Stephen Bainbridge responds in a long blog post to my remarks yesterday that “discovering” the law and not “making” it was the hallmark of traditional common-law jurisprudence, and that this understanding, though largely abandoned today, remains superior to the contrary view advanced in the last century by the “legal realism” school. Bainbridge says of my view: “Bunk. Sort of.” By the end of his post he calls it “semantic silliness,” along the way pausing to disparage the framers of the Constitution for having “sophomoric metaphysics.” Now the framers may have been wrong about any number of things, but I very much doubt they had a metaphysics inferior to that of Oliver Wendell Holmes or Richard Posner–since I rather doubt that Holmes or Posner has any metaphysics at all, or at least any that isn’t all physics without the “meta.”
But let that go. I’m not persuaded by Bainbridge’s argument against the traditional “discovery” understanding of the common law. One reason I’m not persuaded is that he seems to merge the descriptive with the prescriptive. I argued that judges should not, and should not understand themselves to, make law rather than discover it. Bainbridge, saying that “common law judges should not–and generally do not . . . –act as legislators in the sense of making law on the basis of personal policy preferences,” cites Melvin Eisenberg for a number of reasons why judges should not behave this way. But while Eisenberg’s reasons are good as far as they go, none, as Bainbridge supplies them, is decisive. None of them has the standing of a principle. Each is instead couched in the consequentialist language that says “if you want X as a characteristic of a legal system, then judges should be constrained in Y fashion.” These may be moral propositions, but of a fairly low order.
Having rehearsed these arguments, though, Bainbridge then says that “the notion that judges find law that somehow was missed–like an explorer discovering some lost continent–is absurd. Judges make law.” Here he abandons prescription for description. I didn’t say judges never make law. By speaking prescriptively, I indicated that judges who do make law have overstepped their bounds. And Bainbridge doesn’t really provide an argument against that view.
Perhaps he thinks he has done so when he says in the immediate sequel:
Courts routinely refuse to apply preexisting doctrinal propositions to cases that appear to fall squarely within the rule. Courts routinely refuse to extend preexisting doctrinal propositions to cases that logically could be covered by the rule. And courts routinely routinely overturn preexisting doctrinal propositions.
Why each of these examples does not fit perfectly within the four corners of my argument as well as Bainbridge’s, I could not say. As James Stoner says in his fine 2003 book Common-Law Liberty, “it was a maxim at common law that a precedent that ran against reason was no law.” Now, how “routinely” these things are done may be a cause for concern. Tossing aside “doctrinal propositions” will-nilly into the dustbin of history may be a sign of a jurisprudence too “creative” and not “discerning” enough. But again, this is merely a descriptive point. To point to routine monkeyshines with “preexisting doctrinal propositions” would hardly constitute evidence that the judges are behaving as they should.
I read and re-read Bainbridge’s post, and all I can come up with as an argument is when he says that the framers’ “metaphysics” (and mine) “says that common law judicial opinions are not the law, but merely the best evidence of the law. It says that the law is floating around out there in the ether somewhere waiting for someone to stumble over it.”
We’re meant to laugh at this notion of “out there in the ether,” and we do, of course–me included. But a good joke is not a good argument. I said that the judge’s business is to “search for principles that stand outside himself.” The crucial point is “outside himself,” and it neither adds to nor detracts from my argument to say that the locus of those principles is “the ether.” Come to that, I would prefer the ether to the judge’s viscera, or the latest Gallup poll.
Let us suppose that it is right and proper for judges to make law. Since their business in the decision of cases is to adjudicate rights, wrongs, and remedies, out of what materials, in the course of such adjudication, will they make “new” law, when they make it? Will they make it ex nihilo? That would seem to be possible for only one Lawmaker. Will they make it out of the raw materials of contemporary or evolving “norms, policies, practice, and other social propositions,” as Bainbridge puts it? Beware; this might be a river you can’t dip your toes in twice. And there are so many “norms” and “practices” and “social propositions” to choose from. How is such a prescription in any way, well . . . prescriptive? In the tradition of the common law, law was discovered about rights and wrongs by a course of reasoning about what is right and wrong. “Realism,” by contrast, seems to dissolve itself into relativism. Why it has the nerve to call itself “realism” is a good question.
Bainbridge quotes a Jeffrey Rosen piece from TNR about Judge Posner:
He prefers the “cynical acid” of empirical analysis to abstractions about legal rules and legal rights. (Posner notes that Holmes, too, believed in policy analysis, but lacked the patience to do it.)
Now I grasp more clearly the answer to a question that has bothered me for a long time, namely, why is reading Posner like the proverbial Chinese meal–that an hour later you’re hungry again? I think it is because “empirical analysis” is all Posner’s got, and when it is unanchored to the “abstractions,” for which he has always “lacked the patience,” you find yourself reading about everything . . . but . . . the law.