person with no culture, no history, and no experiences, who therefore lacks the conditions of human cultural understanding, or else it is to elevate a particular culture, status, position, and history to the level of an ideal standpoint for observation and thus to forget its partiality.
Ultimately, the turn to an ideal observer is an attempt to avoid thinking about the legal subject and to focus sole attention on the object. It is an attempt to avoid worrying about the legal subject's contribution to understanding by imagining a neutral "plain vanilla" subject who is not doing anything in her encounter with the constructed object of her interpretation. This conception throws the baby out with the bath water. It removes the possibility of understanding along with the biases it seeks to excise. Worse still is the danger that an ideal observer theory may confuse the baby with the bath water: it may unthinkingly equate the ideal observer with the theorist's own cultural and historical situation, and thus may make the theorist's own situatedness invisible by defining it as objective. Even plain vanilla is still, after all, a flavor.
Our discussion of the purposive nature of understanding points to a further difficulty. Ideal observers do not have purposes because they are not human beings. They do not have particular desires, motivations, goals, and urges. They just are. Cultural understanding, on the other hand, is grounded in our individual purposes, desires, and aspirations; these in turn are shaped by our social construction. To understand as a human being is to grapple with the world in a particular way because of who we are and what we seek to accomplish. If we wish to apply the concept of an ideal observer to the concept of human understanding we must ask what purposes the ideal observer has in understanding law. Yet to answer this question requires that we place the ideal observer in a particular context--as a human being with limited physical and mental capabilities, with a particular set of goals and aspirations, and with a history that structures and determines them. To capture the human experience of purposive understanding we must also capture the human finitude and situatedness that form the basis for our motivations and purposes in understanding. At the point at which the ideal observer becomes sufficiently particularized so that we can call her understanding a human one, she has largely lost her status as an abstracted, ideal observer.
My point in making these observations is not to deny that in making judgments individuals share a great deal with others. Much of our subjectivity is intersubjective, and this intersubjectivity is a source of objectivity. Yet what we share with others may be cognitive limitations as much as abilities, ignorance as much as information, faith as much as knowledge, and partiality as much as neutrality. The average observer is by no means an "ideal" observer with unlimited time, knowledge, and capabilities. That is what makes her a human, as opposed to an ideal, observer. Ironically, her imperfections and limitations may be what she has most in common with her fellow citizens.
We can preserve the sound intuitions that motivate the ideal observer theory only if we strip the theory of its pretensions to subjectless objectivity. We can employ the notion of an ideal observer as a shorthand when we are speaking about a particular purpose in understanding and a particular cultural standpoint. There is nothing wrong with saying that for a particular purpose (for example, rational reconstruction), or from a particular standpoint (for example, that of a legal professional), one judgment is better than another, because we understand the context in which we are making our judgments. Our goal should not be to deny that we can and do make appropriate judgments about the law and legal coherence. We should merely recognize the relationship of our subjectivity to the standard of appropriateness.(68)
29E.g., Andrew Altman, Critical Legal Studies: A Liberal Critique 117-18, 121-23, 127 (1990) (viewing CLS arguments as claims that law is not rationally reconstructible; doctrine is rationally reconstructible if it may be seen as conceptually derivable from a single coherent ethical view); Neil MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539 (1990) (offering rational reconstruction as alternative to CLS accounts of law).
30MacCormick speaks helpfully of rational reconstruction as an activity, and this approaches my use of the term. MacCormick, supra note 29, at 556 (describing rational reconstruction as "the production of clear and systematic statements of legal doctrine, accounting for statute law and case law in terms of organizing principles"). The difficulty is that MacCormick is still concerned with the activity of organizing a legal object, and not with the subject who engages in the activity.
31Thus, when we say that a person is being unreasonable, we do not mean that she is guilty of a logical contradiction, for there is almost always some logically consistent set of beliefs, no matter how far-fetched, that could support her views. What we mean is that we doubt the reasonableness of her beliefs. Conversely, our view that a person is being reasonable is not a comment on the logical consistency of her beliefs but a judgment that her beliefs are reasonable in a substantive sense. Formal rationality is indisputable but empty--it tells us little about the world of facts or the world of values; substantive rationality is full of content but controversial, so that people often may disagree about what is reasonable or unreasonable from this standpoint. In his treatment of legal reasoning, Neil MacCormick has also stressed the substantive and disputable nature of the rationality that we use in forming legal judgments. See MacCormick, supra note 13, at 5, 265-74.
