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natural law colleagues but answered it by developing, in essence, a nonsubstantive,
procedural alternative to natural law theories to which Finnis contributed: the
goodness of a morally good law, Fuller argued, is to be found not in any relationship
it might have to any substantive conception of the human good, the basic goods,
or the common good but rather in its regard for what we now call process, or
procedural justice (Fuller, 1965). Although the legal process school of the 1960s
embraced, partially, his response, Fuller™s so-called procedural natural justice did
not prove particularly regenerative within jurisprudence proper over the next half
century. The procedural notice, generality, transparency, and related process goals
that Fuller demanded of law for it to be good, seem, collectively, not quite good
enough “ plenty of very bad laws possess all of these process virtues and more so.
On the other hand, the analytic and philosophical claim Fuller insisted on “ that
laws that fail to meet procedural criteria of goodness are not and ought not be
regarded as law “ seemed, to many, far too stringent: plenty of laws that lack the
58 Robin West

requisite goodness, de¬ned by his criterion, seem to all the world except Fuller,
perhaps, to be law nevertheless. Thus, Fuller asked the right question “ what is the
good that a good law possesses? “ but his answer, procedural purity, notably failed
to convince.
Thirty years later Ronald Dworkin offered a very different, albeit equally secular,
natural law understanding of the legal good: perhaps the good law, or at least the
good judicial decision, Dworkin (1985, 1986, 2005) argued, is one that logically
and politically ¬ts within a pattern of institutional arrangements established by a
prior web of such decisions and is at the same time consistent with some defensible
conception of political morality. A judicial declaration that meets this two-pronged
test might be properly called both just and law, while one that fails either prong
is neither. Although it has had a longer shelf life than Fuller™s account, Dworkin™s
account of the goodness of a good law as well “ that legal doctrine, articulated by
judges, is both law and good when it is consistent with past legal practice and not
dramatically at odds with a decent conception of political morality “ also seems to
be waning in in¬‚uence. Dworkin™s reliance on integrity with past legal practice as
the test of both the legality and the moral goodness of judicially created law struck
many as unduly Burkean or tradition bound at best, and pandering at worst “
plenty of very bad laws will meet his test of goodness, if the historical web of
traditional legal and political decisions have themselves been bad or unjust. And,
as was true of Fuller™s, the analytical jurisprudential claim at the heart of Dworkin™s
jurisprudence “ that law consists only of those actual and potential and idealized
pronouncements that meet these moral tests “ like Fuller™s, seemed both over- and
underinclusive: it contains principles that do not strike anyone but Dworkin as the
stuff of law, and it excludes ordinary legal pronouncements that may not meet the
moral test but nevertheless seem to be law.
Both Fuller and Dworkin, for all their differences, put forward accounts of the
legal good, but in both cases, the claims seem, and have seemed to their readers, too
thin. Neither procedural purity nor institutional ¬t with the past are suf¬cient to
ensure the goodness of law, and neither, perhaps, is even necessary. Perhaps more
to the point, their moral claims about the content of the good that a good law
possesses in both cases was overshadowed by their analytic claim: that a law that
lacks goodness is therefore not law. The latter claim, which for different reasons also
failed to convince their critics, captured the legal academy™s attention more so than
either theorist™s account of the goodness that good law (or simply law) possesses.
For whatever reason, however, with Finnis™s substantive natural law contributions
largely in¬‚uential only within Thomistic traditions, Fuller™s in¬‚uence discernible
only in occasional traces, and Dworkin™s in¬‚uence likewise on the wane, there is
simply no secular natural law movement active in the legal academy that is putting
forward a serious claim regarding the nature of the goodness that a good law
exhibits “ or an account of how we know it when we see it. For those of us who take
quite seriously the importance of the moral question Finnis, Fuller, and Dworkin
asked, and who have a high regard for those natural lawyers in our history who
have tried to answer it, this is a profound lack indeed.
And what of legal positivism, once again the reigning philosophical and jurispru-
dential framework of the legal academy? Here, as well, we ¬nd little inquiry into
Toward Normative Jurisprudence 59

