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Duncan Kennedy,
Legal Reasoning: Collected Essays
A volume in the series
Contemporary European Cultural Studies
Series editors,
Gianni Vattimo and Santiago Zabala
Legal
Reasoning: Collected Essays includes four essays written
over a twenty-year span. They present a comprehensive and
original account of legal reasoning as done by judges,
lawyers, and legal academics.
In a work that
is likely to become the definitive introduction to critical
legal theory by a leading theorist of the critical legal
studies movement, the author has been the first to put
together in a systematic way the insights of American legal
realism with Continental phenomenology and semiotics. His
version of legal reasoning presents it as "work in a medium"
deploying a set of "argument-bites" analogous to the words
of a language. The result is simultaneous freedom and
constraint. Kennedy then turns his approach to a critique of
current European legal theory, with an essay on Hart and
Kelsen and another on the approach of the European jurists
pre-occupied with "coherence" and with the "European social
model" in the current process of harmonization of European
law.
Contents
Introduction
Freedom and
Constraint in Adjudication: A Critical Phenomenology
A Semiotics of
Legal Argument
A
Left/Phenomenological Alternative to the Hart/Kelsen Theory
of Legal Interpretation
Thoughts on
Coherence, social Values and National Tradition in Private
Law
Index
Introduction
(from the book)
The four
articles collected in this book present an account of legal
reasoning, beginning with the practices of jurists in the
American common law system. Throughout, I’ve tried to
compare my version of American practice with alternative
European and American theoretical positions and with
European practice. The account is phenomenological. It
describes the experience of legal reasoning while suspending
or “bracketing” the question of the “essence,” meaning, in
the case of legal reasoning, the question what is “truly”
the law that applies to any particular case.
As far as I
know, “Freedom and Constraint in Adjudication: A Critical
Phenomenology,” the first of the pieces collected here, is
the only extant attempt to apply this methodology, derived
from Husserl via Sartre’s Being and Nothingness, to the
practices of jurists. This origin may make the account seem
exotic in the context of the academic discipline of legal
theory. It draws extensively, nonetheless, on the legal
realist writings that were obsessed with the question of
“what judges do.” Karl Llewellyn, Felix Cohen and Edward
Levi are important sources. The mode of presentation is
novelistic rather than philosophical or technically legal.
While
“Freedom and Constraint” is an overview, the second essay,
“A Semiotics of Legal Argument,” focuses in on one aspect of
the reasoning process. It proposes that we understand the
juristic practice of non-deductive legal argument about the
proper interpretation of a rule, or about the choice of a
rule where there is an acknowledged gap or conflict, through
the analogy of the langue/parole distinction in Saussurian
linguistics.
To this end,
it presents a partial “lexicon” of the “argument bites,” or
stock non-deductive arguments, used by jurists in opinions,
briefs and scholarly writing. For example, “your proposed
rule is too vague to be administrable,” or “your proposed
rule is too rigid to produce equitable outcomes.” Along with
the lexicon, the article identifies the “operations” through
which jurists generate whole arguments that are readily
intelligible (“meaningful”) as instances (“parole”) of
correct legal speech. This piece portrays these operations
as having a peculiar dialectical or reversible character, as
in the two argument bites above. As a consequence, skill in
legal argument will often permit one to neutralize an
opponent, or turn the tables, through the mechanical process
of producing the paired opposite of his argument.
As with the
phenomenological approach of the first essay, the semiotic
approach of the second has both an extensive European
genealogy and roots in legal realism, particularly in
Llewellyn’s famous article “Canons on Statutes,” which did
for the maxims of statutory interpretation what the first
part of “A Semiotics of Legal Argument” tries to do for
policy argument broadly understood. Unlike “Freedom and
Constraint,” this second piece deals, in an appendix, with
its Continental philosophical and American legal theoretical
origins. A second appendix addresses four “European
objections” to the approach of the article that I
encountered quite frequently when I first began to present
it at scholarly meetings over there.
The semiotic
study is in a sense phenomenological. It is, after all,
about the experience of legal reasoning. The claim that the
practice of non-deductive legal argument proceeds in a
manner that is well analogized to speech in a primary
language, with a lexicon, rules of transformation,
grammatical and syntactical rules, and so forth, is a claim
about what legal argument feels like from the inside. It is
an assertion about how jurists experience it, rather than a
claim about what it is in essence.
But there is
also an interesting analogy between the phenomenological
methodology of the first piece and the semiotic methodology
of the second. The second approach makes a bracketing move,
just as the first does. The phenomenologist brackets the
question of the essence of the legal norm: the question
“what is the valid legal rule governing this case” is set
aside as unanswerable. For the semiotician, the study of
legal argument requires us to bracket the question of the
correctness, or plausibility, or weight of non-deductive
arguments while trying to figure out what they all share as
instances of parole in the same langue.
All that
counts is determining the lexicon and the operations the
practitioners must deploy if the argument is to be a
“correct legal” one. But “correct,” here, does not mean
“legally correct,” only “correctly legal,” just as we can
identify a sentence as in correct English without having an
opinion as to its truth or falsity.
