legal realist conclusion that the legal concept of causation is analytically empty:
everything â“ the spark, the wheat, the wind â“ is a cause of the ď¬re. A rule will,
necessarily, employ some categorical element that stands at some remove from the
considerations that market actors would evaluate in making their bargain. It will,
therefore, systematically misallocate resources to the extent that the rule category
diverges from the factors that a theoretical frictionless market would consider. All
we can do to mimic the conditions of a perfect Coasean market is to assign initial
entitlements in a way that minimizes transaction costs. The conventional wisdom
is that clear rules of property facilitate Coasean bargaining by lowering information
costs. But this seems true because we have focused on one factor in isolation. In
the real world, the efď¬ciency of the allocation depends not just (or even primarily)
on the clarity of the entitlement but also (and perhaps more importantly) on the
valence of informational (and other) asymmetries. Suppose we were to allocate
the entitlement to the railroad (in this case, via a clear nonliability rule) because
it is the party engaged in the economically more productive use. The result would
deviate from Pareto optimality: as long as train travel remains more valuable, no
Coasean adjustment will occur and the farmer will suffer the entire cost of the ď¬re
loss. If wheat becomes more valuable, existing railroads will be able to leverage
their entitlement to exact a higher, inefď¬cient price for desisting; where railroads
have not yet arrived, the farmers will incur very high information costs identifying
both which company is planning to lay track and where. Rules are linear and static,
while the real world of economic activity is complex and dynamic.
If the law and economics preference for rules thus seems odd, the boosterism
of the liberal constitutionalists is no less curious. By deď¬nition, judicial review
removes issues from the realm of democratic politics and submits them for deter-
mination by courts pursuant to judge-made principles or rules. Democracy and
judicial review, in other words, inherently conď¬‚ict. For more than a century,
the central debate in constitutional law has been about the proper role of judi-
cial review in a system of democratic self-governance. To urge American-style
When Things Went Terribly, Terribly Wrong 39
constitutionalism on emerging democracies presupposes both that this conď¬‚ict
has in some sense been resolved satisfactorily and that principled or rule-governed
judicial review is meaningfully possible. But, if twentieth-century constitutional
law teaches anything, it is that neither of these propositions is true. To see why,
consider three points.
First, mainstream constitutional discourse is characterized by the conď¬‚ation of
the ď¬rst and second propositions (i.e., concern over the questionable democratic
legitimacy of judicial review is expressed almost entirely, with one exception dis-
cussed subsequently) as a debate about proper interpretive method: should the
Court be textualist, originalist, historicist, or organicist? This phenomenon is par-
ticularly acute among judges, who are understandably focused on the practical
interpretive task at hand. But it is no less true of constitutional law scholarship
(Winter 1991: 1919â“23). While it makes sense to be concerned about appropriate
constraints on judicial decision making in a democracy, it remains true that no
set of interpretive constraints, however rigorous, can resolve the inherent conď¬‚ict
between democracy and judicial review. To act as if it were otherwise suggests
a psychological defense akin to reaction formation â“ much like the person who
manifests the darkest sexual impulses via overly fastidious public protestations.
Second, it is nearly a half century since Wechslerâ™s (1959) notorious plea for
neutral principles in constitutional decision making. There has been much debate
over appropriate methodology since but very little consensus. The interminability
of this methodological debate is itself instructive. More instructive still is what hap-
pens when one takes up Wechslerâ™s call, as did the plurality in Planned Parenthood v.
Casey (1992). Averring that âour contemporary understanding is such that a deci-
sion without principled justiď¬cation would be no judicial act at all,â the plurality
nevertheless conceded the impossibility of the task: âBecause not every conscien-
tious claim of principled justiď¬cation will be accepted as such, the . . . Court must
take care to speak and act in ways that allow people to accept its decisions on
the terms the Court claims for them, as grounded truly in principle. . . . Thus, the
Courtâ™s legitimacy depends on making legally principled decisions under circum-
stances in which their principled character is sufď¬ciently plausible to be accepted by
the Nationâ (62â“63, emphasis added). As Wechslerâ™s most insightful critic long ago
demonstrated, consistency, generality, and principle in judicial decision making is
objectively impossible because what counts as âneutralityâ and as âprincipledâ is,
necessarily, historically and culturally contingent (Deutsch 1968).