34Hence I call this interpretive attitude "rational deconstruction" and not simply "deconstruction" because it is grounded in a judgment of substantive rationality. One could engage in deconstruction of a legal text without the desire to offer a normative alternative, or without a belief that the difficulties one found in the text were due to failures of substantive rationality. See, e.g., Pierre Schlag, Le Hors' de Text, C'est Moi: The Politics of Form and the Domestication of Deconstruction, 11 Cardozo L. Rev. 1631 (1990) (criticizing normative uses of deconstruction). However, the deconstruction practiced by legal critics is almost always rational deconstruction, because it seeks to criticize law on the basis of some proposed normative alternative.
35Note that this particular rational deconstruction operates by expanding the scope of legal doctrine being compared. It demonstrates conflicts within a specific area of law by suggesting that they are inconsistent with other areas of law. Nevertheless, rational reconstruction need not always be comparatively local and rational deconstruction need not always operate by global comparisons.
37Although Raz does not specifically address the point, I assume that he, like most other jurisprudence scholars, would generally resolve such disputes in favor of the perspective of elites. For example, Hart argued that for a legal system to exist it is only necessary that authoritative legal officials hold the internal perspective. See Hart, The Concept of Law, supra note 13, at 113-14. How conflicts between judgments by different elites (for example, litigators and judges, or judges and academics) should be resolved is quite another matter. I suggest that jurisprudence has rarely emphasized the possibility of such conflicts within elites, assuming instead that the standard of the judge is paradigmatic and that of the litigator, executive official, legislator, or academic is parasitic on this perspective. For a similar criticism, see Roger Cotterrell, The Politics of Jurisprudence 230 (1989).
42The most famous statement of the predictive theory is Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897). I tend to agree with William Twining's view that both Holmes' admirers and his detractors have unfairly read Holmes' remarks on prediction as offering a generalizable "theory of law"; compare Richard A. Posner, The Problems of Jurisprudence 221-28 (1990) with Hart, The Concept of Law, supra note 13, at 40-41. See William Twining, Karl Llewellyn and The Realist Movement 18 (1985 ed.). As Twining argues, in The Path of the Law Holmes viewed law in terms of practical activity. Id. Lawyers, Holmes says, are in a business: the business of offering predictions about what courts and other legal officials will do. Twining has rightly complained that Holmes has too often been misread by forcing his words into the mold of jurisprudential theory, rather than recognizing him as offering a description of a practice of understanding by legal professionals. Id.; see also Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All?, 24 Osgoode Hall L.J. 353, 363 (1986); William Twining, The Bad Man Revisited, 58 Cornell L. Rev. 275, 292 (1973).
I believe that the misreading of Holmes is due in part to jurisprudence's demand for a unitary theory of law which abstracts away from the practical (and hence purposive and situated) nature of legal understanding; the ink spilled over the merits of the predictive theory tells us more, in my view, about the ideological filters of traditional jurisprudential thought than it does about either Holmes or the nature of law.
45For a similar argument, see Cotterrell, supra note 37, at 228-31. In Raz's defense, I should note that he has also been critical of the lawyer's perspective in other contexts. See, e.g., Joseph Raz, The Problem About the Nature of Law, 21 U. W. Ont. L. Rev. 203 (1983).
46Cotterrell, supra note 37, at 229 (noting that traditional jurisprudence becomes "mystificatory" and a "professional ideology" when it assumes that what is being discussed is the nature of law rather than a particular mode of thought that lawyers engage in).
48Id. at 225 ("According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community's legal practice.").
50Dworkin's interpretations of Critical Legal Studies do not evidence any serious attempt to offer the strongest, most coherent, or best possible interpretation of Critical Legal Studies arguments. Rather, Dworkin dismisses this entire body of scholarship in five pages and two lengthy footnotes. See id. at 271-75. His depiction of CLS "acolytes" as people who "assemble in conferences" to "decid[e] what the movement is," id. at 271, does not seem promising, at least if his goal really is interpretive charity.