the nature of the good law, at least since H. L. A. Hart™s (1995) badly titled attempt
to spell out the minimal natural law content of positive law. There™s a profound his-
torical irony here: nineteenth-century positivists, at least from Bentham forward,
insisted on the separation of law and morality, in large part, to facilitate a clearer
critical posture toward the law that is “ only by separating the is and the ought,
Bentham and his colleagues thought, could we see the injustice or possibly the evil
of some of the law that is. Bentham™s embrace of legal positivism, then (whatever
might have been true for Austin), was clearly motivated by a desire to facilitate
clearheaded moral criticism of law “ that law is the command of the sovereign, and
nothing more, permits the critic to put the rose-colored glasses aside and adjudge
its utility, and hence its value, or its goodness “ apart from its claim to legality.
Only by ¬rst seeing law as it is can we hope to evaluate its goodness. Understand
clearly the law that is, so that one can better adjudge its utility “ and then criticize
freely, and ultimately reform.
H. L. A. Hart continued this Benthamic understanding of the critical root of
legal positivism, although without the utilitarian overlay: Hart, too, developed
legal positivism as a jurisprudence that would complement and facilitate liberal,
and critical, political engagement with extant law. Post-Hartian contemporary
positivists, however, have not followed through on the invitation to use legal
positivism so as to clarify the basis of (and need for) the moral criticism of law “
and hence pave the way for legal reform. Rather, contemporary legal positivists
who inquire into various de¬nitional accounts of law, including the relationship
of law and a community™s positive law, or the relationship of law to true morality,
do so, for the most part, to investigate the nature of the relationship of law to
some moral standard, not to the content of the moral standard itself. The question
for our contemporary legal positivist is how we determine whether some norm
is a law, and whether in answering that question we must ¬rst say something
about its moral value. The question is not, however, the content of the moral
good “ or even how we determine that moral value or lack of it. Contemporary
legal positivists, not unlike contemporary secular Dworkinians or Fullerians, have
focused overwhelmingly on the analytic part of positivism “ the claim that the
content of law must be determined by a nonmoral metric “ and have neglected the
moral motive for doing so: to better subject the law that is to the light of critical
reason.
Finally, critical legal theorists, their self-appellation notwithstanding, have for
the most part likewise not sought to elucidate the nature of the legal good. Rather,
critical legal theorists for forty years now have asked probing questions about the
relationship of law to power: Is law nothing but the product of power? If so, is that
something to bemoan, celebrate, or simply acknowledge? What is the relation of
law, some critical theorists ask, to patriarchal power, or, others ask, to the power
of capital, or, still others, to white hegemony, or, recently, to heteronormativity?
Does law legitimate these sources of cultural or social power; does law further the
false and pernicious perception that these and other hierarchical arrangements are
necessary? These are good questions all, but their answers do not imply anything
one way or the other about the goodness or badness of the law so unmasked,
revealed as contingent rather than necessary, or delegitimated. Rather, the focus of
60 Robin West

