Three questions concerning modern legal thought provide the framework for It’s All in the Game: What should judges do? What do judges do? What can judges do? Contrasting his own answers to traditional responses and moving playfully between debates of high theory, daily practices of appellate judges, and his own enlightening analyses of significant court rulings, Allan C. Hutchinson examines what it means to treat adjudication as an engaged game of rhetorical justification. His resulting argument enables the reader to grasp more fully the practical operation, political determinants, and the transformative possibilities of law and adjudication.
Taking on leading contemporary theories to explore the claim that “law is politics,” Hutchinson delineates a route toward professional, relevant, and responsible—if radical—judicial practices. After discussing the difference between foundationalist, antifoundationalist, and nonfoundationalist legal critiques, he offers a focused, unequivocal, and positive account of the advantages of operating within a nonfoundationalist framework. Although such an approach centralizes the role of rhetoric in law, Hutchinson claims that this does not necessitate a turn away from politics or, more particularly, from a progressive politics. Driving home the political and jurisprudential impact of his critique and of his account of nonfoundationalist alternatives, he urges judges and jurists to engage in law’s language game of politics.
This engaging book will interest linguistic philosophers, legal theorists, law students, attorneys, judges, and jurists of all stripes.
About the Author
Allan C. Hutchinson has been Professor of Law at Osgoode Hall Law School at York University in Toronto and is now University Research Professor at Cardiff Law School, University of Wales. His books include Legal Ethics and Professional Responsibility and Waiting for Coraf: A Critique of Law and Rights.
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IT'S ALL IN THE GAMEA Nonfoundationalist Account of Law and Adjudication
By Allan C. Hutchinson
Duke University PressCopyright © 2000 Duke University Press
All right reserved.
Chapter OnePlaying the Game: An Introduction
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Imagine people amusing themselves in a field by playing with a ball. Throwing the ball aimlessly into the air, chasing one another with the ball. The whole time they are playing and following definite rules. Is there not also the case where we play and make up the rules as we go along? -Ludwig Wittgenstein, Philosophical Investigations I
The business of judging has long engaged the attention and, in some cases, the imagination of legal theorists. Such curiosity is understandable because there is an almost universal conviction that something noble and fundamental is at stake in adjudication. Judges are not supposed to decide cases simply on a whim or the toss of a coin but are expected to act in such a way that their decisions are reached through a reflective process of reason and justification; they are judges, not tyrants or tricksters. Sadly, there is little more by way of general or uncontroversial introduction that can be said about what it is that judges actually do or should do when they are making decisions. Whether lookingto the observations and opinions of lawyers, jurists, or judges themselves, the legal literature is all over the jurisprudential map-adjudication is variously thought to be an exercise in the simple application of existing rules, the stylized elucidation of just principles, a blunt tool of social engineering, a sophisticated rationalization of arbitrary power, an institutional practice of storytelling, a flawed distillation of formal justice, an elite hegemony of white men, a dialogic meditation on social fairness, and so on. Against such a backdrop, anyone who offers an account of adjudication, whether descriptive or prescriptive, would be well advised to resist the temptation to focus only on judging's technical features or to explain it solely as a peculiarly professional pursuit. Instead, adjudication needs to be situated in a much broader context in which law and its defining activities can be understood and assessed in terms of their connection and contribution to the political life of the social community that they help to constitute.
This book attempts such an ambitious undertaking. I insist that adjudication, like much of life itself, is best understood as a game-as a playful, yet serious attempt by judges to engage in law's language game of politics, which helps to constitute and regulate social life. In taking such an approach, I do not intend to trivialize adjudication by failing to appreciate that it is an exercise in power that has considerable effects on and is affected by the terms and conditions of people's lives. On the contrary, I hope to show that it is only by appreciating that "it's all in the game" that it will be possible to grasp fully the practical operation, the political determinants, and the transformative possibilities of adjudication. By depicting adjudication as a nonfoundational game of infinite dimensions, my account seeks to explain and evaluate adjudication in such a way that it captures its sense as a peculiar professional practice (in which it stands as something of its own thing) and as a profoundly ideological undertaking (in which it is organically related to the larger context of society). In this way, it might be possible to realize that law is not a site that is located aside or away from ordinary life and that adjudication is not an activity that can be appreciated as separate from ordinary living: law and adjudication are a part of, not apart from, life and represent one site and one way of playing the game of life. This means that the jurisprudential account that I offer is, as it should be, "a theory about the relation between law and life."
