T H E

C U L T U R A L

S T U D Y

O F L A W

Reconstructing Legal Scholarship

P A U L W . K A H N

The University of Chicago Press • Chicago and London

 &:X2-312>^?>0

PAUL W. KAHN is Nicholas deB. Katzenbach Professor of Law at Yale Law School. He is To Catherine, Hannah, and Suzanne, who always asks "Is thai legal?'
author of The Reign ofLaw: Marbury v. Madison and the Construction of America (1997) and
Legitimacy and History: Self-Govemment in American Constitutional Theory (1992).

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London
© 1999 by pie University ofChicago
All rights reserved. Published 1999
08 07 06 05 04 03 02 01 00 99 12 3 4 5
ISBN: 0-226-42254-2 (doth)
Library of Congress Catalog! ng-in-Publication Data
Kahn, Paul W., 1952
The cultura] study of law : reconstructing legal scholarship / Paul W. Kahn.
p. cm.
Includes bibliographical references and index.
ISBN 0-226-42254-2 (cloth : alk. paper)
1. Rule of law—United States. 2. Culture and law. 3. Law—Philosophy. I. Tide.
KF382.K33 1999
340'.II—ddc21 98-46423
CIP

© The paper used in this publication meets the

minimumrequirementsof the American National Standard
for Information Sciences—Permanence of Paper for
Printed Library Materials, ANSI Z39.48-1992.
INTRODUCTION

Theory and Practice

The study of law has never been much of a theoretical discipline

in this country. Legal studies tend to break up into a number of
specific subfields, each defined by subject matter: contracts, public
law, procedure. Expertise in each specially is expressed in the form
of proposals for legal reform. The tort professor tells us about tort
reform. The professor of constitutional law spends most of her time
explaining how the Supreme Court should have ruled, or should
rule. Even jurisprudence falls into this pattern of critique and reform.
When it is not pursuing the analytic question of the conditions of legal
validity, contemporary jurisprudence is telling us how judges should
rule or how regulatory regimes should work.' There is remarkably
little study of the culture of the rule of law itself as a distinct way of
understanding and perceiving meaning in the events of our political
and social life. To take up such a study requires turning legal scholar-
ship away from the project of law reform.
The culture of law's rule needs to be studied in the same way as
other cultures. Each has its founding myths, its necessary beliefs, and
its reasons that are internal to its own norms. In this book, I explain
the need for this form of legal inquiry, set forth its theoretical ambi-
tions, describe its methodology and sources, and suggest areas for
further inquiry.
Of course, there are many different ways of studying a culture.
Law has not entirely escaped examination by sociologists, anthro-
pologists, and economists. The rule of law has, however, been pecu-
liarly closed to the inquiries of modern cultural theory. Where such
inquiries have appeared, they have all too quickly been turned to-
ward the traditional issues oflegal reform—as if innovative forms of
study must lead to innovative legal reforms. Consequendy, the col-
lapse of left-leaning, radical scholarship seems to have led to an aban-
donment of these modern forms of inquiry into the rule of law. This
is yet another consequence of the failure to separate legal theory from
legal practice.
INTRODUCTION
If we approach law's rule as the imaginative construction of a
complete worldview, we need to bring to its study those techniques
that take as their object the experienGc^of^fficaning. Inquiry must
begin with a thick description of the ie^al jeyent; as it appears to a
subject already prepared to recognize the authority of law. That sub-
ject brings to the event a unique understanding of time, space, com-
munity, and authority. He or she also brings an understanding of the
self as a legal subject. These are the constitutive elements of that form
of political experience we describe as the rule of law. A cultural study
of law advances from thick description to the interpretive elabora-
tion of each of these imaginative structures, all of which together
make possible the experience of law's rule.2 All questions of reform—
the traditional end of legal study—are bracketed. They are not
abandoned forever, but they are left aside as long as this form of
inquiry continues. The .object here is not to make us—personally or
communally—better, -but "to understand who we already are.
The situation of contemporary legal scholarship is somewhat
ironic. Studying the la\v, we become a part of it. The consequence is
that our deepest cultural commitment—the commitment to the rule
of law—remains one of the least explored elements of our common
life. We seem to be just as incapable of studying the rule of law as
scholars of the eighteenth and nineteenth century were of studying
Christianity.
Until the turn of the twentieth century, the study of Christianity
was not an intellectual discipline. It was, instead, a part of religious
practice. Its aim was the progressive realization of a Christian order
in the world—-reform within the Christian community, and con-
version abroad. Only when the theological project became capable
of suspending belief in the object of its study could a real discipline of
religious study emerge. The discipline had to give up questions about
the truth of Christian beliefs, as well as questions about the correct
beliefs of the true Christian. It had to take up, instead, the question
of the shape or character that Christian beliefs give to the subject's
experience. If we ask the scholar whether he believes in the truth of
the object of his study, we are collaborating in an insidious form
of censorship. The scholar of religion should not be asked whether
Christ is God or what is the correct belief about the Trinity. Simi-
larly, the scholar of law's rule should not be asked whether law is the
expression of the will of the popular sovereign and thus a form of
self-government. These are propositions internal to the systems of
belief. A scholarly discipline of the cultural form approaches these
propositions not from the perspective of their validity, but from the
•THEORY AND PRACTICE
perspective of the meaning they have for the individual within the
community of belief.
Distance from one's own beliefs is a necessary condition of such
scholarship, yet that distance is not easily obtained. Distance does not
mean abandonment. Abandonment can lead to the opposite prob-
lem: dismissing as merely false—and therefore not worthy of serious
attention—the propositions that characterize a traditional cultural
form. Undoubtedly, the possibility of agnosticism—if not atheism—
facilitated the study of Christianity as one religion among many, not
because the scholar had personally to renounce religious beliefs as a
condition of their study, but because a practice of agnosticism made
possible the imagining of alternative positions. This act of the imagi-
nation allows the distance from one's own beliefs that makes their
critical study possible.
This imaginative act of separation, of creating a distance between
the subject and his or her beliefs, is the model of understanding that
I want to offer in place of the normative, practical reason that has
informed both law and legal scholarship. 3 We need not believe that
the scholar has access to a true or essential subject, that he can stand
stripped bare of all of his surrounding cultural and social construc-
tions at the start of such a study. We need only acknowledge that
there are multiple positions from which we can view our experience
and that these can be set against each other in order to raise to delib-
erate self-consciousness any particular set of beliefs.
To see the difficulty for such a cultural study of law—parallel to
that which earlier arose in the study of religion—imagine whether
suspension of belief in the rule of law is really possible for us. Would
a scholar who purports to suspend belief in law's rule—even as a
program for reform—be welcome in the nation's law schools? Is the
anarchist the legal equivalent of the atheist? Can we take anarchy
seriously? Is agnosticism about law's rule the same as an openness to
consider nonlegal forms of governance? What might those be, apart
from dictatorial regimes? This is a bit like being forced to choose
between Christianity and animism. Are we, then, so committed to
the rule of law that the very idea of a discipline of study outside of the
practice of law is suspect?
As with the earlier study of Christianity, the emergence of a com-
parative knowledge of political and social organizations seems a
necessary predicate for the emergence of a new discipline of legal
study. But again, the analogy both supports and undermines the en-
terprise. The first knowledge of other religions did not support a
move toward self-examination, but rather led to expanded efforts
INTRODUCTION
of proselytization. When the Spanish razed the Aztec temples, they
placed icons of the Virgin Mary on the remains of the pyramids. No
one observed that both Aztecs and Christians put acts of human sac-
rifice and rebirth at the center of their religious beliefs. T h e Mexicans
were seen either as completely other, entitled to no respect, or as
somehow proto-Christians because their rites anticipated in "primi-
tive" form elements of Christian belief.4 In either case, the mission of
the Europeans was that of conversion. Indeed, it remains difficult to
find the religious scholar who will acknowledge the centrality of can-
nibalism in Christian ritual practice. 5 Partaking of the body of Christ
is somehow different from partaking of the body of your neighbor,
symbolically or otherwise. But exactly how is it different, unless we
accept the truth internal to the religious practice?