According to Dworkin's own theory of constructive interpretation, he should have spent considerable time carefully going over CLS scholarship, trying to make sense of its conflicting assertions, and developing a coherent set of arguments to support its positions. If, as Dworkin argues, "the literature of critical legal studies announces rather than defends [its] claims" about the coherence of the legal system, id. at 272-73, the constructive interpreter should, like the interpreter of legal doctrine, try to fill in the theoretical underpinnings for herself, so as to make the theory the best it can be. Finally, the constructive interpreter, rather than imposing her own purposes on the enterprise, must attempt to understand what the purposes of the enterprise are to the persons who participate in it, and decide what the best explanation and continuation of those purposes are. She must not assume, as Dworkin appears to, that the theoretical importance of Critical Legal Studies rests solely on whether "its aims are those of law as integrity," id. at 275; that is to say, whether it can be usefully employed to further the development and acceptance of Dworkin's theories about law. This is an exclusively instrumental stance which does not seek true understanding because it does not open itself up to the possible truth of what it seeks to understand. See Hans-Georg Gadamer, Truth and Method 270 (Garrett Barden & John Cumming trans., 1975) (criticizing such instrumental interpretations as attempts to preserve one's own beliefs from question). In short, there is nothing that seems further from the charity-driven account of interpretation offered by Dworkin in chapter two of Law's Empire than Dworkin's own interpretation of Critical Legal Studies in chapter seven of the same book.
51This tendency is not limited to his accounts of radical scholarship. See, e.g., Charles Silver, Elmer's Case, A Legal Positivist Replies to Dworkin, 6 Law & Phil. 381, 381-82 (1987) (noting that "Dworkin rarely asks whether an argument he calls positivistic is the best argument a Legal Positivist could make.").
52Note in particular that viewing legal coherence in terms of rational reconstructibility of the content of legal rules projects away considerations of legal application and enforcement by judges, juries, administrative agencies, police officers, social welfare caseworkers, and the like. It focuses our attention on that aspect of law that can be understood through a comparison of the content of legal norms described on paper. Hence we do not focus on exercises of power and injustice that work beneath the economy of rules, the performative aspect of legal doctrine and legal writing, and the irrelevance of much normative legal scholarship to law as it is practiced. See Schlag, Normativity and the Politics of Form, supra note 2, at 852-70 (offering an account of "L.A Law's Empire"). Schlag's analysis, in turn, recalls Jerome Frank's realist critique. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (1949); Jerome Frank, Law and the Modern Mind (1930).
55I use the terms "our" and "we" in these passages for two reasons. First, I assume that my audience is fellow legal professionals, and more particularly, fellow legal academics. Second, everything that I say about professional judgments of rational reconstruction applies to my own judgments as well.
57I should note that this is particularly true of legal theorists who write about topics like legal objectivity, legal coherence, and legal justification. I teach torts and federal constitutional law, and therefore can have some claim to expertise in these areas. However, I am only dimly aware of the vast number of decisions reached in these areas by courts, to say nothing of relevant legislative and administrative regulations. Furthermore, there are large parts of legal doctrine where my knowledge is incredibly skimpy, and others where I am not even aware of the existence of legal regulations, much less their content or their effects. Hence, a great deal of the legal system that I talk about, think about, and write about is the product of my imaginative extrapolation. I do not believe that my situation is in any way atypical, especially of professors of jurisprudence.
58For example, people who teach common law subjects or constitutional law (as I do) may tend to overlook what occurs in areas of law governed largely by statute and administrative regulation. Law professors may tend to emphasize the content of legal norms rather than their practical effects because they teach the former and not the latter.
59See Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518, 531-33 (1986) (discussing changing appearances of "field" of judicial precedents as we work to understand and employ them).
60Moreover, they may have little knowledge of how legal doctrines in these diverse areas are applied in practice and what effects they have on individuals; as argued above, these practical effects are relevant to the coherence of doctrines. In this respect, the professor of jurisprudence is hardly better equipped than the ordinary person on the street.
62Cf. Roderick Firth, Ethical Absolutism and the Ideal Observer, 12 Phil. & Phenomenological Res. 317 (1952) (proposing naturalistic theory of ethics that defines "good" as that which an ideal observer would approve). Ronald Dworkin's Hercules plays a role similar to an ideal observer of law. See Dworkin, supra note 8, at 265 ("Hercules is useful to us just because he is more reflective and self-conscious than any real judge need be or, given the press of work, could be. . . . He does what [judges] would do if they had a career to devote to a single decision . . . .").
64For example, it may be difficult to tell whether A's judgment about the law made for the purposes of prediction is better than B's judgment made for the purposes of rational reconstruction. Such comparisons are possible only if we insist on a single standard of commensurability for all legal judgments, regardless of purpose. If we do this, we may not be satisfied with the results because the single criterion for judgment may be orthogonal to our purpose for understanding the law in a given case.
68Thus, it should not be surprising that legal professionals generally make better judgments about the law than laypeople according to the criteria that professionals set for themselves and that distinguish them from laypeople generally. If they did not make better judgments under these criteria, they would probably not be very good professionals because they would have failed to distinguish themselves successfully from nonprofessionals.