J. Joel Alicea:
Okay, well welcome to the American Enterprise Institute and to our event Law’s Quandary 20 Years Later: A Book Event. I’m Joel Alicea. I am a nonresident fellow here at the American Enterprise Institute. I’m also a Law Professor at the Catholic University of America and the Director of the Center for the Constitution and the Catholic Intellectual Tradition or CIT. CIT is a co-sponsor of this event. So let me just say a little bit about our center before we get into the substance of our discussion. CIT explores the relationship between the American constitution and the Catholic Intellectual tradition. We do that through speaker events like this one through fellowship programs for young lawyers in D.C and for students at Catholic University through courses at Catholic University and other programming.
You can learn more about us at cit.catholic.edu, sign up for our email list. We’re delighted as always to be co-sponsoring with AEI and we’re especially grateful to Dr. Yuval Levin for allowing us to use this space and to do this program at AEI with its wonderful facilities and support staff. This event marks the 20th anniversary of Professor Steven D. Smith’s book, Law’s Quandary. Normally the publication anniversary for an academic book goes unnoticed and rightly so, but in the case of Professor Smith’s book, we thought it was important to call attention to the anniversary because of the significance and I think enduring relevance of the book to legal scholarship and even more broadly to thoughts about jurisprudence. In my view, Law’s Quandary is more relevant today than it was when it was published in 2004. A great deal of recent scholarship, I think has vindicated a lot of the insights of that book and shown how piercing the insights were even at the time, how prophetic they were really at the time.
Professor Smith is going to summarize the argument of the book in his opening remarks, so let’s just jump straight in. I’m going to introduce our three panelists and then turn it over to Professor Smith to give us an overview of the book. We’ll then go to Professor Poczwardowski and then Professor Martin to give their remarks. I’ll moderate a discussion among the panelists before opening it up to Q&A from you all the audience both here in person but also online. Let me introduce our panelists in the order in which they’ll speak. I’m going to keep the introductions pretty short because I want to maximize the time for discussion and for questions. Steven D. Smith is the Warren Distinguished Professor of Law and the Co-Executive Director of the Institute for Law and Religion and the Institute for Law and Philosophy at the University of San Diego. He clerked for Judge Joseph T. Sneed on the U.S Court of Appeals for the ninth Circuit. He earned his law degree from Yale Law School and his undergraduate degree from Brigham Young University. Jeffrey Pojanowski is the Biolchini.
Professor Poczwardowski:
Biolchini. Yeah.
J. Joel Alicea:
I always have a hard time. Biolchini. Thank you. Family Professor of Law, Notre Dame Law School. He clerked for Justice Anthony Kennedy on the U.S Supreme Court and for then Judge John Roberts on the US Court of Appeals for the D.C Circuit. He earned his law degree from Harvard Law School, his undergraduate degree from Princeton University. Finally, Margaret Martin is an associate professor of law at Western University in Ontario, Canada. She earned her doctorate from Cambridge University, her MSL from the University of Toronto and both her master’s and bachelor’s degrees from McMaster University. We’re especially grateful to her for making the trek out here from Ontario. So please join me in welcoming our panelists and I’ll turn it over to Professor Smith.
Professor Smith:
Well thanks Joel and I want to thank the Catholic University and the American Enterprise Institute for sponsoring this and Margaret and Jeff for coming to support it. Jeff started doing double duty because he wrote a review of the book years ago, which the kind of book an author loves that makes the book seem more profound than I had thought it was. So I appreciate him being here again and I especially thank Joel for sponsoring the event, sort of an attempt to bring the book Lazarus-like back from the Academic [inaudible 00:04:25] Scholarship, always ends up, eventually. Joel suggested that I should start by summarizing the argument of the book and I’ll try to do this by asking what is Law’s Quandary? So here’s a try a brief explanation. It’s easy to assume that what’s familiar and routine must also be sensible. If it weren’t, why would we sensible people be doing it?
But if we step back and consider the sorts of things we do and say when we do law, our legal practices can seem quite puzzling. In many areas of life, we make crucial decisions not by looking at the choices that confront us and taking the course that seems most prudent or desirable or fair, but rather by trying to figure out what the law requires and we figure out what the law requires by trying to squeeze meanings out of often obscure old texts and precedents that don’t sometimes in any plain way speak to the questions that we currently face. Now this practice might make sense on the presupposition that there is, as I’ll put it, a law behind the law. In other words, we often seem to be assuming that there’s some kind of binding background law that are often unclear or ambiguous or irresolute positive law is trying to express and implement and that our legal arguments are trying to discern.
What we do in sane law might make sense if that presupposition is true, if it isn’t true conversely, our legal practice and discourse upon reflection can seem quite mysterious, weird or exotic to borrow an observation from Cass Sunstein. The assumption of a law behind the law seems most apparent probably in contested constitutional cases where courts routinely tell us that we have to do certain things that we as a people might not want to do, permit vile or mendacious speech for example, or that we’re prohibited from doing things we otherwise might want to do, such as regulating say, automatic weapons perhaps. Because the constitution says so, even though it may be obvious that no such command or prohibition can just be read off the text of the constitution or the framers intentions or even the existing precedents, and even though there are plenty of experts and even justices who tell us that the constitution doesn’t say any such thing.
But the assumption of a law behind the law is discernible, I think even in ordinary common law litigation in the way we use precedent, for example. I like this statement from Lon Fuller, Fuller said, “It’s not too much to say that the judges are always ready to look behind the words of a precedent to what the previous court was trying to say or to what it would’ve said if it could have foreseen the nature of the cases that would later arise or if it’s perception of the relevant factors in the case had been more acute. There is then a real sense in which the written words of the reported decisions are merely the gateway to something lying behind them that may be called without any excess of poetic license, unwritten law.” Actually for centuries leading legal thinkers openly affirmed the law behind the law. Sir Edward Cooke said that the common law “agrees with the judicial law of God on which our law is in every point founded.” Blackstone and Fortescue and others said similar things.
In the 19th century, American lawyers like Joseph Story commonly said that judicial decisions were not in themselves law, they were evidence of the law. Probably the most worked out version of this view, which the book describes as the classical view was given by Thomas Aquinas who explained in detail how the positive law was related to the natural law which was itself part of God’s eternal law or providential plan that was applicable to human beings and discernible by human reason. For over the past century now, by contrast, this notion of a law behind the law has been rejected by the profession and mocked by the likes of Justice Holmes who ridiculed it for treating law as a brooding omnipresence in the sky, which brings us to Law’s Quandary.
It seems that the weird or exotic ways we continue to do law might make sense, but upon a presupposition that we as a profession no longer hold or at least purport not to hold. So we have a choice, we could possibly achieve rationality either A, by reviving the law behind the law and defending it or B, by ceasing to do law in the traditional way. This second option, by the way, is the one that Holmes and many, many others have prescribed over the last century, and yet it seems that we as a profession are incapable of doing either of these things and so lawyers and judges and even law professors basically continue to argue about issues and decide cases the way they’ve done for centuries. In an essay on the centennial anniversary of Holmes’s famous Path of the Law essay, Richard Posner, who I think might be viewed as a sort of pale at reincarnation of Holmes, thus lamented that, “The traditional conception of law is as orthodox today as it was a century ago.”
Posner explained what he meant. “Most lawyers, judges and law professors still believe that demonstrably correct rather than merely plausible or reasonable answers to most legal questions, even very difficult and contentious ones can be found and it is imperative that they be found by reasoning from authoritative texts, either legislative texts or judicial decisions and therefore without recourse to the theories, data insights or empirical methods of the social sciences.” And so we persist in doing law in a sort of ontological gap as the book puts it and in a way that seems to make little sense on our professed assumptions. As Roberto Unger put it, “We seem like a priesthood that lost their faith but kept their jobs.” That is our Law’s Quandary, which by the way seems to me to be merely one important dimension of a larger quandary or ontological gap that applies in other areas of our lives, our commitment to human dignity and human rights, for example.
