“This is an important contribution to the genre of jurisprudential reflection. It considers some of the most difficult and sophisticated issues on the current intellectual scene and, unlike much ‘postmodern’ scholarly production, it is clear, well-argued, and often brilliantly written.”—Gary Peller, Georgetown University Law Center
A critique of legal scholarship and the way reason is used and deified in law, by one of the most controversial legal scholars now writing.
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The Enchantment of Reason
By Pierre Schlag
Duke University PressCopyright © 1998 Duke University Press
All rights reserved.
Faith in the Power of Reason
[A] faith that does not perpetually expose itself to the possibility of unfaith is not faith but merely a convenience: the believer simply makes up his mind to adhere to the traditional doctrine. This is neither faith nor questioning, but the indifference of those who can busy themselves with everything, MARTIN HEIDEGGER
In 1995, the dean of the Yale Law School, Anthony Kronman, was interviewed on the state of his institution. The occasion for his interview must have been pleasing: a U.S. News and World Report poll had just ranked the Yale Law School first in the nation.
It had not always been thus: At the turn of the century, The [Yale] Law School was for all practical purposes moribund. Its student body was small; its dean, Henry Wade Rogers, a recent appointee to the Second Circuit Court of Appeals, was a part-time teacher who did not want to retire, and its faculty, but for two members, were thoroughly undistinguished, if not better described as unknown.
But this was 1995 and things were different. Commenting on the ethos of his institution, Dean Kronman professed that what unified the Yale Law School was "a faith in the power of reason."
Now, it is well known that law school deans are tragic figures who must routinely say outlandish things in public about the virtues of their own institutions. Still, it is of some interest to take note that what was chosen to praise the Yale Law School at its moment of triumph was a series of conundrums: what unifies the law school is faith in the power of reason.
Far from disputing Dean Kronman's characterization, I will be arguing that he is absolutely correct—and, surely, not just about the Yale Law School. What unifies the American law school is, indeed, a series of conundrums: it is faith in the power of reason. What allows these conundrums to unify the American law school is that they are not recognized as such. This nonrecognition, in turn, is exactly what faith in the power of reason produces.
Faith in the power of reason is important to the integrity of American law. Indeed, the effective existence of reason can be considered a condition of possibility for what American legal thinkers and actors take to be "law" itself.
Perhaps the easiest way to understand this point is by reference to the ideal of "the rule of law"—an ideal whose core aspects are crucial to virtually all contemporary American jurisprudence. While somewhat elusive, the basic idea informing this ideal is that ours is "a government of laws not of men." Implied in this formula is the notion, as the eminent (British) jurisprudential thinker Joseph Raz puts it, that the actions of people, government officials, and especially judges, will be guided by law. Among the precepts associated with the rule of law are the notions that the making of specific laws must be guided by principles that are open, stable, clear, and general. Similarly, fair procedures, notice, and impartial arbiters must be used in applying the law. Both courts and other agencies of the government must be subject to the foregoing requirements.
These "rule of law" virtues require that the agencies of the state be subject to a disciplining mechanism. The disciplining mechanism is designed to constrain and control a number of human motivations (self-interest, vengeance, hate, love) and certain modes of human interaction (power, prejudice, arbitrariness, and sloth). This disciplining mechanism, so essential to the rule of law, is none other than reason. It is the possibility of a publicly accessible and recognizable reason that enables legal actors to claim that power, interest, prejudice, and personal proclivities are constrained and controlled by an overarching frame known as the rule of law.
Reason is thus an essential aspect of the rule of law. It is the mechanism by which emotions, interests, and force are supposedly kept in check. In legal analysis, any time that reason is perceived to break down, the rule of law is immediately threatened. A graphic demonstration of this point occurred during the 1980s when thinkers associated with critical legal studies ("els") advanced the famous (or infamous) claims of indeterminacy. While there were many versions of the els argument, the gist was that "law" as traditionally understood could not, in and of itself, yield determinate answers to legal questions. Amongst orthodox legal thinkers, these claims of indeterminacy were received with as much equanimity (and grace) as the nineteenth century greeted the death of God.
Orthodox legal thinkers treated these indeterminacy claims as an attack on the possibility of reason in law and thus on law itself. Their sense of alarm was palpable. Owen Fiss, a noted Yale Law School professor, for instance, wrote that the purpose of the indeterminacy claim
is to deny the distinctive claim of law as a form of rationality. Law is not what it seems—objective and capable of yielding "right answers"—but rather simply politics in another guise. Judges speak the way they do because that is the convention of their profession and is needed to maintain their power, but their rhetoric is all a sham.
