Category: Symposium (Normative Jurisprudence)


Being and Thought in Robin West

Let me focus on aspects of Robin’s Critical Legal Studies chapter as a way of in part accounting for the disappearance of what Robin calls the “moral brief” in CLS. This may help account for why it is so difficult to achieve today the morally-centered jurisprudence to which her book aspires, but also why new movements may be emerging that will make this possible .
First let me say I very much like the way Robin shows the indeterminacy critique ingesting the moral brief within CLS. I agree with Robin that the indeterminacy critique should only have been an ‘analytical’ lesser included element in the moral critique instead of swallowing it whole by self-referentially rendering the moral critique itself indeterminate (and I said so in my “Critical Legal Studies as a Spiritual Practice” at 36 Perpperdine L. Rev. 515). And I also was intrigued by Robin’s showing how the specifically Foucauldian power-obsession could ultimately give rise to the neo-crit substantive world-view that would ‘amoralize’ the moral critique as itself a mere expression of power. I really liked all that.

But I think perhaps Robin underplays the lived-experience hemorrhage that was the collapse of the 60’s itself, the actual loss of confidence in our moral understanding that was originally an expression of the collective ontological force of the movement itself as a rising up of a group-in-fusion and a dawning of moral awareness grounded in the group’s felt confidence–the “moral glue” that gave way in the whole society, or rather across the movements and within the larger felt moral-support movement that unified us or ‘lifted’ us, like a wave. The return following Reagan’s election (and especially his second election) of ‘atomization’ and the concomitant loss of self that came with that, this return of collective doubt was the key factor to my mind that weakened our moral conviction at the level of our social being, ‘underneath’ the very ideological/cognitive processes that Robin describes as the erasure of the moral brief at the level of thought. In the face of the collective flight that Reagan’s emergence symbolized, a deep-seated fear reasserted itself, Fear of the Other who would no longer be There for me, for each person, as a confirmatory partner in a felt moral universe. By hemorrhaging away from each other, we cast each other back into solitude, with the full-time help and money of the forces of conservative social reaction (as well as the rise of the more centrist liberalism of the Clintons and the liberalized-by-the-60s professional class) to make sure we could no longer recognize each other as a truly transformative moral social force moving toward a radically transformed egalitarian and loving community. The formula for the moral weakening I’m describing was thus Ontological Doubt+Conservative Opposition and even Demonization+Cooptation into a non-transformative centrist-liberal imago of “society”.

Within CLS itself, this loss of confidence was manifested in a quite specific ‘sociology’. The weakening of the erotic-binding or connection-force or affirmation-force that had unified the various identity groups–the weakening of that lifting wave–increasingly led to a kind of identity-terror, the hostility among groups within CLS became predominant over the aspiration to moral transformation of law and society that originally gave birth to us (as Robin shows in her description of the Georgetown conference which I believe she helped to organize). This hemorrhage of the moral force of what had previously brought us all together and given birth to CLS in the first place and then also gave birth to the femcrits and Critical Race Theory was hardly unique to CLS. What took place within Critical Legal Studies was common across all the 60’s movements, and as we ebbed away from each other our moral thought lost (some of) its moral base in experience, a weakening that led the emerging, maturing professors and scholars in CLS—all up against a now post-60s relatively more conservative culture—to become uncertain about their formerly confident critique of alienation, of law as legitimation, and of the moral necessity of a fundamental transformation of social relations and of legal culture as well.
This general point about the historical basis of the weakening of the moral dimension of CLS thought points up an underlying ambiguity in Robin’s book about the relationship of being and thought in general, or more accurately of the relationship between social being and social thought.
For me, the moral dimension of legal discourse and of jurisprudence is inherently linked to the upsurge of mutual recognition and of moral awareness at the level of ‘social being’ that is carried forward by the process of what we call “movement”, the social manifestation of desire, the desire for a better, more affirming, more mutually recognizing social world. This movement is something that is lived out in direct relations between human beings; it is grasped in lived experience and then becomes something that is “thought” in, for example, “normative jurisprudence.” In this sense I would say Robin’s book is a legacy of feminism, which itself is a carrying forward of the liberatory memory of prior social movements and incarnations, and the ‘validity’ of the book is rooted in its implicit evocation of the memory of the lived experience that has made our moral nature known to us. By the same token, the ‘State” itself is not a fixed entity but a partial expression of this lived moral awareness, the moral consciousness prevailing within the group, within society, at a particular moment. When people are pooled up in what I once called “the pact of the withdrawn selves,” when they are withdrawn into themselves, ‘the State’ tends toward becoming a kind of collective otherness, an alien projection of a kind of false collective, and moral discourse becomes rudderless, as it largely is in the present moment in history, when rights with fearful content (the right to bear arms) are overwhelming the memory trace of rights with positive historical meaning (as when the right to equal protection, at a certain moment in the nineteenth century, meant the abolition of the dehumanization of other human beings). But there are moments when the reverse occurs and ‘the State’ becomes infused with the aspiration to authentic community, although in my view constrained by individualist paradigm that at one time had utopian content and now centuries later mainly seals us in separation, although that is another story.

