law of the nation to that of subordinate political units, the content and power
over which were to be distributed in accordance with whatever formula their
legislatures may declare. Its foundation is the princely state, in which the popular
will is reduced to the positive and instrumental expression of a popular construct ā“
the apparatus of state. Law loses its organic character, and the judge his or her role
The Mechanics of Perfection 47
as the vehicle through which the customary will is articulated and applied. Erie
assumes a legislative supremacy to deļ¬ne the conļ¬nes of law and its character. It
rejects āthe assumption that there is ā˜a transcendental body of law outside of any
particular state but obligatory within it unless and until changed by statute,ā™ that
federal courts have the power to use their judgment as to what the rules of common
law are; and that in the federal courts ā˜the parties are entitled to an independent
judgment on matters of general lawā™ā (Erie Railroad 1938, 79: [quoting in part
Justice Holmes]). Erie rejects the possibility of the judge as an instrument of the
search for the ultimate truth or justice as expressed in law. Quoting Justice Field,
Justice Brandeis turns the conceptual framework of Swift on its head. What passes
for a general law of the United States āis often little less than what the judge
advancing the doctrine thinks at the time should be the general law on a particular
subjectā (Baltimore 1893: 401 [Field, J., dissenting]). The law of the judge is
thus both personal and uncontrolled. The judge is transformed into the unelected
legislator usurping legislative authority. It is to the apparatus of government, rather
than to the whim of the judge, that the appropriate measure of law lies.
GOVERNMENT AS THE MEANS TO PERFECTIBILITY
Neither Swift nor Erie rejects the possibility of perfectibility in general and per-
fectibility through law in particular. This point, perhaps one of the most potent
in the cases, serves as the substance of the jurisprudential adventures of American
legal philosophy for legal realists, postmodern critiques, and conservatives, each
seeking to reduce further the authority of the judge and mold the positive acts of
the legislature to its own program of legislation. Perfectibility becomes a political
rather than a judicial act. American customary law is submerged in theory.
Perfectibility and the judge. Law in Swift was an organic construct, presided
over by judges, into which the legislature sometimes intruded. The aggregation of
that construct, the work of all judges wrestling with the same question, produced
perfection, sometimes even against the will of the legislature expressed as statute.
This reļ¬‚ects old knowledge. In Dr. Bonhamā™s Case (1610: 275), Coke reminded
us that āwhen an Act of Parliament is against Common right and reason, or
repugnant or impossible to be performed, the Common Law will controll it, and
adjudge such Act to be void.ā The judge stands between perfection and the political
community. American constitutionalism, like American religion, functions on the
basis of sin, of error. The source of salvation from error, that is, from the sin
of unlawfulness, is then focused on the judge, as guidance from sin is vested in
the priest. āThe priest rules through the invention of sinā (Nietzsche 1888: sec.
49, 631); the constitutional judge rules through the elaboration of doctrine. As
Friedrich Nietzsche reminds us, āDisobedience of God, that is, of the priest, of
ā˜the Law,ā™ is now called ā˜sinā™ [and] the means for ā˜reconciliation with Godā™ are,
[of course, the] means that merely guarantee still more thorough submission to
the priest: the priest alone ā˜redeemsā™ā (Nietzsche 1888: Ch. 26, 598). The judge
becomes voice to perfection and the instrument of his or her own privilege. This
serves as the measure of perfection within the philosophical foundation of Swift ā“
but also in Erie. While Swift would rely on the judges for the task of rationalizing
48 Larry CatĀ“ Backer
perfection, Erie looked to the legislature and statute. In either case, faith in law and
in government becomes basic to the rational exercises that serve as its philosophy.
And in both cases it is the magisterium of judges that controls.
Perfectibility and the political branches. Still, Erie points to the role of the political
branches between perfection and its expression in law. The intermediation is
represented as a necessary consequence of the construction of a system of divided
power in which the community is deemed to have divested itself of direct regulatory
power (i.e., of its relationship to the construction of a customary law) in favor of a
government constituted to exercise all political authority. As Justice Scalia (1995:
40) is now fond of noting: āModern governments . . . are thought to derive their
authority from the consent of the governed, and the laws they prescribe are enacted
by the peopleā™s representatives. Such a system is quite incompatible with the making
(or the āļ¬ndingā) of law by judges ā“ and most especially by unelected judges.ā The
apparatus of state thus serves as the means of a perfection, the measure of which
is its constitution and the guardian of which remains the judge.