This fear of losing reason is a fear of loss of control. This is in part why the prospect of reason running out is such a dread moment. In the understanding of legal actors, once reason is no longer in control of the decisions of an official decision-maker, arbitrariness, emotion, self-interest, politics, power, and force take over the legal machinery. From the perspective of the rule-of-law ideal, the exhaustion of reason is tantamount to an admission that legal actors do not know what they are doing—that law is, in a word, lawless.
Such a realization, when it occurs, is injurious to the professional and moral self-image of legal thinkers and actors. This point is easy to appreciate if one can imagine the legal machinery just as it is, but stripped of any pretense to being ruled by reason and the rule of law. What emerges in this picture is a legal system stripped of legitimacy. Correspondingly, what remains is an assortment of legal actors, judges, and lawyers who practice ritualized forms of violence on each other and on other people. What emerges are people engaged in incarceration, killing, plunder, extortion, and so on. As for legal academics, they are demoted to the status of thug-trainers.
On the psychological level, the loss of reason is extremely troubling. It is a kind of jurisprudential incontinence—the surrender of the professional self to all manner of uncontrollable forces. On the ethical level, loss of reason means that violence is being randomly or at least irrationally visited upon persons. Law becomes a kind of institutionally settled immorality.
For those whose very identity is wrapped up in the busyness of the legal machinery, this moment of vertigo is fraught with dread—professional dread and ontological dread. And so it should not surprise that upon reaching this moment there is an aversion of the gaze, an arresting of inquiry, a closing of the mind. Indeed, it should not surprise that at this point, the awkward moment becomes saturated with the semblance of reasoned meaning and reasoned meaningfulness. In contemporary American law, there is a whole series of soothing magic words useful for this occasion—words like
and so on.
These are the words one uses in a pinch to continue the legal conversation, to maintain a sense of order, to coax errant thinkers back into the fold. These are the words one uses to protect what is at stake: reason, the rule of law, law itself.
The Rule of Reason
In the rule-of-law vision, just how is it that reason keeps the various motivations, interests, and forces in check?
There is a trick here. The trick, and it is one that is performed early and often, lies in presupposing that reason is already in the driver's seat; it is already in authority. In other words, it is presumed that when reason speaks, law listens.
This is really quite a remarkable presupposition—particularly when one considers that it commands nearly universal assent, at least among legal thinkers and actors. This belief is crucial to the rule of law because it institutes reason in a privileged position in and above the law itself.
Indeed, among contemporary American legal actors, reason stands in a generally superior position to other sources of belief such as authority, experience, convention, tradition, ethics (and so on). While one does sometimes see efforts by legal actors to show that reason is grounded in our authoritative texts, in our traditions, in our experiences, most of the efforts run in the other direction. Hence, most often legal actors strive to redeem authority, experience, tradition (and so on) by demonstrating their grounding in or consonance with reason.
For contemporary American legal thinkers, the problem is not reason, but rather the other sources of belief (authority, experience, tradition, and so on). This tacit and generally unnoticed presumption is dramatically illustrated in a famous essay on authority and reason by the great British jurisprudential thinker Joseph Raz, who writes that there is a fundamental paradox between reason and authority. As Raz put it, "To be subjected to authority, it is argued, is incompatible with reason, for reason requires that one should always act on the balance of reasons of which one is aware."
What is striking in this description is the asymmetry with which Raz formulates the paradox here: it is stated from the point of view of reason. The problem is not that reason may lack authority but rather that authority may lack rationality. Or as Raz puts it: Because authority requires submission even when it seems to be against reason, "submission to authority is irrational." The genesis of the paradox then is that authority may not be rational, not that reason may lack authority. And indeed, Raz's resolution of the problem turns out to be little more than a demonstration that submission to authority can indeed be consistent with reason.
What matters here, however, is not the resolution offered by Raz but rather what his formulation of the problem reveals about the implicit relations of reason and authority. Evidently, for him and for his anticipated audience, it is the rationality of authority that is a problem, not the authority of reason. For him and his anticipated audience, the authority of reason is at once obvious and obviously presumed.
It is precisely through the operation of such tacit presumptions that reason is accorded a superior position relative to the other sources of belief. The presumption of American legal thinkers that reason rules is already instituted in the unthought of American law. It is an orientation that is already in place, even before reason is called upon to do its work.
In the unthought of American law, reason is already authorized to keep the more unruly human motivations and behaviors in check. Reason is already positioned as the source of control and as the medium of pacification.
As a source of control, reason rules from above. It rules over belief, emotions, tradition, power, politics (and so on). This is "reason as transcendence"—a reason that is distinct from and superior to the lesser more unruly legal materials and authorities. This transcendent reason is understood to enjoy a cognitive privilege over sources of belief and behavior. The more unruly sources of belief and behavior—emotion, politics, tradition, and so on—are disciplined and organized by the transcendence of reason. Reason thus has overarching jurisdiction over the content of the law itself. To the extent that there are doubts or questions about whether something is or is not law, it is reason that serves as the ultimate arbiter. Reason is the source of control.