Third, the one strand of constitutional thought that does engage the problem of
legitimacy does so, ultimately, only by sacriď¬cing any claim to being rule governed
or lawlike. In the aftermath of the battle over the constitutionality of the New Deal,
Chief Justice Stone proposed an overarching schema in which all legislation would
be treated as presumptively constitutional unless it represented an interference with
or breakdown of the democratic process (Carolene Products: 152, 152n4). While a
full Court has never explicitly endorsed the second half of Stoneâ™s formulation, it
does fairly characterize much of the Courtâ™s work over the following three decades
and, in particular, the work of the Warren Court (Ely 1980). It is reď¬‚ected most
clearly in the two-tiered approach to equal protection that prevailed until the
emergence of intermediate scrutiny in the gender cases of the mid-1970s.
40 Steven L. Winter
The striking thing about the constitutional methodology that dominated this
period (and still serves as the point of departure today) is the degree to which it
dispenses with any pretension to a lawlike methodology. This is immediately clear
in cases of social and economic legislation where the Court defers to legislative
choice as long as there is any conceivable rational basis for the statute. But it is no
less true of the obverse strict scrutiny test applied in cases of racial discrimination,
freedom of speech and religion, and other fundamental rights. Just as the rational
basis test has been castigated as an abdication of judicial review, the strict scrutiny
test has been criticized as âstrict in theory, but fatal in factâ (Gunther 1972: 8).1
And so it is because it, too, lacks analytic content. Once strict scrutiny is invoked â“
requiring that the law be narrowly tailored to achieve a compelling state interest â“
the statute is bound to fail because every legislative classiď¬cation, however expertly
drawn, will always be under- and overinclusive relative to its underlying purpose.
The two-tiered approach is not so much a doctrinal test as a simple on-off switch.
To see why, it is necessary only to trace the reason for its emergence. Among the
traditional objections to Lochner (1905) was the criticism that it was too stringent in
its means-end analysis. The majority had invalidated maximum-hours legislation
because it did not bear a direct, real, and substantial relation (Lochner: 64) to what
it deemed a bona ď¬de health, safety, or welfare purpose. While Holmes rejected
any limitations on the subject matter of democratic legislation (Lochner: 74),
Harlan and the other dissenters accepted the majorityâ™s doctrinal premises. But
they maintained that the statute should be upheld because, given the state of the
then-extant expert knowledge, the reasonableness of the statute was something
âabout which there is room for debateâ (Lochner: 72) and, therefore, properly left
for legislative determination.
The rejection of Lochner, in other words, also entailed a skepticism about judicial
capacity to engage in meaningful means-ends analysis. Just as the lesson of the
ď¬ght over the commerce power was that there is no way to draw a rationally
defensible line between interstate and merely intrastate commerce, the lesson of
the battle over substantive due process was that there is no rationally defensible
way to measure the adequacy of legislative means. Every legislative classiď¬cation
will bear a second-order relationship to the statuteâ™s motivating purpose and,
therefore, will manifest a less-than-perfect ď¬t (Tussman and tenBroek 1949). How
much disparity is permissible? How much is too much? It is not that courts
lack a superior methodology for making this determination so much as that
they lack any methodology at all. (This is apparent from the gender cases in
which the intermediate scrutiny standard â“ requiring that the law be substantially
related to an important state interest â“ has yielded wildly uneven results.) Given
the unavailability of any such method, the only sensible response is to leave the
question to the democratic process. For the run-of-the-mill case of socioeconomic
regulation, that is exactly what the rational basis test does. For issues that cannot be
entrusted to the political process, the only available alternative is an unrealistically
The contemporary Court has frequently denied this charge. But the fact of the matter is that, in the
rare case that has survived strict scrutiny review, the Court has invariably applied a more deferential
standard of review at at least one point in the analysis (see Grutter and Korematsu).
When Things Went Terribly, Terribly Wrong 41
exacting judicial scrutiny that nevertheless leaves open the possibility that a more
narrowly crafted statute might pass muster.
With respect to clear standards of judicial review, just as with clear rules of
property and contract, the upshot of twentieth-century jurisprudence is this: we
donâ™t have them and, in any event, we are probably better off without them. So
why the contemporary resurgence of rule-oriented approaches to law?
