ON THE OPENNESS OF LAW

The Crits, Realists, Classical and Sophisticated Formalists and Idealists all had positions. Who Was Right and What Follows?

The Critical position features a belief that law’s openness is severe and impossible to fix — it has always existed, will always exist and there is nothing that can be done about that. This idea builds off the position that American Legal Realism had laid out many years earlier when the likes of Holmes (the Path of Law) and Felix Cohen (Transcendental Nonsense and Functional Approach) showed that law was full of rules and counter-rules, every one of which could be read both broadly and narrowly because the world is inherently multifaceted. Picking up on that, Dalton (An Essay in the Deconstruction of Contract Doctrine) argued that when one examined the doctrine of contract law, they could see all these dichotomies that produce different outcomes depending on which one the adjudicator decides to go with. The Critical position deepens the critique, the result of which is a worsening of the image of conflict. ‘Crits’ were interested in major organizational differences in fields such as contract law which had especially been dominated first by formalists and then by idealists. While realists believed that the problems brought by openness of law could be solved by appealing to policy, Crits show that even such an appeal to policy suffers the same defects.

The idea that there was a larger scale political and economic dispute at hand in legal adjudication was of course not new. What was new in the Critical position was the attempt to show orderliness and structure to the openness of law. The Critical claim in that light was that for every theory there exists a counter-theory that could organize, apply and develop law in an alternative manner. This is what is now known as the ‘conflict thesis’ of Critical jurisprudence. Duncan Kennedy (Form and Substance in Private Law Adjudication) proposes that adjudicators consistently make decisions between individualism and altruism when deciding private law cases. He then demonstrates the same thing taking place in the realms of all other law in his 1998 book, a Critique of Adjudication. There, the terms ‘individualism’ and ‘altruism’ are replaced by ‘conservatism’ and ‘liberalism’ which are once more a reflection of the conflict thesis. Similarly, Morton Horwitz (The Triumph of Contract) shows how contract law constantly features a battle between the will theory and equitable theory, and how despite their most spurious proclamations, adjudicators are always choosing one or the other in especially decisions touching on labor contracts. A final example is a 1981 note introducing Advanced Civil Procedure course, in which Lew Sargentich identifies two opposing conceptions that underlie the organization of the aim and structure of a civil suit: ‘dispute-settlement’ and ‘enforcement’ and then goes on to show how each has had its period of dominance but the switch is always possible.

For the Critical position, the image of openness of law is further enhanced by what is referred to as the structure thesis. The claim here is that when one zooms out, there can be seen a structure within which the arguments regarding how to interpret some rules takes place — a frame of rules which shows some sort of overall ideology that forecloses another. The ideals in such frames therefore operate powerfully as organizing devices. The way to see such a structure is by negation, which means considering what sort of argument would be thought of as “crazy” and is therefore foreclosed from a legal argument. Robin West (Jurisprudence and Gender) shows how American law adopts a structure that forecloses a theory of women’s complex dangers and devalues the fundamental contradiction that characterizes women’s lives, for example intimacy. In that case, the nature of women’s complex existences are foreclosed from the organizing frames in contract law, tort law, constitutional law and all the other fields. Alternatively, consider Gerald Frug’s piece (The City as a Legal Concept) in which he proves that the liberal conception of law that ought to govern a city is in fact a choice of frame and structure that forecloses any possibility of an empowered city capable of facilitating closer-to-the-people self-government. The result is that an argument for significantly more empowered cities is altogether foreclosed.

Or consider Karl Klare (Labor Law and Radical Critique)’s observation that the liberal structure within which labor law ideology is constrained had within it: i) facile disinvestment and mobility of capital being most important, ii) employees, having made no ‘investment’ have zero stake in the direction of the firm or legal interest in the fruits of their labor and iii) employees have to obey commands and operational decisions of the employer. What it automatically forecloses is a conception in which employee participation in the workplace is prized and harnessed. One final example of the structure thesis at work is in Richard Parker’s ‘The Past of Constitutional Theory — And its Future’ in which he demonstrates that constitutional law as discussed then also had a structure — in this case one in which process oriented theories foreclosed other theories of constitutional law. The bottom line of the critical position is that there is no test between theory and counter-theory and structures except the test of moral truth.

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Other liberal jurisprudence scholars differ with the Critical position on openness of law. Classical formalists such as Langdell (Cases on the Law of Contracts) and Beale (A Treatise on the Conflict of Laws) considered a picture of law as being highly general, systematized and specific. Langdell, who wrote the first American Contract Law casebook, believed that the rules and generalizations of law are knowable by studying the cases. In his own view, law could be considered a science and the best way to master its doctrines was by reading the cases. In that way, one would be able to apply them constantly with facility and certainty to any tangled skein. Writing in 1935 during the heyday of American Legal Realism, Beale believed (like Langdell) that all law could be organized in highly general and formal propositions that were not too many and could be studied. He made a distinction between rules, standards and principles and believed that principles were the most important. To prove that, he used the Carolene case (likely because it was considered one of the most difficult and complex) to show how a mastery of principle could cover nearly every ground. Classical legal formalists therefore believed that there was no openness in law.