The effect
of the two bracketing moves is supposed to be to change our
understanding of what it is like to be compelled by legal
reasoning, or for legal reasoning to “determine” the correct
answer to the question what legal norm applies to a case.
The phenomenological account is supposed to persuade the
reader that jurists often destabilize their initial
experience of legal compulsion by legal work. They work with
that very intention, for one agenda or another, in the hopes
of making the legally determined legally undetermined, or
for that matter, in the other direction, to make an initial
experience of undetermination turn into its opposite.
The semiotic
account, in so much as it convinces that the effect of legal
necessity produced by a legal argument is often reversible
by a jurist skilled in the operations, is a case study of
one of the specific kinds of legal work that can produce
these results. It is an account of just how a jurist can go
about making the determinate indeterminate and vice versa.
The two
pieces together represent the experience of legal reasoning
as an activity pursued in a medium that is at once plastic
and resistant. They do not aim to show that legal reasoning
is always indeterminate, or that there is always a good
argument for whatever legal result the jurist wants to
achieve. They are firmly positioned against “global
indeterminacy” theses. They likewise reject the notion that
we can meaningfully state that law is “most of the time” or
“generally” determinate. Given the phenomenological
bracketing already referred to and the ever present
possibility of argumentative work, such statements are
meaningless.
On this
basis, the account has to do with politics in two senses.
The first is that it presents political ideology as an
important element in the interpretive activity of many
jurists, particularly in cases where there are high
political stakes of one kind or another. The second is that
the account is itself part of my own particular
left/modernist-postmodernist political project (as well as
part of what I don’t blush to call a “scientific” inquiry
into the subject matter).
In “Freedom
and Constraint,” I try to imagine what it would be like to
be a judge. The vehicle for the account is a novelistic
presentation of what I imagine it would be like for me to be
a judge in a United States District Court confronted with a
case in which, according to my first impression, the
obviously applicable legal rule will not permit me to decide
the case the way my political convictions tell me it should
be decided if there were no binding legal norm already
applicable.
The goal is
to describe convincingly the way in which the judge’s
personal convictions about justice enter into the decision
process. They do so, in my account, as what orients the
direction of the judge’s work of interpretation, rather than
as an external factor that simply determines it. They
motivate work in the at once plastic and resistant medium of
law. Moreover, in this account, the personal political views
of the judge are in part caused by his prior exposure to the
legal order he interprets, as well as an important influence
on how he does that interpretation. The result is that the
judge’s work may end by reversing rather than allowing the
realization of his personal agenda.
In other
words, political ideology is no more an outside, external
determinant, than it is an excluded irrelevance. Moreover,
political ideology is no more a self-applying text than is
the law. The judge will have to work to decide what his
personal political convictions require in the case at hand.
Like the work of legal interpretation, this will involve
unsettling experiences of determinacy and indeterminacy,
rather than the simple application of principle. Note that I
am not claiming that all legal reasoning is politically
oriented, just that that is sometimes the case and sometimes
with very high stakes.
This way of
looking at the role of politics in legal reasoning struck me
as worth developing at much greater length, and I did that
in A Critique of Adjudication [fin de siecle]. I have
summarized the argument of that book, and fitted it together
with these phenomenological and semiotic pieces, in the very
short, highly condensed “A Left Phenomenological Alternative
to the Hart/Kelsen Theory of Legal Interpretation.”
That essay,
as the title indicates, is also an attempt to situate the
account in mainstream legal theory by contrasting it sharply
with the “core/penumbra” understanding of legal reasoning.
The last essay, ”Thoughts on Coherence, Social Values and
National Tradition in Private Law,” does the same for the
named conceptions as they figure in the current discourse on
the Europeanization of private law. My hope is that the
rather elaborate attempts throughout the book to figure out
how my account resembles and differs from the more familiar
American, Anglo-American and Continental European accounts
will make it more intelligible, and easier to critique
constructively, than it would be if presented as a tub on
its own bottom, so to speak.
The second
sense in which these essays have to do with politics
concerns their objective rather than their content. They
were conceived as part of a left/modernist-postmodernist
ideological project. The left element means radical
egalitarianism and participatory democracy.
Modernism-postmodernism refers to cultural and aesthetic
modernism and its critique, rather than to the
Enlightenment. It is a project of avant garde
experimentation aimed, always within a limiting context, at
emotional/intellectual/aesthetic transcendence of
convention.
For both the
leftist and the modernist/post-modernist parts of the
project, a critique of legal certainty of the type developed
in this book seems liberatory. First of all, it seems clear
to me, as a leftist contemplating the possibilities for
radical social transformation, that one obstacle is the
reification or fetishization of law. By this I mean not that
people wish to be governed by law, but that the intensity of
the wish leads them to overestimate what law does or could
do to explain or justify social practices. The point of the
critique is that both the standard version of the rule of
law and the standard version of liberal constitutionalism
with judicial review, as purported descriptions of liberal
reality and as ideals, lose plausibility, to put it
modestly, when we take account of the under-determinate
character of legal reasoning.