Playing the Game
Soccer is my game. It has been part of my life (and, therefore, a part of me) since before I can remember. Many of my early years were spent kicking a ball around in one setting or another. Sleeping or waking, I was never far from a soccer ball. Some of my fondest memories can still be traced back to my grandparents' backyard or the local schoolyard as my friends and I whiled away the hours with only a soccer ball for company and dreams of our legendary favorite teams, players, and games. Even then, however, arguments over and about the game were commonplace. It did not seem to matter whether they involved "factual" disputes-was the ball in or out of play?; had elbows been used unfairly?; and, in particular, with coats as make-do goalposts, had the ball hit the post or gone over the bar?-or whether they involved the merits of a particular player or team: the contest was always as heated as it was inconclusive. Looking back, I realize that I was always near the center of these interpretative encounters, making sure that I had my twopennies' worth and that my team received what I considered its due. As so often, more was learned (good and bad) on soccer's field of dreams than the prosaic skills of how to kick and head the ball-friendship, competitiveness, fantasy, responsibility, sticking up for yourself, and, of course, basic argumentative techniques and maneuvers. It was always more than a game; we knew that FOOTBALL (or "soccer," as Americans would have it) was something larger than our own fledgling efforts. As I got older and played in more organized games, a childhood pastime became a juvenile obsession. In the immortal words of the legendary Bill Shankly, soccer did not become a matter of life and death: "It was much more important than that."
Of course, the love of soccer (and games generally) is not shared by everyone. Some prefer the cooler charms of chess or more solitary pursuits, while others enjoy the more ordered and less physical sports of baseball or tennis. For me, though, the exhilaration of actually playing soccer was matched only by the heroic sense of what the game represented. Somewhat dated and very male in style, J. B. Priestley's description of a fictional English city of Bruddersford catches something of the magic that games of soccer meant to my friends and me:
To say that these men paid their shillings to watch twenty-two hirelings kick a ball is merely to say that a violin is wood and catgut, that Hamlet is so much paper and ink. For a shilling the Bruddersford United A.F.C. offered you Conflict and Art; it turned you into a critic, happy in your judgment of fine points, ready in a second to estimate the worth of a well-judged pass, a run down the touchline, a lightning shot, a clearance kick by back or goalkeeper; it turned you into a partisan, holding your breath when the ball came sailing into your own goalmouth, ecstatic when your forwards raced away towards the opposite goal, elated, downcast, bitter, triumphant by turns at the fortunes of your side, watching the ball shape Iliads and Odysseys for you; and what is more, it turned you into a member of a new community, ... cheering one another, thumping one another on the shoulders, swapping judgment like lords of the earth, having pushed your way through a turnstile into another and altogether more splendid kind of life, hurtling with Conflict and yet passionate and beautiful in its Art.
While my soccer skills were developing, my rhetorical technique was also coming along apace. In all facets of the game, I was thoroughly committed in my approach, argumentative in my attitude, and combative in my actions; the game was the thing. As the playing became more sophisticated and more intense, so did the rhetorical exchanges over the rules and how the game should be played. Indeed, as the improvement in my playing skills began to flatten o, my penchant for argument began to flourish; my mouth was becoming faster than my feet. Much to my team's regret, I would often be as ready to dispute with coaches about how we should play or to argue the toss with the referee over his decision or interpretation of a rule as I was to play the game. Not surprisingly, my tendentious approach did not endear me to coaches, referees, or fellow players. Although I did play at a reasonably high level (even receiving the odd fiver stuffed in my shoe for my efforts), my playing days were numbered. When I was selected to play, I ended up too often in the referee's notebook and I found myself too often taking "an early bath." Through such encounters, I learned, but never really accepted, the fact that coaches and referees were always "right." This, of course, was not, to borrow Jackson's wisdom, because they were infallible but because their decisions were final-they had the last say.
The fact that my father was (and remains) a soccer referee is important in more ways than one. He has spent a lifetime (over fifty years) blowing the whistle on playing fields that range from local parks to international stadiums. Indeed, my first exposure to the "big time" came in my weekly trips as a youngster with my dad when he was officiating in the major leagues. Not only did I get to rub shoulders with some of my playing heroes (I was literally dumbstruck when Bobby Charlton rued my hair in a gesture of greeting), but I saw firsthand what a difficult and thankless task that it was to be a referee-criticism, controversy, and the occasional meat pie or cup of tea thrown from the stands were the frequent rewards. Yet, through it all, my father and his colleagues in black took seriously their responsibility to apply the rules fairly and impartially: a job well done was its own reward. In conversation, my father was a stickler for upholding the letter of the rules; they might not always make perfect sense, he would say, but they were the official rules of the game and deserved to be followed by simple virtue of that fact. However, I came to realize that in the heat of the game, he never let the rules interfere with the flow of the game. He might have been the formalist in the dressing room, but he was the realist out on the field. Provided that the players had no malicious intent, he was prepared to ignore all but the most blatant infringements. Like most judges of law, he knew that good refereeing involved much more than a technical adherence to the rules for their own sake; it was the game that really mattered, not the rules. For him, if you played the game as it should be played, then he would let you get on and play the game. Of course, what it meant and means to play the game, whether in soccer or law, is what the larger game of life is all about.