the contemporary critical theorist is relentlessly limited to the relationship of law
to the power that perverts, produces, or constrains it, or alternatively to the social,
cultural, or political power that is legitimated and mysti¬ed by the hegemony that
is law™s product. The nature of the legal good “ what makes a good law good
and what virtues a good law ought to have “ is decidedly not the object of study,
beyond showing the relationship of such a question itself to deployments of social
or cultural or legal power.
Here, as well, this stands in contrast to the work of earlier generations of critical
theorists who in¬‚uenced the philosophical orientation of our critically minded
peers and selves, notably the early-twentieth-century legal realists and American
pragmatists who so in¬‚uenced our understanding of law, for whom questions
of the nature of the human good that might ideally be served by law, and against
which existing law ought be criticized, were real and pressing (Cohen, 1993; Dewey,
1922, 1930). Likewise, the realists were not averse to explicitly moral critique of
existing law and debate over the nature of the human good that good law ought
to serve. Morris Cohen, John Dewey, and the architects of the New Deal had
contestable but nevertheless articulable understandings of our nature and what
law might do to contribute to human well-being. Contemporary critical theorists
have in essence retained the realists™ and the early critical theorists™ insistence on
power™s pervasiveness, but they have dropped their constructive moral ambition:
the ambition, that is, to specify a speculative account of human nature, from which
one might imply an account of the good that law might do, and then criticize
law accordingly. From our critical jurisprudential traditions, we get a powerful
critique of law™s sometimes-hidden political basis. We do not get the basis for a
moral critique of power or of the law that is its product.
In the absence of a jurisprudence speci¬cally focused on questions regarding
the nature of the legal good, how, then, do lawyers criticize law? For the most part,
lawyers and legal scholars moving from the legal is to the legal ought tend to use, and
to assume, values drawn very loosely, and for the most part nonre¬‚ectively, from
some version of these three traditions. Thus, for many traditional legal scholars and
likely for most lawyers, the goodness and the justice of a legal decision is a matter of
its ¬t with prior decisions, in a manner not dissimilar to what Dworkin described
forty years ago for his idealized Judge Hercules. For these lawyers, that a judicial
decision is in accordance with law “ that it has integrity; that it ¬ts with prior
precedent; that it is, in short, legally just “ is all that need be said on the question
of its goodness: if the decision is just, meaning in accord with prior institutional
arrangements, then it is good, and if it is unjust, meaning that it fails to ¬t, then
it is bad. Whether or not a decision is just depends upon its ¬delity to preexisting
law. Ergo, legal doctrine itself, read in its best light and over an expansive period of
time, exhausts the normative basis upon which at least legal decisions, if not new
law in its entirety can be judged. The good decision is the just decision, and the just
decision is the decision that accords in some deep and perhaps indiscernible way
with past law. For other lawyers, the source of the value that accounts for the move
from the legal is to the legal ought is roughly a tally of costs and bene¬ts: that a law
or regulation is ef¬cient or inef¬cient, likely to create more wealth than costs, is
all that one need know to ascertain the goodness of a law. Particularly for lawyers
Toward Normative Jurisprudence 61

in¬‚uenced by the normative wing of the law and economics movement, that a law
or judicial decision promotes ef¬ciency or increases wealth is suf¬cient to establish
its goodness. The lawyer™s expertise, if any, is simply to complement that of the legal
economist, to add legal acumen to the economic calculation where need be. And
to the rest of us, that either a law or legal decision “ and it doesn™t matter which “
does or doesn™t entrench established structures of power is basically all we seek
or need to know. If a law can be shown to legitimate power, promote hegemonic
values of various dominant political groups, mystify the nature of the contingent
and socially constructed world we live in, or create an illusion of false necessity, it
is therefore a bad law. If it delegitimates power, complicates the hegemonic power
of dominant groups, demysti¬es what appears to be necessary as contingent, then
it is good.
One can easily see the in¬‚uence of natural law, positivism, and critical theory,
respectively, in these common ways of evaluating law: the traditional doctrinalist
echoes the Dworkinian natural lawyer™s understanding that the good decision
is the just decision that accords with the past; the legal economist echoes the
classical legal positivist™s insistence that welfare or utility, and not tradition or
past decisions, ought to be the metric against which new law is judged, and
the egalitarian echoes the critical legal scholar™s focus on uncovering the politics
behind law and mainstream criticism both. The legal community quite generally
has embraced these three criteria “ integrity, ef¬ciency, and equality “ for the moral
evaluation of law and legalism. Jurisprudence proper, however, has eschewed the
careful and dialogic consideration of precisely the questions that generated them.
Yet, these criteria “ criteria pertaining to the institutional ¬t, ef¬ciency, or politics
of law “ and the possible answers they suggest do not exhaust the criteria we do
or should use in debating or pondering law™s goodness. That a decision is just “
perhaps because it ¬ts well with prior rules or decisions raising comparable facts “
neither implies nor disproves the goodness of the rule with which the decision
comports. And, as truly countless scholars have pointed out, that a law is ef¬cient,
maximizes wealth, or leads to a net increase of bene¬ts over costs does not make
it, therefore, a good law. Many of us can imagine or point to many a law that
is ef¬cient, wealth maximizing, or conducive to more bene¬ts than costs that we
would nevertheless regard as a travesty, and those who cannot so readily imagine,
nevertheless tend to concede the validity of the exercise. There is a gap between
the goodness of a law and its ef¬ciency, just as there is a gap between human welfare
and wealth. Finally, that a law or decision or body of law, legitimates, mysti¬es,
rei¬es, or re¬‚ects social power doesn™t imply that it is therefore a bad law; its value
depends entirely upon the value of the use to which that power is put. Likewise, a
law that furthers hegemony or that legitimates the power of patriarchy or capital
or the state or corporations, may or may not be bad “ or good “ by virtue of those
facts.
There are reasons, internal to each strand of jurisprudence, for the diminish-
ment in importance of the inquiry into the legal good. Both Dworkin and Fuller,
our secular natural lawyers, invited an identi¬cation of constitutional and moral
criteria of evaluation, thus con¬‚ating the legal is and the moral good, thereby
con¬‚ating as well the determination of law with the determination of its merits.
62 Robin West