This sort of institutional intermediation is also tellingly conļ¬rmed by the sub-
stitution of the great law codes for what remains of the common law in the United
States. It is evidenced by the rise of great private bodies of public personages
charged with the consideration and development of a harmonized expression of
the ideal in law. This objective is represented by the great projects of informal
legal codiļ¬cation of the American Law Institute (ALI) and the Uniform Law Com-
mission (ULC, formerly known as the National Conference of Commissioners on
Uniform State Laws).
The ALI has sought uniformity in common law by systematizing decisions, by
synthesizing and pointing to the ācorrectā result in a manner reminiscent of Swift.
Building on the āBractonian and Blackstonian treatises, declaring the common
law on the empirical foundations of judicial decisions,ā fearing the āchaos in
a legal world of [forty-eight] statesā (ALI 2005: vii), but afraid to undertake
legislative codiļ¬cation, the ALI invented the form of the Restatement. Restatements
constituted a synthesis of sorts, āanalytical, critical and constructiveā (ALI 2005:
5), seeking to reduce to a single systematic form the underlying principles that gave
a legal ļ¬eld coherence āand thus [to] restore the coherence of the common law as
properly apprehended.ā They serve at once to synthesize and to innovate (ALI 2005:
5) Although they are not binding, ALI Restatements have proved authoritative in
many American courts.
The ULC has worked since 1892 on the uniļ¬cation of law through statutory
projects more in conformity with the jurisprudential focus of Erie. As a non-
governmental organization whose members, representing all of the states and
other territorial units, are for the most part regulated by statute, ULC commis-
sioners āpromote the principle of uniformity by drafting and proposing speciļ¬c
statutes in areas of the law where uniformity between the states is desirableā (ULC).
Their uniform laws have become a pillar of state legislation and have moved the
project of legislative uniformity ā“ of the search for a pan-American legal ideal ā“
closer to realization. It, too, then, serves as a potent illustration of the application
of this development of a means to apply the mechanics of perfectibility expressed
as law within the American political community. The mechanics of perfection are
The Mechanics of Perfection 49
strikingly similar to that of the judge. But here the legislator becomes voice to
perfection and the instrument of his or her own privilege.
Whether by means of judge or legislative command, or through the efforts of
quasi-legislative endeavors of political elites, then, the expression of perfection
remains law, realized through institutional techniques whose value are determined
by application of a mechanics of the knowledge of the attributes of perfection. And
that mechanics of knowledge joins law to philosophy or theology. It is this last
point that this essay now considers.
LOGOS AND LAW: THE MECHANICS OF PERFECTION
The philosophy of law centers on a rationality of perfection and a systems approach
to jurisprudence. Its grounding is entwined with order, and order folds back
into rationality ā“ whether subjective or objective. Faith in perfection is rationally
expressed through and as systems of the production of law grounded in the ārightā
set of parameters in law. Control of the choice of the form of perfection becomes
the theology (the for of faith) and sets the parameters of the method (philosophy)
of its attainment.
The institutional Catholic dialogue between faith and reason provides useful
insights with which we can contextualize the philosophy of American law within
its theological (or faith) foundations. Within that context, faith becomes the truth
of perfectibility, and reason the substance of and mechanics for its attainment.
