Solum's Legal Theory Lexicon

A couple of weeks ago, I discovered Lawrence Solum's Legal Theory Blog. Skimming it, I took its entries to be mostly timely pointers to new scholarship being published, usually with an abstract tacked on. However, I discovered tonight that he does a weekly entry in his Legal Theory Lexicon, which is "aimed at law students—especially first year law students—with an interest in legal theory." Hmm, haven't met anyone who fits that description, but if I do I'll be sure to pass the link on.

This week's topic is libertarian theories of law. In past weeks he's covered indeterminacy, the Coase Theorem, deontology, utilitarianism, and the counter-majoritarian difficulty, to name a few. I'll be working my way through all forty-eight as time permits.

Polycentric Law and Critical Legal Thought

A friend described this article as the bridge between critical legal studies and libertarianism.

I took offense.

I thought I was the bridge between critical legal studies and libertarianism.

I was, as per habit, wrong. The article is spectacular.

It starts with something that will seem prosaic to us, a typical deconstruction of the myth of the rule of law into the quotidian: "law is politics." The fireworks start later, as a unique type of reconstructive program is proposed. The proposal is, to coin my own term, decentralized deconstruction.

Anarcho-capitalists like myself are always libertarian. This is somewhat odd, since the society we favor might end up being very unlibertarian in many respects. The crux of our beliefs is that the market for legal rules itself should be privatized. But once privatized the legal world becomes a function of the demand curve: more clearly, if people are willing to pay for libertarian law, then the legal market will produce it, and yes, the libertarian fairyland people like me dream of will come to pass. But that is not foreordained--if people will pay for socialist law, then socialist law will come to pass.

Every ideology puts its money where its mouth is. If the crits are right, and people are really inherently trying to be good to each other, then watch the altruism pour out of the private lawmakers. If the libertarians are right, and people are willing to pay much to be free, then free they shall be. And a mosaic of combinations are possible.

The author's point here is that the inherently political nature of all law makes decentralization of its production preferable--i.e., a market for law.

Money quote:

Although [the crits] have been subjected to much derision by mainstream legal theorists, (33) as long as we continue to believe that the law must be a state monopoly, there really is nothing wrong, or even particularly unique, about the Crits' line of argument. There has always been a political struggle for control of the law, and as long as all must be governed by the same law, as long as one set of values must be imposed upon everyone, there always will be. It is true that the Crits want to impose "democratic" or socialistic values on everyone through the mechanism of the law. But this does not distinguish them from anyone else. Religious fundamentalists want to impose "Christian" values on all via the law. Liberal Democrats want the law to ensure that everyone acts so as to realize a "compassionate" society, while conservative Republicans want it to ensure the realization of "family values" or "civic virtue." Even libertarians insist that all should be governed by a law that enshrines respect for individual liberty as its preeminent value.

The Crits may believe that the law should embody a different set of values than liberals, or conservatives, or libertarians, but this is the only thing that differentiates them from these other groups. Because the other groups have accepted the myth of the rule of law, they perceive what they are doing not as a struggle for political control, but as an attempt to depoliticize the law and return it to its proper form as the neutral embodiment of objective principles of justice. But the rule of law is a myth, and perception does not change reality. Although only the Crits may recognize it, all are engaged in a political struggle to impose their version of "the good" on the rest of society. And as long as the law remains the exclusive province of the state, this will always be the case.

That's for the postmodernists amongst us.

For the market anarchists here--me--I go on to offer:

The public's identification of order with law makes it impossible for the public to ask for one without asking for the other. There is clearly a public demand for an orderly society. One of human beings' most fundamental desires is for a peaceful existence secure from violence. But because the public has been conditioned to express its desire for order as one for law, all calls for a more orderly society are interpreted as calls for more law. And since under our current political system, all law is supplied by the state, all such calls are interpreted as calls for a more active and powerful state. The identification of order with law eliminates from public consciousness the very concept of the decentralized provision of order. With regard to legal services, it renders the classical liberal idea of a market-generated, spontaneous order incomprehensible.