So that was my assessment 20 years ago when the book was published. Would I still give the same assessment today? Well, I’ve changed in some ways and so has the world. The book grew out of my experience at the University of Colorado teaching jurisprudence, which I haven’t now taught or read much of over the past 25 years, and also of my crit upbringing as a teaching fellow at Stanford and again with colleagues at Colorado. More generally, the book came out of a sort of critical legal studies period in the legal academy that has since faded or else degenerated into what seemed to me less interesting forms. For the discussion today, I had to go back and reread the book or at least parts of it to remind myself of what I was thinking back then and it occurred to me more than once that I probably couldn’t write a book like this now. And yet the basic diagnosis still seems to be sound and that diagnosis perhaps gains a bit of support from some more recent scholarly work as Joel mentioned.
Thus, important books by legal historians Richard Helmholtz and Stuart Banner have shown how pervasive natural law thinking was historically and in 19th-century American law. In addition, prominent legal scholars including Will Baude, Steve Sachs, Judd Campbell and John Harrison have recently argued with an air of discovery that it turns out that we can’t understand the 14th Amendment without appreciating the enactor’s belief in a background general law, as they call it, that wasn’t reducible to positive law in particular judicial decisions. Even more prominently and provocatively, a much discussed book by Adrian Vermeule entitled Common Good Constitutionalism explicitly tries to revive what he calls the classical legal tradition, which is the same term I used and approximately the same thing I discussed with respect to the law behind the law view held by Blackstone, Cooke, Aquinas and others.
Vermeule uses the Latin terms lex to refer to the positive law and use to refer to the law behind the law, and he argues much as Law’s Quandary did that we continue to be governed by the classical legal tradition even as we think we’ve outgrown and discarded it. Vermeule puts it this way, “The official commitment to legal positivism that is the main common characteristic of the reigning approaches is itself consistently belied by the actual behavior of judges and other interpreters who are far more classical than they know.” Law’s Quandary made very much the same argument and I humbly add at much greater length than worth more care than Vermeule does. Although this recent scholarship provides at least oblique support for the book’s diagnosis though, so far as I can see, none of it does anything to dissolve the quandary.
The works by Banner and Baude, et al, note the different jurisprudential assumptions of past generations, but they explicitly embrace the prevailing positivism. By contrast, as I’ve said, Vermeule disparages legal positivism and he does propose to bring back the classical legal tradition, but at least in the book that has gotten so much attention, he doesn’t attempt to articulate or shore up the ontological assumptions on which that tradition rested. His strategy rather is to tinker with the idea of the common good. I doubt that this kind of tinkering can do much to fill in the ontological gap apparent and current legal thought and practice. I can’t be too critical in this respect though, because Law’s Quandary itself didn’t really seek to revive the classical legal tradition either. In fact, at least some readers weren’t sure whether the book was even intended to endorse that tradition or whether it was purely critical and deconstructionist in its purposes. And I’ll say more on that in a moment.
But we’re in a tough place I think, and I may conclude with what we might call The Law Professor’s Quandary. So let me put it this way, Blackstone and Cooke and Aquinas and even Story could talk openly about the law behind the law because they lived in a world that shared a worldview, a providentialist worldview let’s say, in which that way of thinking made sense and in which it was acceptable to engage in such thinking for public purposes. By contrast, for us, those conditions no longer obtain. Some of us may still believe in such a worldview, but we can’t really appeal to it in academic discourse or I suppose we could appeal to it, but then what we say wouldn’t come across as something that our academic colleagues would understand and engage with. Rather it would be to them as if we suddenly started speaking Swahili or Medieval Latin as Richard Posner once said of John Finnis.
Law’s Quandary thus becomes The Law Professor’s Quandary. So what to do? Well that’s a question that has plagued me through my entire career and I don’t know the answer. I can think of several possibilities. I’ll call these the historical strategy, the translation strategy, and the critical strategy, but none seems especially satisfactory. So one possibility is to concentrate on historical work. We can study how the classical legal tradition functioned for our predecessors. This is what most of the scholarship I mentioned earlier does and I regard it as extremely interesting and valuable work, but it doesn’t really engage with the present quandary or with our own ontological gap. Another possibility is to try to translate more classical thinking into the ontologically more impoverished vocabulary of the 20th and 21st centuries.
As I’ve said, I think Vermeule tries to do something like this by focusing on the idea of the common good. The so-called new natural law of John Finnis and his colleagues is arguably another instance of this strategy. This seems to me to be a noble effort that can generate valuable insights, but again, I doubt that it will do much to rescue us from our quandary. My own strategy has been more critical. Try to show the embarrassing shortcomings of the prevailing ontologically truncated ways of thinking. That was the approach I tried to use in Law’s Quandary. Now I understand that some might think of this as the most unsatisfactory of all of these options. It strikes people as purely subversive or destructive in nature. If you can’t say something constructive, don’t say anything at all. My own view, or at least hope though, is that critical work can be valuable. First, in enhancing our understanding, which is a good thing in itself and which I tried to allude to in the book with repeated invocations of Socrates. It was basically an ancient Athenian crit.
And second, in seeking to humble, illegal and academic enterprise that often suffers from hubris and that can come to resemble the project of the builders of the Tower of Babel for which we should recall an induced confusion was the divinely appointed remedy. And who knows, a conviction of the deeply unsatisfactory nature of much of what we currently do might even prepare us to be receptive to more satisfactory alternatives if they should appear. So I’ll end with a quote in which an admittedly unsavory character made what I think was a profoundly important point. In a famous interview in which he attempted unpersuasively to explain away his earlier association with Nazism. The philosopher, Martin Heidegger was asked whether he believed that any philosophy could rescue life and politics from the ills that afflict modernity. Heidegger replied that no philosophy could perform these restorative functions. The most that philosophy could do would be to render us open and potentially receptive to the possibility of extra-human assistance. Here’s the exchange interviewer.
Now the question naturally arises. Can the individual man in any way still influence this web of fateful circumstance or indeed can philosophy influence it or can both together influence it insofar as philosophy guides the individual or several individuals to a determined action? Heidegger, “If I may answer briefly and perhaps clumsily, but after long reflection. Philosophy will be unable to affect any immediate change in the current state of the world. This is true not only in philosophy but of all purely human reflection and endeavor. Only a God can save us. The only possibility available to us is that by thinking and poetizing, we prepare a readiness for the appearance of a God. Only a God can save us. That’s the desperate.” But also potentially hopeful conclusion that I come to with respect to Law’s Quandary and for that matter, many of the other and less theoretical problems that afflict us today. Thanks.
Speaker 2:
Professor Poczwardowski.
Professor Poczwardowski:
Great. Thank you Joel for having us here today and thank you Steve for giving us the occasion to talk about this wonderful book. I do love this book very much. In fact, when I was a young practicing lawyer thinking about the idea of going into the legal academy, reading Steve’s work in this book in particular played a really important role in convincing me to take the plunge. I wanted to be able to read and write and think about things like this for a living. So it’s really wonderful to be here today. I also teach Steve’s book or either the book or the law review article version of it, Believing Like A Lawyer in my jurisprudence class. For many of the same reasons that Steve talked about, part of my jurisprudence class, which is required at Notre Dame is convincing the students, one of the ways that convincing them it’s worthwhile is making the familiar look strange and making what you take for granted seem somewhat mysterious and kind of inculcating a sense of wonder. And Steve’s book helps do that very well. So it’s wonderful to be here today.
