Vaughan Academic Panel: Lawrence Alexander, “Law and Politics: What is Their Relation?”

Vaughan Academic Panel: Lawrence Alexander, “Law and Politics: What is Their Relation?”

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MARTHA MINOW: Well, good
afternoon, everyone. I’m Martha Minow. And it is with real
pleasure and delight that I welcome you to the
Vaughan Academic Panel. This is an event that we
hold every other year. In between years,
we have lecture. I actually love
the panel process because it leads to a great
and vibrant discussion. It was created with the
inspiration and support of Herbert W. Vaughan, otherwise
affectionately known as Wiley, who was the class of 1948
here at Harvard Law School. And he endowed a fund
to advance understanding of the founding principles
and core doctrines of American constitutionalism. And because he wrote
about it so eloquently, I’m going to quote him. He believed that, and I quote,
“the Constitution of the United States is the greatest
practical achievement of political science.” He went on, “It is a testament
to the extraordinary gifts of creativity, prudence, and
high-mindedness possessed by the founders of our nation. May you be guided and
inspired by their genius as you meet the challenges
of the present day.” And it is therefore
with tremendous honor that we welcome Professor
Lawrence Alexander, the Warren Distinguished Professor
of Law at the University of San Diego School of Law. He’s going to speak
about relationships between law and politics. And really, there’s
nobody I’d rather hear from on this subject. He teaches and writes
about constitutional law, criminal law, and jurisprudence. And some of his
notable publications include Demystifying Legal
Reasoning and a terrific book, Crime and Culpability. The other outstanding panelists
who are joining us today are James Stoner, who’s the
Hermann Moyse, Jr., Professor at Louisiana State University;
Dr. Matthew Franck, director of the Simon Center on
Religion and Constitution at the Witherspoon
Institute; and our very own and beloved Professor
Mary Ann Glendon, the Learned Hand
Professor of Law. Larry, thank you so
much for being here. All of you, thank you,
and please go to it. LAWRENCE ALEXANDER: OK, well,
thank you, thank you, Martha. It’s a pleasure to be here. It’s been a while since
I’ve been in Pound Hall. And anyway, as Dean
Minow has said, my topic is law and
politics, question, what is their relation? That’s the topic about which
I’ve been invited to speak. As a professional
matter, I’m afraid that, although I know
a few things about law, I really know nothing
about politics. What I remember from my college
courses in political science can be boiled down to
the Harold Lasswell view that politics is about who
gets what, when, and how. So I come to this topic
with a very limited toolkit. Nevertheless, I shall
take out my hammer and see if I can turn the
topic into some nails. My forte, if I have one,
is taxonomy and analysis. Not exciting, perhaps,
but I hope clarifying. And clarity is in this,
as in so many matters, a necessary precondition
for wise policy, and confusion is a
recipe for disaster. So first, I’m going to
make some stipulations. One, politics, as I
shall be using the term, is the process of deciding
what a group or a part thereof should do based on
first-order practical reasons. First-order practical reasons
are all things considered reasons, moral and prudential. Those reasons may dictate that
a particular action should be taken or omitted
by a particular actor in a particular situation. But they may also dictate
that all or many actors should take or omit
a particular action in a range of situations. Second, law, as I
shall use the term, is those norms that, through the
first-order practical reasoning of politics, those who have the
authority to do so have decided should obligate those to
whom the norms are addressed. Although it is perhaps not
the only outcome of politics, it is the most
significant outcome. The primary aim of
politics is to produce the norms that are law. Three, legal norms can be
either rules or standards. It’s an old story here. When they fully
determine what the law subjects should do in a range
of situations, they are rules. When addressed by
rules, law subjects are supposed to do
what the rules require, rather than what they believe
their first-order practical reason dictates that they do. When those norms do
not fully determine what the law subjects should
do but instead leave open a domain in which those
subjects should follow the dictates of first-order
practical reasoning, then those norms are to
that extent standards. Four, why have rules at all? In other words, why
not decide everything by means of first-order
practical reasoning? Put differently, why
is not our only law, what I call the Spike Lee law– do the right thing? The Spike Lee law is
the queen of standards. Lesser standards are
circumscribed by rules, but what is the problem
with the Spike Lee standard? To repeat, why
have rules at all? The answer is obvious. When I ask my first-year
law students this question, in their very first
law school class, they have no trouble coming
up with the right answer. In a society such as ours,
people cannot agree on what the right thing to do is. There are many reasons
why they cannot. First, they differ about what
the correct moral principles are. Second, even when they
agree about moral principles at an abstract
level, they disagree about how those