This has the effect, desired by Dworkin and Fuller both, of morally enriching the
legal craft, but it also had the effect of subjecting the law only to internal legal “
albeit higher or constitutional “ critique, but legal all the same, thus muting both
the purely moral criticism of law, and jurisprudential inquiry into law™s potential
goodness. Within legal positivism, utilitarians, economists, and legal theorists have
tended to uncritically embrace an identi¬cation of the good with the desired, and
hence of human welfare with the product of choice and preference, thus con¬‚ating
the moral inquiry into law™s goodness with various empirical questions regarding
the relation of legal constraints with market and democratic outcomes. Within
critical theory, legal critical theorists tend to identify the project of critique with
the project of unmasking power, and to equate goodness with egalitarian out-
comes, thus neglecting the work of identifying and promoting the human good.
All of these intramovement trends have occurred over the past half century or so,
and all have left our jurisprudence remarkably hollow. The nature of the good, and
hence the good law, has been equated within secular natural law with constitutional
norms (both procedural and substantive); equated within positivism with desire,
preference, and choice; and equated within our critical jurisprudential movements
with the eradication of power. While other interdisciplinary movements “ law and
economics, law and humanities “ have to some degree ¬lled the gap, we have no
sustained jurisprudential inquiry, within natural law, legal positivism, or critical
jurisprudence, into the nature of the human good that law, a law, or the rule of law
might do.
We need a rejuvenated normative jurisprudence that centralizes, rather than
marginalizes, the concept of the human good, and the varying accounts of human
nature that might inform such understandings. Why? First, we need to be able to
ask what social or private or political injustices might prompt us to desire new
law, where such law is absent, and when we should create law rather than simply
how we should interpret the law we have. We need to be able to ask whether a
law might improve a less regulated or unregulated social environment. We cannot
do this with a jurisprudence that is court centered and focused on the virtue of
maintaining continuity with the past rather than focused on legislative creativity
and the virtue of meeting social need. Second, we need to be able to ask whether
our most basic legal institutions are good or bad and why. We cannot do this with
a normative jurisprudence that looks at most for integrity with past legal practice,
tabulates cost and bene¬t that assumes current preferences as given, or asks too
minimally whether a legal institution furthers or promotes social hierarchy. Third,
we need to be able to ask whether the conceptions of human nature that current
critical practices implicitly assume, or that implicitly inform our conception of
the good and the good human life, are true or false, underinclusive of our human
community, or denying of aspects of our nature “ whether, for example, a myopic
¬xation on our autonomous individualism has blinded us to the universality and
centrality of our dependencies on others, our vulnerability to calamity and disease,
even our mortality. We cannot do that with a jurisprudence that resolutely denies
the relevance or the appropriateness of inquiry into human nature and the human
good, as does much of our critical jurisprudence. Brie¬‚y, we need to ask, as a
matter of jurisprudence and political philosophy both, what good law can do
Toward Normative Jurisprudence 63

