relationship with law, in this project of reviving the subject of law? First, privileging
theory over philosophy draws on a scholarly tradition that does not seek to totalize,
to give âa general account of interpreting that provides guidelines for guaranteeing
correct interpretationâ (Mailloux 2002: 40â“1). Rather, it enables the familiar to be
seen with estranged eyes, enabling âchange in the currently prevailing discourse of
authority and powerâ (Norris 1988: 41).
Next, I would make a move left unmade in Llewellynâ™s frozen jurisprudential
moment and hold philosophers of law â“ which for my purposes means the members
of the legal academy in their role as scholars and teachers of law â“ responsible for
making law, just like judges, legislators, and regulators. On his account of public
and private law making in the United States from the Declaration of Independence
to the end of the ď¬rst third of the twentieth century, Llewellyn suggests that the
law is to be found not only â“ or perhaps not at all â“ in the texts of those whose
positivistic charge it is to âlay down the lawâ: judges, legislators, those authorized to
issue regulations. Rather, it is to be found in the interpretive, predictive, analytical
work that lawyers â“ or at least those to whom Llewellyn (1934: 212) referred when
he invoked âthe actual behavior of the better barâ â“ do.
This broader account of what law is understands law as always and only made
in its varying forms of practice, including that which legal theorists, shadow
practitioners of the work of highly skilled practicing lawyers, do. This is not, or
76 Penelope Pether
ought not to be, all of the stuff of the law we make, however. Its reductiveness brings
legal theorists close to eliding their responsibility for making law, conď¬nes them
to documenting the work of others, reduces their law-making role to whatever
little inď¬‚uence they can have on judges, and loses sight of their implication in the
subject formation of lawyers. The law is also, then, and perhaps most importantly,
what we teach.
Applied legal realism is also discernable in what the nationâ™s news media signally
and persistently failed to lose interest in as I wrote this essay: symptoms of the
politicization, or more or less frank adoption of political resultsâ“oriented cronyism
as personnel policy in action, in what it has become increasingly ironic to call the
âJustice Department.â The symptoms of this manifestation of the politicization in
the making of U.S. public law in its material practice ranged from the simmering
not-quite scandal of the ď¬ring of select U.S. Attorneys and their replacement with
what appear to be paradigmatic executive loyalist hacks, with a view to selectively
rig election law and thus national political power, to the egregious yet tragically
predictable (to any modestly introspective U.S. legal educator with an eye for
the structural and a grounding in critical sociology) Monica Goodlingâ™s apparent
infractions of the Hatch Act in shaping career attorney hiring practice.
Goodlingâ™s approach to applied human resources theory was evidently informed
by the way things were done at Regent University. This might be predicted from
Pierre Bourdieuâ™s account of the habitus, the embodied experience of the world
that constitutes subjects and makes them constitute the world in its â“ and their â“
image in its turn. Another recent symptom of the politicization of U.S. public
law evokes an analogous example of the contextually transposable reproduction of
aspects of the habitus: the current administrationâ™s adoption of immigration court
appointment practices that blend cronyism and a conď¬dence in the appropriateness
of a lack of expert qualiď¬cation to do the job of passing judgment on the most
vulnerable of the dominant cultureâ™s âothersâ as a criterion for appointment to
this specialized adjudicatory ofď¬ce, yet another advance on the continuum of
practices to systematically eradicate adjudicatory independence in immigration
cases, carefully documented by Stephen Legomsky (2006).
The recent events I have chronicled thus far suggest the appropriation of (oppor-
tunistically naive) legal realist thought translated into action to reinforce the hege-
monic status quo. What other insights into the current state of the relations
between law and philosophy in the United States might be enabled by thinking
them through critically, with estranged eyes? What impetus to transform those
relationships might this impel?