principles apply, for they disagree about
the factual matters on which correct applications
of moral principles depend. And that means that at
least some of the people, even if well-motivated, will
end up doing the wrong thing. Moreover, because of
these disagreements, they cannot coordinate their
actions with those of others. And the lack of coordination
will produce huge moral costs from everyone’s perspectives. Thus, settlement of
what ought to be done is necessary to avert the moral
costs of mistaken moral views, mistaken applications
of correct moral views, and lack of coordination. And settlement is achieved
by determinant rules. Even first-semester law students
understand this when asked, why not just the
Spike Lee standard? Five, having now
discussed politics, law, legal norms as either
rules or standards, and why rules are
desirable, let me turn to the topic of
legal interpretation. Some, even members
of this faculty, believe that there is no one
thing that interpretation is. And I agree that there
are many things that can be called interpretation,
but we should not get hung up on the word. What we need to ask in
the legal context is what is the proper
approach when those, who are subject to laws, when
questions arise regarding the meaning of those laws? That is the activity
we should be interested in when the topic
of legal interpretation is broached. The important
distinction here is between those to
whom we have given the authority to determine what
norms we should comply with– the legislators– and
those who are supposed to comply with the norms
legislated by those with legislative authority. The latter group includes all
the addressees of the laws– judges and ordinary
citizens alike, as well as legislators in their
capacity as ordinary citizens. But if judges and
citizens are supposed to comply with
the norms produced by those with the
authority to produce them, then when those norms are
promulgated and encoded in a text, judges
and citizens are supposed to figure out what the
norms are that the legislators encoded in that text. In other words,
they are supposed to figure out what the
intended meaning of that text is, not just any meaning
that the text might have– were it authored by other
than its actual authors– or for purposes
other than conveying what norms those with
the authority to do so have determined should govern. The legislators have
decided upon such norms and have attempted to
convey to the rest of us, judges and citizens
alike, what those norms are in the only way possible,
which is through symbols. The symbols are their code. And if we do not
seek to determine what they meant by
their code, then we will not ascertain what
norms they intended for us. And that will be to deprive them
of the legislative authority that we purported to give them. Instead, we will have
transferred that authority to others or to some mindless
process such as the meanderings of linguistic usage. A text, untethered from the
meaning its authors intended to convey by means of it, is
just a set of marks or sounds that can mean
anything whatsoever. But as the code chosen
by its actual authors to communicate the
meaning they intend, it means what they
intend it to mean. Any other meaning attributed,
it reduces its authors– in our case, legislators– to nothing more than
producers of marks and sounds. They will not be
producers of legal norms. And thus, they will not be
what they are supposed to be, legislators. So legal interpretation,
properly understood, is the attempt to
ascertain the legal norms the legislators have
chosen to govern us and that they have communicated
to us through symbols. How else could they
communicate those norms to us, through telepathy? But one more thing about
legal interpretation to keep in mind– when interpretation reveals
that the enacted norm is a rule, the interpretive process
continues to flesh out the rule’s content. When, however,
interpretation reveals that the enacted
norm is a standard, the interpretive
process is at an end. For fleshing out, the
standard’s content is a matter of first-order
practical reasoning, which is not interpretation. Rather, it is politics. To this point, I’ve
been laying groundwork. I’ve introduced politics,
law, rules, standards, and interpretation. And I have distinguished
between following rules and first-order
practical reasoning. With these things
in mind, let us return to the overarching
topic, the relation of law and politics. In my opinion, the
most important aspect of the relation is one
I’ve written about often. It’s what my friend and
occasional co-author, Fred Schauer, calls, the
asymmetry of authority, and what I call the gap. And both he and I believe
it is the single most important and revealing
prism through which to view legal phenomena. What is the gap, and
why does it exist? Put succinctly, the
gap is the difference between what
rational legislators’ first-order reasoning tells them
they should require you to do, and what your first-order
reasoning tells you you should do. The gap arises
because, as I’ve said, determinant rules are
necessary to settle what should be
done and thus avert the moral cost of
uncertainty, disagreement, and lack of coordination. But rules settle by being
relatively simple, blunt, and rigid. They cannot capture all the
nuance and complexity to which first-order practical
reasoning will attend. And if everyone had
the same values, and even if the legislators did
their job perfectly and enacted the ideal set of
