In both constitutional law and public policy, Cass Sunstein's work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of "incompletely theorized agreements" as a model for how judges ought to decide cases. In public policy analysis, Sunstein's work has reflected a similar commitment to maximizing consensus and reducing conflict. While Sunstein's conception of minimalist adjudication has been thoroughly explored, less attention has been paid to the underlying political vision that structures his view of the proper role of the state and the desirable forms of public policymaking.
In this tribute, I explore and challenge the structure of Sunstein's political vision. Two ways of seeing this vision exist. The first is the way in which Sunstein presents it: as a profound new alternative capable of transforming current politics and transcending political polarization and conflict. Sunstein himself calls his vision "a real Third Way," a post-partisan conception that provides a synthesis of Franklin Delano Roosevelt's New Deal liberalism and Ronald Reagan's new conservatism. The second way is almost diametrically the opposite. Perhaps this conception actually reveals how chastened and minimalist political aspirations are limited to being in our era.
Based in behavioral law and economics, the centerpieces of Sunstein's political vision are default rules and information disclosure. This is a vision focused on changing the means by which government acts. This focus, however, then raises the question: how much can or should politics focus primarily on the means of government action, rather than what ends government ought to pursue? Or, to the put the question in terms of Sunstein's own stated ambitions, can it really be the case that the major political critique of the New Deal that was effectively launched in the Reagan years was simply a critique about the means of public policy, as opposed to the proper role of the state and the ends for which government ought to act? Should we see Democrats and Republicans, liberals and conservatives, as so divisively polarized today merely because they disagree about what means government ought to use in pursuing policy objectives - objectives that, we are presumably to believe, all sides actually share? If this vision actually is the "real Third Way" in contemporary politics, it is worth asking what that tells us about the possibilities for democracy today.
For the last sixty years, American foreign and defense policymaking has been dominated by a network of institutions created by one piece of legislation--the 1947 National Security Act. This is the definitive study of the intense political and bureaucratic struggles that surrounded the passage and initial implementation of the law. Focusing on the critical years from 1937 to 1960, Douglas Stuart shows how disputes over the lessons of Pearl Harbor and World War II informed the debates that culminated in the legislation, and how the new national security agencies were subsequently transformed by battles over missions, budgets, and influence during the early cold war.
[Waldron] is critical of U.S. style judicial review, preferring the legislative supremacy model traditionally favored by Great Britain and his native New Zealand.
I am increasingly skeptical of part of Waldron's premise - that the Supreme Court is in fact the final definer of rights the U.S. system - but his work nonetheless raises an interesting and troubling point about how we talk about rights. We often use the word “right” in an absolutist way. But of course none of the rights protected by the Constitution are absolute; rather, they are protected only to the extent that they are not trumped by the needs of society or others.
The United States has never been given to particular adoration of foreign observers of its mores, who quite often turn out to be critics rather than admirers. Nevertheless, one of its favorite visitors since his one and only appearance on the scene in 1831-1832 is the 25-year-old magistrate Alexis de Tocqueville, sent by his government to study penal reform in the new republic. Tocqueville and his good friend Gustave de Beaumont, like young adventurers before and since, took the opportunity to extend their stay, and turned their tour of prisons into a journey through the young nation that furnished the raw material for what readers ever since have considered to be the single most insightful study of the United States ever written. Since the publication of Tocqueville's study, titled De la democratie en Amerique, which appeared in English in 1835, the second volume following in 1840, all manner of students of U. S. society have pored over it, studying it, quoting and misquoting it, and claiming it as support for their varied ideas. Both conservatives and liberals have claimed Tocqueville as a founding father of their thought. But as John Lukacs points out, Tocqueville cannot be so simply categorized.
Through all of these evaluations, assessments and hagiographies, commentators sometimes lose sight of the fact that Tocqueville was, by training and choice, an attorney, and what is more, a civil law trained attorney, a magistrate, a member of the Legislative Assembly, a drafter of the Constitution of France's Second Republic and a member of Louis-Napoleon Bonaparte's Cabinet. Ultimately, as one student of his thought points out, it may not matter.
As a civilian, Tocqueville was trained in a newly formed legal regime. As an attorney practicing within a code enacted only a year before his birth, he had a vital interest in determining how such new codes could be integrated into existing social, political, and legal environments. His interest in the new republic across the ocean, which was engaged in a similar experiment, was at once philosophical and practical. Thus, what use U. S. judges have made of his words in their own opinions is certainly of interest.
My Thanksgiving post on Rogers Albritton prompted some additional reflections by Ken Anderson and a comment by Josh Cohen--who was another extraordinary figure in the UCLA Philosophy Department. Cohen, now at Stanford, was then visiting from MIT. I have vivid memories of Cohen's seminar on Hegel's Philosophy of Right--which has left me with an abiding sense of the importance of the substance of many of Hegel's ideas (if not the value of Hegel's system). Josh was a passionate and completely riveting teacher. Thank you, Josh!
This Thanksgiving, I have been thinking about Rogers Albritton--the great Wittgensteinian philosopher and the single most significant influence on my intellectual development. I took every class that Albritton offered at UCLA in the late 1970s and early 1980s. Albritton taught the value of clarity, and of not giving up on a problem no matter how long it took. In the past few weeks, I've been working on a paper entitled "Semantic Originalism." The roots of the paper are in a conversation that I had with Albritton more than twenty-five years ago. Albritton told me to read Paul Grice, and since that conversation I've returned to Grice's work, again and again, in a long, slow, and painful effort to understand how laws mean. A lesson that Albritton taught and I have only recently begun to appreciate is that some work cannot be done in a week, a month, a year, or even a decade.
Over at Prawfs, Michael Green has another provocative post entitled Why so much Hart?Here is a taste:
I do not think that The Concept of Law deserves the attention that it currently receives from Anglophone philosophers of law. The book is frustratingly unclear. After almost fifty years there are still serious disputes about what Hart meant, for example, by the distinction between the internal and external points of view or the distinction between having an obligation and merely being obliged. People disagree about what he meant when he described his book as an essay in “descriptive sociology.” I, for one, find the book to be very difficult to teach because of its lack of clarity.
This is an extraordinarily busy day for me, so I cannot give Green's post the attention that it deserves. So I do hope the readers of LTB will forgive me for simply presenting a list of my immediate (and unargued for) reactions:
We read Hart because he transformed the philosophy of law and set the agenda for the conversation of contemporary analytic legal philosophy. You can't understand the conversation without reading Hart, and the flaws of The Concept of Law (as well as its enormous strenghths) are the conversation starters for all contemporary debates about the nature of law.
In fact, my guess is that legal theorists in general read too little Hart and not too much. If you start asking around and folks will give honest answers, I think you will discover that huge numbers of apparently sophisticated legal scholars have never read Hart at all. That is a disgrace, and an indicia of the radical dysfunctionality of the legal academy's utter failure to produce a minimally acceptable model for the training of legal academics. (And by the way, I am not suggesting that Hart is the only such omission--the same thing is true of (random examples follow) Coase, Galanter, and lots of other work that belongs in the canon of contemporary legal theory.)
But I also have the sense that the direction that Hart set for Anglophone (or analytic) philosophy of law has mostly played itself out. That is not to say that I don't think the "what is law" debates were not useful. I think the Hart-Dworkin-Raz-Finnis (that list is obviously incomplete) debates are important and interesting. And I think that there is fantastic work still being done (including, for example, work done by Scott Shapiro), but in my opinion the frutiful direction for analytic legal philosophy is normative legal theory--the creation of systematic theoretical discourse about the normative standards for legislation, judging, etc.