First, the impoverishment of both the national practices of legal subject forma-
tion and its legal institutions, as of legal discourse and its theorizing, both likewise
evident in the material practices of institutionalized unpublication, has left Amer-
ican law profoundly and critically adrift. Next, my project is to suggest a means
to and the utility of using theory to recover the subject of law, by which I mean
two things. The ď¬rst involves accounting for law as a set of institutions, discourses,
and practices distinct from politics, as from theory understood as doctrine or
legal science on the one hand or law understood as (social) science manquÂ´ , on e
the other. The second suggests a way out of what my recent scholarly work has
Reviving the Subject of Law 77
revealed: both a crisis of the national judicial ontology, evidenced by a massive,
institutionalized, national failure in judicial ethics and judicial accountability, and
the shoddy, intellectually etiolated, or disingenuous ragtag of business as usual that
stands in for a conscious theory and practice of passing judgment and laying down
the law in judgmentâ™s texts; and the systematic material institutional practices of
production of impoverished and impoverishing legal subjects for which Monica
Goodling â“ the U.S. legal academyâ™s collective Frankensteinâ™s monster â“ might
serve as an exemplar.
The material results of the current administrationâ™s approach to appointing law
makers are suggested by Ramji-Nogales, Schoenholtz, and Schragâ™s (2007) study
of disparities in asylum adjudication at the immigration court level, a study that
supplements my recent reinterpretation (Pether 2007) of David Lawâ™s (2005) study
of Ninth Circuit appellate asylum jurisprudence: there is no better account of
how law is made in this area than that provided by the politics of lawmakers.
Ramji-Nogales and colleagues (2007: 1) conclude that
in asylum cases, which can spell the difference between life and death, the outcome
apparently depends in large measure on which government ofď¬cial decides the
claim. In many cases, the most important moment in an asylum cases is the
instant in which a clerk randomly assigns an application to a particular asylum
ofď¬cer or immigration judge. (Emphasis added.)
Law (2005: 861) concluded that a small number of Democratic appointees to the
Ninth Circuit bench decided asylum cases âstrategicallyâ; that is, they âdemon-
strated a heightened tendency to vote in favor of the asylum seekerâ in published,
formally precedential, judicial decisions, for the purposes of âmak[ing] â˜good law,â™
and to avoid making â˜bad lawâ™ by casting â˜goodâ™ (ideologically preferred) votes in
published cases, while restricting â˜badâ™ (ideologically disfavored) votes to unpub-
lished [nonprecedential] cases.â
Read against information revealing that while judges formally made these deci-
sions, in practice court staff, particularly staff attorneys, made a sizable majority of
unpublished asylum decisions, my own reinterpretation of Lawâ™s data shows that
junior court staff, usually new law graduates, characteristically decide these cases
against asylum seekers and for the government, at rates much more marked than
those of Republican-appointed judges, which evidences a progovernment bias not
accounted for by the merit of the cases involved. I conclude that these de facto
Article III judicial ofď¬cers have learned very well, from their law school teachers as
from the judges whose work they do, the apparently compelling logic of hierarchy,
as of an unreď¬‚ective approach to the work of making the law; their work bears the
imprint of an impoverished philosophy of law as indistinguishable from politics.
These two examples of social scientiď¬c work on asylum jurisprudence have much
to teach about the uses of social science for postrealist legal theory. Legal realist
thought had a paradoxical faith â“ given its debunking of Langdellian legal science â“
in sociologyâ™s ability to supply truth to, rather than merely knowledge about, law.
To the extent that theory work, generally, and work in the humanities and human
sciences understood as such rather than as pseudoscientiď¬c, is of use in reviving
the subject of law, it might be deployed to generate a thick account of what law is
78 Penelope Pether
and might be; of how its institutions, discourses, texts, and subjects are formed in
culture and history, and of how legal subjects reproduce culture and make history
in their turn.
The study by Ramji-Nogales and colleagues is useful in accounting for law
precisely because it generates knowledge about legal subjects and their practices;
other useful social scientiď¬c work might likewise give us information about legal
institutions or discourses. The Law study manifests symptoms of the dangers that
overreliance on legal realist social science poses when it seeks to theorize the ârealâ
reasons for legal decisions in politics, both party line and professional, rather than
interrogating its data for knowledge about legal subjects and the work that they
do, knowledge capable of informing legal theory.