The fact that we continue to have on many campuses both a
divinity school and a department of religion suggests the unease
of allowing a theoretical discipline of religion to extend to Chris-
tianity itself. Yet in law, we have only the professional school, without
any corresponding-academic department. Can we imagine a disci-
pline of law that begins from a position that is neutral as between the
victims of the legal order and the victims of other forms of violence?
Or does law remain the last area of heresy in the modern academy?
Can we even ask who exactiy are the victims of the legal order? Does
that category include not just the criminal defendant and the prop-
ertyless, but also the countless thousands who have willingly sacri-
ficed themselves to the project of maintaining the rule of law?
Our comparative knowledge of other political practices is not
weaning us from our belief in the rule of law. When we look, for
example, at recent developments in Eastern Europe and Latin Amer-
ica, we speak of the progressive transition from dictatorial systems to
the rule of law. We measure their progress—or lack of it—against
our end. c When we observe Third World countries, we see the ab-
sence of law's rule as a pathological condition. We have a missionary
zeal, believing our truth to be revealed truth. We cannot imagine
valuable alternatives outside of our truth. Not to see the end of social
order as the rule of law strikes us as unnatural—the equivalent of
imagining a world without gravity. Two hundred years ago, social
and political practices were tremendously diverse. Today, respect for
that diversity has been suppressed in the same way that the Euro-
peans suppressed the diversity of religious belief and practice in the
cultures they colonized. There is just one true way to run a social/
political order and it happens to be ours.
Of course, we recognize room for variations within the rule of law.
THEORY AND PRACTICE
We can see that some societies might choose a parliamentary over a
presidential system of government, or an inquisitorial over a confron-
tational system of criminal procedure. Tort systems may or may not
allow punitive damages, or rely on social insurance systems rather
than negligence standards. These variations, however, are analo-
gous to those among different sects of Christianity. Toward such
variations—religious and legal—Ave practice the virtue of tolera-
tion. Toleration is made possible by recognition of the fundamental
unity of belief beneath these apparent differences. The variations
raise issues of institutional design; they do not challenge fundamental
ndrms. We approach these possibilities from the perspective of re-
form: would we better realize the norm of law's rule by adopting any
of these institutional variations? This is the question that motivates
much of the scholarship in comparative law.7
None of this is to suggest that there is something so deeply wrong
with the rule of law that it must be rejected. The point is not to ad-
vocate different, extreme notions of reform, but entirely to abandon
questions of reform for as long as the inquiry lasts. It may be that any
state that wants to participate in the new, international economic re-
gime will have to order itself under this conception of the rule of law.
Doing so may very well bring an increase in material benefits to that
community. Whether it will produce a life as full of meaning as the
alternatives is an open question. Surely, it will bring different mean-
ings to those living under its rule. We should not romanticize the
possibility of alternatives—real or imagined—but neither should we
assume that the answer is obvious. How would we answer the ques-
tion of whether conversion to Christianity from a traditional religious
practice was a gain or a loss—-apart from its accompanying material
consequences? We have no way to measure this domain of meaning.
Even if we could, we would have no way to balance losses here—if
there were any—against increases in material well-being. Further-
more, we should not assume that adoption of legal forms of organi-
zation will produce the same culture of legal meanings in societies
that lack Western traditions and institutions. Despite the success of
the Christian mission, the colonized domains did not simply adopt
a Western set of meanings. Adoption always includes adaptation, a
mingling of cultural traditions including beliefs and practices. 8
Without a measure by which to make comparisons, perhaps we
should look only to that which we can measure: the health and wel-
fare of individuals or gross domestic product. But the intellectual
project of understanding a culture of law should not be held hostage
to the question of its practical consequences. To do so is to impress
INTRODUCTION
law's conception of reform upon the theoretical discipline, before the
intellectual inquiry even begins. T h e project of a cultural study of
law starts only with the establishment of an imaginative distance that
shakes off the scholarly compulsion to point the way toward reform.
We have to remember that the rule of law is neither a matter of
revealed truth nor of natural order. It is a way of organizing a society
under a set of beliefs that are constitutive of the identity of the com-
munity and of its individual members. It is a way of understanding
the unity of the community through time and of the self as the bearer
of that history. It is both the product of a particular history and con-
stitutive of a certain kind of historical existence. To study the rule of
law outside of the practice of law is to elaborate this history and to
expose the structure of these beliefs. This project is substantively and
methodologically independent of any practical judgments about al-
ternative forms of political order. The issue is not whether law makes
us better off, but rather what it is that the law makes us.
ONE
The State of the Discipline
When lawyers think about contemporary legal theory, they are likely
to express the view that it is too theoretical, too disconnected from
the practice of law to be of any interest or use.' In fact, the problem
is exacdy the opposite. Theory has substantially failed to separate
itself from practice. 2 The reforms offered by legal theorists may often
be impractical, but the central assumption of both the scholar and
the lawyer-critic is that reform is the appropriate end of scholarship.
The lawyer-critic wants only to replace the poor—meaning imprac-
tical—reform proposals that emerge from the academy with better
ones.
By taking up the project of legal reform, however, the scholar be-
comes a participant in legal practice and, therefore, a part of the very
object that he or she set out to investigate. This collapse of the dis-
tinction between the subject studying the law and the legal practice
that is the object of study is the central weakness of contemporary
legal scholarship. "Collapse" does not happen at a moment in time,
as if there were first a separation of subject and object, which sud-
denly disappeared. The legal scholar comes to the study of law al-
ready understanding herself as a citizen in law's republic. She is
committed to "making law work," to improving the legal system of
which she is a part. Collapse refers to the failure of an analytic pos-
sibility, not some sort of transitional experience.
T H E P L A C E OF R E F O R M IN T H E R U L E OF LAW
A new discipline of legal study must abandon the project of reform.
We cannot get there, however, without first understanding the cen-
tral place of reform in our legal culture and the reasons why this idea
has such a powerful hold on the imagination of the legal scholar.
Briefly stated, reform is at the heart of our legal culture because it
represents the intersection of reason and will, which are thought to
be the twin sources of a legitimate legal order. The legal order should
CHAPTER ONE
satisfy a standard of reason; irrationality in legal rules and procedures
always appears as a deficiency in need of correction. T h e legal order
should also satisfy a standard of will; law should be a product of popu-
lar consent. Law that appears to make no contact with popular will,
either past or present, is as problematic as law without reason. The
ambition of law's rule in a democratic polity is to reach a coinci-
dence of will—popular consent—and reason. Because this ambition
is never fully and finally achieved, at every moment law stands in
need of reform. This is a description of beliefs internal to the legal
order, not a description of facts independent of that order.
T h e opposition of reason and will predates the emergence of a
liberal, democratic polity under law. Traditionally, the monarch as
sovereign possessed the will of the nation. Reason emerged as a claim
of courts of law to restrain that will. Famously, Lord Coke told a re-
calcitrant king that the royal will was subordinate to the law, that
law was a product of-reason, and that reason was a possession of the
judges. 3 Will remains the possession of the sovereign: no longer the
monarch, but the people. Reason is deployed still as an argument
to restrain that will. In the modern state, however, there is a much
greater diversity of claims about the content and institutional locus
of reason's norms and of the people's will. Reform is the common
ambition of legislatures, executive agencies, and courts—as well as
of popular political movements—because all claim to bring reason
to will.