With the considerable benefit of hindsight and over twenty years in law, I can now not only see the man in the boy and the boy in the man, but I can also detect the critical legal theorist in the ebullient soccer player-authority was to be challenged, rules were to be disputed, conventions were to be broken, facts and context were vital, neutrality was a pious pretense, and "right" and "wrong" were always situational. On reflection, I recognize that what is common to my sporting and jurisprudential involvements is the contentious issue of what it means to play the game. It is a phrase that is heard around any sporting event or performance. Sometimes offered as a cry of encouragement, it is more often uttered as both an implicit criticism of what is happening and a plea for the game to be played in a way that respects some general expectation of what it means to play it as it was meant to be played. As such, play the game invokes a general ideal of the game as a guide and standard for judging and disciplining its particular practice. In law, similar invocations echo around those multiple sites and venues wherever the game of law is played. Judges, lawyers, and law professors exhort themselves and others to play the game in accordance with a vision of law and adjudication that stands behind any particular manifestation of laws or performance of the judicial task. There are many performances in many places at many times, and they all embody and influence to different degrees and in different ways the constantly changing and contested notion of what it means to play the game. Indeed, as far as law is concerned, there are few more heated and demanding games than the jurisprudential one over what it means to play the game.
For most of my involvement in soccer and law, I have been a player rather than a referee or a judge. I played soccer until my late thirties and now play the game vicariously as a fan who still loves to watch and argue over what is the best way to play the game. As for my law career, I have been a law teacher, legal theorist, and occasionally a lawyer for more than twenty years. Committed to the enterprise as both participant and critic, I have spent the greatest part of that time speaking and writing about what law is all about and how it could be different or better than it is. In short, I have been arguing about what it means to play the game in law as much as soccer. However, while I am more comfortable being a player and critic, there have been two formal occasions on which I have been called on to apply rules rather than asked to follow or evaluate them. It should come as little surprise to learn that I have not experienced the role of judge as very different from the roles of player and critic. As far as I understand it, judging or refereeing is not qualitatively different from being a soccer or legal player: the rules and style of the game are different, but the art of judging or refereeing is no different for that. Indeed, each performance seems in its own way to be part of another game, albeit a special one of argument and justification, over what it means to play the game. The rules are less formal and the context is more open, but the experience is much the same-operating within a structure of constraints and expectations that are themselves both the basis of the game and the object of play. While the referee is relatively more constrained (in that some games are not soccer, whatever else they might be) than the judge (in that law consists of various games-sometimes soccer, sometimes chess, and sometimes something else entirely), they both participate in the game of what it means to play the game. As interpreters, judges and referees are free to do what they think best, not in spite of the enabling rules, but because of them. Indeed, the best of judges recognize that although the limitations on freedom are what make any game or freedom possible, "every limit is a beginning as well as an ending."
In the Middle
The first occasion on which I experienced directly the peculiar demands and pressures of judicial responsibility was over twenty years ago when I was still in the middle of my soccer career and at the very beginning of my juristic one. I had received a serious injury and was unable to play soccer for an extended period. My father suggested that I do some refereeing in order to earn some extra money. Over a couple of months, I probably refereed about a dozen or so games. It was a difficult and, at times, harrowing experience. Apart from having to make almost instantaneous decisions on inadequate facts, it made me recognize that a full knowledge of the rules was only a small part of what was required to be a good or, at least, successful referee. The main responsibility was to work with and through the rules-a strict interpretation here; a generous interpretation there. Disagreements with the players and their coaches rarely arose from my knowledge of the rules, even though there were times when a more confident grasp of some details might have helped. The crucial challenge was to exercise judgment about how and when those rules should best be employed so as to ensure that everyone was permitted to play the game in the way that it was meant to be played. Needless to say, in many instances, there was no one way to do that, and there was certainly no way to make a decision that kept both teams and their supporters happy: their partisanship did not so much cloud judgment as stand in for it. While my view, as the referee, always prevailed over everyone else's, I was less confident about whether my decisions were right or, indeed, what it would mean to get them right in any objective or universal way. I could do no better (and no worse) than to call it as I saw it and hope for the best.
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Table of Contents
1. Playing the Game: An Introduction
2. It’s All in the Game: Adjudication in a Nonfoundationalist Way
3. The Language Game: From Ambiguity to Indeterminacy
4. Playing with Authority: Interpretation and Identity
5. A Pure Way of Playing: The Naturalist Revival
6. At Play in the Fields of Law: The Reasoning Game
7. Playing by the Rules: A Good Faith Approach
8. Calling the Shots: The Development of Legal Doctrine
9. Playing Politics: Putting Poetry in Motion
10. Playing with the Rules: Experiments in Judging
11. Overtime? A Conclusion