To me this fluid nature of ‘the State’ addresses both the pro-legal-reform aspects of the femcrits and Critical Race Theory…the positive uses of the State whose ambiguity Robin discusses…and the more fear-based view of the State which the neo-crits in my opinion make something of a fetish of to the extent that they tend to locate Power everywhere and are too preoccupied with ferreting out its pernicious influence, in a way that makes them wary, afraid, of any binding moral discourse. Both of these conceptions of Law and the State can be true depending upon the underlying sense of connection or disconnection at the level of social being in the culture. Thus, the important link that needs to be illuminated and furthered in my view is the link between the development of the being of social movement as lived experience and the moral expression of that process in legal discourse. In this I’m wholeheartedly on Robin’s side, the side of moral vision and a morally informed legal discourse—or to use her phrase, the “moral brief” and the cumulative legacy of social movements that support it–but i would not install that moral vision and discourse in the projected entity called the State, but would want to specify, narratively, how it could be HERE, or linked to politics and lived experience.

I think what this means in today’s world is to ally the call for a moral jurisprudence with the developing spiritual-political movement that is trying to be born in many incarnations across the world, a post-Marxist vision of social transformation that affirms the spiritual dimension of human existence and of our connection to each other and roots moral claims in that intuited, invisible awareness of our longing to see and be seen by each other in a life-giving and affirming way. When Martin Luther King said, “Justice is Love correcting that which revolts against Love,” he was pre-figuring a jurisprudence grounded in a new recognition of our common humanity not as mere material beings with economic needs, but as spiritually connected social beings with needs for meaning, recognition, and love. I’d urge Robin to tie her call for a recovery of the moral dimension of law to this emergent spiritual force, and to help teach and inspire a new generation of scholars who can think from this kind of awareness rather than the rudderless, indeterminate analytics that is the dead end of a despiritualized liberal scholarship.


Natural Law, Human nature, duties to obey the law

I hope everyone is safe and warm and happy to stay wherever you are. I have just a couple thoughts on a couple of the posts to share.

Mark Murphy suggests that a milder or softer version of the natural law thesis is not subject to the ambiguity i argue afflicts stronger versions. The ambiguity I identify and discuss in the book is this: the claim that an unjust law is not a law can mean that unjust positive laws are not truly Law, or it can mean that anything the sovereign passes, so to speak, is not only law, but also, by virtue of that, it is just as well. The sovereign commands both the content of the law and of justice. The first interpretation lends itself to MLKing or Gandhian styled civil disobedience or even revolution; it allows the dissenter to claim the mantle of Law-abiding while disobeying particular unjust laws or legal regimes. The second interpretation allows the state to claim the mantle of justice as well as law, as it governs. This is a restatement of the same ambiguity Bentham noted, in his words, natural law lends itself to either anarchy or reactionary politics.

Mark dismisses Bentham as a credible commentator on natural law,, and then suggests that there may be exemplars of the reactionary interpretation of the strong natural law thesis, citing Hobbes. He then though suggests that the softer interpretation of the natural law thesis, that there are moral criteria for the enactment or identification of law, does not lend itself to reactionary or unduly conservative interpretations. Natural law, so to speak, is always the friend of the critic or disobedient, never the handmaiden of the sovereign, the powers that be, the status quo, etc.

I’m not sure. It seems to me that contemporary natural lawyers, and particularly John Finnis, spend an inordinate amount of time justifying the existence of a Duty to Obey the Law. Positivism is now more routinely identified with (and rightly) skepticism toward the existence of such a duty, and Natural law identified with the opposite: with the existence of a robust duty to obey the law. This is, to my mind, simply the softer version of the ambiguity Bentham first identified. Its also the flip of the associations with each tradition in the legal academy and to some degree in the general culture, or at least academic culture. We think of natural law as the jurisprudence of ML King and Gandhi and other people of conscience, and legal positivism a the jurisprudence of Nixonian devotees of law and order. Cover did a lot to promote these associations….I think it is at least half wrong. Natural law is sometimes employed politically toward these ends. In academic writing, however, if not in political rhetoric, it is these days far more often pressed toward the end of understanding the virtues of law abidance, not disobedience. The law, according to neo-natural lawyers, has an internal moral structure sufficiently robust to imply a duty to obey it. The work for natural lawyers is simply to identify what that structure might be. It is legal positivists, these days, Raz most prominently, simply denying the existence of any such duty. We might of course have duties to obey rules that are themselves good rules for reasons other than their identity as law — they may be concurrent with moral rules, or they may lay out sensible schemes of cooperation. But the duty to follow them, if it exists, exists for those reasons, not by virtue of their legal stature.
To my mind the positivist has the better of the argument, but all i want to suggest here is that natural law, today, is far more identified with the position that there exists a duty to obey the law, which is itself an echo of the what i called the conservative interpretation of the natural lawyer’s claim that law is definitionally, simply by virtue of being law, therefore also just.

It seems to me that Aquinas clearly did not intend this interpretaion, but rather, the critical interpretation, that there is no moral obligation to obey an unjust law.