Reform as the application of reason to will is the central Enlight-
enment project for both community and individual.4 The political
ambition of legal reform is matched by an analogous psychological
ambition to control the individual will through reason. Sigmund
Freud captured this ambition when he described the end of psycho-
analysis: "Where id was, there ego shall be." 5 The subordination of
will to reason appears as the control of irrational passions and desires
in the individual and of special interests or factions in the polity. Re-
form is always required because there is never a moment when indi-
vidual or polity is free of such passions. Thus, both our law and our
selves appear as projects of self-construction that require an endless
process of reform.
As the Enlightenment project came to define political and psycho-
logical ambitions, lawyers displaced ministers as our "leadingmen." 6
The lawyer as statesman and scholar leads a life that appears har-
moniously to mediate between these dimensions of community and
individual: reason is the standard for action in both dimensions, just
as self-interested desire is the object to be controlled in both politics
THE STATE OF THE DISCIPLINE
7
and private life. The scholarly pursuit, as the pursuit of reason, is
continuous with these political and personal virtues. The scholar is
captured by law because she imagines the tasks of legal reform as the
fulfillment of moral and political responsibilities. Scholar, lawyer, and
statesman rest on the same virtue of reasonableness. Their perceived
pathologies are also the same. When the lawyer becomes a hired gun,
the statesman becomes a rent-seeking politician, and the scholar be-
comes a deconstructionist without any commitment to the virtues of
reason in the political order. For each, reason loses its capacity to
be a source of substantive norms, and power displaces reason as the
source of order.
This overlap between the public and private dimensions is not
merely characteristic of the lawyer-statesman; it is representative of
an ideal of citizenship under law. For Americans, the function law
performs is constitutive as well as regulatory. Not since Solon has an
act of law creation had such a central role in the self-understanding
of a community. 8 Americans believe they created themselves first
through a violent, revolutionary break with an inherited, unjust, mo-
narchic order and then through a positive act of popular lawmaking.
Without a common ethnic, racial, or religious heritage, American
identity is peculiarly dependent on the idea of law.9 The American
citizen, if not himself an immigrant, maintains a family memory of
immigration. In a nation of immigrants, to be a citizen is to believe
in a legal order and to choose to be a part of it. The act of immigra-
tion appears in retrospect neither as a form of religious pilgrimage
nor as a merely private act of significance only to the individual and
his or her family. It is remembered as a deliberate act—a choice
based on reason and will—to become a part of a new political com-
munity based on law.10 If law is to play this role, its sources must
appear not only as valuable, but also as accessible to the new immi-
grant. Law cannot appear to be a product of particular class or fac-
tional interests. Nor can it appear as the arbitrary product of a par-
ticular historical moment. It cannot appeal to religious, ethnic, or
nationalist sources. For Americans, law can express neither the will
of God nor the historical Volksgeist.
Commitment to a common legal order links the diverse members
of this community to each other; it also links us to our predecessors
and successors. O u r predecessors are those who bequeathed to us this
rule of law; our successors are those who will sustain the rule of law
that we leave to them." T h e role of the present generation is to per-
fect the legal order we inherit and to pass on this reformed rule of law
to our children. If law is to perform the function of constituting a
CHAPTER ONE
single community across time and space, it must appear to have at its
foundation sources that satisfy the political aspirations of its citizens.
Our conception of the rule of law draws upon our highest secular
values; it is rooted in both reason and will. To the popular under-
standing, as well as to the professional, the legal order appears to be
a product of both political science and popular consent.
The rule of law in a democratic order appears as the subordination
of will to reason: we consent to law because it is reasonable. This
conception of an ongoing consent to a reasonable legal order repli-
cates the act of consent of the new immigrant who willfully joins the
community by affirming his or her support of the legal order. 12 There
are multiple points of consent in our imagining of the legal order:
consent as immigration, consent as ratification of the Constitution,
consent as voter participation and jury duty, consent as tacit acknowl-
edgment of legal authority. All of these moments share this structure
of subordinating .will'to" reason, i.e., of affirming through an act of
will the product of reason's deliberations.
Belief that government can be constructed on the basis of political
science made plausible the project of writing and enacting the Con-
stitution, of creating a rule of law for the present community that was
also to be the permanent rule for all future entrants into the com-
munity. This was an Enlightenment dream of reason: government as
"state of the art" political science. Because politics was the subject of
a science, a permanent constitution founded on the true principles
could endure. Like other sciences, political science was thought to
discover laws. The rule of law, accordingly, was to have the same
compelling character to the reasonable man as any other form of
science. l3 James Madison, for example, prepared for the Philadelphia
Convention by studying the history of republican governments in
order to discover the true laws of constitutional construction. 14 John
Marshall's constitutional opinions were praised by Joseph Story, him-
self the first professor of law at Harvard, for having the persuasive
power of a mathematical proof.13 Only willful ignorance or reason
corrupted by desire could prevent an individual from giving consent
to a rule of law that is as compelling to reason as is mathematics.
Belief that the Constitution is a product of reason, delibera-
tion, and political science remains a vital part of our political self-
understanding. We have generalized this idea, extending it from
the basic principles of constitutional structure and civil rights to the
broader statutory and regulatory order. All should be rational. The
rule of reason extends to both ends and means. The ends of law are to
coincide with what reason reveals about the public good; the means
THE STATE OF THE DISCIPLINE
law uses to reach those ends are always subject to reasonable critique.
To identify an irrationality in law—either in ends or means—is to
establish a predicate for reform. The legislative project is continuous
and unending because its task is constantly to reconsider and readjust
the regulatory scheme to keep it consonant with what reason reveals.
Without constant reform, regulation would become irrational as facts
and context change, even if our knowledge of policy and manage-
ment remained the same. Accordingly, there is always a place in the
legal order for correction of the irrational. Even the Constitution
allows for amendment: not just because consent may be withdrawn,
but because reason may identify a need for reform.16
Whenever the constitutional separation of powers leads to a per-
ception of a gap between reason and the law enforced by the courts,
a crisis in the relationship between the judicial branch and the other
branches of government follows. T h e paradigmatic example of this is
the New Deal crisis of the courts. To many, the judicial defense of
constitutional law seemed to doom the country to irrational and an-
tiquated beliefs.17 The problem was not that the Court acted against
the majority will—the Court had claimed a right to engage in judi-
cial review since Marbury v. Madison.1* The acute problem was caused
by the Court's exercise of this power in a way that appeared incon-
sistent with the demands of reason. 19 The resolution of the crisis
occurred when the Court assimilated the insights of modern social
science into the constitutional order. 20 T h e equation works the other
way as well: the minimum demand that the judiciary puts upon the
products of the representative branches is that they be "rational."
This minimal demand can, however, become quite substantial when
the Court believes itself to possess a science of republican govern-
ment. Thus the Lochner-crzL Court believed that it spoke with the au-
thority of science, while the political branches were acting irrationally
in pursuit of factional interests. That a legislative act is the will of the
majority is not enough to satisfy the demands of law 21 Conversely,
that a proposal is rational is not enough to make it law.
T h e parochialism of American constitutionalism is, in part, a
product of this deep-seated belief that ours is the best system of gov-
ernment because it is the product of reason. Our Founders are para-
digmatic founders; their insights can be extended to all communities
because they grasped true principles of political science. Just as there
is only one science of nature, there is only one science of politics—
and we are its first and truest product. Living under the Constitution
is not like living under eighteenth-century medicine or physics, be-
cause the Founders' political truths were correct in a way that other,
CHAPTER ONE
contemporaneous sciences were not. This is the myth of reason in
law's origin. T h e myth has the resilience of all founding myths: it has
survived attacks claiming that the Founders acted on the basis of eco-
nomic or class interests, as well as claims that their science was simply
wrong. 22
Reason, however, is not the only value at stake in the legal order.