rules, those rules would often dictate acts that
first-order practical reasoning would veto. In that case, we
will face a dilemma. Our practical
reasoning will tell us that the legislators’ practical
reasoning, politics, should lead the legislators to
require us to follow rules that our practical reasoning
tells us we should not follow. Our standards tell us we
need to implement them through rules that our standards
also tell us to disobey. There is, I believe, no
way to eliminate this gap. The problem is not
that we are not angels. The problem is that we
are not omniscient gods. Omniscient gods could
live by standards alone. Do the right thing would
be the only law they need, for even if they
were not angels, they would know what
is the right thing to do when someone disobeyed. So we, who are not
omniscient gods, need rules. But rules, even
ideal rules, will prescribe conduct that our
first-order practical reasons reject. To put it in its near
paradoxical form, our first-order
practical reasons dictate that we
should have rules that dictate acts that our
first-order practical reasons reject. Therein lies the gap. I will discuss briefly
the various strategies offered to close
the gap and tell you why I believe they all fail. One strategy, what Fred Schauer
calls presumptive positivism, tells us to put a
thumb on the scales in favor of what
the rules prescribe. The problem is that,
first, this only narrows but does not close the gap. And second, and
more fundamentally, our first-order practical
reason can give no weight to such a presumption. A second strategy found in
the writings of Joseph Raz is to treat rules as
exclusionary reasons. Once a rule applies
to us, we must not act on the reasons on
which the rule is based. The problem is that,
although rules purport to exclude acting for reasons
that the rule is based on, if such an action differs
from what the rule prescribes, this just restates
the problem of the gap rather than solves it. Or if it solves it,
it does so by fiat. A third strategy, one
that looks more promising, is closing the gap by imposing
sanctions on rule violators. The thought is that the
prospect of sanctions will align the actor’s
first-order reasons with what the rules require. Unfortunately, this
strategy too fails. For one thing, sanctions give
actors prudential reasons to abide by rules, but
they do not necessarily give necessarily good actors
moral reasons to do so. And if the sanctions
are severe enough to turn the prudential
reasons into moral reasons, they need judges who are willing
to apply them to rule violators who the judges know acted
on their first-order practical reasons and
for that reason do not deserve punishment. Moreover, the judges themselves
are subject to the gap. The rules requiring them
to sanction rule violators may conflict with the judges’
first-order practical reasons. And who will sanction
the judges who follow their first-order
reasons rather than the rules? Unless judges are
automatons when it comes to sanction
and rule violators, sanctions will not
eliminate the gap. Philosopher Jeffrey
Brand-Ballard has an entire book on
the problem of the gap as it applies to judges. In it– I will, at
the end of this talk, tell you my own experience with
judges confronting the gap. A fourth strategy is deception. That is, close the
gap in favor of rule following by deceiving
the public into believing that the rules align with their
first-order practical reasons, make them into rule fetishists. This strategy is similar to
what Bernard Williams called government house
utilitarianism, a reference to the idea he ascribed to
Britain’s colonial rulers. They would be more
utilitarian to encourage the natives to abide
by their local mores than to urge them to
act as utilitarians. This strategy is also
reflected in Hare’s two-level utilitarianism in
which the archangels were conscious utilitarians and the
proles were rule followers, and in other two-level
forms of consequentialism. But the problems with deceptive
theories for closing the gap are, one, how to control
the deceivers and, two, how to keep the
deceived hermetically sealed off from the knowledge
that the deceivers possess. A fifth strategy is just to
protest that it is unfair for individuals to arrogate
to themselves the privilege to disobey rules that
their community has decided should be enacted,
and instead to act on the verdicts of their own
first-order practical reasons. But if one’s first-order
practical reason tells one that
abiding by the rules is unfair or immoral, in
what sense is departing from the rules unfair? The final strategy, one
that might seem promising, is what Schauer called
rule-sensitive particularism. The rule-sensitive
particularist acts on his first-order
practical reason, but his first-order practical
reason takes into account the value of having rules
and the consequent disvalue of undermining the
rules by flouting them, which occurs if one’s
flouting the rules leads others to follow suit. This strategy will
not eliminate the gap. One might flout the
rule undetected, or one’s flouting
the rules may not affect others’ behavior
for other reasons, but it should narrow
the gap considerably, or so it might appear. The problem is that the
rule-sensitive particularist narrows the gap in the direction
of compliance with rules only if most others are not
rule-sensitive particularists, but are rule fetishists. For the value of
the rules that goes into the rule-sensitive
particularist’s calculus is highest when others