To the extent that interdisciplinary work in the human sciences might be
employed in reviving the subject of law, it is most useful not as a substitute
for legal knowledge that can unveil the âtruthâ that lawâ™s methods cannot; or yet in
seeking substitutes in other social sciences for the contingency of legal knowledge;
or in seeking to rehabilitate law from, or alternatively to substantiate, the claim
that its real practitioners, the judges, are unprincipled because they practice poli-
tics rather than law. Rather, interdisciplinary (rather than alternative disciplinary)
work in social science and law is most usefully deployed in illuminating our own
institutions, discourses, and modes of subject formation, thereby generating ways
of seeing what the law cannot see about itself or that which it occludes from vision.
It does this to better understand the way that legal institutions, discourses, and
subjects do their work; how they produce disciplinary truths; and how supplemen-
tary knowledge brought into intertextual relationships with lawâ™s texts and their
modes of production, consumption, interpretation, and use in law work might
unsettle business as usual.
Modes of interdisciplinary law and social science scholarship that are particularly
apt to revive the subject of law include sociology of legal education or cultural
psychology of the kind practiced by Guinier and colleagues (1997) or Susan Daicoff
(1997), Pierre Bourdieuâ™s theoretical sociology of the professions in general or the
juridical ď¬eld more speciď¬cally, and Elizabeth Mertzâ™s linguistic anthropology.
Mertzâ™s study makes a powerful case why careful interdisciplinary recourse should
be had to the linguistic humanities in the project of reviving the subject of law.
She understands law as made in signiď¬cant part in its discourses, language as
much more thoroughly constitutive of what law is as well as what it ought to be
than did Llewellyn, who saw it merely as a means to get at truth, which he called
âthe realâ (1934: 212). A strong strategic argument for the utility of the linguistic
humanities â“ including rhetoric, literary theory, critical linguistics, poetics, and
cultural studies and semiotics, if we think of language broadly â“ in reviving the
subject of law might be to suggest lawâ™s identity as a humanity, a discipline that
produces knowledge about the institutions, discourses, subjects, practices, and
texts of the law rather than truth, or totalizing systems of knowledge, which for
Foucault were the selfsame thing.
If legal realist thought is identiď¬able by its commitment to âconcrete dataâ and
âfactsâ (Llewellyn 1934: 212) and its limited understanding of lawâ™s relation to
language, the humanitiesâ™ cultural texts provide supplementary narratives to those
of the texts of judgment and other legal textual genres. They deny lawâ™s claims
Reviving the Subject of Law 79
to completeness in accounting for society and enable insights into how the law
legitimates particular ways of understanding and thus of ordering the world. The
humanities disciplines of rhetoric and poetics have special claims to unsettle lawâ™s
claims to totalizing knowledge, as Peter Goodrich has suggested: rhetoric because
of its history as lawâ™s uncanny disciplinary double (2001); poetics because it tells
tales out of school about what legal texts, method, epistemology, and hermeneutics
seek to forget about themselves (1996).
Llewellyn (1934: 212) laid claim to the strength and promise of the realist school
of legal theorists in part because their ways of thinking about the law were closer to
the practices of âthe better bar,â genuinely sophisticated practicing lawyers, than
to those of positivist legal philosophers or natural law theorists. Humanities schol-
ars in the critical theoretical traditions share methods with those sophisticated
lawyers: critical close reading of lawâ™s texts and of lawâ™s equivalent of interpretive
literary biography applied in this discursive context in the service of prediction;
and rhetorical expertise in deploying lawâ™s genres, discourses, ď¬gures, and tropes.
Like scholars of literary theory in their work with that disciplineâ™s canonical texts,
skilled practicing lawyers are also viscerally aware of lawâ™s instability, its contin-
gency and indeterminacy, of what Peter Goodrich has identiď¬ed as its rhetorical
insistence that it is science, not a hybrid of literature and poetics. They are con-
stitutionally skeptical of lawâ™s insistence that it does justice, never violence or,
even less admissibly, systematic injustice. They recognize their own agency in the
production of the one or the other.
