The US as a borderline case of law

Legal theorists often wonder what we should think about things that are quite a lot like  law but are not, in fact, legal systems.  I’m not thinking  of the rules of board games or the Mafia, but of cases where the similarities are more compelling: soft law, indigenous law, Masonic law, and so on.  These have some features of the paradigm case of law and are missing others.  But, as HLA Hart pointed out long ago, it would be silly to say they are ‘not law’: the term ‘law’ is quite open and flexible.   Anyway, it is too late to say that ‘soft law’ is a misnomer.  There are books about it, courses in it, and no doubt someone will soon start to offer degrees in it.

Moreover, such forms of social order can over time come closer to the paradigm case than they used to be.   International law, for instance, is now more systematic and (a bit) more efficacious than it was when H.L.A. Hart said, in the 1950s, that it is more like ‘set’ of rules than a ‘system’.   As things stand, these are still borderline cases of law, but some of them are on the move.  My own preference is to call them ‘para-legal systems’.

Just as a form of social order can become more law-like over time, it can also become less law like.   Some jurisprudents think that can happen when law fails to live up to certain moral ideals, such as democracy, liberalism, or human rights.  My own view is more parsimonious.  I count Roman Law and Canon Law as paradigm cases of legal systems, even though neither of them has much interest in democracy or liberalism, and both are overtly hostile to important human rights.  Yet law they are.

But even on the more parsimonious view, other kinds of decay can cause law to unravel.   The law can cease to be generally effective.   Under this heading we usually  think of ‘failed states’, but even when state power  gets its way it may nonetheless escape the regulation of law, that is, the positive law of the land.   Is there anyone who believes that the widespread use of terror and violence against African-American men is generally in accord with state and federal law in the US, and that their mass incarceration simply reflects their just deserts, legally speaking? Whole social groups in the US  live in conditions of near lawlessness, and not because they disproportionately violate the law.

A different kind of decay results when the most basic ground rules of a legal system crumble.  I don’t just mean the (formal) Constitution–though in the US that is looking pretty shaky too.  Beneath every Constitution there is a constitution: a set of norms, standards, principles and practices that, together, identify the formal Constitution and regulate how it should be applied by judges and others.  These norms have always been much less settled in the US than in countries at comparable levels of development: the more extreme American ‘legal realists’  wondered whether there was any settled law or convention at this level.   No doubt that was an exaggeration, but there was some  truth in it.  When the highest officials are deeply divided on the relative importance of text, history, and principle in interpreting a Constitution, the most basic parts of a legal system are in rickety shape.

Now critical observers have a fresh worry, focused on the evident corruption of the Presidency and the Senate.  Commentators of all political convictions (though not all commentators of all convictions) agree that they are being  badly damaged by their incumbents.   Not (just) because of probable unchecked violations of the  Constitution, but also  because of the toleration of grotesque assaults on the norms that make that document binding as law.  American commentators lament a lack of ‘civility’ or a rise of ‘tribalism’ in their country, but a legal system can survive  both.  What it cannot long survive is official contempt for the informal norms that underpin the Constitution itself, and that is where the US seems to be heading.

It is not only  apex officials that are responsible for the basic norms of a legal system.   Ordinary lawyers and even, to a lesser degree, law professors and law clerks also play a part.   We read that over 2,400 American law professors signed a letter urging Senators to do their duty in good faith and refuse to confirm an accused sexual harasser, a proven liar, a bully,  a lickspittle, and a man who is said to choose female clerks who have a certain ‘look’.  (Which appears, coincidentally, to be the same ‘look’ that the President prefers among his female attendants and wives.)  Like many law professors, I read that list.  (I was as surprised by the names that were absent as I was by some of those that were present.)  The letter proved pointless.  Anyone willing to do to Dr Christine Blasey Ford what President Trump was willing to do, and anyone willing to do whatever Trump wills, is beyond reason or shame, never mind the constraints of law.  But I think the existence of the letter shows that one vital sign  remains near normal limits.  The bar, or at least some influential members of it, understand well what is now at stake and are pushing  back.   But should they give up, or be sidelined, it will not be long before we should move the US over to the category of ‘para-legal systems’.  Quite a bit like law, in several respects, but not actually a legal system.