I began this Article with a reference to Orwell's concept of doublethink. But I am now describing the most effective contemporary example we have of Orwellian "newspeak," the process by which words are redefined to render certain thoughts unthinkable. (34) Were the distinction between order and law well-understood, the question of whether a state monopoly of law is the best way to ensure an orderly society could be intelligently discussed. But this is precisely the question that the state does not wish to see raised. By collapsing the concept of order into that of law, the state can ensure that it is not, for it will have effectively eliminated the idea of a non-state generated order from the public mind. Under such circumstances, we can hardly be surprised if the advocates of a free market in law are treated like Socrates of Monosizea.

But from that, the author takes the sublime and yes, Hayekian leap, to:

I am aware that this explanation probably appears as initially unconvincing as was my earlier contention that the law is inherently political. Even if you found my Monosizea parable entertaining, it is likely that you regard it as irrelevant. You probably believe that the analogy fails because shoes are qualitatively different from legal services. After all, law is a public good which, unlike shoes, really is crucial to public welfare. It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. If human beings had the wisdom and knowledge-generating capacity to be able to describe how a free market would work, that would be the strongest possible argument for central planning. One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals. It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge. Further, for an advocate of free market law (or Socrates) to even accept this challenge would be to engage in self-defeating activity since the more successfully he or she could describe how the law (or shoe) market would function, the more he or she would prove that it could be run by state planners. Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so. By patronizing those who most effectively meet their particular needs and causing those who do not to fail, consumers determine the optimal method of supply. If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

Humbly followed by:

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

A jab at administrative law professors everywhere:

Of course, it is not merely that we fail to observe what is presently all around us. We also act as though we have no knowledge of our own cultural or legal history. Consider, for example, the situation of African-American communities in the segregated South or the immigrant communities in New York in the first quarter of the twentieth century. Because of prejudice, poverty and the language barrier, these groups were essentially cut off from the state legal system. And yet, rather than disintegrate into chaotic disorder, they were able to privately supply themselves with the rules of behavior and dispute-settlement procedures necessary to maintain peaceful, stable, and highly structured communities. Furthermore, virtually none of the law that orders our interpersonal relationships was produced by the intentional actions of central governments. Our commercial law arose almost entirely from the Law Merchant, a non-governmental set of rules and procedures developed by merchants to quickly and peacefully resolve disputes and facilitate commercial relations. Property, tort, and criminal law are all the products of common law processes by which rules of behavior evolve out of and are informed by the particular circumstances of actual human controversies. In fact, a careful study of Anglo-American legal history will demonstrate that almost all of the law which facilitates peaceful human interaction arose in this way. On the other hand, the source of the law which produces oppression and social division is almost always the state. Measures that impose religious or racial intolerance, economic exploitation, one group's idea of "fairness," or another's of "community" or "family" values virtually always originate in legislation, the law consciously made by the central government. If the purpose of the law really is to bring order to human existence, then it is fair to say that the law actually made by the state is precisely the law that does not work.

Regardless, my thanks to the author for helping me bridge my penchant for market anarchism and deconstructive thought. It is always a relief to find someone with thoughts similar to your own.

Indeterminacy and Mystification

Last night, we discussed Lawrence B. Solum’s “ON THE INDETERMINACY CRISIS: CRITIQUING CRITICAL DOGMA.” In an extremely short overview, Solum basically uses the article to challenge the range of indeterminacy by polarizing it and refines the language in a way that (although perhaps contextually helpful) did not reach to a lot of the underlying issues. My post here is not so much about the article itself, but rather about one aspect that Stressbunny and I discussed: indeterminacy and mystification.