The origins of the Constitution are located not just in the Founders'
political science, but also in an act of the popular will. T h e political
scientist can rely on reason to draft a constitution, but he still must
convince the populace to consent to that draft. Founders must be
both scientific drafters and popular rhetoricians. T h e rhetorical task
in a democratic community under law is identified with an educative
task: the populace must be taught to consent to reason. They must
be taught that politics is a matter of deliberation and reasonable
choice, not merely the-pursuit of personal self-interest.23
Belief in the popular" will as the origin of law's rule has the same
mythical status as belief in the Founders' science. Most of the people
in the country were not asked to express their will one way or the
other. Consent, even more than reason, has the problem of binding
successor generations. Arguably we should comply with the demands
of reason, but why should a predecessor's consent matter to us?
Moreover, if we were truly interested in a morally defensible concep-
tion of consent, we would need to investigate the conditions under
which consent deserves respect as well as the substantive content of
the consent that was given. The first inquiry would quickly take us
beyond the bounds of the historical events that are the origins of our
law. T h e counterfactuals required even to ask the second question
empty the conception of consent of any real weight from the perspec-
tive of moral theory. 24 Consent in the cultural practice of law's rule,
however, does not operate as a philosophical conception. It is the
myth, not the act, that matters.
Just as an apparent failure of reason challenges the legitimacy of
law, so too does an apparent failure of consent. For this reason, law's
rule is often identified symbolically with the act of voting for repre-
sentatives. Again, the constitutional separation of powers between
the judiciary and the political branches can create an institutional
threat to the appearance of consent. The courts always operate under
a threat that they will be accused of creating—or nullifying—law
without popular consent. But the courts too can appeal to the norm of
consent to challenge the products of the political branches. For ex-
ample, they can find an absence of popular consent to the legislative
product because of malapportionment or the illegitimate influence of
THE STATE OF THE DISCIPLINE *3
special interests. When the Court declares a statute unconstitutional,
it will juxtapose the permanent will of the popular sovereign, ex-
pressed in the act of constitutional ratification, to the mere popular
will of a transient legislative majority. Consent, in short, is no more
self-evident than reason in a political system. Each institution and
actor will make a claim to both political virtues and each will accuse
opponents of the corresponding vices.
Reason and will work together to create an almost impregnable
redoubt for the rule of law as our deepest cultural commitment. Not,
however, because we have achieved some Hegelian synthesis of rea-
son and will such that expression of the national will is the process by
which reason develops itself.35 Our conception of reason's relation-
ship to will is fluid and practical. Irrationality in the system can be
deflected through an appeal to consent. Judges can make a virtue of
ruling contrary to what they personally deem to be reasonable; they
will not examine the "wisdom" of a policy choice.26 Existing law is
legitimate, even as it becomes the object of reform. Correspondingly,
the absence of consent can be deflected through appeals to reason.
One hundred years ago, the Court could hold that the Constitution
embodied principles of a legal science that, as Justice Oliver Wendell
Holmes famously told us, bore a striking resemblance to the "scien-
tific" discoveries of Social Darwinism. 27 Theories of justice are no less
evident in the decisions of the modern Court. Brown v. Board of Edu-
cation and Roe v. Wade surely make more sense as appeals to reason
than to imagined .acts of consent. This commitment to an ideal of
reason explains the Court's willingness, in both cases, to develop an
entire regulatory scheme. Of course, just such an elaboration of a set
of regulatory policies opens the courts to criticism that they are cre-
ating law without popular consent. 28
This double grounding of the rule of law in an ideology of both
reason and will helps explain why our political self-conception has
been so strong for so long. The two conceptions work independendy
as well as together. Thus, whatever the flaws that reason can identify
in the legal order, we seem already to have accepted law through a
collective act of will. Limits freely imposed upon the self are not con-
straints; they are a manifestation of the self. Looking at law, we be-
lieve we are looking at the externalization of our own will. For us, the
rule of law expresses popular sovereignty, and the popular sovereign
is only ourselves viewed in our collective identity. Law's rule appears,
therefore, as an expression and systemization of our own freedom.
Similarly, governmental action in the absence of consent may be jus-
tified by appeals to reason. Popular majorities always pose the danger
14 CHAPTER ONE
of what Madison called "majority factions" and what Lincoln called
"mobocracy." 29 A government of law must provide a means by which
reason can check an irrational majority.
While each of the two conceptions can work independendy to
counterbalance the other's failures, first of all and most of the time
they work together. Ideally, will should be guided by reason; the
popular sovereign consents to the directions of reason. This is the
story we tell of the writing and ratification of the Constitution. As
the opening of The Federalist Papers puts it, deliberation and choice are
both at issue in the adoption of the Constitution. Excellence in .delib-
eration leads to the right choice. Will finds its proper measure in the
science of politics. Post-ratification, the further realization of a polit-
ical order of reason provides us with an internal norm of progress.
Without reason, will could not establish an idea of progress—only of
difference. The popular sovereign does not simply express its inter-
ests, desires, or passions:-it imposes a discipline of reason upon itself.30
If it fails in this, democracy dissolves into a politics of special interests.
Simultaneously, reason is tempered by will. A claim of reason is never
in itself a sufficient ground for a rule. Law is not the product of phi-
losopher kings or even of law professors. When the Supreme Court
exercises reason to strike down legislative products supported by a
majority, it must formally make contact with an earlier expression of
the popular will that consented to a rule of reason. Even the admin-
istrative bureaucracy, which raises to a high point the claims of rea-
son as public policy, must still ground the legitimacy of its commands
in an expression of the popular will—it must point to a "delegation"
of regulatory authority from the legislature.
So much scholarly attention is paid to judicial review precisely be-
cause the debate about the Court's role revolves endlessly around this
dilemma of reconciling reason and will. This is exactly the counter-
majoritarian difficulty. It is usually answered either by showing that
the Court, despite appearances, is responsive to the popular will or
by defending the role of reason, principle, and moral judgment in
law's rule. T h e most influential modern resolution, however, repli-
cates the reconciliation of reason and will that extends from the
constitutional politics of the founding to our contemporary political
debates: the Court should articulate reason—principles—that must
then obtain the consent of the popular will. This was Alexander
Bickel's famous answer in The Least Dangerous Branch. The Court, he
tells us, is a teacher in an ongoing national seminar on constitutional
governance. 31 The role of the Justices is continuous with that of the
THE STATE OF THE DISCIPLINE 15
Founders, who began the task of drafting texts on the basis of rea-
soned insight into the true principles of republican government. Like
the Founders, the Justices must combine the roles of educator and
draftsman, convincing the people to invest their will in the products
of reason. T h e Court's j o b is always to express reason, but it may stick
to its reasons only if those reasons win popular consent. The Court,
Bickel writes, "labors under the obligation to succeed." 32 It is suc-
cessful when the popular will consents to the Court's articulation of
reason.