Peter suggests an additional reason to be skeptical of the possibility of invigorating a progressive natural law: that there is no support, at least in Aquinas for an interpretation of the natural law tradition that isn’t reliant upon religious commitments. It seems to me the strength of Aquinas’s contribution in Summa Thelogica is the insight that reason gives us a window to god’s law, and that at the heart of god’s law is basically a commitment to human happiness. REason then should give us a guide to human happiness….

Mark Spindelman rehearses the reasons to worry of any claim, progressive or otherwise, that invokes human nature to justify much of anything, not only because such claims are as often as not incoherent, but also because they are more often than not retrogressive. I find that Marc’s own work constitutes a pretty clear counterexample. Marc has argued in a number of articles that liberal and postmodern positions on sexual liberty threaten sexual safety and integrity. These arguments generally, i believe, (like some similar claims i’ve made) depend on a conception, whether stated or not of human nature, and more clearly, on the claim that once was straightforward enough that people create texts rather than texts creating people. It is the latter commitment that gives him the latitude to argue against so many texts so convincingly — against the texts, on the basis of solidarity with the people.
So much else, I simply agree with, including, Deborah, your commitment to the thin constitution, although as you noted, our reasons are very different. Thank you so much for your thoughtful comments! Many thanks to Kathy Baker for her wise reflections on sex and marriage, and more pointedly for her exhortation to progressives to attend the case for civil marriage — and Kathy, i have heard my friend and colleague Jana Singer at Maryland make the same claim repeatedly, she might have written on this. Thanks as well to Meredith and Michelle for furthering the purely jurisprudential arguments of the first two chapters, Amy Uelman and John Mikhail for spelling out implications, and very different implications, for natural law views that are not dissimilar to my own,  Chai and Heidi for highlighting implications and contributing complexities of an array of claims,  Mary Ann for an incredibly powerful example of some of the arguments in chapter three, and a whole hearted thanks to Anita Allen for her insightful analysis of the relation between CLS and CRT, a topic i touched on but nowhere near adequately, and for her personal recollections of the genesis of both movements.
I very much enjoyed writing the book, and I’ve enjoyed this exchange hugely. I wish i could have found time to reply to everyone individually, but some will have to wait for personal conversations. The storm has taken over everything. Danielle, you are absolutely amazing, thanks again to everyone at Concurring Opinions that made this possible. I deeply appreciate it.


Natural Law Psychology, Human Nature, and Plato’s “Meno”

As several commentators have noted, one of the most provocative aspects of Normative Jurisprudence is Robin West’s willingness to take a fresh look at the history of natural law theorizing and to identify valuable insights from that tradition that could be used to promote a “progressive natural law jurisprudence.” Robin distinguishes two natural law traditions: (1) an ethical natural law movement (“natural law ethics”), which is focused on the common good and its relation to human nature; and (2) a jurisprudential natural law movement (“natural law jurisprudence”), which is focused on the connection between law and morality, and in particular on the meaning of the maxim, lex iniusta non est lex (“an unjust law is not a law”).

Robin’s primary objective is to focus renewed attention on natural law ethics and its orientation toward the common good. She makes a strong case that legal theory has suffered by failing to take seriously the content of the common good that just laws should promote and its relation to intrinsic human needs, capabilities, and aspirations—all topics to which natural law ethics has made notable contributions. In one of many eloquent passages, Robin writes that “the antipathy of liberal and progressive lawyers to natural law ethics is a sturdy stool that rests on three legs. The first is liberalism’s commitment to state neutrality toward the good and the good life. The second is contemporary neo-natural lawyers’ embrace of an illiberal understanding of sexuality and simultaneous insistence on a reflective method that defies ordinary forms of rebuttal. The third is progressive disdain for any and all debate regarding human nature, and inferences regarding the content of need, and the content of basic human goods that might be drawn from a tentatively held description.” As Robin concludes, none of these seems like a good reason “for neglecting the development of a progressive or liberal interpretation of natural law claims” (50).

I am inclined to agree with Robin on all these points, in particular her criticism of the absurdly repressive sexual morality espoused by some prominent neo-natural lawyers. In this post, I would like to take her incisive analysis one step further by highlighting a third, related movement in the natural law tradition, which also is central to that tradition, yet which also has not received adequate attention from legal scholars, although this may be starting to change. Adapting Robin’s terminology, one might call it the psychological natural law movement (or “natural law psychology”). In what follows, I will briefly sketch one of the most influential historical arguments for natural law psychology. I will then offer a few tentative thoughts about how it might bear on aspects of Robin’s project.

