Just Words?

In Steven Smith’s first chapter of Law’s Quandary, entitled “Just Words?,” he asks, rather pointedly, what is “the law”? To expound this question further, we could ask whether our talk about the law matches our ontological perception of the law. Put more loquaciously, we talk the talk, but can we walk the walk? (Ontology, which might also be loosely called metaphysics, is the study of being and existence. We use language to describe what “exists.” When we speak of objects or concepts, we presume that they actually exist.) So, for lawyers, the question becomes, is our talk of the law “just words,” or does the law truly exist? Do we really believe in the law, or do we just pretend that we do? These questions served as the launching point for LPS’s discussion on Thursday, October 26th.

The language employed in legal discourse is dynamic; we can persuade judges to accept one of a number of competing views by using compelling, logically-structured legal arguments. What is particularly confounding, so far as law and ontology are concerned, is that the language of the law may be manipulated so as to result in conflicting judicial opinions. As Smith puts it, “[t]here is (or isn’t) a right to abortion. The law does (or doesn’t) give a remedy for the infliction of emotional distress.” (p. 19). In the spirit of ontological exploration, then, we ask, does the law exist? If not, why do we still act as though it does? Is legal discourse nothing but nonsensical talk, or is there substance to what we call “the law”? In Smith’s own words, “can we actually give an account connecting that discourse to reality–that is, to our ontological catalogues that set forth what we believe to be real?” (p. 19).

Supposing that it is true — that we give lip service to what we call “the law,” but don’t actually believe in it — Smith posits that all is not lost. We may not be able to give an account of what the law is, but perhaps we believe in it on at least a fundamental level. If nothing else, we should acknowledge the disconnect between belief and reality, and ‘fess up to our ontological charades.

LPS members examined the questions raised in chapters one and two of Law’s Quandary, and expanded upon those preliminary questions by tying into the discussion their own experiences and perceptions about law and ontology.

A brief overview of the discussion follows after the “jump” (click on the link to continue reading).

Oliver Wendell Holmes once observed that “[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified…” (Southern Pacific Co. v. Jensen (1917)). He predicted that we would one day reach the point where our words and reality could harmoniously co-exist.  As Holmes pointed out in 1897, in The Path of the Law:

We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years . . . Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. . . . It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. . . . a body of law is more rational and more civilized when every rule it contains is referred  articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words. 

His suggestion is that we move beyond the historical bases of law, and ask ourselves what are the ends of law. In doing so, we will form a more honest construction of what the law is, or ought to be.

In practice, we treat the law as though its foundations rest upon an indestructible bedrock of truth, or moral imperative. If this is true, how do we explain 150-page court opinions? If the law is a discoverable principle, why do we need to cut down a tree to provide textual justification for the judicial outcome?

We might consider drawing a comparison between the law and religion, to wit: “Law” is our “God,” and judges, our priests. To continue with this analogy, if the Ten Commandments are accepted as the word of God, without the need for further justification, why can we not also accept the Law for what it is? In other words, if we truly believed in “the law,” we would not require 150 pages of justification and legal reasoning to support the court’s opinion; we would take it as the truth.

However, the fact that we expect judicial opinions to be supported by precedent indicates that perhaps we don’t truly believe in the law. Perhaps legal reasoning provides a comforting reassurance that we can accept the court’s opinion as the law (even if we don’t really believe in the law). But this begs the question: If we don’t believe in the law, why don’t we admit to it? What purpose is served by pretending to believe in something that isn’t there?

Our reliance on precedence raises another question: If “Law” exists, why do we need precedents? We ought to be able to appeal directly to the law, rather than to other cases. Indeed, in the English legal system, judges interpret the law, which is codified. In contrast, we have only recently begun to codify our laws (that is, “recently” relative to civil law countries). Comparative law gives us a unique view into how we approach what we call “the law,” and what kind of meaning we give to it. If different countries adopt different laws as to the same issue, which country is correct? Does this undermine what we call “law”?

Our varied approaches to the law indicate that perhaps law is nothing more than a moral code that we have established for ourselves, based upon objective moral principles, customary practices, history, and societal expectations. Law is a reflection of “patterns of everyday life,” as one LPS member put it. Because the law is/might be based on patterns of everyday life, we might also say that the law is like the Euphrates — an ever-changing river (as another member suggested).

Just as Holmes pointed out in 1897, we have been engaged in the development of the law for nearly 1,000 years. Although we have not yet “discovered” the law, it may be that the law really is nothing more than a process of discovery. If this is true, Smith would suggest that we ought to call it for what it is.

Please feel free to share your comments, questions, and ideas in the comments section.

Colleen