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May|June 2005
Oh, God By Scott Shapiro and Alison Mackeen
A Vast Right-Wing Conspiracy By Jonathan H. Adler
License to Wardrive By Brendan I. Koerner

Oh, God

Does denying a belief in a deity's influence over the law muck up legal thought?

By Scott Shapiro and Alison Mackeen

LEGAL SCHOLARS AND JUDGES ARE VERBOSE AND PRETENTIOUS. Legal scholarship and judicial opinions use too many words to too little effect. "Law-talk," as Steven Smith calls it in Law's Quandary, a new book in which he makes these charges, has degenerated into "nonsense."

Smith, a professor at the University of San Diego School of Law, directs some of the blame at the legal academy. As the study of law has evolved into an end in itself, with its own standards and rewards, it has lost the "openness" that characterized the work of earlier scholars like Oliver Wendell Holmes, Lon Fuller, and Karl Llewellyn. Contemporary jurisprudes are concerned primarily with "professional virtuosity," seeking to impress academic colleagues while ignoring lay readers. This attitude, Smith contends, has made contemporary legal philosophizing more technically proficient than in Holmes's day, but also less interesting, less accessible, and less relevant.

Unlike others who have lobbed this type of criticism at the legal academy, Smith does not believe that the malaise of modern law is an institutional problem—a product of the insularity and hyper-specialization that comes with being a profession. Instead, he describes this malaise as a "metaphysical predicament," and he voices a plea for lawyers to return to metaphysics by addressing themselves to the study of the fundamental nature of reality. Citing the moral philosopher Charles Larmore, Smith admits that metaphysics "today functions mostly as a term of abuse." Instead of referring to the inquiry into the ultimate fabric of existence, it connotes a vague and frivolous form of speculation. Smith suggests that this hostility toward metaphysics has been particularly acute among legal professionals, many of whom were attracted to legal study precisely because it seemed "to offer a refuge from metaphysical questions."

Law's Quandary does an effective job of showing how this "anti-metaphysical animus" represents a marked departure from the classical conception of law. Legal thinkers from Thomas Aquinas to Edward Coke to William Blackstone operated on the belief that man-made, or what is sometimes called "positive," law derived its authority from the "eternal law." Legal decisions did not constitute the law in and of themselves. They were merely "'evidence' of something lying above or beyond them . . . of the real law, ultimately deriving from God's providential plan," Smith writes.

Ever since Holmes famously dismissed the idea that the law was a "brooding omnipresence in the sky," however, legal thinkers have ostentatiously rejected this ultimately theological conception of law. Their project instead, as Smith explains, citing the legal realist Felix Cohen, has been to "redefine supernatural concepts in natural terms"—in other words, to explain the law without invoking "the law" in its classical sense.

The goal of Law's Quandary, on the other hand, is to show that this naturalizing project of modern legal thinkers has failed miserably. In Smith's view, the antimetaphysical attitude that permeates modern jurisprudence has "paralyzed our effort to understand the law," and has embroiled legal thinkers in inconsistencies and incongruities that they have struggled to conceal through ever more arcane strategies of "bluster and obfuscation."

In pursuing this charge, Smith employs a notably oblique strategy. Instead of mounting a direct defense of the classical conception of law, and of its theological underpinnings, he offers examples of what he describes as lawyers' inability to shed the faith-based concept of law they disavow. In other words, according to Smith, the classical belief in a "brooding celestial presence" has not vanished into legal history. It has gone underground, creating what Smith describes as an "ontological gap," that is, a gap between the version of reality lawyers say they believe in and the version that legal practice actually rests on.

Although lawyers continue to speak of "the law" in a confident manner and invoke its authority, they are unable to describe what the law is. For example, they profess commitment to a scientific worldview that, in Smith's opinion, precludes any concept of the law as an independent entity or as related to divine authority. But they continue to speak and act as if such an entity exists. According to Smith, it is this alleged gap between their professed and their actual beliefs that has rendered "law-talk" so inane.

SMITH DEPLOYS A VARIETY OF TECHNIQUES in his efforts to show that lawyers accept, despite their assertions to the contrary, the classical and ultimately theological conception of law. Some of these techniques, and in particular those that employ psychoanalysis, do not advance his cause. The most glaring example is his brief reading of Holmes's well-known claim, from the first sentence of The Path of the Law, that the law is not a "mystery but a well-known profession." If Holmes's "mildly enigmatic" contention about the law were right, Smith announces, then "it would seem scarcely to need saying." Holmes and his successors' sense that it "evidently does need saying—frequent, repeated saying," indicates that they secretly believe the opposite to be true. Thus, Smith reduces the antimetaphysical turn in modern legal thought to a form of psychological resistance that confirms the reality it denies.

While this unconvincing approach constitutes a low point of the book, Smith employs other, more energetic forms of evidence and argumentation in his attempt to demonstrate the persistence of a belief in "the law," even among contemporary thinkers who deny one. The most effective examples occur in the course of an artfully constructed thought experiment featuring Tess, a well-mannered visitor from an alien planet who "wanders by your law office, introduces herself . . . and asks you to show her 'the law.' "People talk about it all the time," she says, "and it sounds like a remarkable thing. So I'm just dying to see it."