As Charles Taylor (1989: 307â“8) and Martha Nussbaum (1990: 224) observe,
philosophies emerge because they capture, thematize, rationalize, and justify our
unreď¬‚ecting social practices. This was Llewellynâ™s (1934: 206) point in the essay
this volume celebrates: philosophy-in-action, as he dubbed it, concerns âthose
premises, albeit inarticulate and in fact unthought, which yet make coherence
out of a multiplicity of single ways of doing.â In the wave of triumphalism that
followed the fall of communism in 1989 (see Fukuyama 1992), a certain amount
of self-congratulatory exuberance was perfectly natural.2 Suddenly, it seemed to
many that history had vindicated all the things we in the West had been doing â“
democracy, free markets, judicial review, the rule of law. It was only good sense
to urge them on others, freedomâ™s new initiates. âBut,â as Llewellyn (1934: 205)
warned, âlife-in-action a theory can gain only when it serves menâ™s needs.â Not
only did this surprising turn of events vindicate our society; it also valorized those
in the academy as experts. Cognitive dissonance (Festinger 1957) necessitated that
whatever dark doubts we harbored about the efď¬cacy of law and legal rules had
to be vanquished. Never mind bothering to dispute the various critiques of legal
formalism or judicial review. Never mind that our free-market and rule-of-law
proselytizing has yielded decidedly mixed results. Disputation and proof just were
This was not the sole reason for the shift in jurisprudential understandings that
characterized the past decade. By the fall of the Soviet Union, there were several
developments already in train with respect to the networks by which social capital
is distributed. In 1969, the John M. Olin Foundation began an active campaign
to inď¬‚uence the American legal academy in a more conservative direction. It
provided early support to the law and economics movement. In general, and not
coincidentally, the foundation sought to fortify the role of traditional cultural
institutions such as the university in maintaining the systems of constitutional
government and private enterprise. In 1982, the Federalist Society was founded,
funded in part by grants from the Olin Foundation. It has served as a quite
successful networking and training ground for conservative judges, ofď¬cials, and
law professors. The remaking of the federal judiciary in the Reagan and ď¬rst Bush
administrations has substantially reworked the legal landscape. The appointment
of Justice Scalia has proved particularly inď¬‚uential both because of his charismatic
role and because of the network of smart, articulate, highly motivated former
clerks who have become legal academics.
So much so that some now claim that the process is natural: speciď¬cally, that the emergence
of the Industrial Revolution in England was a product of fortuitous biological adaptations in that
population during the Middle Ages that rewarded with reproductive success those with the repertoire
of skills and dispositions that would give rise to modern economies (Clark 2007: 186â“8).
42 Steven L. Winter
The success of these social networks is, necessarily, a function of the larger
cultural context in which they unfolded â“ including both the greater political
conservatism of late-twentieth-century America and the triumphal effects of the
end of the cold war. After all, appeals for a conservative reconstruction of our
legal institutions could hardly have succeeded if they had not found receptive
ground (see Winter 2001a: 320). But the striking reemergence of these atavistic
understandings of law is also a function of a deeper contextual factor. As Unger
(1983: 1â“14) has observed, American legal thought has struggled for more than
a century to escape the tenacious grasp of legal formalism and legal positivism.
It is not just that much of the ď¬rst-year curriculum continues to take as its point
of departure formalist and positivist understandings of law (cf. Mertz 2007) nor,
even, that those who fail to learn the lessons of the past are doomed to repeat
it. Rather, the persistence of these atavistic understandings of law is, in part, a
function of our core conception of law: we understand (or misunderstand) law as an
autonomous force that lays down the rules we are to follow and ensures compliance
with lawâ™s constraints by threat of sanction (Winter 2001a: 332â“40). In doing so,
we unconsciously reify and substantially misrepresent a ď¬‚uid social process as
a static set of rules. The strange recrudescence of formalist understandings of
law, notwithstanding the trenchant critiques to which they have been subject,
is, in technical terms, a prototype effect arising from our deeply held cognitive
model of law. And it has many unhappy consequences: not only do we give others
questionable advice, but we also obscure from our own selves the value of a more
profound and productive understanding of law (Winter 2001a: 332â“40).
Which, notwithstanding Llewellynâ™s conď¬dence in the âbetter barâ and the
efď¬cacy of reason âbacked by factsâ (Llewellyn 1934: 212), leaves us with quite a
lot of work to do.