So as Steve just argued, he argues that the quandary we face is that our practices presuppose something like the brooding omnipresence or transcendent natural law, notwithstanding the fact that our disenchanted world professes to have put away such childish things. The dark interpretation of the state affairs is that we are in a state of incoherence that cannot go on, echoing Alasdair McIntyre who’s After Virtue haunts this book. We have a vocabulary premised on a worldview of classical natural law or divine law that is now alien to us. So we should not be surprised that legal argument can often be interminable, emotive and manipulable and manipulative. And the believing law professor or lawyer who wants to render our practices rational by encouraging people to embrace the more enchanted vision will be met with incredulity, disdain or indifference.
I share much of Steve’s appreciation for the challenges facing believing lawyers and scholars and to think that legal philosophers can change the world about anything, let alone such matters of ultimate concern itself seems hopelessly optimistic. That said, Smith’s discussion of belief in Law’s Quandary is one of the most intriguing parts of the book and to my mind could offer some glimmers of optimism. Drawing on the work of University of Michigan legal philosopher Joseph Vining, professor Smith demonstrates that belief is itself not a simple matter. A person can believe something by considering a proposition and based on evidence and argument affirm its truth. At the same time that person can act on a daily basis in a way that contradicts that committed, sincere mental assent. What would you say that person in fact believes? It’s at least plausible to say that in an important sense the person does not believe that proposition.
If that is true, and it is correct that our legal practices presume non-naturalistic entities, the persistence of legal practice is a noteworthy descent from our contemporary disenchantment. Law from this perspective is what Vining calls an opening in the iron cage of secular rationality. Smith discusses this in terms of ontology, our beliefs about what kinds of things exist in the universe. Our practices presume an ontological inventory, whether it be natural law or the brooding omnipresence, that modernity and some strains of postmodernity disavow. I think he’s right and I would like to dig a little deeper here. First, consider Smith’s thesis in light of the argument that the theologian and philosopher of science Peter Harrison puts forward in his recent book, Some New World, Harrison argues that in earlier in the Christian West, faith was a matter of trust in an authority with strong social, relational and affective dimensions.
Theologically, the notion of implicit faith, the idea that one can truly believe without a detailed grasp and conscious affirmation of particular creedal propositions was unimpeachable. Reason had its place, but it did not stand on its own bottom. Rather, it was a divine gift whose principles rested on a foundation of a shared faith. With the Reformation and later the Enlightenment, faith and belief shifted toward the notion of belief as agreeing with or giving assent to some proposition and the matter of what we now consider the scientific method. This also coincided with what Harrison called the invention of the divide between the natural and the supernatural. The supernatural became the realm of belief without or outside of reason, whereas the natural was the reliable world of ordinary science.
I think this sheds further light on what it means to believe like a lawyer. The lawyer in practice has an implicit faith that it is sensible to engage in Talmudic acts of precedent parsing, scan statutes at the scrutiny of a scholastic and apply the answers to hard questions of first impression retroactively as if the law required it all along. From the post-Enlightenment understanding of belief that can seem bizarre. The lawyer cannot demonstrate such determinacy through abstract reason and presume such determinacy comes from an entity that is not easily reducible to naturalistic terms. But if we use our older categories of epistemology and ontology, the lawyer’s reasoning from assumed authority embedded in practices with strong social, relational and effective dimensions, what he’s doing is not nonsense, but rather faith-seeking understanding and they would not be strange to see the ordinary materials of law shot through with transcendent threads.
Another note on the effective and social dimensions of religious and legal practice, and if you forgive me, I referenced yet another recent book. Here, the anthropologist T.M Luhrmann’s volume, How God Becomes Real. Two aspects of her research are illuminating here. First, there’s what she calls the faith frame. She explains how modern believers ontologically code switch between the ordinary world and what we now consider the supernatural. There is a sense in which the faith frame points to a deeper truer understanding of the cosmos, but is not one that comes easy. It requires cultivation, effort, practice, and can be plagued by doubt. What makes the faith frame possible however, is a kind of serious world-building play where there are firm rules of engagement, clear signs of participation and set means of interaction. He or she uses the example how secular people become religious. They read heaps of books about right practice, slowly begin ritual observance, begin using a distinct vocabulary and seek to discern God’s voice in their reading and prayer. Without these immersive socially embedded practices, the faith frame is not sustainable against the tide of the sublunary mundane.
The parallels to legal education and practice are of course striking, students tote around large tomes, undertake the ritual of Socratic examination and stylized brief writing, use bespoke legal vocabulary and pore over voluminous reports to hear the voice of authority perhaps in the form of a case on all fours or principles that hang together and point in one definite direction. This continues in legal practice where lawyers show up at buildings that look like temples and officials and robes or in transactions where legal speech acts change the world, especially when marked by a ritual seal. Legal education and practice then help maintain the faith frame, but as Luhrmann points out, the faith frame rests forever intention with the world of ordinary ontology and causation. This combination of constant cultivation and tension echoes the strange phenomenon Smith identifies in his book, namely that people profess doubt or disbelief in the law, but cannot help but acting as if they had faith, particularly when the practice of law is structured to orient them toward the faith frame.
Now, this ritual would be perverse if the faith frame of legal practice were in fact entirely fictional. That would be like as Smith says, “A game of hangmen where real people die.” But it’s also unlikely that people would persist in this practice for so long if they believed it was a game through and through. And as Smith notes, scoffers since Oliver Wendell Holmes have been trying unsuccessfully to convince us to put away a childish attitude towards such serious things. Consider the novel Ender’s Game where the protagonist discovers that in playing a video game, he has in fact been destroying actual alien civilizations. The story is poignant because of the power and shock of that recognition. Ender would feel very differently about zapping solar systems after learning the whole story. Compare that to how we have responded to more than a century’s attempt to debunk the presumptions of our practice.
Harrison contends in his book that the modern naturalist framework is parasitic on this old theological worldview. For early modern thinkers, belief in God was not incompatible with science. In fact, science depended on God. For without him the universe would lack the orderliness, intelligibility and reliability that makes systematic search for truth possible. Contemporary naturalists, Harrison contends, practice science as if such a sustaining creator were in fact holding things together while all the while disclaiming his existence. In that sense, they too are like non-believing lawyers whose practice presupposes a different kind of natural law. Works like Smith’s and Harrison’s do more than offer interesting intellectual genealogies or gotchas for believers to present to their secular interlocutors. In fact, scholars who are believers cannot believe in the same way that Augustine or Aquinas did. Like it or not, we too live in the imminent frame in which religious belief is one option among others. One might say that in a sense every practicing cradle Catholic is an invisible revert, but as Benedict XVI argued in his introduction to Christianity, the gulf between the believer and the skeptic is not as wise as we think, especially in post-modernity.
Every believer today, perhaps more than yesterday wonders, “What if it’s not true? What if there’s nothing more than this?” At the same time, many if not all wonder at some point, “What if it is true? Could there be more than just this?” We are all in a terrain of belief and unbelief in varying degrees, which gives us more common ground than arguments that from say, the new atheists indicate. Recognizing that shared ground and what is implicit in the rituals of our lawyerly practice is an important enduring and perhaps hopeful legacy of Smith’s book. Thank you.
Speaker 2:
Professor Martin.
Professor Martin:
Thank you so much for having me here today. I would also like to echo Joel’s point that I think this book is more important today than it was 20 years ago for reasons that I will discuss. So today I will use Justice Scalia’s Review of Law’s Quandary, which was published in 2005, the review was as an entry point into my discussion. The fact that Law’s Quandary was reviewed by a sitting Supreme Court justice speaks both to the quality and to the reach of Professor Smith’s scholarship. So while I agree with Justice Scalia’s that the presentation of Plato’s Socrates is somewhat one-dimensional, I do not share Scalia’s overall assessment of this book. Early on in Law’s Quandary, Smith rightly notes that Socrates exchanges with his interlocutors often end in failure and perplexity. Both Smith and Scalia are right to maintain that perplexity is not a resting place.