In keeping with earthly hospitality, Tess is taken on an apparently exhaustive tour of legal institutions (a courtroom, legislature, law school, law offices, and so on). The tour is supplemented by an hour in a law library browsing through "case reports, statutes, and law review articles." Still, Tess is disappointed. "Well, I enjoyed it all immensely. Really. But . . . well, I was hoping you might show me 'the law,' " she says.

Tess's disappointment is used to launch an extended discussion of legal ontology. What kind of mistake is Tess making when she asks to see the law? Is she right to insist that we treat the law as a transcendent entity, that exists above and beyond its earthly incarnations? Or does the law consist of the kinds of institutions and practices that Tess encounters on her tour and nothing more?

Tess's refusal to accept the latter possibility inspires her to identify what is billed in Smith's book as "powerful evidence of a persistent belief in 'the Law.' " Tess begins by drawing attention to legal practitioners' habit of invoking the law in their professional lives. Common law judges purport to find the law, legislatures purport to make the law, lawyers argue about the law, and even the most "worldly-wise skeptic" can easily be caught asking, "Did the Fifth Circuit get the law right in Smith v. Jones?"

Although told that such usage might be metaphorical or figurative, Tess is undeterred. She goes on to enlist a series of concrete examples that are alleged to show how the classical conception lives on in legal practice itself. According to Tess, many of the distinctive legal practices that have caused nonlawyers to regard the law as "weird or exotic" (to use the words of the University of Chicago's Cass Sunstein) make eminent sense when they are viewed in light of the classical conception. The continued use of precedent in judicial decision-making and of dissenting opinions, to take two well-known examples, are informed by the assumption that our legal decisions in and of themselves do not constitute the law, but are evidence of a higher authority. When a judge dissents from a majority opinion, according to Smith, he or she does so on the belief that the majority has misstated "the law." And in so doing, the judge implies that the law exists independently of what individual judges might think it is.

As Smith notes, contemporary thinkers like Bruce Ackerman and Richard Posner, operating respectively from the left and the right, have made bold attempts to close the so-called ontological gap and to reconstitute law on a more rational basis by using policy rather than precedent as the basis for legal decision-making. The fact that legal practice has nevertheless remained substantially unchanged, and that many of these archaic practices continue to flourish, is, for Smith, evidence of an ongoing and underlying belief in the classical conception of law. We are caught in the gap between what we are ready to admit and what we really believe.

ONE OF THE PROMINENT THEMES of Law's Quandary concerns what Smith describes as the lamentable popularity and prestige of the "scientific ontology." Lawyers, like many other inhabitants of the modern world, have accepted the superiority of a reductive worldview that denies the reality of their most profound beliefs and experiences. In particular, says Smith, it precludes what lawyers routinely, if tacitly, take for granted: that "the law" exists as a transcendent authority above and beyond the legal profession. Smith's argument here depends on the assumption that science can countenance only those objects that reside within space and time. If science is to admit the existence of X, Smith implies, then there must be an answer to the question, "Where is X?" Conversely, since we cannot show someone like Tess where "the law" is, science cannot acknowledge its objective reality. This is the "quandary" referred to in the book's title: We are forced to choose between our belief in "the law" and our commitment to a scientific worldview that denies its existence.

Our predicament begins to seem less onerous, however, when it becomes clear that Smith's portrayal of science, as unable to countenance objects that exist outside space and time, is seriously misleading. Suppose, for example, that Tess had asked to see the universal law of gravitation. Writing down "F= G(M1M2/r2)" on a piece of paper will not satisfy her. That equation is just a formulation of the universal law, showing that the force of attraction between two objects depends on their masses and on their distance apart. It is not the universal law itself.

If forced to answer where the universal law of gravitation is, we would have to say, "Nowhere." But that does not mean that it does not exist. If Tess does not understand that, she does not understand what a scientific law is and how science works. Likewise, if she does not know that we cannot show her the number seven (as opposed to the numeral "7") one must conclude that Tess cannot grasp certain concepts basic to humans. We shouldn't conclude, as Smith would have it, that human beings who do believe in the number seven secretly believe in supernatural entities.

SMITH'S OTHER NOTABLE EFFORT to expose the ontological gap that, in his opinion, frustrates our ability to make sense of the law focuses on the question of legal interpretation. The basic claim in this section is that the search for legal meaning is inevitably a search for "some kind of author." The key issue is not whether we should look to intent when interpreting legal texts, a search he believes we cannot avoid, but whose intent we should look to. After examining all of the usual suspects—from actual legislators to the hypothetical judges posited by theorists from Holmes to Ronald Dworkin—Smith asserts that none of them can provide answers to the sorts of questions that arise in the most interesting and controversial cases. Each is ill-equipped to help us decide whether affirmative action violates the equal protection clause, whether prayer in public schools violates the separation of church and state, and so on. The only author who could provide such answers, ventures Smith, is the divine one presupposed by the classic conception. Smith observes, for example, that the hypothetical single author posited by Dworkin bears "an uncanny resemblance" to the one generated by the classical tradition.