and all the questions that basic inquiry implies: What does it mean for human
beings to ¬‚ourish, and how can law and legalism contribute? In what way does
law or a particular law or a legal regime or a ¬eld of law increase our well-being?
When and where is law needed? What makes a good law good, and what makes a
law necessary, and what makes it inef¬cacious or worse? These questions have in
the past been central to jurisprudence and to its philosophical forefathers, in the
writings on human nature and well-being from Aristotle to Aquinas, and in the
writings on human happiness and welfare from Jeremy Bentham to John Dewey.
They lurk in the writings of some of our contemporary public philosophers, notably
the neo-Aristotelian and neo-Marxist writings of Martha Nussbaum (2000) and
the theorists of the capabilities approach to moral and political philosophy. But
questions regarding the good, and hence the legal good, have been sadly absent in
our contemporary jurisprudence, and we are all the worse for it.

WORKS CITED

Cohen, Morris. Law and the Social Order. New York: Harcourt, Brace, 1933.
Dewey, John. Human Nature and Conduct. New York: Henry Holt, 1922.
. Individualism Old and New. Amherst, MA: Prometheus Books, 1930.
Dworkin, Ronald. Law™s Empire. Cambridge, MA: Belknap Press, 1986.
. A Matter of Principle. Cambridge, MA: Harvard Univ. Press, 1985.
. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 2005.
Finnis, John. Natural Law and Natural Rights. New York: Oxford Univ. Press, 1980.
Fuller, Lon. The Morality of Law. New Haven, CT: Yale Univ. Press, 1965.
Hart, H. L. A. The Concept of Law. New York: Oxford Univ. Press, 1997.
Nussbaum, Martha. Women and Human Development. New York: Cambridge Univ. Press,
2000.
8 Critical Legal Theory Today
jack m. balkin




Among the many topics in the philosophy of law one has always been central
to me: the relationship between law and justice. Law does many things: it creates
institutions, facilitates transactions, gives incentives for socially bene¬cial behavior,
deters misconduct, manufactures social realities. But one thing law does especially
is legitimate power, both just power and unjust power. Law™s ability to legitimate is
the source of the nested opposition between law and justice. Law is never perfectly
just “ indeed, it is often not very just at all. And yet it is an indispensable condition
for justice.
Legitimate, like sanction, is a Janus word, one that refers simultaneously to a
concept and its opposite. To legitimate means to bring power under the rule of
law so that it is (suf¬ciently) just, impartial, or otherwise worthy of respect. But to
legitimate also means to apologize for or mystify the exercise of power so that it
seems to be just, impartial, and worthy of respect, whether or not that is so.
The dual nature of legitimate is the central concern of a critical theory of
law. Critical theories ask how law legitimates power in both senses of the word:
how it shapes, channels, and restrains power and how it mysti¬es, disguises, and
apologizes for it. In addition, a critical theory of law asks how the very acts of
making, interpreting, and applying law produce and proliferate ever-new forms of
power, both just and unjust.
You might think that a critical theory would focus primarily on law™s ideological
effects. But there is more to it than that. First, a critical theory must be as concerned
with how law might succeed in furthering justice as it is with how law disguises
injustice. Second, older Marxist-inspired models of ideology as obfuscation or dis-
tortion hardly do justice (pardon the pun) to law™s versatile powers of legitimation.
Law does not merely mask or apologize for power; nor does it merely restrain
it. Instead, law creates ever-new forms and methods for exercising power. Here
Foucault™s model of social relations is at least as important as Marx™s. Law prolif-
erates power by making itself true in the world. It generates new institutions, new
conventions, and new social realities, and it generates new forms of professional
knowledge about all of them. Law shapes the imagination of those who live under
it around the categories and institutions that it produces. Law does not simply
distort the world “ or even merely represent it correctly; rather it makes a world,
one in which and through which we live, act, imagine, desire, and believe.
| 64 |
Critical Legal Theory Today 65

