September 29, 1999
Aye, but there's the rub. Holmes was quite right to note a critical distinction between the two. Utterances concerning legal right cannot be subject to the same sort of scrutiny we routinely cast upon utterances of moral right. And there is good cause for this: A claim of legal right is practice-specific. It is a claim within and about the realm of laws, prescripts enacted by legislatures and interpreted by courts, for political (read "predominantly utilitarian") ends. While such discourse does partake in substantial moral verbiage, and is in many respects subject to plainly moral critique, it is not of-itself a moral discourse. That is, the inferences drawn in legal reasoning are only incidentally normative.
When I say that [Coca-Cola] has a right to sue [Pepsi] if the latter were to use the former's trademark, this does not commit me to the position that it would be wrong (morally) for the courts to refuse to hear such a claim, or that the legislature cannot tomorrow reform the law and make of this right a nullity. Indeed, the most I am committed to say of a court that refuses to hear such a claim is that the court is mistaken as to what the law is. I could say this with words cloaked in moral garb -- "the court is wrong as to what the law requires" -- but my meaning would share as much authentic moral connotation as a statement asserting that you are wrong to conclude that the sum of 2 and 2 is anything other than 4 (in any base greater than 4 of course).
The language of Right (writ large) is properly engaged at the level of law-formation, and much of the discourse of the critical legal studies movement has been quite correct in noting that law formation occurs at virtually every level of an organized society. Nevertheless, there is an important and useful distinction between law formation and law implementation, if for no other reason than that the jurists take it seriously. And we should too, if we are to continue to take seriously the correlate notion of a popular government. So long as we insist that law making is an act of public discourse, the judge must limit her reasoning in a profoundly deferential manner, particularly when it comes to any normative critique of the law as written. That is why the American jurist looks to "higher law" in the form of prior popular enactments (such as a constitution), and is extremely reluctant to venture afield therefrom.
We are certainly all concerned with the rightness (in the moral sense) of what we do. But we are also careful not to confuse this rightness with the legality of our conduct. We do not do Right merely because it is our right, but because it is our duty. We do not do our duty because we fear legal sanction for our failure, but feel it is our (moral) duty particularly where no (legal) sanction is levied. Indeed, this is the nature of reformation: for to reform the law in accord with moral right, one must step beyond the law as it is, and imagine it as it must be. To do this is already to leave the law behind, and enter a bold new discourse.
The judge is not well positioned to engage in such a discourse. Some might even say that the judge is particularly dis-abled from so engaging. The discourse of reformation, at least in our community, contains within it substantial participatory norms that might be short-circuited if the judge were invited to enter the fray, and without a by-your-leave intone the law anew.
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© 2000 David Robert Foss
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