Such lawyers understand, too, what adherents of critical historiography know
about history: that the discipline makes stories out of the discipline of historyâ™s evi-
dentiary material. Critical attentiveness to history can inoculate against complicity
with what Judith Resnik (1999: 692) has called lawâ™s âMcCleskey problemâ: legal
cultureâ™s âself-regard and self-celebration,â which make it âdifď¬cult to convince
the unconvinced in law of a relationship between an individual instance and a
larger social phenomenon, when both the individual instance and the larger phe-
nomenon are claimed to betray liberal legal democracyâ™s commitments to fairness
and inclusion.â It might counsel such legal professional practices as maintaining
an abiding attentiveness to the nationâ™s deď¬ning historical moments, involving as
they do structural subordination on the basis of race, paradigm of otherness, and
Similarly, as the reference to McCleskey v. Kemp suggests, attentiveness to the
lessons and methods of history might advocate acute awareness of the contexts
in which legal issues arise. Just as it is in the litigation over the institutionalizing
of the paradigmatic jurisdiction of exception, GuantÂ´ namo Bay, and in recent
immigration and asylum jurisprudence (Morawetz 2006â“7), the prerogative writ
of habeas corpus was especially politically charged in the 1950s and 1960s. Like
desegregation, this aspect of the Warren Courtâ™s criminal procedural revolution
caused widespread anger among conservatives, especially in the South, including
those who originated institutionalized unpublication, making the jurisprudence
of hierarchy characteristic of Jim Crow revivify and spread silently to create a
characteristic national jurisprudence of exception, which is today most starkly
evident in asylum adjudication in the federal courts. If one product of the aftermath
of the Holocaust, telos of the paradigmatic state of exception, is the origin of
80 Penelope Pether
modern comparative constitutional law, then even U.S. constitutional law might
be reminded that to the extent that it is constitutionalist, rather than merely
constitutive, it cannot regard itself as a manifestation of American exceptionalism.
Comparative legal studies drive the subject qua discipline of law to engender
knowledge of itself, legal subjects to a disciplined practice of self-searching. The
most important lesson that a theorist of law seeking to engender a thick account
of the subject of law, its institutions, and its discourses might take from both the
governance of Germany as a state of exception in the years from 1933 to 1945, and
the pall of obscenity it cast on realism, is that legal subjects enabled the locating
of law beyond the purview of distinctively legal institutions, that is, the courts.
Which is to say that the ontology of legal subjects, as much as if not more than
a coherent and principled account of legal epistemology and hermeneutics, is, at
present, the most critical project for those of us who profess the philosophy of
Daicoff, Susan. âLawyer, Know Thyself: A Review of Empirical Research on Attorney
Attributes Bearing on Professionalism.â Am. U. L. Rev. 46 (1997): 1337â“1427.
Doyle, Michael. âSupreme Court Divided Over Hot Topics; Appeals Court Ruling Over
Juror Rescinded.â The Belleville News-Democrat June 5, 2007: A3.
Goodrich, Peter, âLaw.â In Encyclopedia of Rhetoric. Ed. Thomas O. Sloane. New York:
Oxford University Press, 2001, 417â“26.
. Law in the Courts of Love: Literature and Other Minor Jurisprudences. London and
New York: Routledge, 1996.
Guinier, Lani, Jane Balin, and Michelle Fine. Becoming Gentlemen: Women, Law School and
Institutional Change. Boston: Beacon Press, 1997.
Kennedy, Duncan. âAmerican Constitutionalism as Civil Religion: Notes of an Atheist.â
Nova L. Rev. 19.3 (1994â“5): 909â“21.
Law, David S. âStrategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the
Ninth Circuit.â U. Cin. L. Rev. 73.3 (2005): 817â“66.
Legomsky, Stephen H. âDeportation and the War on Independence.â Cornell L. Rev. 91.2
Llewellyn, Karl N. âOn Philosophy in American Law.â U. Pa. L. Rev. 82.3 (1934): 205â“11.
Mailloux, Steven. âFrom Segregated Schools to Dimpled Chads: Rhetorical Hermeneutics
and the Suasive Work of Theory.â In Rhetoric and Composition as Intellectual Work.
Ed. Gary A. Olson. Carbondale: Southern Illinois Univ. Press, 2002, 131â“42.
Morawetz, Nancy. âBack to Back to the Future? Lessons Learned from Litigation over the
1996 Restrictions on Judicial Review.â N.Y.L. Sch. L. Rev. 51.1 (2006â“7): 114â“31.
Norris, Christopher. âLaw, Deconstruction, and the Resistance to Theory.â J.L.S. 15.2 (1988):
Pether, Penelope. âSorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys
Impoverish U.S. Law.â Ariz. St. L.J. 39.1 (2007): 1â“67.