Together, reason and will operate always to make possible either
an affirmation of the status quo or an effort of legal reform. Both are
possible moves within the articulation of what the law is. In fact, we
constantly make both moves at once: we affirm the current law and
seek its reform. What the law is is inseparable from what the law
should be. This is true not only, as Ronald Dworkin has shown,
within the framework of the particular judicial decision, when the
judge uses his or her understanding of moral principles and values to
interpret the law.33 It is also true of our understanding of the systemic
character of the rule of law as a continuous, historical process in
which the law is developing through constant efforts of reform. The
rule of law is not just the sum total of the statutory and regulatory
output at any given moment; it is also understood as a process of
evaluating and creating new laws that corrects the deficiencies of
what came before. For this reason, there is a tendency to think of the
rule of law in procedural and institutional terms. Substance and pro-
cess are equally valid ways of viewing law's rule, because the existing
law is always the subject of reasonable reform.34 The rule of law, ac-
cordingly, is not merely rule under the existing law; it is this whole
process of continuous reform.
T h e double ideas of reason and will that operate in our conception
of law's rule have an historically specific, normative place that must
be contrasted with two competing conceptions: divine grace and
natural desire. The rule of law represents a turn to a secular concep-
tion of the state, i.e., a state severed from any dependence on a divine
order. Law is, for us, a distinctly human creation; the Founders were
wise, not divinely inspired. Nowhere in our conception of law is there
an opening for theological argument. The popular will, not the divine
will, created the legal order. T h e legal order does not mediate be-
tween fallen man and divine salvation; it is not a temporary domain
awaiting divine revelation or miraculous intervention. It exists wholly
within history. Indeed, it represents a reconceptualization of history
H
X
Pi
-3
>
Pi
O
*i
H
a
pi
CHAPTER ONE
which reason enters the political order—e.g., through public delib-
eration, legislative action, or judicial review—as well as over the con-
tent of reason. Similarly, there may be disagreement over the locus of
the threat of a politics of desire: is it the threat of groups (factions) or
of individuals, of interests or ideologies? Nevertheless, the underly-
ing structure of the debate remains remarkably constant: my reason
against your desire.
What is reasonable is universal and, therefore, good for all. Desire,
on the other hand, is particular and private. Without reason, desires
do not form a single order; they are in conflict with each other, both
within the individual and across various groups. A politics of desire is
rule by special interest groups or, in Madison's term, factions. A sys-
tem of law captured by factional interests and individual desire has
only the appearance of law's rule. Such a world that never advances
beyond desire to reason is exacdy what we have in mind when we
contrast law to the. merely political or when we contrast the rule of
law to the rule of men. In both cases, the latter is a politics of winners
and losers; the former is for the good of all.
That claims of reason are central to the cultural practice of law
poses a unique difficulty for the legal scholar. The scholar's contri-
bution is fundamentally a claim to reason. Reason, however, is not
outside the system of law. It is a fundamental value internal to the
legal order. Thus, legal study unavoidably becomes a program for
the reform of law. With this, the line separating the scholar from the
object of his or her study disappears. The study of law turns out not
to be an intellectual discipline at all; it is a part of the practice that
was to be the very object of study. From the very beginning, the study
of law is co-opted by legal practice. The independence of the disci-
pline will never be possible unless the understanding deployed in
theoretical inquiry can be distinguished from the reason deployed in
legal practice. Such a distinction in the forms of reason is neither
readily available nor easily achieved.
S C H O L A R S H I P AS L E G A L PRACTICE
Most legal scholars not only lack the ambition to make such a dis-
tinction, but are committed to the view that their enterprise is the
same as that of the judge: each gives voice to the law, the content and
authority of which are independent of both. In a recent work, George
Fletcher notes that Continental Europeans, unlike Americans, for-
mally recognize legal scholarship as a source of law. He then proceeds
to ignore that difference by eliding the role of American lawyers,
THE STATE OF THE DISCIPLINE '9
judges, and scholars, all of whom cultivate "the transition from a
set of authoritative words to a body of binding principles." 43 Here,
Fletcher accurately reflects the culture of the legal academy. Our
leading legal theorists celebrate the identity of theory and practice; it
does not occur to them that the difference may have an important
role to play in their own academic enterprise. For example, both
Ronald Dworkin and Alexander Bickel describe the virtues of the
judge as those of the scholar.44 They differ from scholars in the main-
stream only in their effort to raise the level of judicial discourse to
their own academic standard, while most legal scholars write in the
same doctrinal form as the courts. Even those scholars who appeal to
disciplines outside of law, and thus write in a style foreign to the ju-
dicial voice, for the most part still pursue the project of legal reform.
Indeed, appeals to these disciplines are justified by asserting their
contribution to the twofold project of reason within law—i.e., stating
what the law is and how it should be reformed.
If scholarship elaborates the reason behind law, then it must be
making a claim as to what the law is or should become. It must, there-
fore, be setting forth how decision makers should rule. A scholar
who believes his work represents the "true meaning" of the Fourth
Amendment is likely also to believe he speaks with the authority of
the Fourth Amendment. 45 If others—including judges—fail to see
this truth, they are simply wrong. Thus, the difference between schol-
arship and the writing of briefs disappears: every article becomes a
proposed draft of a judicial opinion or, if proposing too extreme a
reform for a court, then an explanation to be inserted in a legislative
committee report.
If we look at the rule of law as a temporally extended cultural prac-
tice, adjudication and legislation do not appear as different as they
seem in our endless internal debates about the limits of the judicial
role. Both courts and legislatures pursue a practice characterized by
reform. Whether the scholar proposes reform as a new legislative
product or as a judicial interpretation depends on the positive law
that is targeted, the character of the proposal, the institution to which
it is addressed, and the limits of possible perception of popular will
within the particular context. From the perspective of reason, there
is not a difference in kind between the activities of courts and legis-
latures. Law school graduates are trained seamlessly to move be-
tween the judicial and legislative branches in their own careers and
in their efforts on behalf of clients. In both forums, they argue that
their position is the path of reform.
From the perspective of this conceptual structure, we can see why
CHAPTER ONE
John Rawls' Theory of Justice quickly assumed a major place in mod-
ern legal theory.40 Rawls' theory perfectly melds reason and will. He
offers a social contract theory, which means that legitimacy arises
from the expression of consent. But by placing will behind the veil of
ignorance, individual desire drops out of the picture. This is will
wholly under the sway of reason. Desire is not only disqualified, but
the conditions for its existence are not even present. Thus, Rawls
offers an idealized version of reason's relationship to will in a system
that understands itself simultaneously as the rule of law and rule by
the people. He perfects as a theoretical project what the Founders felt
to be the necessary connection of reason and will in the new political
order. For Rawls, as for them, a failure to consent to reason's de-
mands represents either the psychological pathology of uncontrolled
personal desire or the communal pathology of the unreason of reli-
gion.47 Neither pathology can arise behind the veil of ignorance. Not
accidentally, the veil of ignorance suggests the blindfold on the image
of Justice that adorns our courthouses. Rawls may be the perfect phi-
losopher of the rule-of law.
The most influential jurisprudential approach to public law today
is that of Ronald Dworkin. Dworkin argues that there are two dimen-
sions to a decision under law. First, the decision must "fit" the existing
legal sources—e.g., paradigmatic cases or texts. These sources have
the positive, factual character of an expression of the will. They are
what "the people" have done, that to which they have given consent.
Second, those resources must be interpreted by an appeal to prin-
ciples and values that are themselves the product of moral reasoning.
We defend these principles by appeals to reason in the form of moral
argument, not by pointing to further expressions of the will. The legal
decision maker looks upon past acts of popular will as expressions
of consent to rule under moral principles.48 The decision maker's
authority is to elaborate—interpret—the principles and values to
which the people have always already consented.
This approach is given symbolic expression in Dworkin's fictional
judge, Hercules, who has perfect reason about the legal order, but
operates without any current or future recourse to the popular will.