are rule followers. As more people become
rule-sensitive particularists and are aware of that
fact, the less value will they attach to the rules. And if everyone were a
rule-sensitive particularist, the value of the
rules would be zero in their first-order
practical reason. So here’s the upshot. If we equate first-order
practical reasoning, the reasoning we engage in under
standards or when deciding what rules to enact, with politics
and equate rules with law, then while politics may
tell us we should have law, politics seems simultaneously
to tell us that we cannot really have it. Law may be for us
like the intention to drink the vile liquid in
Gregory Kafka’s toxin puzzle. I’ll just briefly tell you
what that is, for those of you who are unfamiliar
with the reference. The toxin puzzle is this. The genie comes and tells
you that, if you intend, tomorrow at 10:00 AM, to
drink this liquid, which is going to make you– it tastes vile. It will make you
nauseous for a while, but it will have
no lasting effects. If you intend
tonight at midnight to drink it tomorrow
morning at 10:00 AM, then a million dollars will
be deposited irrevocably in your bank account. So you think, gee,
well, you know it’s worth a million
dollars to drink this. But you know now that at 10:00
AM tomorrow the money will either be in your bank
account or it won’t. And if it’s in
your bank account, there’s no reason
to drink the liquid. And if it isn’t, there’s no
reason to drink the liquid. So you know that at
10:00 AM tomorrow, you will have no reason
to drink the liquid. And thus, when you know
that you will have no reason to drink the liquid, you
can’t intend at midnight to drink the liquid tomorrow. And thus, you don’t get
the million dollars. [LAUGHTER] That’s the toxin puzzle. And I’m analogizing that to the
relation of law and politics. Law tells you– the
politics tells you that it would be good to have law. The problem is, can you
have it no matter how good it would be to have it? As I said, I think
this gap between rules and first-order
practical reasoning, between law and politics,
is the most powerful prism through which to
view legal phenomena. It can explain the fact
that some judges prefer rules and some prefer standards,
preferences frequently reflected in the
opposition of the majority and the dissenters. It can explain changes in
legal doctrine over time. When standards prevail,
there is a movement to translate them into rules. But when rules prevail, there
is a movement to wipe them away in favor of standards. There is a “grass
is always greener” phenomenon because we want
both the virtues of rules and the virtues of
standards, and we cannot have them simultaneously. I should add that the gap also
explains our opposed reactions to bureaucrats. When they act under
vague standards, we feel like Kafka’s
Josef K, totally at sea, and we want to know
what the rules are. But when they act under
rules and make no exceptions, when first-order reasoning
favors exceptions, they become caricatures
in our eyes, soulless, rule-following
martinets. We want clear rules,
except when we don’t. Finally, let me briefly relay
the results of my experiment with judges and the gap. I was on a panel at both the
West Coast and East Coast conferences of federal
bankruptcy judges. There were about 150 judges
in my panel’s audience at each conference. And no judges in the audience
at the first conference were in the audience
at the second. Our panel gave the
audience three vignettes involving clear
bankruptcy rules and fact patterns, in which
application of those rules would seem terribly
unfair to a party. We asked the judges to consider
whether, in those vignettes, they would follow the
rules, or depart from them and do what appears fair. We precluded all other
options, including novel reinterpretations of the
facts, dissembling, resigning, and so forth. Interestingly, in
both conferences, approximately half
the judges said they would follow the rules,
and half said they would not. Half stood on one side of the
gap, and half on the other. So here is the bottom line. I equate law with rules
that settle determinately what must be done. And I equate politics
with first-order practical reasoning, the
reasoning that produces the rules and the reasoning
that standards invite. Politics leads to
law, but politics then conflicts with it. The question for me is,
if law is desirable, as I believe it is, is
it nonetheless possible? And if so, how? Thank you. [APPLAUSE] MARY ANN GLENDON: Thank
you, Professor Alexander. You began with a question and
you ended with a question, and I’m sure that
if you didn’t have to observe our time
limits, you would have answered that question. But– LAWRENCE ALEXANDER: No, no. That’s OK. MARY ANN GLENDON: But
you’ve left a challenge for our two panelists. My role as moderator is simply
to encourage spirited debate, but I would be curious to
know from the panelists what they think about the definitions
of politics and law that– about those definitions
of politics and law that we have just heard, and
how they would compare them to, say, classical
definitions, such as politics as the art of ordering
our lives together, law as an ordinance
of reason made by those who care for the
community and the common good. And so we begin with
Professor Stoner. JAMES STONER: OK, well,
thank you very much. Thanks to the
Federalist Society, Professor Glendon, Dean
Minow, and for the invitation to speak. I prepared a few remarks. I think they’ll speak to that,