Solum describes mystification as “the view that legal rules mystify structures of domination.” Basically, he argues that critical scholarship describes law and legal institutions as using the guise of neutrality and tradition to support the current hierarchy of power in our political and economic regime; that we keep the “laymen” ignorant of the law in order to maintain the power structure. He goes on to adopt John Thompson’s three characteristic ways that mystification occurs in ideological discourse: legitimation (“the process by which systems of domination seek to cultivate belief in their legitimacy by appealing to rational, traditional, or charismatic grounds”), dissimulation (“relations of domination that serve the interest of a particular group at the expense of others are concealed”), and reification (“the representation of something abstract as a material thing...Reification reinforces the status quo by making political choices appear to be dictated by nature itself”). With this structure of mystification in mind, Solum attempts—and fails—to argue for the separation between mystification and indeterminacy.

Solum postulates that the combination of mystification and indeterminacy will lead authority figures to tyranny (they will no longer view legality as a constraint on their domination). This is the structure he uses to argue that the combination of mystification and indeterminacy delegitimizes the legal process because it will not lead to “liberation from the illusory bonds of legal doctrine” but rather, that it will (again by polarizing indeterminacy to an absurd point) completely freeze any notion of legal discourse. In a nutshell, indeterminacy actually harms mystification in that—basically—it turns mystification off to anyone that is put off by indeterminacy in general.

“[T]he mystification thesis without the indeterminacy thesis could be quite powerful as a tool of delegitimation. If false assumptions that contingent social phenomena are natural did determine results in particular cases, that fact would provide a strong motivation for change of legal practice. If more progressive doctrine can produce more humane decisions, then there is a good reason to change the law.”

And then the conclusion begins. I was pretty frustrated by this fallacious argument. Indeterminacy does not weaken the mystification argument, but rather provides an accurate explanation for (example) why criminal courts are deciding cases, not according to any notion of legal reasoning whatsoever, but a complete fabrication of legal rules to justify their predeterminations of race and gender. Why a man in Alexandria criminal court was found guilty of a crime when one of the elements was clearly missing. We need the indeterminacy thesis to strengthen demystification arguments in places like this.

What I was even more frustrated with, however, (and this is where Stressbunny (SB) and my conversation kicks in) is that he did not look at any of the alternatives to this. It’s either indeterminacy or no. In fact, SB and I agreed that his article could have been far more powerful in this subsection had he explored the idea of subsuming indeterminacy into a stronger mystification argument. We agreed that Critical Race Theory often did this in their attempts to demystify the racial hierarchy inherent in our system and it would have been a strong place to look at reconstructionist ideologies rather than completely dismissing (again by absurdly polarizing crit scholarship) any notion of a constructive new vision within critical legal theory. It’s ridiculous to postulate that you must have a level of determinacy for a constructive vision. Just because a new vision has the potential to be attacked using deconstructionist arguments is not a justification for the notion that there is no methodology out there: this is cowardly.

I am interested in the notion that indeterminacy should be subsumed into mystification rather than separated, and I open the floor to any comments or thoughts on this matter.

Review: Critical Procedure

On my commute to and from work this summer I've been burying my nose in Professor Roy Brooks's Critical Procedure. As the title indicates, it's a deconstructive/reconstructive approach to various rules of civil procedure, such as those governing sanctions, joinder, jurisdiction, and judgments. Brooks puts forth an excellent preface and first chapter, which present an overview of criticalism and identify four crit epistemologies (the rational/empirical position, standpoint epistemology, postmodernism, and positionality) which compete and combine in various mixtures in crit argumentation. The overview of criticalism, however, is necessarily simplistic, glossing over some essential differences which separate the movements from one another. For example, Brooks draws his four epistemologies from Katherine Bartlett's Feminist Legal Methods (103 Harv. L. Rev. 829), and when quoting from Bartlett he simply inserts bracketed race language to parallel the gender language in the original. For his project, that of a unified descriptive critical approach to procedure, this lack of hand-wringing over the differences is arguably necessary–otherwise the text would become an overwrought sociology of the legal academy–but I feel that the project gets ahead of itself by attempting such a broad synthesis.