In a second but no less characteristic image, the unthought of American law depicts reason as a medium of pacification. The materials and authorities of law are themselves already invested with the pacifying influences of reason. In this mode of "reason as immanence" the corpus of the law and its variegated materials are themselves already imbued with reason. Inconsistencies, contradictions, and paradoxes are largely suppressed. If they cannot be suppressed, then they are represented as aberrant—as unruly abnormalities in a field of law that is already largely pacified by an immanent reason. The task lies principally in bringing out this latent rationality and making it explicit.
All together then, reason is immanent in the corpus of the law (the medium of pacification) and it is also the transcendent arbiter over the corpus of the law (the source of control). Notice that this is not exacdy a stable image. Reason is both in the law and above it. But let's let that slide for a few pages.
Instead, consider that in the rule-of-law ideal, it is reason that holds the whole thing together. In American law, reason is the grid of intelligibility that enables legal actors to make the connections of the law— the inferences, the deductions, the analogies, the extensions, the modifications, the limitations, the negations (and so on). It is the conceptual grid that allows legal thinkers to perform the critical operations within and upon the legal materials that mark out the legal domain. It is this grid of intelligibility that enables legal propositions and legal artifacts (rules, standards, principles, policies, values) to be linked to each other in a pleasing and intelligible network of actual and potential connections. In short, it is reason that ostensibly enables law makers, appliers, and commentators to select among beliefs, to test beliefs, to monitor their modification or replacement, to map out their proper scope (and so on).
American legal thinkers and actors are more than willing to celebrate the reason of the law. Indeed, in this respect, there is a kind of "harmonic convergence" that yokes the interests of the legal academics with those of the legal practitioners.
The legal academics are quite willing to recognize the reason of law because reason is the handle that gives academics the authority to say what the law is. It is by insisting that law is the work of reason that legal academics as the custodians of reason can insist to others that their word is law.
The practitioners, meanwhile, are very much interested in representing law as reasoned, for their main rhetorical strategy in court and in other official precincts is to praise the law. To attribute reason to law allows practitioners at once to praise the law and also to extend or contract it so that the law (duly regulated by reason) comes to include their client's cause or interest. Reason is the compliment that interest pays to law in hopes of earthly reward.
In American law, not only are the other sources of belief subordinated to reason, but considerable effort is expended to make these other sources of belief more like reason itself. Legal thinkers and actors are continuously striving to rationalize these other sources of belief—to make them appear, in substance as well as in form, more like reason itself.
Hence it is that sources of belief such as experience, tradition, perception, and the like are increasingly recast in the image of reason itself. They are integrated into the grid. In virtue of the relendess reworking and application of legal materials (what currendy goes by the name "legal interpretation"), the various sources of belief are increasingly rationalized and thus transformed.
In part, rationalization can be counted upon to make the other sources of belief—experience, tradition, perception, and the like—more precise, more coherent, more integrated. At the same time, this precision, coherence, and integration is accomplished by abstraction and reduction. The process of rationalization transforms the manifold meanings of authority, of experience, tradition, perception, and other sources of belief into the ordered propositional aesthetic of reason. The process of rationalization—of making law rational—does not merely sort, classify, and organize; it has an aesthetic effect on what is sorted, classified and organized as well. Something is gained, but something is lost.
Indeed, in this rationalization process the hold of experience (as experience), tradition (as tradition), perception (as perception) is typically degraded. And it is easy to see how: to the extent that the raison d'être for experience, tradition, and perception becomes their conformity to reason, they lose their intrinsic power. The foreign criteria of reason such as coherence and consistency come to displace experience and perception. When rationalization has completed its work, all sources of belief must be redeemed in the court of reason.
The rationalization of American law is easily visible in the transformation of its "authoritative materials." Perhaps the most obvious and important example of this rationalization process is the perennial effort of American legal thinkers to "summarize," "restate," or "reconstruct" American law into various kinds of propositional systematizations. Hence, in the late nineteenth century, during the rise of the American law school, many legal academics devoted themselves to systematizing law into a juristic science. Then, too, there were attempts to rationalize the common law through the various codification movements. These were followed by attempts to produce uniform state laws and the various twentieth century "restatements" of the American Law Institute. In the late twentieth century, the drive for rationalization emerged in the attempt to produce something called "legal theory"—a highly abstract and systematic rendition of law as a kind of prescriptive normative discourse.
Excerpted from The Enchantment of Reason by Pierre Schlag. Copyright © 1998 Duke University Press. Excerpted by permission of Duke University Press.
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