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in Northwestern Europe During the Tenth and Eleventh Centuries Based on the Responsa
Literature, vols. 1â“2. New York: Yeshiva Univ. Press, 1965.
Bernstein, Lisa. âOpting Out of the Legal System: Extralegal Contractual Relations in the
Diamond Industry.â J. Legal Stud. 21.1 (1992): 115â“57.
Clark, Gregory. A Farewell to Alms: A Brief Economic History of the World. Princeton, NJ:
Princeton Univ. Press, 2007.
Coase, Ronald H. âThe Problem of Social Cost.â J. Law & Econ. 3.1 (1960): 1â“44.
Deutsch, Jan. âNeutrality, Legitimacy, and the Supreme Court: Some Intersections between
Law and Political Science.â Stan. L. Rev. 20.2 (1968): 169â“261.
Ellickson, Robert C. âOf Coase and Cattle: Dispute Resolution among Neighbors in Shasta
County.â Stan. L. Rev. 38.3 (1986): 623â“87.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA:
Harvard Univ. Press, 1980.
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Fukuyama, Francis. The End of History and the Last Man. New York: Free Press, 1992.
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17.3 (1976): 299â“328.
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Grutter v. Bollinger, 539 U.S. 306 (2003).
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Doctrine on a Changing Court: A Model for a Newer Equal Protection.â Harv. L. Rev.
86.1 (1972): 1â“48.
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L. Rev. 8.3 (1980): 711â“70.
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Univ. Press, 1990.
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6 The Mechanics of Perfection: Philosophy,
Theology, and the Foundations of American Law
larry cata backer
American philosophy of law is better understood as theology than as that tradi-
tional American academic or pragmatic discourse that styles itself philosophy. The
mechanics of an American philosophy of law provides a basis in reason for an
American theology of faith in the perfectibility of law. The relationship among
reason, faith, and truth (perfection) better deď¬nes an American philosophy of law
than do traditional, merely rational, conceptions. This essay ď¬rst examines the
archetypal framework within which Americans work through their theology and
construct their rational analytic frameworks for that purpose through the prism
of two foundational cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tompkins
(1938), and its transposition to American legal positivism. It then suggests that
Benedict XVIâ™s 2006 articulation of the foundational relationship between faith
(theology) and reason (philosophy) is a better basis for understanding the Ameri-
can theology of law, the function of philosophy within that theology, and the role
of the magisterium of judges in its elaboration.
Since the settlement of Plymouth Bay and the Virginia colonies, Americans have
been obsessed with the mechanics of perfectibility. Perfectibility is built into the
constitutive documents of the American republic. The preamble to the American
Constitution declares the establishment of the American union: âin Order to form
a more perfect Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our Posterity.â The objective is at once transcendental (reď¬‚ect-
ing universal eternal values) and immanent (immersed in a historical project to
The philosophy of perfection, thus, can be subsumed under a greater objective â“
the search for perfect order. The amalgamation of rechtsstaat with the substantive
basis of a Sozialstaat, the perfect order merges expression (law), means (govern-
ment), and mechanics (philosophy) into a dynamic whole that ultimately achieves
rest (the end of striving) and, thus, peace. American jurisprudence embraces, per-
haps in an ironic way, the Augustinian insight about the messianic character of
peace: âPeace between man and God is the well-ordered obedience of faith to
eternal law. Peace between man and man is well-ordered concord. Domestic peace
is the well-ordered concord between those of the family who rule and those who
| 44 |
The Mechanics of Perfection 45
obey. Civil peace is a similar concord among the citizens. The peace of the celestial
city is the perfectly ordered and harmonious enjoyment of God, and of one another
in God. The peace of all things is the tranquility of order. Order is the distribution
which allots things equal and unequal, each to its own placeâ (Augustine 1950:
bk. 19, sec. 13, p. 690).
Perfection is an ideal state that is to be served through a philosophy or, better put,
the rational pragmatics of law. This ideal state can be realized by embracing truth
as it exists outside of an individual â“ either in divine command (or grace or law) or
in the inspired will of the community at its most potent. It is (or apes) messianism,
with or without religion, âWhat I call messianicity without messianism is a call, a
promise of an independent future for what is to come, and which comes like every
messiah in the shape of peace and justice, a promise independent of religion, that is
to say universalâ (Derrida and De Cauter 2006: 268â“9). That is, perfection arrives
from the top (the divine or the apparatus of government) down (the people and
their customs), or from the bottom up; that is, it is organically constructed as an
articulation of the communityâ™s aggregate beliefs and behaviors. How that occurs,
through judge or legislature, is the substance of the philosophy of law.