Broadly speaking, natural law psychology is a theory of human nature that holds that human beings possess an inherent sociability, natural moral sentiments, and innate powers of moral discernment. Put in these terms, the theory is capacious enough to encompass a wide range of thinkers, including Aristotle, Aquinas, Grotius, Kant, the moral sense theorists of the Scottish Enlightenment, the “founding fathers,” and early feminist writers, such as Mary Wollstonecraft.  Here, my focus will be elucidating one of the theory’s classical expressions in antiquity, which can be found in Plato’s Meno.  In that dialogue, Socrates seeks to convince a skeptical Meno that an untutored slave boy knows principles of geometry and ethics, even though he has never been taught these subjects. Socrates does this by asking a series of probative questions designed to elicit the boy’s innate knowledge of geometry. Socrates succeeds in this endeavor and convinces Meno that the boy possesses many true thoughts and common notions that only need to be awakened and raised to conscious awareness. The “Socratic method” as it is sometimes deployed in law schools to degrade or humiliate students, or to make them feel less confident in their abilities, is thus arguably a perversion of Socrates’ own method, which was designed (or at least can be plausibly interpreted) to demonstrate how naturally capable human beings are, even those who have received little or no formal education.

Although it is tempting to dismiss it as far-fetched or antiquated, Plato’s argument from the “poverty of the stimulus” in the Meno is, in fact, one of the most powerful and enduring philosophical arguments of all time. With only minor modifications, it remains one of the dominant paradigms in the contemporary cognitive sciences, whose central problem is often a reformulation of Plato’s question: “how does the human mind get so much from so little?” Plato’s specific answer—recollection from another life—has long since been discarded and replaced with more credible alternatives, rooted in evolution, genetics, and complex organism-environment interactions. Nonetheless, at a certain level of abstraction, scientists have not progressed much farther in their basic grasp of how learning and development occur in each individual.

For example, in the seventeenth century Descartes demolished the neoscholastic theory of vision by arguing, in a Platonic vein, that human beings were “natural geometers” who managed the difficult task of depth perception by relying on unconscious geometrical computations. Today, many leading psychologists, such as Susan Carey, Alison Gopnik, Kiley Hamlin, Amanda Woodward, Karen Wynn, Fei Xu, and one of my own mentors, Elizabeth Spelke, continue to conceive of the basic problem of cognitive development across a variety of domains in essentially similar terms. The central challenge is to explain the “massive mismatch” between the rich outputs of the mind and the sparse and ambiguous information available through the senses. Generally speaking, the best answers rely on some theory of natural cognitive endowment (whether called core knowledge, inductive biases, Bayesian priors, or something else) to explain how the mind draws these inferences.

Even on this limited basis alone, then, Robin seems correct to insist that progressive legal scholars should stop ignoring the concept of human nature or pretending it does not exist. Instead, they should consider rolling up their sleeves and engaging with the modern scientific literature on human nature, including, by parity of reasoning, research on intrinsic human moral capabilities, sentiments, values, and needs. For these and other reasons, Robin also seems correct to criticize the dominant pattern of liberal and positivist jurisprudence that embraces a conception of human nature that is “individualistic, atomistic, differentiated, and so lacking in common attributes as to defy attempts to describe it” (42). This criticism can be framed in the terms Robin employs so effectively in Normative Jurisprudence, but it also can be broadened to include the modern legal academy’s general neglect of the natural sociability, altruism, empathy, and moral powers that lay at the heart of natural law psychology.



The “Missing Jurisprudence” – Part 2

In my previous post, I recounted the pay-off one might expect from the development of what Professor West characterizes as a “missing jurisprudence” – that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.

In this post, I summarize and comment upon Professor West’s account of why liberal and progressive members of the American legal academy have failed to take up the questions of the natural law tradition and make them central to their jurisprudential projects.

Adopting an illuminating trilogy of military metaphors (“friendly fire,” “self-inflicted wounds” and “incoming artiliary”), Professor West explains the reasons why such a jurisprudential orientation has been so long “missing” (“missing-in-action”?) in the American legal academy.

To capture the gist of these military metaphors, it is helpful to identify the different sides in this jurisprudential battle:

Read More


A Thought Experiment

As I mentioned on Monday, I read Normative Jurisprudence as a call for more serious legal discussions about the good in relationship and the good in sex.  In the past 3 days, I’ve written about relationship (or at least marriage). Today, I’m going to talk about sex.  I’ll start by saying that Robin West first became my hero when, in the 1980s, she, more than anyone else, wrote openly and honestly about many women’s relationship to sex.  At that time, feminists were talking a great deal about the harms of non-consensual sex, but not about  why women might actually want to have sex.  Sex positivists, both male and female, emerged to extol the benefits of sex (or at least the harms of regulating it) in order to mostly kill the feminist attempt to regulate pornography. Not very many people argued, as Robin did, that we really did need to have it both ways.  Sex could be good and sex – even consensual sex – could be bad.   Today queer theorists and sex positivists talk
a great deal about sex, including, as Marc Spindelman reminded us yesterday, its incessantly irrational nature.  For much of queer theory, the power of that irrationality and the raw “natural” power in sex renders sex a force and a good around which there should be no or minimal boundaries.    Few people, save Robin, the followers of John Finnis and the ever-opinionated-if-not-completely-informed Richard Posner, talk about what sort of boundaries we might believe should be put, either as a matter of ethics or a matter of law, on a right to sexual expression.