However, neither Smith nor Plato leave their readers without resources. Instead, I will suggest that both Plato and Smith teach their readers to see and reflect on things invisible. In Plato’s dialogues, lessons about the nature of justice do not appear in the form of a brooding omnipresence in the sky, rather they’re found hiding in plain sight. For instance, if we turn momentarily to Plato’s Crito, it becomes clear that the words exchanged between Crito and Socrates form only part of the story. Consider the context of this dialogue. Socrates is in prison, he has just been convicted of two offenses, corrupting the youth and impiety. Crito, Socrates old friend enters Socrates’s prison cell before dawn. His plan we soon learn is to persuade Socrates to escape, but instead Socrates persuades Crito to leave without him. Why We might ask, does Socrates choose to leave without him or why does he choose to stay in prison and accept his punishment when he can leave with his friend and escape death to the comfortable exile which has been set up for him?
We do not need to read the entire dialogue to locate the key reason why Socrates refuses to leave with Crito. Instead, we must only reflect on the problem at the center of the unfolding drama. Crito, we quickly learn has bribed the guards. This is why Socrates is able to escape. It turns out that bribing the guards was a very common practice in Athens. So here is the problem. If Athenians continue to bribe guards and free their friends, this will over time create a perversive incentive structure. Not only will the rich have more freedom than the poor, but more importantly, it is unclear that the integrity of any trial will persist. Why after all would members of the jury work hard to determine if the accused is guilty or not? Money would be the measure of such things. Over time, it is likely that trials would still occur in Athens as everyone would have an interest in maintaining appearances, but the theater of the trial would become just that, a mere show.
If the integrity of the trial itself is corrupted, if persuasion and an honest outcome are not possible, then Athens will no longer be a city ruled by laws. The stakes are much higher than they appear to be. We can see the stakes only by attending to the barely visible ideals that inform everyday practices. Professor Smith is of course right that a visitor to earth, his fictional character Socratesa, cannot understand the law or for example, the university if she only looks at the visible activities undertaken in its name. But perhaps we need to see the practices found in the university, for instance, in light of the end that universities serve. And it’s impossible to understand the observed practices without thinking about these ends even though certain practices will not serve these ends in the same way or an equal measure or even at all.
This alone does not mean that we should abandon the ideal, rather it shines a light on the complexity of the relationship between practice and ideals which are not necessarily wholly distinct. This point becomes clearer still if we think of the idea of friendship, it is a meaningless concept without the reality of caring about the other for the sake of the other. Unlike Smith, I would be tempted to include the ideals that animate everyday life within what he calls the ontological inventory of everyday experience. Does this adjustment allow us to cross the ontological gap when it comes to the law? In other words, if we recognize that law too might be an ideal in this way, could we stop talking like realists and acting like traditionalists? Which of course is how Smith defines Law’s Quandary. So I doubt it.
The problem Smith spies is that the assumptions that brought coherence to the philosophical accounts of legal practice are no longer options for us. We need more than an appeal to ideals. We need something closer, if not identical to theism, but theism is not an option. Here we have arrived at the center of gravity of Law’s Quandary, religion. Justice Scalia is unhappy about Law’s Quandary, that Law’s Quandary has this invisible center. He seems to think that if a book is about religion, the author should talk about religion. With respect, I disagree. The power of Smith’s analysis lies in his painstaking removal of all that is familiar to us. He demonstrates that every attempt to account for legal authority to find an adequate author for our laws is flawed. Smith explains why we cannot seek assistance from real authors like judges or elected officials or from imagined ones like Dworkin’s Hercules. All of the usual suspects, smith persuasively argues, have mortal flaws. Smith skillfully takes away all that is familiar to us and he leaves us staring at their absence.
Smith ensures that his readers don’t only see the loss, they also feel it. Reading Law’s Quandary is a vertigo-inducing experience even on the sunniest of days. And of course, the absence that the book points us to is the void that appears when the secular paradigm displaces theistic metaphysics. But as Scalia rightly notes in the void, we see the invisible center of gravity of Law’s Quandary. It is religion or in Scalia’s word, God. Scalia makes the point with far more humor urging Smith to say the word, to just say it, say the G word. It is God he sees in the space at the center of Law’s Quandary, the absence becomes a presence. To be clear, we don’t need God as a metaphysical reality, but we need him as a universally accepted social fact. Only then can he be appealed to as an authority, but of course the old world order is not going to return. This is why I suspect Smith does not say the word. The word will not save us.
Scalia does not linger in the void. He quickly moves to more familiar shores insisting that democracy holds the key. Smith’s critique, Scalia argues, applies only to the common law, which was once underpinned by a belief in the divine right of kings. Luckily for us, the American legal system is statute-based, statues are enacted by legislature and they enjoy democratic legitimacy. This of course, is both a familiar account and a very attractive one, but Smith has already objected to it. It is far from clear, for instance, that the idea of collective consent, which is but a fiction can shoulder the heavy normative burden here. Also notice that Scalia assumes that the proverbial chessboard is static. Players are in an important sense distinct from the chessboard and the pieces are all interchangeable. We can find a new source of law’s normativity, democracy that replaces the old one, religion and there is no significant cost to be borne.
And the shift away from theistic metaphysics is often viewed as a sign of progress. Isn’t it a good thing that we no longer have to appeal to something beyond ourselves to justify existing legal practice? While this is an attractive position, it is far from clear that things are as Scalia believes them to be. To see this point, I will enlist the help of another thinker, Alexis de Tocqueville, his famous work Democracy in America offers an antidote to our comfortable narratives about democracy. Tocqueville observes that and I quote, “Men who live in Democratic times acquire the intellectual habits of the industrial and commercial classes.: Such men become focused on some visible and immediate goal that presents itself as the natural and necessary object of desire. Democracy fosters an interest in acquiring material things in addition to cultivating a materialist worldview.
According to Tocqueville, this focus on commerce is not an accident. Once we assume that everyone is equal, relationships begin to take the form of transactions. The old master-servant relationship, which was central to the old aristocratic world order is replaced by a new temporary contractual relationship in which services are rendered for a fee. Both parties view each other as equals, money mediates the relationship. Now compare this with the way the old aristocratic order unites people. The ties that bind are traditional conventions, customs and beliefs, which structure and freeze the roles in time and through time. According to Tocqueville, this leads to the creation of a stable interplay between master and servant. An interplay that is marked by competing impulses of mutual affection and tempered fear. The past is preserved almost without effort and the source of legal authority, which is divine, is part of the shared furniture of the universe. To borrow a phrase from Hannah Arendt.
The idea of precedent is at home in this older social structure, it is far from clear that the new home, democracy will be as accommodating as time passes. Not only is the earlier source of law’s authority gone, but so too is any sense that the past has value apart from any instrumental value, we may assign it. This is why Hannah Arendt worries that the loss of the old world order despite its many drawbacks, will and I quote, “Deprive ourselves of one dimension of depth in human experience as this depth cannot be reached by man except through remembrance.” Smith sees this issue clearly, he considers the possibility that current discourse is a holdover from an earlier epoch and it may in time disappear altogether. In the end, he rejects this possibility. If conventional law talk he argues is a holdover, it surely is a tenacious one.
He may be right, however, the problem as I see it is that the visible elements of the practice may not serve as a full indicator of the current state of play. Judges may continue to act as if precedent matters, but upon closer inspection it may prove to be a mere show. They may be seeking what they take to be the right answer to a particular problem going forward rather than thinking at least in part about how much weight they ought to assign to the past. The shift in orientation is subtle, but in time it may prove to be significant. The outward appearance of things may stay the same, but the values that once animated the practice may change. It is as if you arrive home one day and open your front door only to discover that stunt doubles have been hired to perform the roles of each family member. Everything looks the same. The casting was impeccable, but everything that is meaningful has vanished. This I will suggest is a live possibility.