One might
find this argument convincing even if one were a committed
liberal, or a conservative or a libertarian. In other words,
there is nothing inherently leftist about it. It is part of
a left project not because it is inherently leftist but
because in the current state of politics in the world, it
seems to me that fetishized or reified belief in the rule of
law is an obstacle to leftist conviction and activism. In
this respect, I have the opposite assessment from those who
see undermining legal fetishism as undermining leftist
faith.
At a more
abstract level, all of the essays operate in the
anti-liberal tradition of Feuerbach and Marx, and also of
rightist critics of the Rights of Man as the goal or
terminus ad quem of the project of emancipation. In this
tradition, liberal false necessity, including in particular
legal necessity, is always an obstacle to emancipation,
because belief is flight into fantasy, at the same time that
it is an impediment to analysis.
The
phenomenological/semiotic/ideological critique of legal
reasoning fits into the modernist-postmodernist project in a
somewhat different way. To the extent the account is
convincing, it pushes toward a particular kind of thinking
about the ethics of situations in which one has a duty to
obey the law. One might call it an anarchist mode, because
if the analysis is right, it puts actors who we normally
think of as obligated to obey the law in the position of not
being able to do that, or at least not being able to do it
in a way that decisively or clearly subordinates them to a
law maker other than themselves.
What law
there is to obey, even granting a full commitment to
obedience, will vary according to how much work, with what
work strategy, and what skill, they bring to bear on the
initial perception that a particular legal norm clearly
binds under the circumstances. This means that the jurist
has to decide in every case how to orient his or her work or
non-work. The jurist has to do this without being able to
rely on the notion of fidelity to law to answer the
question. This decision on a work orientation may (or, of
course, may not) have important social, economic, political
or cultural consequences.
That it may
turn out to be an unimportant decision does not mean that
the jurist can avoid it, or avoid responsibility if the
consequences turn out to be significant. It is as though
every case were at least initially within the category
denominated in the first article of the Swiss Civil Code as
requiring the judge to decide as he would if he were a
legislator. Or as though the law has always already “run
out” at the moment the jurist sets out to interpret.
So in what
sense anarchist? First, because an enlightened jurist can’t
believe of himself that he does what he does because subject
to the role constraint of obedience to law, that is to the
state. It is true that there is such a role constraint and
that it may or may not in the end determine his action. But
it is also possible that the role constraint that he must
seek justice will turn him into a law maker no matter how
much he doesn’t want that responsibility. It may require him
to do at least a little potentially destabilizing legal work
whenever his initial sense is that the obvious
interpretation of the law makes it an instrument of
injustice.
Anarchist
also in the stronger sense that where the actor is playing a
decision making role in a private institution, corporate in
one sense or another (for profit or not, etc.), the same set
of questions and dilemmas arise. The institution will have a
mission and a mission statement, some claim to be ethically
situated even if only as a profit maker for shareholders.
Actors are agents, just as in the state context. The
actor/agent will have to decide, according to his or her
personal convictions, in which direction to work when
interpreting the mission statement.
The notion
is that all these decision makers who supposedly, in
principle, are bound by the law or by the charter of the
particular private entity they are part of, are constantly
exercising a denied discretion in choosing a work strategy.
Once I’ve acknowledged this, my thought is that I have to
start taking responsibility for the discretion. I can’t
lodge it outside myself. My political program as a legal
reasoner becomes to do the reasoning in such a way that I
advance the good.
My idea is
that this decision has to be political in the strongest
Weberian sense: the ethic is what Weber calls “the ethic of
responsibility” meaning responsibility for all the
consequences, without being able to appeal to a coherent and
socially accepted set of criteria of justification for the
decision. The role constraint is no more than “do your best
under all the circumstances to do something politically
good.”
If I am to
decide in full responsibility for all the consequences, I
have to take into account the possibility of tacit or overt
alliances with other legal reasoners, alliances that may
require me to sacrifice what I’d like to see happen in a
particular case of legal reasoning in the hope that the long
run consequences will be more beneficial than those of
sticking to my guns. Again, it seems plain to me that judges
and other jurists already do this all the time. But they do
it while systematically denying it.
I have,
moreover, to take into account what others will likely do
with their discretion. What I say about, first, my
discretion, and, second, about how I propose to exercise it,
should be influenced by the consequences for the legal order
(and beyond) that I anticipate from their reaction to the
way I describe what I am doing. So I may have to confront
the classic problem of good faith in my description of what
I’m doing—do I misrepresent myself as law following when I
experience myself as law constituting? One way in which I
think of this book is as an attempt to force this question.
Author
Duncan Kennedy
is the Carter Professor of General Jurisprudence at Harvard
Law School. His previously published books include The
Rise and Fall of Classical Legal Thought, Legal
Education and the Reproduction of Hierarchy, A
Critique of Adjudication [fin de siecle], and Sexy
Dressing, Etc. He is the author of numerous articles in
American and European law reviews. Kennedy was one of the
founding members of the critical legal studies movement, and
was active in its efforts to transform law and legal
education over the period from the late 1970s through the
early 1990s. He is at present the best known advocate of
critical legal studies in legal academia.
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