Ramji-Nogales, Jaya, Andrew L. Schoenholtz, and Philip G. Schrag. âRefugee Roulette:
Disparities in Asylum Adjudication.â Stan. L. Rev. 60.2 (2007): 295â“411.
Resnik, Judith. âSingular and Aggregate Voices: Audiences and Authority in Law and Liter-
ature and in Law and Feminism.â In Law and Literature: Current Legal Issues, vol. 2. Eds.
Andre Freeman and Andrew D. E. Lewis. Oxford: Oxford Univ. Press, 1999, 687â“727.
10 Law and Creativity
george h. taylor
In todayâ™s world we face the prospect of rapid change in many areas such as
medicine, international trade, information technology, and the use of terror.
Innovation is the buzzword in the business world. How able is the law to keep
up with these changes?
We can contemplate several types of responses to this question. The ď¬rst would
argue that legal principles can extend to encompass new situations. The principles
donâ™t change, but their applications do. A second response would claim that the
legal interpretation (whether common law, statutory, or constitutional) changes
in a common law fashion: principles are modiď¬ed, but slowly, incrementally, with
a signiď¬cant attention to the past and precedent. A third response would argue, as
for example in a Posnerian pragmatism, for more robust attention to consequences
rather than the past and would allow for greater deviation from existing law. A
fourth and ď¬nal response would focus on legal change occurring at the legislative
or regulatory levels.
While I regard the ď¬rst response as insufď¬cient, my concern lies not with which
of the latter three is a more accurate or appropriate assessment of the legal system.
Instead, I want to probe how philosophy might assist reď¬‚ection on the nature of
legal change at whatever point and in whatever manner such change is deemed
appropriate. How does philosophy help us understand how legal creativity occurs?
My inquiry is basically descriptive, but there is an underlying normative element
also to the extent that the inquiry opens a space alternative to rule formalism and
the recourse only to the past, both of which can often be stultifying for both the
law and the legal profession (Stefancic and Delgado 2005).
I rely principally on approaches in continental philosophy, particularly herme-
neutics and the work of Paul Ricoeur on metaphor and imagination.1 I also
advert to recent work in cognitive theory that helps deepen the philosophical
insights. While legal scholarship has debated the nature of legal creativity in the
context of analogy, my claim is that the resources on which I draw allow a more
precise, sophisticated, and illuminating rendering of this subject. I begin with
A more expansive treatment would include as well important work in analytic philosophy (McGinn
2004; Rescher 2003; Warnock 1976).
| 81 |
82 George H. Taylor
exploration of the customary case of the extension of a legal principle to a new
factual circumstance and then expand from that basis to larger arenas of legal
H. L. A. Hart (1958: 607â“15) famously discusses a hypothetical legal rule that
prohibits vehicles in a public park. A car is prototypically prohibited. It is not so
clear, however, whether a bicycle is permitted entry. It might be possible to inter-
pret the statute at a sufď¬ciently high level of generality that the bike is deď¬nitely
permitted â“ a vehicle is deď¬ned, for instance, as a motorized form of transporta-
tion â“ but that deď¬nition may seem imposed upon the term vehicle rather than its
exposition. This act of deď¬nition does not avoid creative judgment because it is
itself an operation of creativity. Suppose, in contrast, that a park announces that it
is for pedestrians only, so no vehicles are permitted. Bicycles would seem not to be
allowed there. Beyond the standard case (whose boundaries could themselves be
revisited over time), a judgment is necessary about whether a new situation falls
within or without the statute. The decision is not determined by the terms of the
statute; legal creativity is required.
As another illustration of the potential role that legal creativity plays, consider
whether states should grant the rights of marriage to gay and lesbian couples.
Some Americans may accept that marriage should be available to any consenting
adult couple, but for many others today the deď¬nition of marriage requires het-
erosexuality and, potentially, norms of procreation and ď¬delity that heterosexual
marriage is assumed to imply and that same-sex marriage is assumed not to imply.