As articulated in John Paul IIā™s encyclical Fides et Ratio (1998), one starts with
the knowledge of revealed truth (para. 7), a transcendental truth that is also
immanent, that is, āimmersed in time and historyā (para. 11). Faith is a ļ¬delity
to this revealed truth as both transcendental (eternal and ultimate ā“ perfect) and
immanent (leading to perfection; para. 13). āBetween these two poles, reason has
its own speciļ¬c ļ¬eld in which it can enquire and understand, restricted only by
its ļ¬niteness before the inļ¬nite mystery of Godā (para. 14). Thus the foundation
of the unity of faith and reason: āIn God there lies the origin of all things, in him
is found the fullness of the mystery, and in this his glory consists; to men and
women there falls the task of exploring truth with their reason, and in this their
nobility consistsā (para. 17). God ā“ perfection, peace ā“ is thus encapsulated in the
notion of Logos: āLogos means both reason and word ā“ a reason which is creative
and capable of self-communication, precisely as reason. John thus spoke the ļ¬nal
word on the biblical concept of God, and in this word all the often toilsome and
tortuous threads of biblical faith ļ¬nd their culmination and synthesisā (Benedict
Where the community of the faithful includes the world (the founding postulate
of universalist religions and philosophies), the internal workings of faith on reason
become the paramount relationship. The body of the Divine deļ¬nes the extent
of reality; it serves without limit. Reason without faith, then, becomes method
without purpose and reduces its object to individual satisfaction. Within religion,
āany attempt to maintain theologyā™s claim to be ā˜scientiļ¬cā™ would end up reducing
Christianity to a mere fragment of its former self. But we must say more: if science
as a whole is this and this alone, then it is man himself who ends up being reducedā
50 Larry CatĀ“ Backer
(Benedict XVI 2006). Reason in the absence of faith and the faith community is
reduced to the subjective and the partial. āThe subject then decides, on the basis of
his experiences, what he considers tenable in matters of religion, and the subjective
ā˜conscienceā™ becomes the sole arbiter of what is ethical. In this way, though, ethics
and religion lose their power to create a community and become a completely per-
sonal matter. This is a dangerous state of affairs for humanityā (Benedict XVI 2006).
But in a world in which multiple communities of the faithful exist, and in
which the scope of faith communities is functionally differentiated (e.g., political,
economic), then faith and reason acquire a different direction ā“ communication,
collaboration, and evangelization (diĀ“ lesis) rather than Logos. This is a world with
many bodies of the Divine, internally inļ¬nite, yet externally limited by the body
of faith. In this world, and within that diĀ“ lesis, an overcoming of parochial faith
(one that is inwardly inļ¬nite and outwardly limited) might be possible, or power
relationships might play out.
From this is the great organizing principle of American legal philosophy. Self-
constituted communities are bounded by the truth of their constitution, a truth
that necessarily embodies faith and reason in the sense that John Paul II describes
in Fides et Ratio. Political communities, like religious and social communities,
are bounded by the truth of their constitution ā“ rationally bounded by rules and
understandings within which the inļ¬nite is possible. Faith provides the ongoing
principles of that community ā“ its morals, ethics, and theology. Reason serves as
the means for incorporation and application of those principles. Together they
provide the framework within which the search for truth ā“ as perfection ā“ is
undertaken by means of government and expressed, ultimately, in law.
There is thus an active and a passive element to the relationship between American
law and jurisprudence, its philosophy and theology. On one hand, jurisprudence
explains a mechanics of law eschewing any suggestion that it may affect the prod-
uct. On the other, jurisprudence styles itself the source of a mechanics of law
construction ā“ but not just an explanation or a mechanics. American juristic phi-
losophy, like the cultural-political framework in which it operates, is both fractured
and is itself seeking that singular perfection of expression that would bring it in
line with the sole, exclusive, and ultimate reality.
American jurisprudence reduces itself to the conceptual battles that Swift and
Erie represent. āThe major issue, thus, is to ļ¬nd the ultimate criterion of law,
whether in the heaven of juristic ideals or in the earth of social reality. . . . In
other words, we are advancing, let us hope, in the direction of agreement that the
objective of jurisprudence is the same as for all science ā“ to develop the truthā
(Yntema 1947: 1106). And this reduction overcomes itself as well: ājustice exceeds
the law (le droit) but also motivates its movement, the history and becoming of
juridical rationality. . . . [N]o justice without appeal to judicial determinations and
to the force of law, no becoming, no transformation, history or perfectibility of
law without the appeal to a justice that will always exceed itā (Derrida 1993: 266,
translated and quoted in De Cauter 2006).
The Mechanics of Perfection 51
The philosophy of American law is rational and pragmatic: it seeks to serve its
faith. Faith is grounded in perfection through law among the community of the
faithful, who together constitute the citizens of the American nation. Together this
community lives its faith through a commitment to the attainment of the more
perfect union on which the American self-creation is based. That more perfect
union is expressed in law by means of the apparatus of state ā“ through which the
collective genius of the community of the faithful is assembled and through which
faith can be authoritatively manifested.