It is not surprising, therefore, that when Justice Kennedy was left to describe what was wrong with anti-sodomy laws in Lawrence he could provide only a thin understanding of why sex needs protection:  Sex is an expressive part of relationship
(“when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”).  As a fan of relationship (see all that marriage stuff), I am not as outraged by this language as many of the progressive critiques of it, though I also see no good reason for the law to bar fully consensual, non-dangerous non-relationship sex (which, if it was sexual at all, is apparently what the encounter in Lawrence v. Texas was, anyway.)     There is something about the sex that  needs to be protected apart from relationship, or at least I can think of no good reason to protect the sex only when it is in relationship.

But of course constitutional jurisprudence says that unless we have triggered some form of added scrutiny, legislatures do not need a good reason, they need only any reason.  “Yuck” is a sufficient reason for regulation if there is no added scrutiny.  Justice Kennedy suggested that the added scrutiny comes from the relational aspects of sex.  If we want the right to be broader than that, we need a broader reason for added scrutiny.

Articulating that broader reason may be more difficult than we think.   Here’s a thought experiment. If you asked a swath of the general American population who do you agree with more, John Finnis or Janet Halley, I bet more people would say Halley.  Every poll and study confirms that Americans find nothing wrong with non-marital, nonprocreative sex and they would reject Finnis’ anachronistic views of sex out of hand.  In many isntances involving sexual conduct,   the public seems content to let people do what they want. But if you asked that same group whom they would like to control the Supreme Court tomorrow – and they had to choose Finnis or Halley –   I bet more people would vote for Chief Justice Finnis. Here is why. Finnis would permit legislatures to make nonprocreative sex illegal and make birth control hard to come by, but he would not have the power to effect the change he wanted.  He would concede that sex should happen in private, so people would be entitled to some sexual privacy.  There would be enough popular disdain for very sex restrictive laws that even if they did pass, enforcement efforts would be haphazard.  Certain areas would be unlivable for gay men and lesbians (thus, the gay vote would clearly go for  Chief Justice Halley) and some innocents would be unfairly punished, but mostly the government would not be up to the regulative task that Finnis would argue it was entitled to pursue.

Put the queer theorists on the Court though and look what happens to sex. It is everywhere and it is protected.  It is with all manner of partners, teacher and students, uncles and niece.  It is presumed consensual; it is happening on the park bench at noon.  Not everyone is doing it on the park bench, but anyone who wants to can.  Not all students are sleeping with their teachers, but those who are not (or those who are no longer) have no grounds to complain.  Many people are uncomfortable.  People are concerned about naïve and/or vulnerable people experiencing sex that they do not want or come to regret.  People feel threatened, though they are not sure why.   There is renewed  interest in Catharine MacKinnon’s claim that when sexuality goes public, women get hurt.

Whatever the true cause of the discomfort, people do not want to go to the park with their kids.  Parents do not want to let their daughters out of their sight.  People of all ages become a little desperate for some collective restriction on this activity that they know is deeply important to them, indeed they know it is deeply important to everyone.  They know they need a better reason than “yuck,” but they also know they want some regulation.  So they need a conversation about why and how
we want sex.

My guess that most of the American public would actually prefer Chief Justice Finnis may be completely wrong (it assumes, first of all, that people have a basic understnading of the relationshp between legislature and court – that may be way too optimistic).  Maybe people are much more eager to embrace Janet Halley’s vision than a I think they are.    But Robin, far more than Posner, has explained why for many people, often women, sex really is a tedious affair, having little to do with passion or captivating and blinding power.   Perhaps, as Robin has gone to great pains to emphasize, consent is a sufficient legal restriction on sex, but even if that is true we might want other normative forces operating on sexual behavior.


Moral Values and the Curriculum

What great fun to read all these posts!

There are three separate threads on the posts that I want to respond to: the impact of Robin’s analysis and exhortations on what our law school curriculum might look like; the three Rs: Robin, Robert (Cover) and Religion; and the intersection between moral values, relationships and marriage.

So, to the first –curriculum.

Among the changes I hope will follow from Robin’s work are significant changes to the law school curriculum. As Rebecca Lee notes:

As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy. To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis. Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom. As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship

I completely agree.  Moreover, I think it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills.  Robin has noted in this book the importance of liberal progressives being able to deploy normative arguments that rely on a thick understanding of justice and moral goods and she will make an even more extensive argument on the importance of teaching students about justice in her forthcoming book about law schools.  To me, giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that Robin is suggesting.

But I also can’t imagine having students learn about, and critique, theories of justice without also having a deep understanding of how our political system – which ultimately creates the body of laws that reflect our vision of justice — really, actually, and honestly works.

The lack of understanding on the part of the general public regarding the role and authority of the executive branch and the legislative branch sometimes takes my breath away.  By virtue of their profession, lawyers should be leaders in educating people about how our lawmaking system actually works and in helping people engage in citizen democracy.  But we don’t give our law students a comprehensive and rich understanding of lawmaking – the role of legislatures and agencies (as well as courts, which we cover quite well) in the making of law.

The good news is that this is beginning to change. Many schools are expanding their vision of what “teaching law” includes – which often extends to teaching students about advocacy in the political arena that makes law in the first place.