9 thoughts on “The US as a borderline case of law

  1. I didn’t sign the letter for reasons stated here:

    I think the more likely consequence of the rightward shift of the Supreme Court will be a change in that part of the rule of recognition which recognizes the Court as getting the final word on matters of what is and isn’t constitutional. That’s only been a fairly solid part of conventional practice since 1958, and a Supreme Court that purports to strike down popular legislation from a Democratic Congress and executive is likely to find itself ignored given the partisan taint.


  2. Les,
    As I was reading your piece I couldn’t stop thinking about Kelsen’s stuff on the Basic Norm, which is NOT the (or even a) constitution, but what he calls “the constitution-making process.” He said it was “a posit” or that it is “presupposed,” and Hart countered that the Ultimate Rule of Recognition is, at least in principle, an empirically determinable matter of fact, but other than that they were largely on the same page–the most fundamental norm or norms of a legal system are NOT contained in some written document but rather are born out in the conduct and practices of officials within the legal system itself. That’s why I share your concern that it’s not just the constitution that is imperiled, but something both more fundamental and more important, by those who currently reside within the legislative and executive branches.


  3. Very interesting, Les. One of the reasons I decided to go to law school was, while living in Russia in the last 90s to early 2000s, seeing the way that the “law” there was in many ways a facade, despite some valiant attempts by a few people to make it actually work. The slide into something similar in the US is depressing and terrifying. (In a couple of ways it’s no coincidence that Putin is involved in both stories, alas.)


  4. That’s the problem I had with the legal realist project. I think that all of them thought/think of themselves as demystifers, and some of them seemed to be pushing it as a norm “judges are political and that’s fine”. But the neither position works well without a baseline structure being assumed as functional. The legal realist position can critique, but can’t be an organizing structure on its own. Taken seriously, legal realism ends up as an argument against judges having much power at all.

    Legal realism attacked the idea that judges ought to strive to be non political, or at least much less political than legislative/administrative politicians.


  5. “It is not only apex officials that are responsible for the basic norms of a legal system. Ordinary lawyers and even, to a lesser degree, law professors and law clerks also play a part.” I think this is an important point, especially given how often lawyers and law professors seem to forget it. I would think, however, that these people play their part, by and large, through their individual efforts to preserve these basic norms in the course of carrying out their professional obligations. Still, lawyers and law professionals are able to, and often do, promote such norms through various forms of public outreach and education.

    But there is also a set of legal norms for nominating and confirming Supreme Court appointments. I assume that those norms do not include deferring to the opinions of law professors, or deferring to the wishes of any private interests. If the Senate had voted differently because of this letter, I think an equally plausible argument could be made that this reflects a breakdown in legal norms.

    That the letter ultimately did not effect the outcome does not necessarily mean it was not read, considered, and weighed. Perhaps that gives too much credit to US Senators, but, for the sake of argument, suppose they had all taken it seriously. I would argue that they could still quite reasonably reject its recommendation. Though it made some important points about judicial character, its argumentation was weak enough for even people-who-are-not-law-professors to see.

    Two problems, in particular, stood out. First, the letter treats Kavanaugh’s conduct on Sept. 27 as “disqualifying.” I think most normal people would consider it unreasonable to draw conclusive judgments about a person’s character based on their conduct on a single day–especially a day where that person is under an unusual degree of stress and anxiety. Given that we have the rest of his judicial experience to consider, this looks like a hasty generalization. Second, the letter fails to distinguish between one’s role as a judge–an impartial third-party tasked with resolving a legal dispute–and one’s role as the subject in a legislative proceeding. It’s not obvious that the norms governing the former should apply to the latter, even if it’s the same individual.

    So while I generally agree with the argument, I don’t think the Kavanaugh example really supports it.


    • Supposing the letter gave reasons, which norm would it break if Senators had given weight to those reasons. (I do see that you think it gave no sound reasons, but that’s a different point.). Some American lawyers think that the refusal even to hear Garland was a fundamental breach of a norm. My point about the letter was not that there is a Senate norm that Senators breached in not conforming to its advice. My point was that the existence of the letter, it’s signatories, and it’s content suggest that law professors, at least, still care about the most basic norms underlying the US Constitution. (Not all of them, of course!)


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