What one makes of this possibility will depend on one’s view of the traditional way of doing things. The point that I hope comes into sharper focus today is that any change that comes about will involve a trade-off and it is worth reflecting on the nature of the stakes. It is after all easier to preserve a practice that we have not yet lost than to reestablish one that we regret abandoning after it has slipped away. This of course, is the problem we must confront in Plato’s Crito. But Plato has one final chess move, a move that is not available to Smith. Socrates at the end of Crito, harnesses the Athenian belief in the gods in order to address the problem at the heart of the dialogue. Those that escape from prison, Socrates tells us in Crito, will eventually be punished for eternity in Hades as the laws of Hades will carry out that task.
In other words, the medicine is delivered in the form of a myth and a myth about the afterlife. Smith of course, cannot make this appeal, but he does the best with the resources available. When other theorists risk obscuring much about legal practice, Smith boldly takes, and I quote, “The dragon out of his cave onto the plane and in the light of day,” to borrow metaphor from Oliver Wendell Holmes. And only when Smith does this can we then reflect on the many dimensions of Law’s Quandary. Thank you.
Speaker 2:
So I have plenty of questions for our panel, but I want to just pause to ask if any of you had anything you wanted to say in response to the opening remarks. Don’t feel like you have to because like I said, I have plenty of questions, but if there’s anything you wanted to jump in and say. Steve, anyone?
Professor Smith:
No.
Speaker 2:
Okay, great. So I want to start with you Steve. So Jeff and Margaret seem to agree with your core claim of Law’s Quandary that quote, “The sorts of things we do and say when we do law presuppose the reality of natural law,” and perhaps even theism. But our legal culture resolutely rejects those presuppositions. So that creates this quandary. We’re doing things and talking about things in a way that is disconnected from our presuppositions about how law works. Now that kind of incoherence is obviously troubling to us on this panel rather as legal theorists because we want some account of law that is coherent and that makes some sense.
But our audience here of legal practitioners or those involved in public policy might listen to that quandary and ask, so what is the problem of living in this ontological gap or the void, as Margaret said. What’s the problem with that? Why is that a harm?
Professor Smith:
Yeah. Just this morning I was rereading some of it and I noticed that right at the end I say something like history shows that we can live for long periods of time in an ontological gap. We can go on doing things even though they might not make much sense on our stated presuppositions. And I think natural law type theories are particularly well suited to sort of accounting for that. Insofar as they say things like these are things that are written on the heart as Paul… So even people who in their minds may not acknowledge or know them can still kind of go in that way.
The other thing though, I was also checking out this morning, so the written on the heart part I think comes from second chapter of Romans maybe, that’s at least one of the sources. Paul says, even the Gentiles, though they didn’t know about the law, it was written on the heart,” insofar, in some sense did know it. But that’s also follows the first chapter of Romans that talks a lot about idolatry. And so another thing that sort of comes up in the book a little that I’ve written quite a bit more else about elsewhere or used to at least write about it, was idolatry in law. So let me just put it this way. I think if you don’t acknowledge the presuppositions that seem to be informing your practice, one possibility is you might become aware of that and it might be paralyzing or destructive or subversive and you might lose confidence in it.
But another possibility at the other end is something like, no, you might start then just transferring whatever [inaudible 00:46:47] to the actual practice of sanctifying them and they become sort of a form of idolatry. I think those are both potential errors in opposite directions that can come from a failure to acknowledge and sort of engage with the actual presuppositions of your work. So I guess the short answer would be, yeah, I think we can do a lot without acknowledging this. And in some ways it’s mostly a theoretical problem, but in other ways I think that theoretical problem can kind of lead to different kinds of errors. So it’s not necessarily purely a theoretical problem.
Speaker 2:
Margaret, Jeff, you want to jump in on this? And obviously as we go through you should feel free to just jump in at any point, not just wait for my questions. But Margaret, anything to add?
Professor Martin:
Whether I think living with this gap is a problem over time?
Speaker 2:
Yeah, it’s obviously a theoretical problem if it’s true. If Law’s Quandary thesis is correct, that’s a problem for legal theory, but why should an audience member who isn’t a legal theorist care about that problem?
Professor Martin:
Yeah, well, I always try to explain to my students in a similar fashion that Jeff explains to his students that in order to see where arguments travel, whether you’re making arguments in a given case or just in general, you really have to pay attention to the assumptions and the implications that come with those assumptions. And it is a source of both knowledge and potentially quite a powerful source of knowledge to see this. My worry with the gap is… So I worry that it could be slipping towards something else. So if Jeff is right that by having faith in the law as he articulated a moment ago, that the practice can continue on as is, I think that would be great. I see the possibility that we could lose what we have if we don’t attend to it. And I think it can be lost in many, many ways.
And what I really like about Smith’s book more so than most of the things I teach and read in legal philosophy is it forces us to think about abstract conceptions of law in relation to legal practice on and ongoing basis. Most legal philosophers take us into the world of the abstract and they leave us there, but Smith forces us to look at practice and try to figure out what the assumptions are doing and how we are going to operate within this gap. And potentially in my view, is the gap widening? Is it narrowing? Is something else slipping away? Are we losing something through time?
And if we think too much in the world of ideals and not about practice, we can really lose ourselves. So I think we need both the ideal and an attention to detail in practice to ensure that the practices are as good as they could be. And perhaps that is as described living with this gap.
Professor Poczwardowski:
That’s really interesting. I do think it could matter, and this kind of builds on Steve’s idolatry point. Law puts on errors. You’ve got the robes, the temples, the magisterial language, the bailiff waiting at the end, who’s going to put you in jail or take away your stuff. It puts on errors and it has lots of force, but if it’s kind of underwritten on something we don’t believe in anymore, that leads to cynicism. It could lead to cynicism, it could lead to the loss of faith in institutions, it can lead to resentment. We’ve all been in a situation where you’ve met someone who’s in authority or acts as they’re in authority and you think they’re full of it, and what’s your respect for that person going to be over time? And if we’re running on empty, I think that will lead to deep distrust in the institutions, and that’s a worry.
Speaker 2:
Yeah, I think that those answers all make sense in the sense that there are some disciplines that have a theory and a practice but are not as explicit about the theory in their practice. But law is very explicit about the theory in the practices. Law is a quite theoretical discipline. And so to the extent that the theory is disconnected from the practice, that seems like more of a problem as a practical matter for law than perhaps some other areas of life where you might not be aware that there’s this incoherence, but you can kind of go about your practices and not notice it in the same way.
But that gets to my next question, which is the potential repairing of that incoherence. And this is a question for all of you, but Justice Scalia pointed out in his review, and Margaret really brought this out in her comments, that an implicit conclusion of the book is, as Steve explicitly said today, “Only a God can save us.” So to what extent do you think theism is required to recover a coherent understanding of law? And if we need God for law to make sense, are you really saying that legal theory is in some ways a theological project that legal theory is trying to get back to a theological mission? Maybe let’s start with you on this, Jeff, but I would like to hear from all three of you to the extent you have something to offer.
Professor Poczwardowski:
So I think you either have to have some theological belief or belief in something like the logos for it to make sense. So there’s big debates among philosophers and theologians about whether moral realism is possible without a God or something like that. And that’s a bit above my pay grade as a philosophically-interested lawyer. But I do think either belief in some sort of divine reason or something like the logos, whether it’s divine or not, would be necessary to hold it together if we’re going maintain the practice that we have. You could have a legal project that is on purely naturalistic terms, but its claims would be very different. The practices would be very different. We’d have to basically move to the poser model or the Holmes model that we keep resisting.
But even then that’s very difficult because you have to justify your decisions of putting people in jail and taking away their stuff. And if we’re just kind of moving meat and chemicals, it’s hard to make those claims beyond might making. So I do believe some sort of understanding of transcendent reason to justify law as claims and to render our practices coherent is necessary.