But here, as elsewhere, Smith's philosophical assumptions are highly dubious. The search for meaning in a text does not always boil down to a search for some author's intent, nor is legal interpretation always equivalent to the search for a text's meaning. But even if we suppose, for the sake of argument, that Smith is right about these controversial claims, and that there is no mortal author who can provide the right answers to all of the burning legal issues, is that really so shocking or bad?

Most lawyers acknowledge that right answers don't exist to every legal question and that in some cases judges must exercise their discretion and create law. That judges often deny this element of discretion, acting as though it was always possible to discover the correct answer, is most easily understood as a product of the political pressures they face. In a democracy, as many observers have noted, it is unwise for unelected judges to admit that they make law, since their legitimacy depends on the perception that they find it. Curiously, Smith doesn't entertain this possibility. He assumes instead that it is evidence of a deeply and sincerely held belief.

As he acknowledges at length in his final chapter, "Law in a Quandary," Smith is not the first to remark on the sometimes inconsistent and anachronistic nature of legal discourse and practice. Yet his discussion of these inconsistencies constitutes the most intriguing aspect of his book. For by reminding us that present-day legal practice originated in, and is in many ways consistent with, a theological concept of law that many modern lawyers disavow, Smith brushes up against a genuinely fascinating question. What follows from the discovery that an accepted belief or practice of today derives from an ideology of which we no longer approve or in which we no longer share?

The legal historian James Q. Whitman has raised questions like this in a different context. In his comparisons of European and American legal systems, he invites readers to consider whether, for example, the roots of hate speech statutes in an aristocratic ideal of honor diminishes their appeal. Should a political culture that prides itself on its democratic and anti-aristocratic foundations be wary of a practice with such an impeccably aristocratic pedigree? This genre of question has also surfaced in debates about the legacy of American slavery. The framers were slaveholders. Does that impugn the moral authority of the Constitution?

These questions are complicated and perhaps even unanswerable. But by investigating them, scholars expand our moral capacities and our knowledge. They remind us of the often tainted origins of our most familiar beliefs and practices. And, in doing so, they encourage us to regard our roots with due skepticism and humility.

In stark contrast to this anthropological approach, however, Law's Quandary is packed with ethnographic carelessness. Most glaring is the pervasive assumption that the mere survival of belief in "the law" is evidence of its ultimate validity. This highly problematic argument is further weakened by the dubious ways in which Smith backs it up. For Smith, our failure to discard legal practices that originated in the classical conception of law is evidence not of inertia or political imperatives but of a covert commitment to the classical conception itself. What's more, Smith makes the case for this commitment in contradictory ways, enlisting denials and declarations of belief for the same cause. When Holmes and his successors dismiss the classical conception of law, they are protesting too much. But when contemporary judges affirm it, they are telling it like it is.

The weakness of the analysis in Law's Quandary calls attention to a related facet of the book: its attack on legal academics in general. Like Harvard Law School's Duncan Kennedy and others who have remarked on the unlikely combination of skepticism and faith that permeates American law, Smith attributes the conflict between lawyers' explicit and tacit beliefs to "bad faith" on their part. Kennedy accuses judges and legal academics of pretending to have faith in the law and their ability to find it, when they actually don't and can't.

But Smith gives this idea of bad faith a new twist by accusing judges and law professors of affecting skepticism "for professional purposes." Legal thinkers refuse to admit their belief in a transcendent legal authority because such an admission would damage their credibility as academics. This charge is made repeatedly, with a combination of coyness and bravado that is unpleasant and unfair. The status of religion in the academy is a delicate matter and Smith may be right in suggesting both that religious believers are tacitly discouraged from importing their beliefs into their academic work and that academics can be unduly insensitive in their treatment of religious belief in general. But it is one thing to remark on this insensitivity and quite another to suggest that the nonbelievers are guilty of craven careerism and dishonesty.

Smith's failure to interpret his colleague's beliefs and motives in a charitable manner is ironic given his own reluctance to disclose his religious commitments. Throughout his argument, Smith drops hints about this subject, and these hints become heavier as the book progresses. There are numerous references to religion and church and several caustic critiques of theorists who reject the possibility of belief in God. The book culminates in a vaguely confessional sentence, urging us "to acknowledge that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of." There is no obligation in legal scholarship, as Smith acknowledges, that academics reveal their "personal commitments." Yet his indirectness about his own beliefs is irritating after he indicts other scholars for failing to come clean about theirs.

Perhaps the final irony here is that the book begins by denouncing the inaccessible, arcane, and ultimately nonsensical nature of legal discourse, but it ends in an almost defiantly vague and cryptic manner. Positioning himself as a modern-day Socrates, whose project is to provoke "perplexity" by unmasking lawyers' inability to give a coherent account of "the law," Smith urges scholars to confess their confusion instead of struggling to explain it away in ever more pedantic and convoluted prose. In the end, confusion is not dispelled but elevated to a principled position. The antidote to the malaise of modern law, it seems, is a leap of faith.

Scott Shapiro is a professor at Cardozo School of Law. Alison Mackeen is a freelance writer and editor based in New York.

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