and that will keep me on time to read what I wrote. By the accident of the weather–
we were originally scheduled for February– we end up talking about this
question of law and politics during the very
week in which it is front and center in the polity,
with Judge Gorsuch’s promise, so to speak, to build a wall
between law and politics. We owe Professor
Alexander thanks, I think, for his
thoughtful attempt to bring clarity to the
issue by stepping back from the usual terms of debate
in the polity in the Senate by introducing a
jurisprudential analysis. Although I think he does deliver
on his promise to bring clarity to the question of the
relation of law and politics, I’m afraid that, by
the end of my remarks, I’m going to attribute to
him a confusion or two. So he can straighten me out. But lest this be thought
a complaint about that, I want to say that I don’t
agree with your supposition right away, that
confusion always leads to political
disaster, much less that clarity is a necessary
condition for wise policy. If it were, I think there
would rarely be compromise, though I do agree that we’re
obliged as professors to do our best to be clear. So I want to begin with a
point of agreement between us, and then suggest
where I think he errs and what can be done
to repair the fault. I agree that what he calls
rule-sensitive particularism is the most promising
way to close this gap he identifies between legislated
rules and, to quote him, “what first order
reasoning tells you should do, that
is, the gap between law and, I think not
politics, but conscience.” As he was counting through the
strategies to close the gap, I was looking for this one, and
I was pleased when I saw it. I think it corresponds
to Aquinas’ reason why, although there’s
no strict obligation to obey an unjust law,
obedience ought sometimes to be given to avoid scandal. That is, leading others, perhaps
of less refined conscience, to think that laws can be
disobeyed whenever they want. I don’t think the
distinction is so rigid between the rule sensitive
and the rule fetishists, despite my reference
to refinement. As Tocqueville noted, that even
the best philosopher relies on other minds for a thousand
things, so most of us find it necessary or convenient
to rely on thousands of rules without inquiring too precisely
into their desirability or their justice. Even if, from time to
time, we raise objections to one or the other. I’d like to think
of myself as someone who’s sensitive
to the rules that govern the classroom, and
the duties and privileges of students and faculty. But I’d leave to others to worry
about the details of paychecks and pensions and parking, the
three most important things, I suppose, for a faculty
member, at least this age, and– just follow those rules,
however grudgingly. And that’s just to
consider matters of university regulations, not
to mention all the other rules that one follows in daily life. Part of the gap
between general rules and judgment in circumstances
is what Aristotle identifies as properly settled by equity. That is, the ability
of a judge to recognize when the letter of
the law would do an injustice against
the intention of the author of the law. Acting equitably
requires good judgment, a little learning to discern
the legislators’ intention, and good faith to follow it. But it seems to me to be a
step that an experienced judge learns to take, not
a leap in the dark. Nor do I think,
with Ronald Dworkin, that when a judge steps
beyond the letter of the law, he necessarily substitutes his
own opinions or first-order judgments. Unless, of course, he’s looking
for opportunities to do so. If we can recognize bad
faith in the marketplace, why can’t we see
the same in court? The error in Professor
Alexander’s argument, I think, is in equating politics
with first-order judgments by individuals. Or toggling back and forth
between a group or a part, and between a particular actor
and all, or many, actors. Political life
involves, essentially, thinking and acting in common. And if this sometimes issues
in partisanship, or even in groupthink, it’s
also the very source of political authority and
political power, at least if Hannah Arendt
is to be believed. Because we are not only rational
beings, but political animals, we tend to reason in groups. And thus imperfectly,
accepting opinions as axioms and persuasive
arguments as proofs. If this means that political
actors think less clearly than angels or archangels
or omniscient gods, I can see the point. But also note that,
in better polities and political movements, the
thought of individuals bonded together is probably stronger
than the thought of most every one of them on his own,
as we learn reasons from one another, direct our imaginings
to what others can similarly imagine, and develop a shared
vocabulary for articulating our hopes and fears. I don’t mean that this is
merely an organic process of fellow feeling,
though friendship and fellowship in politics
should not be ignored. I do think that the gap between
the group and the individual is not endemic, but
rather rare, and that what appears to be
such a gap is more likely to be the friction at the
interface of different groups or parties where
individuals find themselves separated, so to
speak, from their usual pack. Law emerges from shared
thought and common opinion, not independent of them. This is obvious in the case of
customary law or common law, as we still call it. But it’s also true, I