For this reason, I believe a forthcoming article on how law school clinics can lobby, co-authored by Professors Kevin Barry and Marcy Karin who head clinics that engage in both individual client work and policy work, is going to become a popular reading item. As Barry and Karin note in the beginning of their article:

In short, policy advocacy adds value for students, the law school, and the community. With respect to students, this type of clinical experience expands students’ toolkit of transferable legal skills and exposes them to the range of ways in which the law may offer solutions to a particular client or client base. It also responds to the growing student demand for policy advocacy opportunities and enables students to aspire to the highest ethical standards as set forth in the Preamble to the ABA Model Rules of Professional Conduct. These rules state that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” MODEL RULES OF PROF’L CONDUCT Preamble (2012) (emphasis added).

And finally, Jill Hasday’s post brought home to me how important students’ policy advocacy work can be – and what has been missing so far in those efforts, in terms of curriculum.  Jill tells us:

Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence.

Well, the only reason there is not a mandatory family cap in ALL 50 states in this country is that, back in 1996, students in the Georgetown Federal Legislation Clinic who were working on behalf of their client, Catholic Charities USA, helped draft legal analyses and talking points against the family cap. The original welfare reform bill had required every state to have a mandatory family cap in its TANF program.  Catholic Charities (the client) took the lead in organizing a coalition against that provision.  Politics was such that the best Catholic Charities could get was a provision that permitted states to impose a family cap if they affirmatively chose to do so.  The students who worked with Catholic Charities over the course of that year learned critical legal skills by doing that work and (from my perspective) helped advance social justice by eliminating the nationwide mandatory family cap.

But here’s my final point – the work of Georgetown’s Federal Legislation clinic on welfare reform (and on many other legislative and administrative issues over the past two decades) has enabled students to learn about the political system and the making of law, and to develop important legal skills.  But there is SO much more about justice and values and normative goods (and arguments about normative goods) that could have been taught to the students if they had had available to them – as Robin calls for — a richer progressive natural law jurisprudence.  Think about what more the students could have learned if part of the law school curriculum would have been to engage them in a substantive goods conversation about the family cap – at the same time that they were working on the issue in a practical way.  (I can tell you — I did not engage the students in that conversation.  But I would do so now, as a complement to their advocacy work.)

So to end with Robin’s words:

As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise [state neutrality toward conceptions of the good] is that partly as a consequence, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.

Amen. (Designed as a segue to my next post: “The Three Rs: Robin, Robert (Cover) and Religion.”)





“Human Nature”??

Thanks, Danielle, for organizing this conversation and to the others at Concurring Opinions for hosting! And, of course, to Robin for this new gift of a book. It’s such a pleasure to be a part of this conversation.


To read Robin’s Normative Jurisprudence and hear its call for a new and different turn to a deep, normative scholarship about justice, including the common good, feels like nothing so much as an exhortation to make what we, as legal academics do, matter and matter profoundly. It’s not that the descriptive work that many of us are doing—whether as our work’s sum or as part of larger normative projects we are pursuing—or even that what Robin calls the “faux-normative” work that broadly defines normative scholarship in law isn’t worthwhile. It’s that this is not as much as we can and should make our scholarly work be, or at the least try, in the spirit of an ideal. In this sense, there’s something wonderfully insightful in Brian Bix’s impeccable humility: We mostly live and work in the shadows, not just sit atop the shoulders of the greats of the past—and present. But what’s useful about Robin’s own embrace of a new, deeply normative turn in scholarship—and her encouragement to others to embrace it—is that it can serve as a catalyst, reminder, or question to ask ourselves: Have we achieved and surpassed our own limits when doing our scholarly work?

Traditionally, as with other crafts, this question arises during apprenticeship, and informs what junior scholars experience in many respects. In this vision, junior scholars work with more senior scholars to master the scholarly arts, striving to enhance their scholarly abilities and achievements, to gain and grow while thinking and doing, not to produce work, or produce it against a deadline, but to define and expand the horizons of what can be achieved. In line with this tradition, various critiques of it aside, this book may be especially important for junior academics and soon-to-be-junior academics. Not only does it map out and put Robin’s considerable academic authority behind the view that deeply normative scholarship about justice, including the common good, should count as scholarship, indeed, should be its measure, but this move opens up possibilities for junior and soon-to-be-junior academics about what is thinkable as scholarship, as well as worth giving a life to doing. As importantly, if there’s going to be a future that’s written in the directions that Robin’s work describes, it may practically be up to junior academics and those of the next generation as much as, if not more than those already deeply in the game, to take the larger body of legal academic scholarship decidedly in these directions.

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Marriage Outside the Constitution

In the spirit of Taking the Constitution and  . . . not talking about it so much (thanks to Heidi Feldman) I’m going to offer one more entry on marriage.  This is an entry about how marriage policy operates at a non-constiuttional level and why the progressive failure to defend marriage should perhaps give us pause.

It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships then the benefits of them.  For decades now, legal academics have criticized the way the law insulates relationships,
shields them from scrutiny, allows them to be violent and patriarchal.   It’s not that this critique is wrong, it is just that it is highly likely that most of the people reading it, if not making it  (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued.  Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has
value, which provides for them deep sources of love and support and joy.   For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and working very well for educated elites.  We want to get married, we get married, we stay married (our divorce rate is about where it was in 1960), we do our damndest to raise our 2.3 children in a household with two married parents . . .  but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us.  But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.

