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The Rule of Lore
“This is a nation of laws not of men (and women).”
With the nomination of Judge Sonia Sotomayor to the Supreme Court, we will be hearing that a lot in the coming weeks. The nomination of a Supreme Court justice occasions much public debate over exactly what judges are supposed to do—and not do. Thus we will hear that it’s Congress’s job to make the laws and the Supreme Court’s job to interpret them, along with the Constitution. Or, to put it in the shorthand: judges should not make the law.
It seems like a tidy division of labor, but there is a certain problem—namely, that the line between making and interpreting law is exceedingly fine—if it exists at all. Indeed, interpreting the law is tantamount to making it. Interpretation is a creative act.
Since in our society it is men and women who write and interpret the laws (and the Constitution), the rule of law is necessarily the rule of men and women.
I realize this is a heretical thought among advocates of individual freedom, but facts are facts and it’s better to face them. A weak argument for liberty is harmful to the cause, so let’s mount the best case we can.
Constitutions and laws do not speak for themselves. People must decide what they mean. This is by nature a controversial truth from which there is no escape. Seemingly clear language is often argued about for years, indeed decades and centuries. As I’ve written elsewhere, “[I]t’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right.”
Or as Ludwig Wittgenstein wrote in Philosophical Investigations, “[A]ny interpretation still hangs in the air along with what it interprets, and cannot give it any support.”
John Hasnas, a visiting professor at Duke University Law School and a first-rate legal philosopher, has taken up this matter in a paper explosively titled “The Myth of the Rule of Law.” (He has developed his thesis further in “The Depoliticization of Law” [pdf]. Quotations are from the earlier article.)
Hasnas argues that laws can never be determinate because no language is exempt from interpretation. The First Amendment to the Constitution is about as plain as language gets, but after more than 200 years its meaning is still subject to disagreement. Or, the Commerce Clause, which says Congress shall have the power to “regulate … commerce among the several states,” was initially interpreted as limited to interstate commerce, although that meaning is by no means obvious from the text. The framers were perfectly capable of writing “between citizens of different states” when they wanted to and as they did in Article III on the powers of the judiciary.
Thus to interpret law is to make law.
Contradictory Rules
Moreover, in a legal system such as ours, Hasnas writes, there is inevitably a host of “incompatible, contradictory rules and principles…. This means that a logically sound argument can be found for any legal conclusion.” (Hasnas gives several examples.) “Because the law is made up of contradictory rules that can generate any conclusion,” Hasnas writes, “what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively ‘feels’ right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker…. [I]t is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.”
The upshot is that interpreting the law is an intrinsically political act.
Hasnas points out that the necessity for interpretation does not mean that the law will be acutely unstable. There is indeed a large degree of stability. The law changes over time, but not day to day. Yet, he writes, “The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions…. [T]o assume that the law is stable because it is determinate is to reverse cause and effect. Rather, it is because the law is basically stable that it appears to be determinate. It is not the rule of law that gives us a stable legal system; it is the stability of the culturally shared values of the judiciary that gives rise and supports the myth of the rule of law.”
Hasnas (who advocates competition in the production of law) concludes, “The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion.”
This need not lead us to pessimism or cynicism. As Thomas Paine recognized, the fundamental order that defines any society—indeed, the order without which we would call a group of people a mob rather than a society—originated not with top-down legislatures but from bottom-up custom, contract, and common-law processes. The great liberal legal scholar Bruno Leoni wrote in Freedom and the Law that a legislature is analogous to a central planner, with all the knowledge problems that plague it, while a common-law system is more like the free market, with far better access to the knowledge of time and place that is scattered throughout society and unavailable to a central authority. Better to progressively shrink the sphere in which legislators can operate so that people are free to govern themselves through voluntary exchange.
Advocates of liberty will ultimately carry the day not by invoking impossible standards like “the rule of law not of men,” but rather by directly upholding the standard of freedom and justice.
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It would seem to me that Sheldon Richman is simply arguing the “classic” postmodern argument for relativism in law. I am one who believes that the postmodern argument is self-refuting, as I hope to demonstrate ever-so-briefly here. And I wish to start with an assertion with which I hope even Mr. Richman would agree: “There exist certain moral principles that are true for all people, for all time, regardless of circumstances or cultural settings.” This case was argued (I think convincingly) by C. S. Lewis in The Abolition of Man. There Professor Lewis not only argued from reason, for the existence of objective moral truth (i.e. Natural Law), but demonstrated it historically and multi-culturally in the appendix Illustrations of the Tao.