With perfect reason, he has no need of others. And indeed, he is all
alone. Hercules' role is to keep the system of law's rule a community
of principle such that the values operative in every part of the system
are coherent, consistent, and as fully realized as possible. The role of
the courts, accordingly, is always that of reform. Not surprisingly, the
judicial pursuit of reform looks the same as the scholar's elaboration
of the moral content of law.
THE STATE OF THE DISCIPLINE 21
Dworkin's Hercules is an image of an idealized scholar made su-
preme appellate justice. O n this view, there is no place for the popular
will to make "legitimate errors" or, more radically, to reject the norms
of reason altogether. Earlier defenses of the Justices' deployment of
reason in terms of the conduct of a "national seminar" on principled
governance recognized the possibility of a turn toward the irrational.
A teacher can always fail; citizen-students can reject the message of
principle. For Dworkin, the content of law is always a matter for in-
terpretation and that interpretation is committed to understanding
the law in the manner that best expresses the operation of reason.
Thus, for him the reasoned elaboration of principle is not a process
of reform associated with law-making. Rather, the reform of law
through its reasoned elaboration is a part of what the law already is.
Dworkin's is a maximalist position on the use of reason in a system
of law that is committed to both reason and will. The other extreme,
emphasizing will over reason, is represented by John Ely's influential
work, Democracy and Distrust. Ely pursues that aspect of the rule of law
that relies on will as the source of legitimacy. His project arises out of
a disillusionment with the claims of reason. 49 If all parties to a debate
claim to have reason on their side, then reason cannot settle our po-
litical disputes. A choice must be made by someone. In a democratic
order, the legitimating act of choice is that of the majority. Accord-
ingly, this act of popular will is the sole basis of valid legal authority.
The role of the Court is not to bring reason to will, but only to deploy
reason to police the process by which will is expressed and given legal
force. Reason has a procedural, not a substantive role. The ambition
of the courts must be to establish the conditions under which the rule
of law expresses the will of the popular majority.
Apart from the design of a system for the free expression of con-
sent, reason is exogenous to Ely's vision of a democratic legal order.
For him, reason must fight its battles with desire before the court
of public opinion. The outcome of that battle is determined by the
public's choice, which is purely a question of the end toward which
we want to invest the collective will. The expulsion of reason to the
exterior of law—a possible choice to be made, rather than, as for
Dworkin, an internal principle—reflects Ely's deep skepticism about
the claims of reason. He sees reason's claims as just another set of
opinions that operate on the same plane as any other opinion. This
is the perspective of pure will: it sees only a choice to be made, not
a qualitative difference in the grounds of choice. My wish to exercise
the virtues of reason counts for no more than your wish to satisfy your
immediate desires.
CHAPTER ONE
Despite the apparent modesty of Ely's project—delimiting the
boundaries of judicial review within a democratic politics of pure
will—there is an easy and captivating tendency to move toward ex-
tremes when scholars focus on consent as the single, substantive norm
at the foundation of the legal order. As reason withdraws in the face
of the popular will, there seems nothing that the popular sovereign
cannot do, if it sets its will to it. Argument is only over the conditions
under which we recognize the expression of the popular will to be
that of the sovereign, rather than that of some impostor. 50 Rousseau
may have started this tradition of extremism of the will with his claim
that the whole of the legal order is always up for reconsideration by
the people, and that as soon as the general will withdraws its support,
the law loses legitimate authority.51
Modern scholars in this tradition offer proposals for reform that
would allow immediate amendment through national referenda.52
From the perspective *of consent, there is no stopping point short of
this. Nevertheless, such an unconstrained role for democratic majori-
ties is hardly descriptive of the legal order that we have. These schol-
ars too are reformist, driven by a vision of reason as only the hand-
maiden of will. Consent, however, is only half of the story that we
tell ourselves about the rule of law. To arguments for amendment
through direct popular action there is always a response defending a
constitutional procedure designed to impose a discipline of reason on
the majority and, as a kind of last resort, claiming certain parts of the
Constitution to be so much a part of any reasonable order as to be
beyond popular amendment. 53
These are the poles of mainstream legal scholarship, yet each is
equally committed to a reformist vision of the scholar's rule. Reform
for Dworkin means a maximal deployment of reason by the courts.
For Ely, reform requires an abandonment of judicial activism and the
adoption of a judicial role that matches the limits of reason in a ma-
joritarian legal order. Each is answering the question "what should
the law be?" Each understands reform as the perfecting of law from
within, rather than a process of law-making that approaches law from
without. Together, they reflect the tendency toward rupture of an
order of law that appeals to both reason and will. Each side purchases •
theoretical coherence by suppressing the antinomy at the heart of
the legal order. Each is open to criticism from the perspective of the
other.
Reason and will are equally foundational but ultimately irrecon-
cilable principles of the legal order. They are reconciled in practice,
but not in theory. Bickel understood this, seeking a reconciliation in
THE STATE OF THE DISCIPLINE 23
the practical virtue of prudence: askingjudges to be statesmen rather
than theoreticians. 54 T h e judge as statesman will be instrumental in
shaping popular opinion to support principled outcomes. But the
appeal to judicial statecraft is not a satisfactory answer to the scholar
who seeks theoretical unity by dissolving one half of the tension,
i.e., by trying to derive the entire legal order from only one term of
what is a two-term equation. Such scholarship inevitably finds itself
unable to move forward without being caught by the norm it seeks
to suppress. If the scholar supports expression of the popular will,
he or she is criticized for a lack of reasonableness. 55 Conversely, the
scholar who pursues reason is criticized for failing to recognize popu-
lar consent. 56
Some contemporary legal scholarship seeks a position between
these two poles, looking for intellectual coherence in a compromise
that does not appeal simply to a practice of judicial statesmanship.
These theorists tend to attack the traditional abstractness of both rea-
son and will. What is abstract appears either as empty or, even worse,
as a mere cover for very particular interests. Abstract reason may be
only a false appearance, for example, of patriarchal interests; abstract
will, only a false appearance of class-based, economic interests. Op-
posed to this dialectic of the abstract and the particular, these theories
seek compromise in ideas of narrative, discourse, and communities
of interpretation. 57 On this view, law is founded in an historically spe-
cific discourse that gives shape simultaneously to individual identity
and community values.
Discourse, as the voice of particular speakers, draws simultane-
ously on reason and will. It is deliberative speech, appealing to rea-
sons in order to convince other citizens, yet it is the speech of particu-
lar speakers who must will what they say. It is neither abstract reason
nor inarticulate willfulness. Such theories, however, remain subject
to both attacks at once. To those outside the discourse—most citi-
zens, most of the time—legal authority still must be justified. That
someone else said it—regardless of the deliberative process he or she
pursued—is hardly a justification. Justifications quickly turn to rea-
son or to will in order to evaluate the products of the discourse. Either
the speakers got it right—reason—or somehow they stand for all of
the community's nonspeakers—will. About both claims we can be
equally skeptical.
That scholarship replicates the tension between the fundamental
values of the legal order is not surprising. Nor is it surprising that the
reciprocal power of these critiques does not undermine the scholarly
endeavor. Theoretical weakness is not incapacitating because legal
24 CHAPTER ONE
scholarship is as much practice as theory. Its weaknesses are only
a reflection of the theoretical incoherence at the center of the rule
of law itself. A cultural practice, unlike a theoretical inquiry, need
not satisfy a demand for coherence. In fact, the effect may be just
the opposite: law's rule is stronger because of the plurality of sources
upon which it can draw.
