an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How does law confront non-legal expectations? In other words, how does it handle expectations of a moral, partisan, or popular–that is, broadly speaking, a social– character? Paradigmatically, we have two possible answers: either by protecting itself or by deferring to them.
From this basic distinction stem two models for understanding the relation between law and society and the intersection between law and politics. One of them is that in order to protect its own integrity, the law develops immanent criteria to determine the legality of phenomena. In this view, law structures society. This is the notion of the autonomy of law. The other is that in order to satisfy the needs and priorities of the specific society where it happens to exist, the law identifies certain social expectations and serves them as means to an end. In this view, society structures law. This is the notion of the responsiveness of law.
Thus, when we speak about the relation between law and society, we tend to adopt discursive patterns that follow the fundamental archetypes of autonomy and responsiveness, which consistently shape our understanding of this intersection and of the many issues that circle it. Take Supreme Court Justice David Souter; or, more specifically, presidential utterances emitted in the wake of his appointment and his resignation. In 1990, President George Bush appointed Souter to fill the vacancy left by Justice William Brennan’s departure, declaring: “I have chosen a person who will interpret the Constitution and, in my view, not legislate from the Federal bench.” President Bush issued this statement as a way to steer clear of what had become by then the most explosive topic of Supreme Court politics, abortion rights and the standing of Roe v. Wade. The implicit assertion behind his words was that as Justice Souter would rule based on the law and not on partisan commitments or ideological preferences, the integrity of the law would be preserved and his decisions would be authoritative for everyone: a forceful and persuasive depiction of the value of the autonomy of law.
In 2009, and after making public Justice Souter’s decision to retire from the Supreme Court at the conclusion of the 2008-2009 term, President Barack Obama declared in a television interview that for his replacement he would look for a nominee that “has common sense and somebody who has a sense of how American society works and how the American people live.” With this, President Obama was insisting on a theme, judicial empathy, that he had already pursued before as senator and presidential candidate. Even though Obama confronted his second Supreme Court Justice appointment avoiding the word ‘empathy,’ he still declared that he would look for someone with “a keen understanding of how the law affects the daily lives of the American people:” a compelling case for the responsiveness of law.
The dialectical relation between autonomy and responsiveness deserves an attention that hitherto has been missing. For historical reasons, the notion of the autonomy of law has occupied a more prominent and explicit position in these debates: the dawn of Modernity was marked by a collective attempt on the part of judges, legislators, lawyers, and legal thinkers to secure for the realm of the law independence –autonomy– from the grip of traditional religion, intrusive executives, and emerging claims of popular justice.
It is only natural in these circumstances that the concept of the autonomy of law has received more attention from these actors than its conceptual converse, the responsiveness of law. However, the relative neglect of the responsiveness of law leaves our reflection incomplete: descriptively sterile, normatively unappealing. No reflection on the relation between law and society will be complete without a focus on the ways in which society bolsters the law by renewing it, by investing it with legitimacy, by providing it with a stability and an internal consistency that the law –never mind the formalists– can never achieve by itself.
And we need to overcome this incompleteness because autonomy and responsiveness are concepts central to some of the main discussions of legal theory. More importantly, they are central to decisive conversations about our social life: about what does the rule of law mean, about what does a government of laws and not of men entail. And in this sense, the rule of law appears not only –perhaps not even primarily– as a set of institutions but mainly and foremost as a moral and political ideal.
But how is it possible to have a government of laws and not of men? Men draft laws, men enact them, and men apply them by means of interpreting them. And yet, despite its perplexing formulation, the idea of a government of laws and not of men plays a powerful role in our public discourse because it appeals to fundamental ideals of freedom and equality. In a government of laws and not of men, we are free because we do not submit to the caprice of other men. In a government of laws and not of men, we are equal because we are protected from others’ abuse and arbitrariness. In a government of laws and not of men, justice and impartiality prevails over sectional concerns and interests.
The idea of a government of laws and not of men is a powerful, inspiring moral and political ideal. However, because of the difficulties immanent to the concept, the problem remains of how to structure a government in which laws instead of men govern. The question seems to be, how is it possible to have a government of laws in a society of men? The concepts of autonomy and responsiveness try to answer this problem, and in doing so they justify the distinctiveness of the rule of law vis-à-vis other forms of dominance.
For this reason, we would be wrong in thinking that the responsiveness of law has been absent from the legal debates of modernity. Sometimes as an unstated paradigm or ideal of law, some others in the form of articulated theories of what law is and how it gains social legitimacy, the responsiveness of law has certainly played a role in shaping the legal imaginary of modernity. These concepts deserve the theoretical completion that evidences their condition of fundamental conceptual resources of legal modernity, and that makes explicit the dialogical pattern that they imprint on our discussions about the relation between the legal and the social.
In sum, autonomy and responsiveness mediate discursively between law and society; and in doing so, these concepts structure our public discourse in easily recognizable ways.