Yet it is the mechanics of this perfection, rather than its content, that continues
to dominate the more dynamic aspects of the philosophy of the American theology
of law. For Americans, the basic question of philosophy is more often reduced to
who, rather than to what, and to how rather than why. From common law theory
to liberal positivism, legal realism, natural law, and critical theory, all seek to serve
as the mechanics of a singular perfectibility. These diverse mechanics provide the
structure and context through which the ascendancy of different visions of the
apotheosis of reason in perfection can be achieved, an American religion without
religion (Caputo 1997: 116). The contests over the control of its mechanics are
what keep American jurisprudence lively, a playing out as the endless battles
over form. Thus Justice Frankfurter could mock Swift even as he afļ¬rmed its
object. āLaw was conceived as a ā˜brooding omnipresenceā™ of Reason, of which
decisions were merely evidence and not themselves the controlling formulations.
Accordingly, federal courts deemed themselves free to ascertain what Reason,
and therefore Law, required, wholly independent of authoritatively declared State
lawā (Guaranty Trust Co. 1945: 116). But that Reason is bound up in the form
of the constitutional order, which itself is an expression of the form of perfection ā“
the body of the Divine. āThe operation of a double system of conļ¬‚icting laws in
the same state is plainly hostile to the reign of lawā (Guaranty Trust Co.: 125) Or as
Benedict XVI might suggest, āNot to act ā˜with logosā™ is contrary to Godā™s natureā
(Benedict XVI 2006).
American Law Institute. Capturing the Voice of the American Law Institute: A Handbook for
ALI Reporters and Those Who Review Their Work. Philadelphia: American Law Institute,
Augustine of Hippo. The City of God. Trans. Thomas Merton. New York: Modern Library,
Baltimore & Ohio Railroad Co. v. Baugh, 149 U.S. 368 (1893).
Benedict XVI. āFaith, Reason, and the University: Memories and Reļ¬‚ections,ā address
delivered at the University of Regensburg, Germany, Sept. 12, 2006 (available at http://
www.vatican.va/holy father/benedict xvi/speeches/2006/september/documents/hf ben-
xvi spe 20060912 university-regensburg en.html).
Braithwaite, William T. āThe Common Law and the Judicial Power: An Introduction to
Swift-Erie and the Problem of Transcendental Versus Positive Law.ā In Law and Philosophy:
The Practice of Theory Essays in Honor of George Anastaplo. Eds. William T. Braithwaite,
John A. Murley, and Robert L. Stone. Athens: Ohio Univ. Press, 1992, 774ā“818.
Caputo, John D. The Prayers and Tears of Jacques Derrida: Religion without Religion. Bloom-
ington: Indiana Univ. Press, 1997.
52 Larry CatĀ“ Backer
De Cauter, Lieven. āThe Tyrant as Messiah: Messianism and Antinomianism in the
Neoconservative Ideology.ā The Brussels Tribunal, Sept. 3, 2006 (available at http://
Derrida, Jacques. Spectre de Marx lā™Ā“tat de la dette, le travail du deuil et la nouvelle interna-
tionale. Paris: GalilĀ“ e, 1993.
Derrida, Jacques, and Lieven De Cauter. āFor a Justice to Come: An Interview with Jacques
Derrida.ā In The Derrida-Habermas Reader. Ed. Lasse Thomassen. Edinburgh, Scotland:
Edinburgh Univ. Press, 2006, 259ā“69.
Dr. Bonhamā™s Case (1610). Hilary Term, 7 Jac. 1. In the Court of Common Pleas. Eng. Rep.,
vol. 8, page 113b (8 c. 107a ), reprinted in The Selected Writings of Sir Edward Coke
(Steve Sheppard, ed., Indianapolis, IN: Liberty Fund, 2003), 1:264.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
John Paul II, Fides et Ratio. Vatican City: Vatican Publication, 1998.
Nietzsche, Friedrich. The Antichrist. In The Portable Nietzsche. Ed. and Trans. Walter
Kaufmann. 1888. Reprint, New York: Penguin Books, 1968, 565ā“656.