Even the most radical tradition in legal scholarship—the legal
realists—remained firmly within the grip of legal practice. Their
main target was the false pretense of the claim to reason made by the
science of law that had developed at the turn of the century. Their
aim was to replace this false science with a true science. Instead of
the classical science of the common law, they appealed to the new,
empirical social sciences. What had been legal science is now seen as
"transcendental nonsense," to be replaced by "sociological jurispru-
dence" or "policy science." 58 Law's reason cannot stray too far from
generally operative., contemporary ideals of reason without appear-
ing to be aberrational, antiquated, and simply false. Legal reasoning
about the divine will, when the rest of the society detaches reason
from the sacred, simply is not possible. Similarly, reasoning about
abstract deductions in a formal legal system will not appear rea-
sonable to a society that has otherwise moved to empirically based
sciences.
The most radical, contemporary descendants of the legal real-
ists—feminist legal scholars and those who pursue critical legal stud-
ies (CLS)—still follow this project of reform, seeking to replace a false
science of law with a true science.39 Common to all of this scholarship
is an effort to identify true belief and to discard the false, as if living
under law's rule is an effort to get something right. Law must be put
on a secure foundation of reason. The arguments are over the con-
tent of that foundation. All are still in thrall to the idea that reason
and will are the double sources of the rule of law. The radical legal
scholar wants simultaneously to expose false beliefs—and the inter-
ests that benefit from this false ideology; to offer a plan of legal reform
based on true belief; and to empower a newly enlightened people
whose collective will is to vest itself in the products of reason. A failure
of the popular will to pursue what reason reveals can only be ex-
plained as the effect of ideology, self-interest, or victimization. This
whole project of critique, correction, and reform is firmly fixed within
the culture of legal practice. Scholarship's ambitions remain those of
the legal culture of which it is a part.
Roberto Unger, for example, offers the most interesting and, in
THE STATE OF THE DISCIPLINE 25
my view, accurate description of the self-conception of the legal prac-
titioner, whether lawyer, scholar, or judge. Nevertheless, he sees this
analysis as only the critique that precedes his own proposals for re-
form. In What Should Legal Analysis Become? he describes the opera-
tional effects of reason and will on the imagination of the law pro-
fessor. Unger labels the mainstream approach as "rationalizing legal
analysis." 60 The double commitment to reason and will means that
the existing legal rules and decisions are always seen as an effort by
the democratic community to realize a rational plan. The role of
both the professor and the judge is to identify that plan already im-
plicit within the corpus of existing law and, then, within the limits
imposed by respect for the community's will, suggest reforms that
perfect the plan.
Unger describes an irresolvable war between the perspective of
reason and that of will. Each offers a competing yet complete account
of the legal order. We see law simultaneously as the product of a
competition among factions, all directing their wills by self-interest,
and as the product of a rational plan to realize abstract principles and
values. Which perspective we adopt depends upon context, not upon
empirically ascertainable truth. When we look prospectively at a pro-
posed legislative product, we see factional competition; when we take
up the judicial task of retrospective interpretation, we see rational
plans. Rationalizing legal analysis, with its commitment to reform, is
a kind of ad hoc compromise between the two perspectives. But the
compromise is unstable, Unger believes, because it is an intersection
of irreconcilable views. There is no logical place at which to draw the
compromise between reason and will. Unger's own position is to pro-
ject the compromise into the future, asking legal scholarship not to
rationalize retrospectively but to propose alternative, reasonable re-
gimes to a mobilized electorate that must still exercise its will to vali-
date a political choice.
The critical ambition of Unger's work is to show that the reason
operative within law and legal studies is such a truncated, limited
form of reason that it makes only a false claim to be reason at all.
These limits, not some abstract truth, create the false appearance that
the product of will—law—is rational and, therefore, normatively
compelling. Like the legal realists, he believes that practice will follow
theory. Having developed a new legal science that identifies the false
beliefs of the current order, he thinks he is in a position to propose a
reformed legal order: indeed, more than one. 61 The new science of
law to which he appeals is again a normative order that provides the
 T
26 CHAPTER ONE
grounds of reform. Standing in the same tradition of reason and will
as the Founders, he believes that right reason will be taken up by a
popular politics of consent if the founder-reformer-legal scholar ade-
quately takes up the role of national teacher.
Much the same can be said about Catharine MacKinnon as a rep-
resentative voice of radical feminism in legal studies. She, too, stands
in the tradition of the legal realists, seeking to expose the false reason
behind contemporary claims of legal knowledge. Like Unger, she
wants to show mat the role of reason has been to naturalize what is
not at all natural. 62 The legal realists made this argument about law's
treatment of property; Unger makes it about the institutional struc-
tures of a free-market, democratic state; MacKinnon makes it about
gender roles and the operation of gender differences throughout the
society. In particular, she attacks legal norms of free speech that she
believes operate to preserve women's subordination. 63 For her, law is
a product of will based on the self-interest of a patriarchal society.
Like Unger she believes that reform will follow from the exposure of
error. Both maintain-the faith, central to our tradition of law's rule,
that right reason will convince a mobilized citizenry to consent to a
new legal regime.
Both Unger and MacKinnon offer powerful insights into the con-
structed character of the legal order. Both identify the partial, if not
false, claims of reason and will in that order. Yet, in the end, both
take up the traditional project of law reform as the intersection of
reason and will: a true science is to inform the will of the community.
The law professors' role remains that of legal reform.
Like the legal realists before them, both MacKinnon and Unger
seem easily to move from academy to actual practice. Whether they
have any practical success, they have already made this transition in
their own self-conceptions.64 Since the study of law leads inevitably
to the reform of law, those who study law become in their own mind,
if not always in political fact, the practitioners of legal reform. Al-
though there may be a significant geographical movement from the
walls of the academy to the offices of governance, the imaginative
distance covered is not great. And if this is true of the most radical of
academics, it is even truer of more conventional law professors. They
dream of a career capped by an appointment to the bench. Professors
write for judges because they conceive of themselves as potential
judges. They are already securely within the practice of law, regard-
less of their letterhead.
Not only is there a coincidence of norms of scholarship and legal
practice at the most abstract level, but pressing personal interests
THE STATE OF THE DISCIPLINE 27
must also be overcome before a new theoretical discipline of law can
emerge. We cannot trust our conclusions if we are writing for an au-
dience to which we have ceded a power over our own personal inter-
ests. We cannot study law if we are already committed to law. We
cannot grasp the law as an object of study if the conceptual tools
we bring to the inquiry are nothing but the self-replication of legal
practice itself. Michel Foucault had this right: "The human sciences
have remained captive of the figurative modes of discourse in which
they constituted (rather than simply signified) the objects with which
they pretended to deal." 65 Legal scholars are not studying law, they
are doing it.
A new discipline of law needs to conceive its object of study and its
own relationship to that object in a way that does not, at the same
moment, commit the scholar to those practices constitutive of the
legal order. I don't mean that law professors should decline to offer
their services as consultants—although as a practical matter this may
indeed follow. Law professors are serving the practice of law merely
by pursuing their studies as they do.
The normative status of legal scholarship—rooted in the collapse
of the distinction between subject and object—thus presents a
unique problem for the study of law. Political scientists can study
government without confusing their activity with the object of their
study. They do not think that because they study authoritative insti-
tutions, their own work makes a claim to authority. The closest con-
temporary analogy to the problematic status of legal scholarship may
be art criticism. The critic may come to think that her work is a better
expression of the meaning of the artistic object than the object itself.
Modern criticism has been accused of losing sight of the work of art,
of putting itself before the work.66 Artists can come under the sway
of criticism, as when they believe that the aim of their work is to
give concrete expression to contemporary theories of criticism. We
then lose the distinction between art and theories of art from both
directions.