Sophisticated formalists like HLA Hart easily noticed the obvious gaps in that position and adjusted their theses to present a new one. Hart (Positivism and the Separation of Law and Morals) says goodbye to the purity of classical formalism and calls himself a ‘positivist’ rather than a formalist. To him, formalism was a vice and an error that ought to be rejected, which might have been an overstatement. The fact that classical formalism was misguided does not necessarily mean the use of the term is entirely pointless. Hart argues that most of law is formal argument, but that there still exists a small amount of formal openness that he refers to as ‘problems of the penumbra.’ There, an adjudicator may be forced to turn to principles, policies and purposes (and therefore make a legislative judgement). Problems of the penumbra cannot be addressed by logical (formalist) thought, and in such cases, judges would necessarily have to legislate. Yet even then, Hart believed there was always a ‘core’ understanding that would be undoubted, and which would guide the adjudicator. Hart further proposed that we abandon the idea that penumbral questions show us incompleteness and instead them as proof that there may be other legal criteria that exists to be discovered by judges. While this was a novel point, it is very rare and, in any event, would present a judge with a choice among alternatives — essentially a legislative decision to make. Hans Kelsen (The Pure Theory of Law) was similar to Hart in some ways, but his understanding of the need for a ‘frame’ makes all the difference. In his view, a complex analysis and classification of facts is required for figure out legal questions and apply law (for example the mailbox rule). For that reason, Hart was surely wrong. Similarly, Henry Black (Handbook on the Construction and Interpretation of Laws) shows up the inadequacies of Hart’s analysis in as far as it fails to consider the task of an adjudicator to fit things together. The Hartian idea that you can take one rule on its own is surely flawed when one examines the law at work. Hart’s position that openness in law is limited and penumbral cases few struggles when faced with a situation in which all the elements of complex formality have a penumbra. When each is read broadly, there is a collision that shows a conflict between them — vagueness gives rise to conflicts and gaps that Hart’s ideas are unable to appropriately respond to.

The powerful claim made by Alf Ross (Tu-Tu) and Sargentich that rules are formed and understood within structures is difficult to dispute. Making sense of any rules surely requires a grasp of the structure within which they lie. We turn now to sophisticated idealists such as Dworkin, Fuller and Fried, who accept that the law is open. They however disagree with the realist-crit notion that i) that openness is completely pervasive within the entire body of law and ii) the conflict and structure within that openness is insurmountable. The key claim of these contemporary idealists is that adjudicators would face openness within law, but that the answers to their questions could be found by coherence-seeking, which would require them to examine the principles and purposes of the rules being interpreted to help in guiding and shaping their decisions. The larger foundation for this enterprise is the contention that doing so faithfully, would overcome any conflicts in law and lead to rational resolution of a question. An excellent example of this was Warren and Brandeis’ then-groundbreaking argument justifying a right to privacy (The Right to Privacy).

Dworkin’s assertion that principles do not determine results but a constellation of principles can impose a legal requirement immediately springs to mind. The idea is for an adjudicator to understand a structure, and only after can reach rational resolution of a legal problem. Dworkin (Hard Cases) conceded that rules were important but argued that they were insufficient since formal rules often fell into disorder. Thus coherence-seeking is the big project in liberal law, and in these adjudicators would often be guided by either law-like policy (lines like cases in a like manner) and ad-hoc policy (does not line up like cases in a like manner), both of which were entirely acceptable. They would also be guided by principles and purposes, the ultimate test of which would be whether the theory being considered “vibed” with our everyday experiences. Importantly, Dworkin accepted that complete consistency was not possible, and believed that the answer to that was to bear down on any aberrations. Dworkin took the position that the conflict thesis was a ‘pre-law’ problem that would be defeated once an adjudicator took up the enterprise of coherence-seeking. On that, Dworkin was wrong.

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Dworkin was wrong because there is a persistent problem that emerges: When their work is examined closely, adjudicators are always making decisions between theories, counter-theories and structures even when they take part in the efforts of coherence-seeking (a so called ‘post-law’ matter in Dworkin’s terms). For that reason, I think that if we are to be intellectually honest, the Critical position on the openness of law — both the conflict and structure theses — is among the most correct one. At this point, the most vexing question becomes how to move forward given that choices between theories, counter-theories and structures are eventually just moral choices that adjudicators are certainly not specially gifted or equipped to make. One choice is to be nihilistic and abandon all hope for honest and working solutions. For many reasons, this is in my view an unacceptable position. An alternative choice, outlined to some degree by Elizabeth Anderson, and in a deeper and more convincing way by Lew Sargentich, is for adjudicators to at every turn promote and pay attention to a notion of deliberation in society, and then use what comes out of that as grounds of choice. This is the way forward that I identify with. The manifesto, as elegantly proposed by Sargentich, is to: promote legal choices that foster discourse between all as equals in society, to choose the more democratizing or equalizing possibilities and to choose the option that enhances accountability in society (as an equalizer). Obviously, difficult problems of epistemology arise but those can be figured out from this starting point, which to me makes the most sense.