I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique.    Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship?   Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would  be willing to just walk into court and tell the judge about it?   Might we not need to structure our legal interventions so as to protect privacy not blow it apart, because if we do not, she is never coming forward anyway.

One likely cost of elites not defending the institution of marriage  is the strikingly regressive effects of marriage on low-income couples.  Yesterday, Jill Hasday wrote about the way rights discourse can obscure and exacerbate class disparities in the legal treatment of parenthood.   I’ll suggest today that the progressive resistance to defending marriage also exacerbates class disparities.  Most dual-income families suffer some tax penalty for marriage, but for low-income families, particularly those who receive the Earned Income Tax Credit, and especially those with children, marriage can result in extraordinarily high marginal tax rates.  Adding the income of a spouse to a household if the combined household income is between $10 and $40,000 annually results in an effective marginal tax rate of 35%  if one considers the tax system only, but a rate as high a 88% if one considers the combined effect on food stamps, health programs, TANF, housing and child
care subsidies.  (Carusso and Stuererle, The Hefty Penalty on Marriage, 15 Future of Children 157 (2005)).  It is economic folly for a single parent or soon-to-be parent to marry someone who makes a comparably low income. Whatever long-term emotional and economic benefits might come from allowing an interdependency to grow are likely not worth the short term economic costs.

Progressives have not focused on this aspect of federal marriage policy.  If we did so, we might well be tempted to argue that our welfare system should graduate the system of entitlement more, so that there is not such a cliff of disallowance when individuals start sharing income. Reduced to  its most basic, that argument is “we should subsidize marriage.”  It is hard to imagine a left-of-center academic making that argument.  Indeed, one tends to see the opposite .   Many liberal critics assailed the marriage promotion policy in the Personal Responsibility Act of 1996 (“PRWORA” or “Welfare Reform”).   That policy put money into teaching low income men and women about the benefits of marriage.   How dare the government do that?

The policy never struck me as all that strange or problematic though.  Stupid, yes. Worth getting all upset about, probably not.   First, I didn’t think it was going to make one wit of difference; studies reveal that most low income women well recognize the benefits of marriage, they just can’t find suitable marriage partners and/or they recognize the severe consequences of formally pooling their income.   The problem with the marriage promotion policy in my mind was that it was just a silly waste of money (money I would much rather be going to allow those working class married households suffer less of a marriage penalty).  Second, promoting marriage in the way that marriage promotion policies do – encouraging people to get married – is less pernicious than what  the Tax Code already does for higher-income households, which is encourage married couples to live gendered lifestyles.     By treating the marital household, not the individual, as the operative taxable unit, tax policy imposes a tax penalty on almost all two-earner families, but that policy turns into a comparative benefit if there are sufficient funds for one spouse to stop participating in the paid economy.    By taxing a lower earner at the highest marginal rate and not taxing any labor performed in the home, we give tremendous incentives for a second earner to abandon the market economy as a source of income for herself and a source of services for her family.   Households that pay someone else to provide child care and other domestic labor must somehow pay into a variety of employment-based social insurance programs, including FICA, Workers Comp and often health insurance for the paid providers of those services.  Marriage, not employment, provides those forms of social welfare insurance for married at-home workers.   And those at home workers’ labor is never taxed for income tax purposes.  While the policy is formally gender neutral, we blatantly subsidize the gendered division of labor.

It is any surprise, then, that wives married to college-educated husbands contribute, on average, a smaller percentage of household income than wives married to any other demographic of men.  (Taylor et al., Pew Research Center, Women and Men and The New Economics of Marriage, 2010) Or, that even wives with graduate and professional degrees do not usually work full time if their husband’s income exceed[s] $75,000.”  (Ellman, Marital Rules and Declining Marriage Rates, 41 Fam. L. Q. 455, 474 (2007).

Why there is so little feminist critique of tax policy baffles me.  I suspect part of it comes from feminists simply being weaned as feminists on critiques of the institution of marriage. Feminists may also realize that any attempt to change this policy will just lose politically.  There is far too much support in the real world for the ideal of privatized interdependence in marriage.  But if we can’t fight a tax policy that edifies marriage at a cost of gender promotion, couldn’t we at least use the edification of marriage to alleviate the hardships on low-income couples who do want to marry?  Just as failure to think more seriously about the goods of marriage hurts same sex couples who want to enjoy the benefits of marriage,  so failure to defend marriage hurts low-income couples who cannot afford marriage.