think, of legislation, which generally passes only as a
result of widespread agreement, not merely a momentary
coincidence of wills. No small part of the confusion
in our society between law and politics today results
from our misunderstanding the legislative
power, I think, which, when described as lawmaking
power, gives rise to the idea that law can be
made from scratch or hewn from a mass like
a pie or a sculpture, typically best when
done by a single artist. Instead, I think the
legislative power should be defined as it is in Blackstone. As the power to declare
or to change the law. This definition
supposes that law always exists in any society. That, so to speak, authoritative
public opinion abhors a vacuum. But the objective of
legislative action is to encapsulate and settle
that understanding in writing. Or, when wrongs or mischiefs
are discovered, to remedy them by new enactments. Thinking about law
in this way, which I think reflects
its reality, ought to discipline our expectations
of political change and perhaps also our
process of lawmaking, urging us to understand
the state of the law before any new enactment. And to carefully consider
what needs reform and why. It ought to make us
skeptical of grand schemes to refashion whole
areas of law and policy, seeing that they
need to be woven into the fabric of the
law if they are to persist and accomplish their purpose. Sometimes, striking reforms
succeed and grow widely accepted. Think of worker’s
compensation statutes in the early 20th century,
for example, which replaced tangled webs of liability. Or maybe bankruptcy
law itself, which was meant to allow individuals
to disentangle themselves from their debts without
succumbing to them. But reforms fail,
I think, both when they create tangled
webs of their own and when they pay scant
attention to the need for law to be embodied in common,
or at least widely shared, opinion in order to win consent. And it would not be the
least of the advantages of such a view of
legislation that it might remind judges
that changing the law is not their function. Applying established
law to existing cases, jumping the inevitable gap
between the general rules and the myriad circumstances
that differ person-by-person and case-by-case in a
way that does justice and that attends to equity
is itself a noble task. Why don’t judges
think so anymore? Why don’t they
think that’s enough? So to venture to answer
Professor Alexander’s concluding question about the
relation of law and politics, law is possible only when
it emerges from politics. And politics is most
respectable when it acts to preserve
and improve the law. Thank you. MARY ANN GLENDON: So you have
one answer to the question. Now Dr. Franck. MATTHEW FRANCK: Thank you. First, I want to say
thank you to Dean Minow and Professor Glendon and
the Harvard Federalist Society. This is my first visit
to Harvard Law School. I’m very glad to be here with
my good friend Jim Stoner and my friend Larry Alexander,
who’s a provocateur as always. Today, I’m giving
us a capsule version of a problem that
Larry Alexander has thought about for a long time. He has not failed to provoke. I, on the other hand, am
coming to this problem for the first time. And my tentative reply to
his very interesting remarks is that the gap
of which he speaks is more starkly a
problem in theory than it may prove
to be in practice. It’s a very useful explanatory
prism for tackling problems. But is it really as
much of a problem itself as he makes it out to be? Maybe not. The gap is this,
again, with respect to first-order moral reasoning. It’s the difference between
what the law requires and what you think
you should do. Quoting Alexander now,
“Rules will prescribe conduct that our first-order practical
reasons reject,” end quote. If they agree, the
law is unnecessary, as we would do as it
bids without its bidding. If they disagree,
no good reason can be induced to do as the
law bids, and so law fails. Professor Alexander
considers and rejects various possibilities
for closing the gap. I’m not quite convinced
by each and every one of his rejections. For example, when he
speaks of, in his words, “rule violators
who the judges know acted on their first-order
practical reasons, and for that reason do
not deserve punishment,” end of quote, I
know of no reason to accept, without
more, the conclusion that a rule violator acting on a
conviction that a rule is wrong does not deserve punishment. Be that as it may, what
seems insoluble in theory is something we muddle through,
for the most part successfully, in practice. Professor Alexander himself
admits that some strategies narrow the gap. And taken together, they
may do so considerably. As much as his paradox
may trouble us, nonetheless, we may observe
that most people are law-abiding most of the time. That the instances in
which they are scofflaws, for instance, jaywalking
across Massachusetts Avenue, are of little consequence,
and that the great clashes between the law and the truly
conscientious moral reasoner are not high-frequency
phenomena. Moreover, his stark
statement of the gap strips away some potentially
important nuances. For instance, one
instance of the gap might raise the question,
is the law’s command to us that we violate
what we hold to be exceptionless
moral prohibitions? This, thankfully, I think, will
be rare, but it does happen. Or, on the other hand,
is the law’s command that we fulfill a legal
duty that is, for us, a matter of moral indifference? This is far more usual. And in all the space