Professor Martin:
Yeah, I’ll quickly add, I worry that Mike would make right in those circumstances. So if you get rid of the assumption, there’s not much left. So if you don’t have a belief in the divine, you probably need noble lies. And the noble lies would take the form of say, Scalia’s own view. In the context of Law’s Quandary, it becomes something like a noble lie where then the authority is found in the intentions of the legislature or any other version of that which gives authority to the words and keeps the old practice going, but that would serve that function. But insufficiently of course. So it’s just-
J. Joel Alicea:
Or to your point that you made in your comments Margaret, that if theism is just presupposed as a social fact, but isn’t true, that would be potentially a form of a noble lie.
Professor Poczwardowski:
I don’t believe in God, but I want my servants to. [inaudible 00:55:03]. Actually, Justice Scalia had this… I forget where he said it… and he’s a complicated figure. There’s a branch of him that’s quite legal realist. He’s like, “The legal realist, to write the problem was letting people know about it.” They should have just shut up about it. But on the other hand, I think if you kind of look at his practices of statutory interpretation and legal interpretation, there is a kind of belief in coherence in the law that is there.
So I think he was skeptical of the kind of common lawyer, but if you read some of his West Virginia University Hospital versus Casey where he basically scours the code book trying to identify what this one term means and presupposes, if you look at 20 different statutes passed over 30 or 40 years, a unified understanding emerges somehow out of the ether that informs what’s been done before. That seems to presuppose a lot about a unified mind existing over time, which seems kind of ontologically rich and promiscuous. So even in his own moments, he seems to can’t help but be a believer, I think.
Professor Smith:
So I think the Scalia review, which I’d sort of forgotten about until Margaret mentioned it last week, but I think he offers a version. I mean, it’s his version and of course he’s a controversial figure, not everybody would agree with his particular version, but I think most people today in working in the law, I agree with some variant of this, which is we don’t need anything metaphysical or exotic behind it because what we have now is basically democracy and positivism, or to spell it out a little more. Authorities based on the consent of the governed, they’ve created a certain legal structure which puts out law, and that’s positive law with a sort of conventionalist theory of how language works, we can get by just with that.
To my mind, that was never really a fully persuasive answer, but I think it’s less persuasive now than it was when he wrote his review. I mean, these ideas that, oh no, we have law based on the consent of the governed and conventionalism can give us all the meanings that we claim to be getting out of law. I think that’s less believable now than it was even 20 or 30 years ago, which pushes me to think, yeah, ultimately it is kind of a theological enterprise. It may not be one that you have to acknowledge and not everybody doing it of course has to always go back to first principles and do that, but at its root, it is, I think basically a theological enterprise.
J. Joel Alicea:
Why do you think that Scalia’s attempted solution is less persuasive now than it was then in terms of substituting kind of consent of the governed as the authority for perhaps God?
Professor Smith:
We’ll start with that one, the consent of the governed. I mean, authority has always been a complex issue, and if you look through the history, they’re always sort top down aspects. Walter Ullmann used to talk about this and talking about the middle age. There are top down themes and bottom up themes. The consent of the governed is a bottom up theme. The people get together, they agree on certain things, and that creates authority and the authority promulgates law. I argue that that has always been a fiction. I don’t mean to condemn it. As I say, fictions can do a lot of work and they have a certain value, but it’s always been a bit of a fiction.
And if you look at the country today, the polarization that exists and so forth and say, “Ah, but the government has authority because we all consent to it,” seems to me just almost preposterous to think that that can be the basis of law. Other people will defend it in one way or another. It gets very complicated. I’m just saying the objections to it today in the polarized world that we exist in seem more powerful than they would have at some periods of the past where was a little more plausible to say… there’s sort of a consensus that we all consent to.
J. Joel Alicea:
Well, I might circle back to this question of authority later, but I want to move to Jeff’s remarks because this discussion that we were just having about religious faith is obviously weaved into your response to the book, Jeff. And in listening to your remarks, I was struck by the hope that you seem to have, even in reading this book, which is mostly a book of deconstruction. You recognize the quandary that Steve identifies, but your description of legal practice as reflecting, “not nonsense,” but rather faith-seeking understanding, it seems to evince a view that our practices might lead us back to the classical understanding of law. Was I right in detecting that hopefulness on your part or am I over-reading what you’re saying?
Professor Poczwardowski:
Yeah, no, I’m generally not a very optimistic person. So I thought it was kind of fun to… What glimmers of hope can I pull out of this? I’m not the kind of person who thinks if we just work hard enough, Christendom’s going to come back or something like that. I think Charles Taylor’s right about a lot of things about the way we think and the way we are. We just can’t go back neatly and easily. We’re all cross-pressured in this imminent frame and stuff like that. But nevertheless, I do think it’s kind of interesting and fun and optimistic to say, notwithstanding the secularization, I think we are fundamentally believing animals and we are fundamentally religious creatures and kind of identifying the ways in which we can’t help but act could be a pointer or a signal towards something else, could be the closest thing we can get to hope or revival. And I think it would have to come through…
And I think there’s kind of fun element of Christian paradox about the hope for belief is coming from lawyers, the practices of the Pharisees can point us towards something more. And I kind of get a kick out of that. So there’s a sense in which kind of looking for glimmers of hope and post-modernity, openness towards something larger. Would I put my money on legal practice re-enchanting the world? Probably not. But I think there’s more to it and there’s some glimmers of hope, and I think it’s just kind of worth highlighting. It kind of reminds me, I remember meeting a Finnish priest, he’s probably one of seven priests in Finland, and I was asking him, “That’s got to be a really depressing job.” You’re kind of walking around Helsinki… I think Ratzinger talks about Kierkegaard’s figure of the clown who shows up and says, “Hey, the circus is burning,” and everyone laughs because he’s a clown, they think it’s an act.
Being one of the eight feet priests in Finland has to be kind of really depressing. Or talking to an Irish friend who’s a very serious Catholic, this has to be a really depressing job. And he’s like, “No, people are seeking meaning, the world is a confusing place, but I can find glimmers of hope and kind of steer it to them.” And I think that’s what evangelism has to be kind of like. So that’s kind of why I wrote my remarks the way they did.
J. Joel Alicea:
Yeah, I thought that was just a very interesting theme because it seemed to, rather than proceeding from theory down to practices, it’s suggesting that the relationship can go the other way, sometimes that the practices can reveal the implicit theory and perhaps reinforce that theory. It’s similar in some ways to how Newman talks about doctrine and its development and to some ways in which we talk about tradition. We have my colleague Marc DeGirolami here, who is the Newman Chair at Catholic University and has made similar points about how practices can actually reveal theory. But that’s the hopeful story. I didn’t get as much hope from Margaret’s remarks or from Steve’s from remarks. Am I wrong to hear a potential disagreement here on the panel about the extent to which we can be hopeful for recovery of classical legal tradition from our practices or from other sources?
Professor Smith:
The part of the book is the part that talks about Joseph Vining, I think, and how he has, I think these intriguing views about belief. I think we usually think that I know what I believe. I just look inside myself and I see, do I believe? But Vining said no, it’s much more of a quest to reflect on everything you do or other things you think, and you sort of gradually arrive at what you believe. And if Vining’s right about that, lawyers and so forth already believe a lot of this stuff. They just don’t think they do or they don’t know they do. So then the question would be something like, is this a way to bring their, let’s say, professed, articulated conscious beliefs more into line with their deeper beliefs?
And it might be, I guess that’s the hopeful thing. And I do think that probably when faith develops in that way, it may often be as a reflection on what you’re living and assuming anyway or something of that sort. But I would have to say, if we were to gather together and say, can we devise strategies for, oh, whatever you want to call it, re-evangelizing America or something like that. Somehow I doubt that jurisprudential reflection on the presuppositions of law would be the strategy we would first come up with and so forth. So it might be sort of along with other things. It might have some influence that way. Except perhaps there’s a warning into the opposition.