None of this is to say that Brooks's attempt to create a framework for addressing subordination fails on its face, just that it loses something by mashing together Critical Race Theory, Critical Feminist Theory, Critical Queer Theory, and Critical Legal Studies without sufficiently discussing the divergent goals of the movements.

Postmodernism, according to Brooks, is a theory of interpretation in which meaning is viewed as "a cultural construction mediated by arrangements of language or symbolic form," and in which "these arrangements are unstable and contradictory" (quoting Deborah L. Rhode, Feminist Critical Theories, 42 Stan. L. Rev. 617, 620 n.8 (1990)). The problem with postmodernism, however, is that we all know through introspection that–or at least behave as though–there is semi-stable meaning in words, in cultural acts, and in our system of laws. But one way to take certainty about meaning to the other extreme is to adopt the essentialism of Richard Delgado or Mari Matsuda, that by virtue of one's racial or gendered identity, one has access to subjectivities that members of other groups cannot share. This claim strikes me as unnecessarily absolute; surely women of color experience the world differently than I do, but their shared experience is not theoretically inaccessible to me. Insofar as a white man enacts the habits and gains the acceptance of a minority community, he has experienced that community's subjectivities. For legion practical reasons (biological gender, skin color, etc.), the enaction of the community's behaviors by the individual and the acceptance of the individual by the community will almost always be imperfect, but given the requisite individual motivation and community openness, it is possible for an outsider to experience those subjectivities that Matsuda and Delgado would deny him.

There is a middle ground here, between the borderline nihilism of postmodernism and the too-strong essentialism of standpoint epistemology. Brooks, relying on Bartlett, terms this middle ground "positionality." Like standpoint epistemology, this viewpoint retains a concept of knowledge based on experience, and like postmodern epistemology, it rejects the perfectibility, externality, and objectivity of truth. For me, positionality is a promising approach to the question of knowing and being, but Brooks again oversimplifies, by equating this approach with a concept of "hypertruth," which one can reach through "a continuous process of self-reflection and questioning." I get some satisfaction from the similarity of Brooks's "hypertruth" to the semiotic concept of the "final interpretant," which is easiest to conceptualize as a sort of mathematical limit of meaning–that is to say, meaning is never realized in any one individual or at any one point in time, but only across the vast history of interactions between individuals that form a community of interpretation–but in the subsequent discussion, Brooks deploys positionality as a one-dimensional container for "hypertruth," and doesn't give treat the concept with the subtletly that it deserves.

The second and subsequent chapters sketch out Brooks's project with crit analyses of personal and subject matter jurisdiction, pleading, sanctions (Rule 11), the right to a jury trial, joinder of claims and parties, and judgments. Having read the personal jurisdiction chapter, I'm not certain the rest of the book is necessary for my understanding of his basic point, which is that different folks within the loosely-defined and fragmentary "crit" community will take different approaches to the subordination implicit in our rules of civil procedure. His explication of the practical meaning of the theoretical positions he laid out in the first chapter is quite thorough. The excruciatingly parallel structure of the book mirrors the inescapable formality of its subject matter, and provides a quick index into, say, the (i) postmodern critique of the (ii) asymmetrical acceptance reconstruction of the (iii) crit deconstruction of the (iv) implicit subordination built into the (v) law of joinder of claims.

The rule that Brooks deconstructs, reconstructs, and then critiques in the chapter on subject matter jurisdiction is illustrative. He takes up the domestic relations exception to federal diversity jurisdiction, by which all domestic disputes are kept out of federal court. By looking at the "phallocentric" effects of this rule through the lens of the two types of symmetrical critique and the four types of asymmetrical critique, Brooks proposes a continuum of reforms to the rule, and explains why groups would prefer one over another. As I noted above, it's a handy guide to argumentation within this particular context, and it encourages theoretical dexterity in anticipating the particular positions Brooks will impute to the various flavors of crit.

This book was written as a roadmap for critical proceduralists, among which I may one day count myself. It is illustrative, though admittedly far from comprehensive, and provides guidance and inspiration for others to fill in the vast uncharted expanses of this nascent field.