A critical theory views law ambivalently as a method for legitimating (in both
senses of that wondrous word) the exercise of power in society. The word ambiva-
lence comes from Latin; it means having strength or effects on both sides. (And
hence, this dual effect often produces mixed emotions.) We should distinguish
an ambivalent conception of law from a pejorative conception. A pejorative con-
ception views law fundamentally as an ideological practice for mystifying and
legitimating injustice. By contrast, an ambivalent conception of law means that we
see both the bene¬cial and harmful aspects of law “ both law™s ability to further its
purported goal of a just social order and its ability to fall away from that goal and
to mystify and apologize for that failure. Law may offer an unjust and unwieldy
system for apprehending, incarcerating, and destroying human beings. It may also
offer important elements of procedural fairness, equality, and human dignity. It
does both of these things simultaneously, and it may be dif¬cult to fully separate
its harmful and bene¬cial aspects in practice. Justice and injustice, responsiveness
to the world and mysti¬cation, are often inextricably bound together. In the pejo-
rative conception, law is simply idolatry, a confused and contradictory mode of
discourse, a technique of apology and disguise. In the ambivalent conception, law
is both ideology and promise; it can be one resource among others in a project of
political redemption.
Critical legal theorists of the 1970s and 1980s asked whether law was a kind
of politics, and whether the discourse of rights was bene¬cial or harmful to jus-
tice and human ¬‚ourishing. When people speak of the relationship between law
and politics, they mean law™s relationship to the many different forms of power “
economic, social, cultural, political, military, and technological “ that law might
constrain, enable, or propagate. They also mean the ideals, ideologies, and argu-
ments that people use to justify these forms of power. Politics refers to people™s
contrasting visions and to the values that they want to realize or recognize in
public life. But it also refers to the power to realize or recognize those values and
visions. So, when we consider the relationship between law and politics we are also
interested in the question of law and power “ how people justify and legitimate
power, either directly or indirectly “ through law. And we must also account for
law™s methods of proliferating its own power, whether they be through legal con-
cepts, legal institutions, legal culture, legal education, legal of¬cers, or the legal
profession.
In any case, law is not simply politics; rather, it is a surprisingly plastic medium
of discourse about power and for the exercise of power. Law mediates, colonizes,
and transforms political and cultural struggle into legal doctrines and legal dis-
putes. In doing these things, law constructs a new kind of power “ the power of
legal knowledge and institutions “ that hopes to become indispensable to every
other form of power. Law is implemented and spreads through institutions and
practices that call on law or depend on law, and through a professional culture
that treats law as of the highest importance, indeed, as central to civilization itself.
Through legal arguments and legal institutions, political struggle and ideologi-
cal disagreement become refracted and displaced, only to resurface in ever-new
guises. Legal institutions and legal argument facilitate the exercise of power (and
struggles over power) while tempering and redirecting them. Law simultaneously
66 Jack M. Balkin

channels and facilitates, restrains and multiplies, the different forms of power in
society “ whether economic, social, cultural, political, military, or technological “
while proliferating its own forms of power, its own professional culture, and its own
authority. This complicated relationship between law and power is law™s relative
autonomy.
Three decades ago, critical legal scholars saw relatively little value in law™s relative
autonomy. They pointed out that if law were only relatively autonomous in this
way, law would usually tend to re¬‚ect the most powerful interests in society at the
expense of weaker interests. Worse yet, legal institutions and legal arguments would
disguise this phenomenon, attempting to show that injustices committed in the
name of law were required by legal reasoning, by legal impartiality, by procedural
regularity, and by the values inherent in the rule of law. Law would contribute to
and apologize not only for the dominant forms of power in society but also for
many different forms of subordination and injustice.
The argument was twofold. First, legal rhetoric often mysti¬es and legitimates
injustice perpetrated through law. Second, despite the surface appearance of rea-
soned elaboration, procedural regularity, and impartiality, legal reasoning is often
indeterminate or underdeterminate. Substantial parts of the law or aspects of the
law (like procedure and fact-¬nding) are suf¬ciently open textured in enough
areas and on enough questions that clever lawyers and judges can often reshape
its doctrines or its application with suf¬cient cognitive effort. By generating new
ways of interpreting laws and precedents, by jousting over application and pro-
cedure, and by describing and redescribing the facts, the most powerful forces in
society can often shape the practical force of law largely to their liking. They can
do this both in terms of the substantive content of legal doctrines and in terms
of how they would be applied to facts “ as the law found and interpreted those
facts. Even if doctrine is clear, application may be contested, even if application is

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