Thin constitutionalism, thick public discourse

First, let me thank both Robin and Katherine Baker (Kathy, if I may, though we haven’t met) for their engaging responses to my view and to Matt Lister who posted terrific comments defending my position. Yes, my argument was for thin constitutionalism not for government neutrality more generally. Robin argues for a thin constitutionalism as well, though for reasons that differ from my own. In my view, the fact that we are a diverse people, with different views about what is good, suggests that constitutional decisions ought to rest on the thinnest possible grounds. A decision that says Prop 8 demeans gays and lesbians is thinner because the principle on which it rests (that all people are entitled to equal respect) is one that all can reasonably be expected to endorse. While people will surely disagree about the application of that principle in the individual case (i.e. about whether in fact Prop 8 stamps gays and lesbians as inferior), that is a disagreement at the level of application rather than at the level of principle. By contrast, if a court were to strike down Prop 8 because it instantiates the wrong conception of marriage, a court would be constitutionalizing a particular, contested conception of marriage. Doing so is needlessly alienating to those who endorse a different conception of marriage.

A similar argument could be made about the way that the Supreme Court addresses affirmative action cases. To me, the right question for the Court to address when deciding these cases is whether a university or public school policy of considering race denigrates people of any race, whether it functions, as Dworkin once argued, as a public insult. In my view, it does not. For this reason, policies that excluded African-Americans did violate equal protection, but affirmative action policies do not – because they do not express that whites (or non-whites) are less worthy of concern or respect. Some may disagree with my assessments of what these policies express. Justice Thomas objects to affirmative action for a reason along these lines. He thinks that affirmative action programs insult blacks by implying that they are less capable. According to the theory I adopt, this is an argument worth taking seriously.

The current Court looks instead at the use of race in both university admissions and K-12 school assignment policies through a very different lens. Rather than asking whether these policies send the message that blacks are inferior (which I think they do not, and Justice Thomas thinks they do), the Court asks whether diversity is a compelling governmental interest – a question it must answer by opining on whether a good education (at the university or elementary and secondary level) requires a diverse student body. So, for example, in Parents Involved we saw Justice Breyer arguing that a diverse classroom is essential to public education, rightly conceived, because it “teach[es] children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation”– a claim that Justice Roberts flatly denies. But should the resolution of whether consideration of race in the context of public education violates the constitution really turn on a theory of education? I think not.

At the level of constitutional law, I am in favor of the thinness of liberalism. But what about at the level of public discourse, in which we law professors play an important role, about what laws we ought to have – laws that define marriage and endorse a theory of good education. At this level, of course one must have a theory of the good and one may surely and should surely put it forward by making moral arguments about why it is good. At the level of theory, I don’t think most classic liberals would disagree. The only limitation on advancing one’s own theory of the good in the public domain is Rawls’ conception of public reason – the reasons one offers for one’s view should be ones that are accessible to others. Here the arguments offered by Robin and Kathy for genderless marriage – views I share – are surely in this vein. So what’s all the fuss about then?

As I read Robin’s book, it isn’t an argument against the claims of classic liberals but rather an argument against the space they have taken up and against the creep of these views into places that they don’t really belong. The form of the argument reminds me of a reaction I once had to the scandal many years back about the Olympic skater Tonya Harding (remember her?). She was accused of being complicit in an incident in which her ex-husband attacked her skating rival. As a result, she was threatened with being removed from the Olympic team. At the time, many people thought this was unfair and in response would object that “she is innocent until proven guilty” or something along these lines. In doing so, they were borrowing standards from the criminal justice context and applying them to the context of the Olympic team. But we have this presumption of innocence in the criminal justice context for reasons specific to that context – for example, that one may lose one’s liberty. Representing our country as an Olympic athlete is a high honor and privilege and not something one is entitled to (like liberty) unless proven guilty.

The point I want to make here is that folks had imbibed the principle “innocent until proven guilty” and applied it where it didn’t belong. While the principle is right for the criminal justice context, it isn’t right for all contexts. That’s a distinction that gets lost as the culture absorbs the value. Robin is right that something similar has happened with liberalism, aided (like with the presumption of innocence) by our cultural conflation of constitutionalism with morality [This is the unfortunate corollary to the natural law thesis that an unjust law is no law at all that Robin critiques – i.e. the tendency to see the law we have as therefore just.]. One can surely argue that the Constitution ought not to endorse a particular conception of marriage or a particular educational philosophy while simultaneously thinking that laws may and should adopt views about these same issues (so long as they don’t conflict with thin constitutional principles). We should argue for particular ideals of marriage and for the sort of diverse classrooms that develop civic virtue and toleration on the grounds that these institutions promote human flourishing. And we should do so by making moral arguments that depend on thick theories of the Common Good that we endorse and we hope others will as well.


Take that Constitution and…

…forget about it.  I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights.  Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect.  The goods are not the rights.  Rights shelter goods and interests.  If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent.  If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation.  Rights and “rights” are neither objectively problematic nor objectively wonderful.  What’s important is which interests and goods we decide to foster collectively,  how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good.  If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.

Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures).  Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions.  And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally.  But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect.  Connection is basic.  Then the question becomes, which sort of connections engender which sorts of obligations?

Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise).  But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution.  A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe.  Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection.  Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.

Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality.  In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background.  The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution.  This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech.  It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact.  If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how?  What sort of connections does it foster or stunt?  Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web?  If so, what do the parties (intended or unintended)  in  these connections owe to one another, morally, ethically, and legally?