between those two poles, in the space between the command
to fulfill a legal duty that is, for us, a matter
of moral indifference and the command to do a
wrong our morality prohibits, there is a wide zone of
greater and lesser conflicts. I will echo some of what
Professor Stoner has said when I say that, when
the gap opens up, there are also resolutions
of the conflict it engenders that can themselves
generate new legal rules, or preserve the one at
stake in the instant case. There is, for instance,
the rule of lenity. There is equity jurisprudence. There are executive pardons. There are
exemption-carving statutes intending to deal with the
gap in particular cases, like religious freedom
restoration acts. There’s jury
nullification, which is controversial, but recognized
as just from time to time. And, of course, there are
constitutional challenges to laws themselves in
the name of some law that trumps the law challenged. Professor Alexander’s
passing remark about a judge treating a
rule violator’s moral reasons as a reason to
conclude he deserves no punishment, in his closing
vignette about the bankruptcy judge’s dividing
more or less evenly on whether to follow the
rule or do the fair thing, may suggest something
about where the gap is truly problematic, in my view. Namely, in the real
world, behavior patterns of the judiciary, not among
the citizenry generally. To put the matter baldly,
Alexander fashion, on a proportional
basis, one may probably say that practical
rule flouting occurs with greater
frequency among judges than among the
population as a whole. This in particular is a gap
very much worth pondering, particularly as we come to the
end of a week in Washington spent on an inconclusive
and frustrating conversation between senators and a
Supreme Court nominee on the subject of the relation
between law and politics. One of the things that makes
the spectacle of this past week so disheartening– senators
who want to know what results a judge will choose in future
cases and a nominee who won’t even comment
on past ones– is that we are operating in an
environment in which virtually everyone agrees that
the Constitution simply is what the justices say it is. So the stakes are very high. I should note that
Professor Alexander and his occasional
collaborator, Fred Schauer, have vigorously
defended the consensus view of judicial
supremacy, arguing that it performs an
essential “settlement function,” in their words. Now I don’t think that
conclusion follows from, or even
co-exists easily with, the Alexander-Schauer
thesis on the gap or the asymmetry of authority. It appears, rather,
to be an effort on their part to close the gap
by main force in one field. But in fact, it
exacerbates the problem. For when judges find that
the rule of the Constitution chafes them, they
push it aside in favor of first-order practical
reasoning of their own, and then call that the
law of the Constitution. They are encouraged to do this
by the institutional armor that has grown up around the
doctrine of judicial supremacy and finality. So perhaps Professor
Alexander can offer us some thoughts on
how the settlement function of judicial supremacy
can, in practice, lead to such unsettling
results with respect to the gap he has so
eloquently described. Thank you. MARY ANN GLENDON:
Thank you, Dr. Franck. The program now calls
for as much interchange among the panelists
as they would like. And, Professor
Alexander, would you like to react to the comments? LAWRENCE ALEXANDER: Well,
I appreciate the comments. And we do muddle through,
and just in response to the last comment
by Matthew Franck, I’ve had some second thoughts
about judicial review and judicial finality. What you have there, to
the extent that judges use their first-order
reasoning to depart from, in this case,
constitutional rules that purport to bind them and
establish a new rule protected by the carapace of
judicial supremacy, then it’s one more illustration
of the problem of the gap. And it’s problematic
from that standpoint. I mean, we want justices
to be bound by the rules, both constitutional
and legislative, because that’s what
the Constitution says is supreme, not? On the other hand,
judges confront what they see as the gap,
even if they see it wrongly. And so it’s unsurprising,
first, that you have judicial departures. That’s not surprising. That’s to be predicted. And secondly, it’s
not surprising that they would try to insulate
their departures from being retrenched by proclaiming
in Cooper versus Aaron a large measure of supremacy. I do agree to the
extent we share the kind of common
culture that produced the common law and the like. The problems are
much less serious. There are ways we have of
negotiating, and feeling that the rules that bind
us, we don’t have occasion to re-examine them and to
see whether they comport with our first-order reasoning. We identify with them. There are rules, as
much as there are rules imposed from above somewhere. To the extent we don’t
have that situation, then we have a much
more serious problem. And I also agree that, for the
most part, most of the rules, we don’t question them
because they’re really not that important to us. We’re perfectly happy
to let HR determine how much money comes out of
our paycheck for withholding and other things. There are just too
many rules that we just don’t have time to care
about, and much less interest in caring about. That’s all true. The bankruptcy cases