J. Joel Alicea:
Yeah, Margaret, anything?
Professor Martin:
Yeah, I was more hopeful until Steve responded to Jeff.
Professor Smith:
I’m sorry.
Professor Martin:
[inaudible 01:05:11].
J. Joel Alicea:
Darn it.
Professor Martin:
Yeah, I think it’s very to recover the tradition, but my own view is that the tradition should be taught at every law school and regardless of the orientation of the law school, and you can only really understand the conceptions of law that we’re working with if we understand where we’ve come from and why they’ve changed. So history, philosophy, theology, any of those disciplines can shed light on the status quo in a way that nothing else can. And I worry that the disinterest or the loss of interest in history is going to be a problem going forward. But I think we can keep the focus sharp in the legal sphere.
Professor Poczwardowski:
And to be clear, my argument is not like, “Hey, look, read Law’s Quandary and we’re going to re-Enchant America.” I’m saying this is the kind of strategy in various different domains for reawakening enchantment, pointing out the presuppositions of our practice, our implicit beliefs, and using that as an opening to think, the world is much more complicated and fascinating than you otherwise think. You can do this in law. If you sit down a scientist and talk about the presuppositions of the scientific method and kind of re-enkindle enchantment through that or just… It’s kind of a general strategy that would occur in many different domains. It seems like the only way of rekindling the fire today.
J. Joel Alicea:
So Steve, you wanted to jump in?
Professor Smith:
And it’s kind of along those lines too. So I was here several years ago sitting up here on this platform, on a program on Paganism that Ross Douthat had organized it for, and one of the other panelists was Tara Isabella Burton, who has this book called Strange Rights, a really interesting book, talks about all kinds of forms of spirituality in consumerism and just in different aspects of American life. It’s a really fascinating book, but it’s all kind of pagan, imminent, sort of quasi religious belief and so forth. So I read one review of that book by, I think it was actually about my daughter, Unlawful Liberty, Rachel Lu, but she says something like, “When you see about these different forms of spirituality, is this the best you can do? Saint Michael would make mincemeat out of these people.”
What it shows, I think is Jeff sort of a yearning for something of a deeper meaning, more transcendent meaning, I think. An acknowledgement in a lot of the way people act and so forth that they actually are committed, they believe in more than the naturalistic world view that most people have been kind of at some level raised in actually acknowledges. And so there’s some striving that direction and these sort of quasi-secular, quasi-religious pagan ways of satisfying the need are kind of pathetic. I mean, they’re curious, but they’re kind of pathetic in terms of their real substance. Law’s Quandary might just be exploring one aspect of that sort of thing in one profession, one domain. But if there is going to be some movement in that direction, it probably would come from saying, “Look, people actually need and believe in more than what the naturalistic philosophy allows them to.” That’s coming to be more acceptable.
People like Thomas Nagel and so forth, seeing that this naturalistic philosophy isn’t really all that adequate even intellectually. And maybe we ought to just open up and then say more and then we could follow major Scalia’s council, say the G, or something. At this point saying it probably would not have been helpful, I think, but maybe that is the way things might change. And that’s the hopeful. I’m being hopeful too now.
Speaker 2:
Making you hopeful. I feel like I’ve accomplished something today. Well, on the theme of opening up, let’s go to questions from the audience. I have several more questions, so don’t feel any pressure, but obviously I’d be happy to have questions from the audience that start over here. Yes. Oh yes. And please wait for the microphone to get to you so that we can pick that up.
Speaker 7:
Hi, I really love this book when I read it and I’m really grateful for the discussion. So thank you. This is more of a comment than a question I admit, but I just wanted to underscore this question of why is it bad in practice? I think that to the extent that people are willing to be rigorous within the world of it’s all just positivism and democracy, the kind of justification for rule of law that they can produce, the more rigorous they’re willing to be, in my view, the uglier their justification, it really just comes down to it’s very important for some reason that we accord equal weight to every person, and therefore crude majoritarianism is some kind of deep moral imperative.
And I think it just involves them in all kinds of very bad confusions about how much majoritarianism at the ballot box can really justify any particular act of law. And it then also really desensitizes them to the value of any stability in law that would be able to be more enduring than just the election returns at any one moment. Yeah, thanks.
Speaker 2:
Any responses?
Professor Poczwardowski:
Oh no, I think there is a lot to that. If it’s just, and I don’t think it’d be fair to delay Justice Scalia saying, that’s all he cared about and [inaudible 01:11:22], right? I don’t think that’s him at all. But if in law, all of it succeeds a success, you’re going to have a hard time. You’re going to have the problem of justification. This is kind of implicit in your comment. Even the arguments for full board democracy or just merely democracy, presupposes some sort of moral argument about equal worth, equal dignity, and that can’t stand on its own terms. So even that is going to have to require some sort of deeper moral commitment about human equality, because otherwise why can’t I just be in charge? So I give you positive law. We can coordinate.
Speaker 2:
Here and then we’ll come to the front. Yes.
Speaker 8:
Yeah. Hi, Steve Hayward, currently Pepperdine University. A couple of you mentioned briefly that maybe this is a theological inquiry and as tempting as it is, I’m going to have to avoid it. It’s been years since I wrestled with Karl Barth’s critique of the ontology of Thomas Aquinas, except to say that the theologians can’t agree on this for thousands of years. How are legal theorists going to do it? But I think there are three related questions that explode the problem here or blow up the problem in Steve’s book. One is, the problem with Holmesian positivism is it leads to Buck versus Bell. And it’s always been a puzzle to me why Buck versus Bell isn’t regarded and recalled with the same moral outrage we do with Dred Scott Plessy or Roe. And I think I have a very simplistic answer. It’s too embarrassing for the positivists and non-foundationalists.
So they memory hole it and they just ignore it. And if you bring it up, they’ll say, “Oh yes, of course it’s wrong.” And if you ask why, well suddenly they get incoherent in a hurry. And it’s that incoherence I see across the domain of the problem. So the critical legal studies theory, question one, one version of it is property law is simply arbitrary backing of power and privilege and property owners. Well, the premise there is something’s unjust about that. Well then explain that please, the basis of that. Well, they can’t. Margaret brought up, I’m glad she did. The noble lie is the practical answer, but I always say, oh, wait a minute, what makes it noble? And by the way, if that dissolves, then is it a lie? I mean, both terms are problematic. Right?
And then I had a third one and I’ve forgotten what it is now, so I’ll just stop with those two. But the point is, they’re self-contradictory. And partly I guess, I’ll say this last comment, it’s because Socratic skepticism and modern radical skepticism are quite different and we’re too much in for all to modern radical skepticism and too resistance of the plane dictates of common sense since we’re not ever going to solve the problem of the knowability of God in any rational sense.
Professor Smith:
Steve, just say something about this. So that’s an interesting comment, observation, and I think it makes some really good points. I think that in different ways, Justice Scalia and justice Holmes would escape. I think Scalia would escape it by saying, “Look, I’m a legal positivist, but I’m not some sort of nihilist or anything. I’m a moral realist and I’m a religious believer and so forth.” So Buck versus Bell could even be a correct maybe, I don’t know if Scalia would think so, but interpretation of the Constitution. But that doesn’t mean it wasn’t morally monstrous. And I think Holmes would escape it in the other way just by biting the bullet and say… I mean, I think Holmes was probably basically an nihilist.
The people who have the problem you’re identifying are the people sort of, which is maybe most people, but more in the middle who are not as hard-boiled as Holmes. They still are anxious to make moral judgments about different things and so forth, but without maybe affirming what would be necessary to make those and so forth. And there, I think you have a good point.
Professor Martin:
So in reference to the noble lie, of course, in order for the lie to be noble, it must reflect the truth or an angle of part of the truth at least. And I wasn’t going to use the term until I heard Jeff’s talk. And then if there’s something in the practice that’s worth preserving, then we might need a way to preserve it that appeals to something else. But you are right that it all disappears very quickly when we take on the voice of a consistent legal positivist. And very little can be said to answer any of your questions if you adopt that perspective. So I agree with you.