The expression of that perfection is law, and government provides the means.
The mechanics of perfectibility lies in a philosophy the elaboration of which has
been marked by great and hotly contested battles. The theology of perfection is
grounded in a faith that the attainment of perfection can be expressed by means of
governmental action through a rational mechanics. Through these mechanics
Americans can discern the spirit of perfection â“ as God or as the genius of the
American community made manifest â“ to be embraced as the American nation
relentlessly builds that civitas dei americorum. Logos â“ understood in its modern
sense as the union of faith and reason, as the inherent rationality of the divine in a
historically immanent form â“ serves as well as the ancient philosophy of American
law. Law is the expression of the present state of the American search for perfec-
tion. The quest for perfection is accomplished through government and proceeds
on the basis of the simultaneous application of philosophies or theologies of per-
fectibility embraced by the great stakeholders in the American system â“ lawyers,
politicians, industrialists, religious leaders, and the media â“ on which âthe peopleâ
Perfectibility in the American context is a messy business â“ it is the product of
uncontrolled and uncoordinated efforts undertaken independently and in com-
munion with like-minded allies and institutions by every stakeholder in American
civic life. Disaggregated â“ into court cases, statutes, the efforts of particular courts
and legislatures â“ the sense is of something chaotic and directionless. But appear-
ances veil a different picture, one better appreciated in the aggregate and over
the long term. From a distance, the pattern becomes clearer; and the pattern sug-
gests a lurching toward perfection. American law at any moment is a snapshot
of that aggregate lurching toward perfection that is always a case and a statute
away. The expression, means, and mechanics of perfectibility â“ these form the
essence of a philosophy of American law in the service of a paramount faith in that
46 Larry CatÂ´ Backer
THE EXPRESSION (AND MEANING) OF PERFECTION THROUGH LAW
The decisions in Swift and Erie are twin poles of reason joined by a shared faith in
a rational basis for legal perfectibility. âSwift and Erie address the question of the
nature of law and of the common, or unwritten, law in particularâ (Braithwaite
1992: 774). The cases offer substantially irreconcilable conceptions of the state,
law, the role of legislatures and judges, and the relationship between the higher law
of the federal Constitution as an ultimate positive constitutive act and the law of
the nation. Yet there is commonality. Both are founded on the same fundamental
understanding of purpose, of the function of law as an expression of perfectibility.
The differences between them, differences that keep American jurisprudence lively,
center on the speciď¬cs of the relationship of law, the state, and its government.
Swift assumes a common national judicial project to approach the perfection of
the common law by repeated communal application by the community of judges.
Matters of a general nature, affecting the peoples of the states of the union in
equal measure, general questions of law, were organic and required a common
effort from all judges â“ whether state or federal â“ to the same task, âthat is, to
ascertain upon general reasoning and legal analogies, what is the true exposition
of the contract or instrument, or what is the just rule furnished by the principles
of commercial law to govern the caseâ (Swift 1842: 18). In this context, positive
law was a derogation from the common law, the organic and communal law of
the people, expressed by them and through their courts, and to which they, like
their government, were subject. That subjection was conditional, with respect to
those local matters on which government might direct a different result, that is, âto
rights and titles to things having a permanent locality, such as the rights and titles
to real estate, and other matters immovable and intraterritorial in their nature
and characterâ (Swift 1842: 18). And it was immutable with respect to the higher
law represented by the common law. The judge served the law, and law was an
articulation of the lived customs and principles of communal organization of the
people who came together in a political union. The obligations of all judges were
general and the same â“ to work together to attain the highest, best, and most
just expression of the organic law of the people to apply in any dispute brought
before them. Judges thus exist beyond the mechanics of the various governments,
and their role is not limited by the political and territorial restraints put on the
various elected and administrative ofď¬cials constituted through the higher law of
the federal and state constitutions. Their relationship to law, and to the people, is
direct and extends, like the common law, to the borders of the union. To abrogate or
limit this common law is to abrogate or limit the substantive portion of the higher
law of the federal (and state) constitutions, which both preceded and served as a
foundation for the constitution of government that those instruments represent.
Erie assumed the necessary subordination of the judiciary and the common