Scalia, Antonin. āBook Review.ā First Things 157 (2005): 37ā“46 (reviewing Steven D. Smith,
Lawā™s Quandary [Cambridge, MA: Harvard Univ. Press, 2005]).
Swift v. Tyson, 41 U.S. (16 Peters) 1 (1842).
Uniform Law Commission, āOrganization,ā (available at http://www.nccusl.org/Update/
Yntema, Hessel E. āBook Review.ā Yale L. J. 56.6: 1101ā“6 (1947) (reviewing Interpretations
of Modern Legal Philosophies: Essays in Honor of Roscoe Pound. Ed. Paul Sayre. [New York:
Oxford Univ. Press, 1947]).
part two. philosophical perspectives on law
7 Toward Normative Jurisprudence
Lawyers, judges, legal scholars, and law students ā“ collectively, the legal profession ā“
all, at various times, criticize, pan, praise, or laud laws. So, lawyers are inclined to
say, in any number of formal and informal contexts, this law is a good law or a
bad law, or this regulation is a godsend or a calamity; that piece of legislation is
a breach of trust or an act of good faith; that legal regime, even, is a boom or a
bust for mankind. How do we do that? What is it that lawyers know, if anything,
about law, society, or political morality that informs their nonadversarial critical
work? Somehow, the scholar, judge, American Law Institute committee member,
legislator, or student reaches a judgment, decidedly moral, that a strict liability
rule with respect to automobile accidents or defective products is better than a
negligence regime, that the holder of a promissory note should take that note free
of defenses on the basis of fraud in the underlying transaction, that a sexually
harassed worker should have a cause of action under Title VII of the Civil Rights
Act, and that the First Amendment should protect purveyors of hate speech no less
than advocates of evolution or creation science against state censure. Knowledge
of the law that exists, alone, cannot possibly generate the basis of our conclusions
regarding the law that ought to be ā“ although it is surely true, as countless scholars
have pointed out now for the past one hundred years, that our judgments regarding
the law that ought to be inļ¬‚uence our understanding of the law that is.
So, what ļ¬lls the gap from the legal is to the legal ought, for the legal critic? Do
lawyers have a sense, in any way different from that of nonlawyers, of the good
that law, or a law, does, can do, or fails to do? Do lawyers have a better moral sense
than nonlawyers, perhaps, of the attractions of legal utopias and the dangers of
legalist dystopias? If lawyers donā™t have some distinctive moral knowledge, then
against what base are they judging it, when they praise, laud, pan, or denounce
law? And if they do have some distinctive moral knowledge, then what is it? What
is the human good, or goods, that lawyers, distinctively, take to be lawā™s goal, or a
lawā™s goal, or the rule of lawā™s goal?
These questions ā“ the nature of the āgoodā that a good law exhibits and that
a bad law lacks ā“ have not been deļ¬ning questions of either analytic or critical
jurisprudence for some time now. With a few exceptions, of course, neither camp
asks what makes a good law good or what makes a bad law bad, or what the good is
that law can, or should, accomplish, against which we might judge particular laws
| 55 |
56 Robin West
or legal regimes. We donā™t ask how we know that a good law is good or a bad law
bad, or what lawyers generally seem to assume to be the case about a good law or a
bad law, or whether those assumptions are warranted or unwarranted. Even more
clearly, we donā™t ask what it is about social life that seemingly requires address by
or recompense from the law, or how a good law might respond to a social ill in a
desirable fashion, or how a bad law, or no law, might do so poorly. We ask neither
ethical questions about a legal regimeā™s or a lawā™s moral goodness nor metaethical
questions about our own or our fellow lawyersā™ unexamined practices regarding
the legal criticism in which we all nevertheless engage.
This is a signiļ¬cant omission. These ought to be jurisprudential questions, on
par with questions regarding the meaning of law, or the status of the unjust law,
or the relationship of law and positive morality. But they are not. Because they
are not, an entire family of questions about the criteria that lawyers use or should
use in determining or debating the goodness of laws have been slighted, over the
past half century or so, in the very ļ¬eld of legal studies to which those questions
should be central. Jurisprudes do not ask themselves or one another or the rest
of us particularly probing questions about the nature of the ālegal goodā and its
relation to law. In fact, we are in ļ¬‚ight from these questions, and our jurisprudence
as well as our critical practices are the worse for it.