Speaker 2:
Further questions? Yes, ma’am. Here in the front.
Speaker 9:
Hi, thank you very much. My name is Ann Vroom. CIT had a speaker a few months ago, a Notre Dame colleague of yours, Vincent Munoz. And as I heard him, he was saying basically in the United States, the church state division kind of follows from Scalia’s comments about we’re living in a secular democracy, not in a monarchal divine right framework. To take almost an Augustinian approach, there’s the city of God and there’s the city of man, and that the law is in the city of man. It’s simply not in the city of God, and it never is going to be. It sort of goes along again with your remark about saying, I can be a legal positivist and still be a believer. There’s just a separation there and it’s two different things, and trying to reconcile them is relatively futile. Thank you.
Professor Poczwardowski:
Steve. You’re the church state guy. You’re the church state guy.
Professor Smith:
Well, Philip Munoz, he has done some really, really good work, and I like respect him a lot. I don’t always agree with his interpretations of everything and so forth, so to say, insofar as he says… Our constitution set up the city of man, a secular republic, I take it, you’re saying, or he was saying perhaps, and that’s divorced from the city of God, which is the natural law, what that has a theistic foundation. So that’s in this other realm, so our law couldn’t get.. I really would not agree with that as a characterization of what our country was at the founding or certainly we believe in a certain kind of separation of church and state.
But that kind of division between things, spiritual, theological and things secular, I think was just never was a viable distinction. And it wasn’t one I think that the founders of our country embraced. So I probably would disagree with some of that, I think.
Professor Poczwardowski:
Yeah. I’m thinking about this distinction here. So the city of man is the place of law, and if you’re not a positivist through and through, you’d have to say human law is going to be somehow developed and driven by the natural law. And then that leads to the interesting question. Most natural lawyers say would say, you can understand the natural law independent of God. They disagree about whether you need God to have the natural law, but even those who say you need God to have natural law to make sense of it would say, when you’re reasoning about a lot of the down on the ground practical reasoning that is kind of anchored in the natural law, which is anchored in maybe some sort of divine or eternal law, most of the time on the ground, you’re not invoking theology all the time. It kind of lays the foundation for the objectivity of your moral reasoning.
And so even if it hangs on some sort of theological anchor, it would be accessible, independent of appeal to revelation. And so I think, would say the relationship between natural law and divine law would be really, really complicated. But you’d still, even if you’re reasoning in the city of man, your reasoning would be linked somehow to the divine mind or something like that.
Speaker 2:
I also think it’s important to be clear about what question is being answered here when we’re talking about law, right? If we’re asking what historically was understood to be law, that’s one answer. If it’s what do our current social practices reveal about how we think about law, that’s a sociological kind of different answer. But if the question is what justifies the fact that when a judge hands down a judgment, somebody is going to die as a result, that’s a normative question and that requires some sort of normative justification, and that’s a very different set of considerations. And so I think it’s important to always keep in mind when people are talking about law and invoking morality or talking about the separation of law and morality, well, what question are they trying to answer? Because that might be a legitimate move for some questions and a wholly implausible move for others. I think Professor DeGirolami had probably the last question for today.
Speaker 10:
Thank you very much. Thank you for giving it to me. That’s nice of you. And actually the question relates in some ways to a recent paper that Professor Alicea gave as a lecturer entitled The Natural Law Moment. And the question concerns the issue of idolatry that Steve was mentioning before, and that is you see a number of these moves that you even mentioned, the rise of “general law” in some of the scholarship or some people really sort of put a lot in textualism as the kind of deposit or repository of this kind of brooding omnipresence. I’ve even seen Steve Sachs say, “The brooding omnipresence broods on,” but there isn’t a kind of full-throated embrace of the kind of natural law theological move.
So I wondered how all of you thought about these sort of, I don’t want to say half-hearted, but just sort of overtures that some theorists are making in what Professor Alicea has called the natural law moment sort of direction. And whether you think that they’re more in the nature of idolatry or whether without more they can do the kind of recovery that you’re… So how much hope do you have in them? I know that this is sort of a moderately hopeful to non-hopeful panel, but which contemporary moves in the literature that are out there do you see as being plausible in the direction that you’re describing or implausible?
Professor Smith:
Well, the general law that well, Baude and some of his co-authors in that, I think that’s plausible enough to what we’ve discovered is that historically these people, the ones who enacted the 14th Amendment, believed in a general law and you can’t really understand what they did without appreciating that. That’s, I think, quite persuasive and it doesn’t commit them to anything as far as whether those beliefs were true or not. I don’t think it commits them to anything about whether those things were true. So I see that as a good thing, but not all that hopeful or unhopeful with respect to any more sort of general change. The idolatry, I think I’ll bracket that for a little. I don’t see that exactly as any kind of form of idolatry.
But I might make one more general point. So Jeff referred to After Virtue, he says the book was sort of informed by that, and I think he was right about that. I actually read that book I think my first year as a law professor way back then, and I thought it was really powerful and it’s kind of influenced my understanding of a lot of things since then. So I think it informed my work and I thought that was just a really profound and persuasive diagnosis of contemporary moral theory. So for the last 20 years, I guess I’ve been, like my colleague Larry Alexander is really the one who runs it, but I’ve been co-director of the Institute for Law and Philosophy at the University of San Diego.
So we’ve had lots of moral philosophers in, and I remember for a while it surprised me that hardly any of them ever referred to MacIntyre or that book when you talk to them… most of them I think were aware of it. Some of them had probably read it, but they never really used it in any way. It didn’t seem to influence what they did. And at first, that puzzled me. Then I thought later, actually, there’s nothing surprising about that at all. If someone writes a book like After Virtue, that essentially tells the moral philosophers, everything you’re doing is really kind of mistaken. It’s based on premises that you can’t really… Someone might read that and naturally they’re going to be resistant to that if they’re moral philosophers.
But they might even be persuaded by it and think, but what am I supposed to do? Give up my career? This is what I do. You haven’t told me anything that’s helpful as far as doing what I do, and I’m just going to keep doing the same thing I’ve been doing all along, and there’s no reason to acknowledge you in any of my writing or my book because you’ve given a profound but useless diagnosis.” So some of these kind of more critical approaches I think in law may sort of have the same relation to the general practice of law. And I think it would take some significant change in the academy and the practice and maybe society before these sorts of things could happen.
But I don’t see how that happening very much as far as helpful in terms of reforming anything in terms or changing anything. In terms of the current practice, it’s not helpful to people who are saying, “yeah, but our livelihood, our profession depends upon this that you say doesn’t make sense. And you might be right, but I’m just going to keep doing what I do now.” And I think that’s what we’ve seen and probably will see until some more significant institutional changes or cultural changes happen.
Speaker 2:
So I think we’re out of time, but let me just quickly say in response to the question that… Overall, I think some of the move by my legal positivist friends towards acknowledging unwritten general law that is really the classical legal tradition is a very good thing. Because even if that methodologically and just as a logical matter does not entail any sort of belief in those normative foundations, if people who are drawn toward more of a positivist way, if they give out law, are given permission through positivism to think about the classical legal tradition. That might cause them to start asking themselves questions they otherwise would’ve ignored and could lead to eventually more of a recovery in the actual belief in the presuppositions of the classical legal tradition in my view.
At least, that’s the most hopeful takeaway for that.
Professor Poczwardowski:
Party and positivism is the gateway drug. [inaudible 01:27:19].
J. Joel Alicea:
No, that’s right. So before we close, let me just say that we do have for those here in the audience, in person, some free copies of the book for any of you if you’d like to pick one up on your way out. Otherwise, please join me in thanking our panelists.
Speaker 5:
Thank you.