were interesting because these are starker cases. And for that reason, I thought
they were illustrative. How much of life is like that? It’s true. Most of the rule flouting that
we see on an everyday basis are low-stakes flouting. Jaywalking. Fred, in his latest book,
has an amusing discussion of the differences in cultures
in terms of rule abidance. So he says he observed in
Finland huge numbers of people waiting for the
walk sign to go on, even though there were no cars
coming and there was nothing. Compare that to
other cultures, where you wouldn’t observe that. So it’s true that there are some
more rule fetishistic cultures than others. And to the extent you have rule
fetishists, that can be good. It can be vital for the society. It can also be, as
history has given us other examples of
rule-fetishist societies that were not so benign. But I appreciate the
comments and the criticisms. MARY ANN GLENDON: Great. Are there any further
comments from the panel? If not, the floor is
open for questions. LAWRENCE ALEXANDER:
Bored into silence. MARTHA MINOW: Thank you
for that wonderful lecture and the great comments. I am taken also by the anecdote
about the bankruptcy judges. And I know IBM Watson, the
great artificial intelligence exercise, has now mastered
the Bankruptcy Code. This is the machine that
now is reading X-rays. And I have very
ambivalent feelings about this, both concerns
about the profession and is it going to put
us out of business, but also more fundamentally
about the morality of law. And just one more comment
before I put to all of you the question, would
it be a good thing if we could program
IBM Watson not just to do the lawyer’s work,
but the judge’s work? One more comment is this,
that even with IBM Watson, it’s a single code, and
it’s a federal code. And our legal system is much
more complicated like that. You could start with the HR
department, and then move up. We have a federalism, we have
overlapping jurisdictions of all sorts. And aren’t there
good reasons for that that have to do with
multiple authorities and decentralization and
other kinds of conceptions that our founders had? And so, even if
it were possible, would it be good
and is it possible? That’s my question. JAMES STONER: You want to start? MARY ANN GLENDON: Well,
who wants to tackle that? LAWRENCE ALEXANDER:
I think that Watson, I assume, if programmed to
apply the Bankruptcy Code, will be the ultimate
rule fetishist, I assume. So half of the 300 judges
that we sampled and think half of them would be delighted. Their job would be a lot easier. They’d be out of a
job, essentially. The other half would
be quite distressed because Watson would not give
the relief to the parties that they felt should be given. And when we were discussing
in first dealing with the gap and discussing sanctions,
one way of dealing with this is replacing judges
with Watsons who will be perfectly happy
to carry out the most severe, draconian
sanctions to get everybody to fall in line with the rules. Whatever their first-order
of reasoning would tell them, whatever severity of
sanction would be required, well, Watson would
carry that out. The question is whether
judges, human judges, would carry that out. MARY ANN GLENDON: Thank you. Dr. Stoner. JAMES STONER: Yeah, I think
traffic laws are already being enforced by the robots. I mean, they’re sending
people bills for pictures that were taken of going
through intersections or whatever it is. And I think that’s a serious
challenge to the law. First of all if, it’s reversed
the presumption of innocence. And because Americans spend so
much time in the car, whatever starts in traffic is going
to seed its way through life. And so I think that reversal
of the presumption of innocence is a real, real problem now. But then, it does press you to
say, well, what is the problem? Is it just that
some people don’t have the courage of
their convictions or they get soft or
something like that? I think it has to do
with a human being be able to understand
other human beings and to think of rule following
not mechanically, but as what it is to incorporate a
rule into your reason. So there, I guess I
don’t know if there’s the difference between
the rule and the reason, but that, as you said in
one of your responses, people would make
the rule their own. Well, I think any
time one obeys a rule, you have to make it
your own, in a way. Even if you’re
making it your own, you’re inevitably
interpreting when you’re making it
your own, much less when someone is standing
outside of you and the rule and trying to decide
where you are. MARY ANN GLENDON:
Other questions? If not, many thanks to
the Federalist Society for making this such a
memorable Vaughan Program. And thank you, Dean
Minow, for attending. And thank you,
Professor Alexander, for raising a question
that we will all be talking about over lunch. And thank you, Dr. Franck
and Professor Stoner, for your comments. [APPLAUSE]

3 thoughts on “Vaughan Academic Panel: Lawrence Alexander, “Law and Politics: What is Their Relation?”

  • Paul Warren Post author

    MARTH , WHAT IS JETER CARNAGE , IN TERMS OF "NOT NECESSARILY MY IDEA OF WELL JPOURNALISTIC CONTENT ???? MOST RESPECTFULLY , PWW

  • Paul Warren Post author

    PLEASE PARDON MY MOSS EARED , FOGGY INTERPRETATION OF PAST REPORTS? PWW

  • Ann Onymous Post author

    My. What a timely question.
    http://www.cnn.com/2017/03/28/politics/house-intelligence-committee-devin-nunes/

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