It clearly was not always thus. Until about the mid-twentieth-century mark, both
jurisprudes and legal philosophers routinely asked these questions. But in our own
time, while our three major contemporary secular jurisprudential traditions ā“
natural law, legal positivism, and modern critical legal theory ā“ ask jurisprudential
questions that are surely related to these, they have nevertheless omitted questions
regarding the nature of the legal good. Although in different ways, this has left a
gap in each of these traditions.
Let me start with natural law. In Natural Law and Natural Rights, John Finnisā™s
great and greatly underappreciated 1980 jurisprudential work, Finnis developed
what still stands as the most thorough twentieth-century natural law that aims
(partly) to answer precisely this question. The just law, Finnis argued, is the law
that (in part) promotes the common good, which is itself nothing but the basic
goods of the individuals affected by the law. Those goods, in turn, include, in part,
the value of play, of life itself, of friendship, of knowledge, of practical reason, and
of autonomy. Both law itself, Finnis posited, and our basic legal institutions such
as contract, property, and marriage are necessary conditions for the cooperation
required among even benignly motivated citizens to secure these basic goods.
Thus ā“ the just law promotes these basic goods of individuals, or the common
good, while the unjust law does not. The good law likewise, then, is the law that
promotes these goods. Criticism of law should reveal the relationship, or lack of
relationship, between positive law and the human goods it ought serve.
Finnisā™s decidedly substantive natural law theorizing, however, did not persuade
late-twentieth-century American jurisprudes, including even those who famously
embraced natural law, for several reasons, some internal to Finnisā™s work, some
external. First, the method Finnis espoused was overly intuitionist ā“ the basic
goods were to be understood by people with experience, intelligence, and a capac-
ity and taste for speculation ā“ but against their grasp of the goodness of the basic
Toward Normative Jurisprudence 57
goods, no arguments were germane. How do we know the content of the good,
or the common good, that law ought promote? The basic goods, Finnis argued,
are simply understood as such by such good and intelligent people ā“ they are
good in themselves and need no further justiļ¬cation. This is clearly unsatisfy-
ing, methodologically, for any who ļ¬nd Finnisā™s list incomplete or in some way
wrongheaded. Second, by the 1970s, political liberalism itself, and eventually the
constitutional jurisprudence built upon it, had come to assume as axiomatic a
theoretical structure at midcentury that explicitly disavowed any reliance on any
conception of the good life as the object of state action, politics, or certainly of
law. Finnisā™s work, and his approach, appeared to be illiberal when posited against
a liberalism that claimed agnosticism toward all richly developed conceptions of
the good life, and hence the basic goods. Third, Finnisā™s later writing and advocacy
against same-sex marriage seemingly validated the worry that his substantive nat-
ural law, targeted on a law that would advance a full conception of the good and the
good life, would prove unduly conservative and moralistic. Finally, the secularized
but loosely Thomistic approach he embraced in Natural Law and Natural Rights ā“
the attempt to specify a universal account of human nature that would inform,
although by no means deļ¬ne, the human good, and to place the value of law within
that framework, came to embody, by centuryā™s end, an ambition that was unac-
ceptable to a critical consciousness that worried not so much about parochialism
and a good deal about imperialism: any theory based on an account of human
nature, even loosely understood, appears suspect. Finnisā™s early writing continues
to inļ¬‚uence, and heavily, the development of a catholic natural law tradition that
views itself as decidedly outside the mainstream of the secular legal academy. His
writing on the moral duty to obey just law continues to attract attention from his
positivist critics. But his developed substantive natural law jurisprudence failed to
signiļ¬cantly change the direction of natural law theorizing within the liberal legal
academy of the late twentieth century. By 1970, natural law, at least in the United
States, had taken a dramatically different, far less substantive, and only purportedly
more liberal turn.
By the 1960s Lon Fuller, our midcenturyā™s foremost American secular natural
lawyer, asked much the same question as that which engaged Finnis and his catholic