[C] [Wittrs] How to Conceptualize The Rule of Law

  • From: Sean Wilson <whoooo26505@xxxxxxxxx>
  • To: LAWCOURT-L@xxxxxxxxxx
  • Date: Mon, 27 Sep 2010 18:22:40 +0000 (UTC)

... I must say, it is rather pleasing to see how political scientists are 
discussing "law" in this thread. About 5 years ago, one could easily imagine 
such a discussion being theory-poor. There's a Dworkinian influence in a 
substantial number of the contributions. I'm currently working on a law 
and language book project, and I want to offer what I think is a bit of a 
different take (slightly).

I want to suggest that whether law is followed is always, by necessity, a 
philosophic question. You answer it only with an allegiance of some sort. 
Therefore, at issue is never WHETHER it is followed, but rather what TYPE of 
following it is. I would seriously challenge any member of this list to 
construct a set of reasons that justify his or her decision in a case, and NOT 
have it be obedient to some theory about how law works. 

If we understand this, we understand that there are law-following STYLES. And 
that being "correct" in law therefore involves our picking and defending which 
style is better than another. This is, as I have argued in one of my conference 
papers, a type of connoisseur judgment. (See Wittgenstein on aesthetics). We 
say, e.g., that modality X (say, orignialism) is a poor form of the craft, much 
the way we say that we might say that specimen X is a poor form of a particular 
kind of dance. Or that the tailor has made a poor cut of the suit. And the ones 
who most knowingly say this are the ones who participate most closely in the 
cultural behavior in question (dance, cutting suits, etc.)  -- i.e., the people 
who teach and do the behavior. The people who make the behavior into its own 
culture. Therefore, if you have an average judge who makes average rulings 
that consistently favor conservative interests on the bench, he or she is 
better 
thought of as one might a hair dresser who is poor or average at his or her 
job. 
In neither case does the person fail to follow their craft (law, hair 
dressing); 
they are just a below-average specimen of it.  

We need to purge ourselves altogether of the false idea of whether "law" is 
followed. We need, instead, to ask ourselves which of the law-following 
behaviors and styles that come from this organized craft are the better 
specimens, and why. No academic can enter this particular question without 
first 
being a good student of philosophy.    

(P.S. Sent to Meta-Law and to Wittrs)

Regards and thanks.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
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________________________________
From: "Graber, Mark" <MGraber@xxxxxxxxxxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Mon, September 27, 2010 11:59:59 AM
Subject: Re: State Elections and the Rule of Law

 
I think I disagree somewhat with this.  There is a difference between declaring 
“the rule of law does not provide a determinate answer to a question” and “the 
rule of law has no bearing on a problem.”
 
Consider an issue from a world in which I actually have some expertise, bridge 
bidding.  Bridge experts debate whether you should open “one no trump” on an 
otherwise suitable hand if six of your thirteen cards in either in the club 
suit 
or diamond suit.  But everyone agrees that with a five card club or diamond 
suit 
and an otherwise suitable hand, you open one no trump, but do not open up “one 
no trump” with a seven card club or diamond suit.  In short, the rules of 
bridge 
have structure the range of legitimate disagreement.  Rule of law may have a 
similar function.
 
MAG
 
From:Law courts [mailto:LAWCOURT-L@xxxxxxxxxx] On Behalf Of Frank Cross
Sent: Monday, September 27, 2010 11:54 AM
To: LAWCOURT-L@xxxxxxxxxx
Subject: Re: State Elections and the Rule of Law
 

I think the debate is a little too simple.  Judges have objective standards 
that 
govern many cases clearly, the rule of law.  For cases on the indeterminate 
margin of the law, though, judges always reach the same conclusion they would 
reach if the legal text just said “do whatever you think is right.”  I think 
this is a good system.  There really is no rule of law on the latter questions. 
 
The issue is when judges miss on clear legal cases.  I don't think that happens 
a great deal, but it happens some and may be due to electoral concerns.  OTOH, 
electoral concerns seem quite defensible on the marginal indeterminate cases.


At 10:28 AM 9/27/2010, Clayton, Cornell William wrote:


I suspect that Mark and I most agree.  The work that demonstrates judges, in 
fact, behave differently from other political actors, demonstrates the 
difference by showing how judges believe they should make decisions on the 
basis 
of an evolving set of professional norms, NOT that they reach objectively 
correct decisions in close cases.  The “objective” component in judging is thus 
the degree to which there exists a professional consensus about those norms and 
commitments.
 
CWC
 
From: Law courts [mailto:LAWCOURT-L@xxxxxxxxxx] On Behalf Of Graber, Mark
Sent: Monday, September 27, 2010 8:18 AM
To: LAWCOURT-L@xxxxxxxxxx
Subject: Re: State Elections and the Rule of Law
 
I think I would push this a little bit.  Imagine a world in which persons 
sincerely believe they are acting on the basis of law, but always reach the 
same 
conclusion they would reach if the legal text just said “do whatever you think 
is right.”  I think there is some very good work that demonstrates that judges, 
in fact, behave differently than other political actors, in part because they 
are committed to law (think of Gillman’s The constitution Besieged, which 
documents how justices thought differently about economic rights and reached 
different conclusions on economic rights than other political actors).  In 
short, rule of law needs some objective component.
 
MAG
 
From: Clayton, Cornell William [mailto:cwclayton@xxxxxxx] 
Sent: Monday, September 27, 2010 11:09 AM
To: Graber, Mark; LAWCOURT-L@xxxxxxxxxx
Subject: RE: State Elections and the Rule of Law
 
Jim is right that in the post-Realist world the "rule of law" cannot be defined 
simply in terms of correct outcomes in cases.  Mark is also right that 
"democratic accountability" cannot be defined simply in terms of majoritarian 
electoral outcomes. 

 
I would argue that for the "rule of law" to have any meaning it must be tied to 
an understanding of what judges think they are doing rather than what they 
actually do or decide.  Thus, a judge adheres to the rule of law when they act 
in accord with what they believe to be the best understanding of the law as 
defined by relevant (but evolving) legal and professional norms.  Different 
judges may have different understandings about what those norms require in any 
particular case – Scalia and Breyer will disagree about what the Equal 
Protection Clause requires in a case involving gay marriage say, but both will 
agree that the law does not leave them unconstrained to simply impose their 
personal policy preferences.  In other words, the rule of law is a state of 
mind 
in which judges and other political actors feel themselves constrained by legal 
norms, not a state in which only one set of case outcomes is possible.
 
The question of which selection process is most desirable therefor may be less 
about judicial qualifications, and more about how different selection processes 
influence judicial self-perceptions and senses of normative obligation. A judge 
who is selected by simply majoritarian elections may begin to believe that 
their 
proper role is to simply to adhere to majoritarian preferences.  What would be 
interesting is to see more empirical work done on how elections impact judicial 
self-perceptions.
 
CWC
 
Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250 

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  • » [C] [Wittrs] How to Conceptualize The Rule of Law - Sean Wilson