But if art presents an analogy, it also suggests the limits of this
confusion of theory and practice. Artists do not exercise the power of
the state. Judges and lawmakers do not ordinarily confuse their en-
terprise with that of the scholar.67 Most judges would believe it absurd
to think that a real case can be resolved by trying to come to terms
with, and evaluate, the scholarly literature. However we explain the
factors and forces that go into a judicial decision, we are not likely to
conclude that its source lies in the quality of the scholarship that sup-
ports a particular result. Judges pick from the plethora of scholarly
28 CHAPTER ONE
works in an eclectic and arbitrary fashion. Like expert witnesses,
some scholar is always available to support any position. First-year
law students soon learn that they cannot distinguish a majority opin-
ion from a dissenting opinion on the basis of the quality of its argu-
ment or the quantity of its scholarly support. Justices are not going to
be persuaded to change their views if we can just marshal one more
cite or find one more article. This does not mean that argument has
no effect, only that it is neither conclusive nor exhaustive. There are
too many available arguments; reason points in more than one direc-
tion at once. To the multiplicity of possible reasons, we must add as
well the dimension of will upon which the judge can rely in place of
reason. Legal argument is a style of decision-making, not the sub-
stance of the decision itself.
The power of judicial decision is not the play of art.S8 If the artist
at times confuses his or her enterprise with that of the critic, the judge
does not. T h e confusion in this field is mostly in the mind of the legal
scholar—the judge manque.
This scholarly confusion and conflation of roles produces the typi-
cally odd character of much legal scholarship. The law review article
characteristically begins by identifying an alleged error in a recent
appellate court opinion. The outcome should have been different,
according to the scholar. The argument that follows consists largely
of a review of prior Supreme Court opinions to find the principle of
reason that informs the decisions. That is, the source of authority for
the scholar's argument is the same source that is now criticized for
error. Error is a form of self-contradiction. T h e only authority that
the scholar can hold up to the Court turns out to be the Court itself.
The scholar claims to stand in the same position as the Court in
interpreting the body of precedent. Indeed, the scholar claims to
better understand these opinions than the Court itself. If law were
a product of reason alone, this might be true—although even here,
reason is likely to give multiple responses. But the authority of those
opinions is a function of the interpretive activity of the Court itself.
T h e Court always has the authority to change its view, regardless
of any claims of stare decisis. It is never an argument against the
authority of the Court that it got its prior position wrong. Indeed,
"wrongfulness" is not a category that we can use to describe the legal
position of the Court.
We can certainly accuse the Court of acting immorally or dis-
honesdy. Yet none of this goes to its authority. Whatever position it
reaches is an authoritative statement of what the law is, technically
THE STATE OF THE DISCIPLINE 29
and practically. No lawyer will fail to cite a decision because she be-
lieves it wrong. Such a failure would amount either to incompetence
or to legally unethical behavior. For this reason, the final step in the
dialectical relationship between scholar and Court is for the scholar
to take up into the corpus of his or her work the very opinion that
was just criticized as wrong. It becomes yet another step in the prog-
ress of law on the path of reform. Scholarship follows the Court, but
with a time lag for the initial critical response. Reason becomes a
form of apologetics.
Legal scholarship, accordingly, has no historical memory. Posi-
tions that have been argued for and rejected by the courts die in si-
lence. They have the same status as the unsuccessful brief. No one is
held accountable for what they said; no one is held to a losing posi-
tion. This produces a kind of schizophrenia in legal scholarship. For
the scholar is constandy saying both that the last opinion of the Court
was wrong—or occasionally right—and saying that as an expert
in an area of the law, she can show how all of the opinions together
form a single, rational whole that is the authoritative law. The Court
is simultaneously an object of critique and the source of authority.
At one moment, it is criticized; at the next, it is raised to an almost
sacred position. In the end, the scholar's position is like that of the
dissenting voice within the Court: a momentary voice of disagree-
ment that usually—often in the next case—returns to the institu-
tion.69 This dialectic of scholarship is just the shape of the larger legal
practice: reform exists as a possibility within an order that never loses
its authority. Reason is always bound by will, just as will is always
subject to the critique of reason.
The scholar who resists apologetics marginalizes herself. Rejecting
more of existing doctrine, the nonapologist scholar proposes ever
more radical reforms: the legal order redone without patriarchy, or
without inequalities of power and wealth. Such radicalness makes this
scholarship seem oddly naive. The more radical the demands, the
less attention legal decision makers pay to the work. Critical legal
studies died, in substantial part, because no one was listening. No one
seriously reads Unger in order to develop an actual agenda of legal
reform. Similarly, we now have a Supreme Court more committed
to unconstrained free speech than at any other time, despite the femi-
nist attack on the inequalities created and sustained by such speech.
The extremism of the radical reform agenda is not just disabling
in practical terms. It tends, as well, to undermine the descriptive as-
pect of the scholarly project. Committed to reform, the analysis of
3« CHAPTER ONE
the existing order is partial. It shows the socially constructed charac-
ter of the legal norms and institutions; it partially illuminates the val-
ues that are realized in that order. But its reconstructive ambitions
determine the point at which it takes up the descriptive enterprise.
The radical scholar pursues the norms of justice, the understand-
ing of gender, or the idea of democracy operative in the legal order
as the focus of her critique and reconstructive agenda. These are cer-
tainly valuable subjects of study, yet the legal order creates a world
far more basic that slips from view—a world of subjects moving in
time and space, oriented toward claims of authority, and understand-
ing themselves as members of particular communities.
We must accept the proposition that there is nothing natural about
the legal order, that it is a constructed social world that could be
constructed differentiy. Nevertheless, we must put off the impulse to
re-create that world on our own blueprint. We must first bring the
legal world to light, by-raising to self-conscious examination the social
and psychological meanings of a world understood as the rule of law.
Who are we and what does our world look like when we find our-
selves in this culture of law's rule? Both the mainstream and the radi-
cal scholar are too much of this world to ask this question. We need
a form of scholarship that gives up the project of reform, not because
it is satisfied with things as they are, but because it wants better to
understand who and what we are.
The legal academic is the captive of law. If a discipline of law is to
emerge that actually studies law as an object for theoretical descrip-
tion and elaboration, the scholar must first free herself from the law.
Truth has a debt to freedom that has not yet been paid.
TWO
Imagining the Rule of Law
Where can we find a place for a free study of law within a culture
wholly permeated by law's rule? If law's rule claims both reason and
will as its foundation, what place is left for a form of scholarship that
insists on a neutral stance toward law? Must such a discipline of law
set itself against reason? Against the popular will? Does that place it
with an irrational, dictatorial authority? To think that these are the
only alternatives is to remain within the worldview of law, in which
the law has already claimed for itself all of the reason and consent
available, and in which the only question addressed to the scholar is
"What reforms are you proposing?" If the forms of reason and will
are multiple, then there is no need to fear that a scholarly distance
from law's rule dooms us to irrational forms of arbitrary authority.
The task ahead is both prescriptive and descriptive. Scholarship
must be stripped of its normative commitment to the rule of law if it
is to disentangle itself from the practice of law. In the next chapter,
I set forth a series of methodological rules that would support and
guide such a study. In this chapter, I take up the descriptive task
of setting forth the possibility and the general subject matter of such
a legal discipline. In order to avoid too much abstraction, 1 offer
a sketch of the most basic areas of inquiry of the new discipline.
The details of this sketch, which are inevitably controversial, should
be distinguished from the larger project of studying the culture of
law's rule.
T H E C R I T I C A L TURN
What I am after as a mode of inquiry is hardly a new invention. We
have an enduring image in the West of free inquiry within a culture
of legal practice. Plato portrays Socrates as a committed Athenian
citizen, living and dying under the laws of Athens. Yet Socrates is also
a philosopher, subjecting the values and practices of the Athenian
31