I would argue that Mr. Richman even evinces notions of this objectivity in this essay. For example, when he states that “people must decide what [Constitutions and laws] mean. This is by nature a controversial truth from which there is no escape,” he cannot be arguing simply that human beings – by the very act of reading with comprehension – cannot help but determine meaning, for if so he is conflating comprehension with authorship. To conflate these concepts would leave us with no means of comprehending the meaning of Richman’s own essay. Thus his affirmation that “facts are facts and its better to face them” can mean “facts are not facts and cannot be faced objectively in isolation of the observer’s cultural and historical milieu.” The notion that language is culturally determined may be true to some extent, but the meaning of the text when examined in its context must have objective meaning. The word “liberal” has changed (if not reversed) its meaning in the past 40 years or so, but this does not mean that we should anachronistically interpret earlier texts with modern definitions as we please. To defend such a practice is to defend agendas for their own sakes regardless of where they lead.
Instead, it seems that Mr. Richman is arguing for the correctness or necessity of judges choosing the meaning of a text.
Turning to Mr. Richman’s essay, I find it interesting – if not somewhat self-refuting – that he quotes John Hasnas, Thomas Paine and Bruno Leoni in defense of (or in demonstration of) his thesis. The argument advanced from these authors (if I understand Richman correctly) is that only judges, with their “culturally shared values of the judiciary” provide us with any notion of stability in the meaning of “the law.” … Legal conclusions are always determined by the normative assumptions of the decisionmaker.” Without the short term stability of these “shared values” (itself a dubious term given the many split decisions and reversals within the judiciary) we would have anarchy. I say “self-refuting” because to assert that the meaning of a text [Law] is solely determined by the reader, i.e. “what conclusion one finds will be determined by what conclusion one looks for” is to prima facie undermine your own argument.
What then of the “facts” Mr. Richman presents (ala Hasnas), such as the First Amendment, or the Commerce Clause? Regarding the Commerce Clause, Mr. Richman’s (quoting Hasnas) argues that “the framers were perfectly capable of writing “between citizens of different states” when they wanted to and as they did in Article III on the powers of the judiciary” (rather than ‘among the several states’ as they did in the Commerce Clause). But why would this construction – or any other – be superior to the given text if the interpretation will rest entirely with the interpreter? And regarding the First Amendment, it seems to me that the confusion over its meanings has arisen within one or two generations – perhaps beginning with Oliver Wendell Holmes. Up until modern times, the courts struck down laws that invaded upon the free exercise of religion and speech. Now they enforce restrictions on such practices. Can a text mean both “A” and “not-A?” It seems to me that Mr. Richman here is basing his argument against objectivity in texts, upon notions of objectively better or worse constructions of a text.
I say, there is another – and better – explanation for the liberty the Courts take with the text of the Constitution than the postmodern argument: namely that there is a consistent, persistent agenda in the human heart to sequester power, which will be found everywhere power is to be had. Benjamin Fletcher Wright wrote of this in his Introduction to the Federalist Papers (Oxford U., London, 1961): The distinctive and extremely significant fact about the conception of the character and behavior of man is that it is one of the foundations, sometimes the entire foundation, upon which the authors of the [Federalist Papers] erect their defense of the Constitution. If we premise a different set of human motives and a different pattern of behavior, their defense of the Constitution has little validity…. Men are not to be trusted with power, because they are selfish, passionate, full of whims, caprices, and prejudices. Men are not fully rational, calm, or dispassionate. Moreover, the nature of man is a constant; it has had these characteristics throughout recorded history. To assume that it will alter for the better would be a betrayal of generations unborn.”
Fortuitously, today’s Patriot Post (http://patriotpost.us/) presents a relevant quote from Thomas Jefferson: “”The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.”
There is much to agree with in Mr. Richman’s essay. I fully agree that the men and women of the Bench bring with them preconceived notions and moral sentiments from which they interpret the Constitution and laws. But beyond this brut fact is the assertion (I think it’s true) that people have within them better or worse moral compasses. And such an assertion implies an objective law from which to judge moral character. It is now and will always be true for example, that freedom is a better human condition than tyranny. This is a moral law. Violate its principles and corollaries along the way, and you end up in a worse place. Only by studying the moral lessons of human history can we hope to avoid this end. Human history, I say, contextually and objectively interpreted.
Dennis R. White
Yorba Linda, CA
29 May 2009 at 3:30 pm