The contest is over whether the meaning of marriage will â“ or should â“ change if
same-sex marriage is granted. Against traditional norms that marriage is between
a man and a woman, the question of same-sex marriage requires appraisal of the
legal creativity that conjoins those two terms.
In the cases of both the bicycle in the park and same-sex marriage, the potential
reinterpretation of meaning required at the moment of application is a basic theme
of hermeneutics. The relationship between meaning and application is not one of
subsumption; rather, application involves âco-determining, supplementing, and
correcting [a] principleâ (Gadamer 1992: 39). Meaning is not determined once
and for all at the moment of origin but must be reassessed as the meaning is applied
to new circumstances. Meaning can change as it is applied; the determination of
meaning requires judgment.
Our understanding of the interrelation between meaning and application can
be enriched, I would argue, by describing the interrelation as metaphoric. Paul
Ricoeur (1977: 22) focuses on the âriftsâ that metaphor creates in an existing
order, the processes by which it âdisturbs and displacesâ order. The ground for
metaphoric predication arises when customary meaning is challenged. Metaphor
can cross the gap between terms â“ same-sex and marriage â“ that as presently
understood (by many) offer a lack of literal ď¬t. In metaphor, writes Ricoeur (1977:
196), ââ˜the similarâ™ is perceived despite difference.â Metaphor is a creative act that
can expand a category. In the interrelation of meaning and application, we may
see resemblance where we had not before. The analytic point is appreciation of
how legal creativity operates, not whether we necessarily agree with the particular
creative judgment. While the metaphoric judgment that conjoins same-sex and
Law and Creativity 83
marriage leads to a result that is more politically liberal, in other cases, as we shall
see, the result will be conservative.
I extend analysis a step further by considering how the interrelation of meaning
and application in legal judgment is not simply metaphoric but imaginative. The
creation of metaphoric resemblance is an act of imagination. The relationship
between meaning and application is not one of deduction of the particular from the
general principle but rather of a transfer of meaning. Making the transfer requires
imagination. âImagination . . . is this ability to produce new kinds of assimilation
and to produce them not above the differences, as in the concept, but in spite of
and through the differencesâ (Ricoeur 1979: 146). The process of legal application
is both metaphoric and imaginative: the imaginative interrelation of general and
particular can create some new metaphoric resemblance across the initial divide.
The process of application generalizes the imaginative productivity at work in
creative legal judgment.
Ricoeur particularly wants to insist that the assimilation, the resemblance, pro-
duces something new. In his larger elaboration of a theory of imagination, Ricoeur
differentiates between the Westâ™s preponderant attention to reproductive imagina-
tion, while he wants to promote productive imagination. Imagination is typically
subsumed in Western philosophy under the study of what it is to have an image.
A distinction is drawn between an original (reality) and a copy (the image or the
imagination), and the copy is always less than the original. For Ricoeur, this model
of original and copy exempliď¬es reproductive imagination. The image as copy is
derivative of the original â“ from reality.
Productive imagination does something different. Ricoeur claims that we can
conceive of a place that, unlike an image, is not duplicative of, not determined
by, an original. Ricoeur offers as an example the social utopia. The utopia is a
presently nonexistent reality that points to a new kind of reality. It expands our
sense of reality and realityâ™s possibilities. Ricoeur argues more generally that the
ânowhereâ not bound by an original can be found in ď¬ction. âBecause ď¬ctions donâ™t
reproduce a previous reality, they may produce a new reality. They are not bound
by an original that precedes themâ (Ricoeur 1975: 19.1).2 Productive imagination
introduces a ď¬ction, an image without an original, something from nowhere. When
Ricoeur locates the productive imagination in the nowhere that ď¬ction provides,
the paradox is that ď¬ction can provide a new dimension of reality.3 No longer is
truth deď¬ned as adequation, a conformity between judgment and existing reality,
because the potential disclosure of new reality has more to do with a concept of
truth as manifestation (Ricoeur 1975: 19.12, 2.20).
In more recent work, Gilles Fauconnier and Mark Turner (2002) have further
deepened our understanding of the operation of metaphor and imagination in
their development of a theory that argues that human cognition often proceeds
on the basis of âconceptual blending.â In the type of âdouble-scope networkâ that
they particularly emphasize, different organizing conceptual frames contribute to