Joe Margulies: I view this as a very curious thing. We all recognize that emotional attachments figure in the social construction of meaning, including in the meaning of legal texts. Anyone who doubts that should read, as I did, the blogosphere’s reaction to the Hobby Lobby decision. And we all recognize we have our own emotional attachments. The net of those two observations is nothing so prosaic as to wonder whether it is possible to ignore our emotional attachments in the name of ‘objectivity'; I think that’s silly. The more curious thing is that, in acceding to our emotions, we fall back on an embrace of the mythologized notion of law as above politics. It’s as though that myth provided a kind of safe harbor for emotional (secular) aspirations. So curious.
Lisa Hajjar: I don’t have the same recollection of the LSA panel as one in which the participants expressed a die-hard fidelity to law, nor do I know if that “mythologized” view of law fits me or not–it might. But “me” from my own perspective likes the law for two main reasons: it provides a lens through which to judge the world (political in the sense of Kramer’s quote that you cite above), and it has the potential to do some very good harm (while also doing vast amounts of bad harm). For example, I am an enthusiast for a perpetrator-centered perspective on rights; rights laws are valuable for their potential/capacity to hurt rights violators. (See, for example, http://www.jadaliyya.com/pages/index/247/a-meditation-on-the-importance-of-the-perpetrator-.) If anything, I would be an instrumentalist rather than an idealist.
Joe: I think that requires some unpacking before I really understand it. I agree that rights laws have the potential to hurt rights violators. So, as an example, I would point to a law that said, “Thou shall not refuse to serve African-Americans in your restaurant, and if you do, we’ll fine you $10,000 per incident,” and agree, that law has the potential to hurt rights violators. But what we all know is that such a law has meaning and substance only in operation, and the gulf between what the law says on paper and what happens in real life is the gulf between myth and reality. That gulf, I suppose, is captured by your qualifier word, “potential.” The law has the potential to do good, like Brown v. Board had the potential to do good. And my point is that, for emotional reasons, we attach ourselves to the myth of Brown rather than the reality; we attach ourselves to the myth of the torture memo rather than the reality, etc. That’s one lesson I took from the LSA conference.
Lisa: My previous comment requires some repackaging. I am interested mainly in what we can call “the harder human rights”–torture, war crimes, crimes against humanity and genocide. And it is to those matters especially that I formulate my affection for a perpetrator-centered perspective on rights and the good harm theory. Sure, racist discrimination is awful. But it is not “legally” the same as torture in that it is not comparably criminalized. Joe, I have benefited so much from your work. But one way in which I invoke your work in my own is by arguing in favor of the “sociological perspective”: to think about law NOT as a lawyer (what the law does in courts, for example) but what the use of the law does in the world, which suggests anything from counterfactuals (e.g., what would “the law” be like today if not for those who used it in Rasul, Hamdan, and Boumediene, as well as the various efforts to apply universal jurisdiction to American torturers) and the longue durée (e.g., it is possible to act against torturers today in ways that were inconceivable two decades ago, regardless of whether Cheney and Co continue to walk free).
Beth Mertz: This is a great conversation. My own question is how to move between the rhetoric or language of law and the “law in action” perspective in a way that does justice to the fact that the language still matters, even if it doesn’t matter in the way the ideology wants us to think it does. AND I’m concerned with the further question of whether to entirely cede the conversation about doctrine to groups that believe the ideology or myth (and ignore law-in-action). So, for example, some progressive people started using a language of originalism once that was adopted in some SCOTUS opinions — not because they necessarily accepted originalism, but because to leave the “other side” unanswered in its own terms simply meant conceding altogether. So, why not say that “even in your own terms, this makes no sense”? Of course, even taking this attitude might be seen as legitimating the underlying ideology, which I think is what’s bothering Joe. So it’s a tough double-bind at a strategic level, not to mention at an intellectual level. These are the tough questions about really translating between social science and law that NLR folks have been struggling over. I’d also like to hear more from Lisa about the distinction she makes between criminalized or “hard” rights and others. I’m not sure I see that difference as altering the underlying dilemma we’re discussing here, which I think we face no matter what kind of rights we’re discussing.
Joe: Thanks, Beth. This is at the core of so much of my thinking. It’s a puzzle to me. I think the complexity arises from the fact that doctrine matters in different ways for different types of disputes. Law professors tend to look at SCT decisions. Ironically, that’s where doctrine is least important, since that’s where popular culture takes over and assimilates the case into partisan narratives, as has been done countless times, most recently in Hobby Lobby. But we know from your pal Sally Engle Merry, and from any public defender, that at the “lower” levels, doctrine matters a great deal. It helps to settle thousands of routine cases every day. No one thinks doctrine alone explains these outcomes, but it clearly contributes, and the social science evidence about implicit bias suggests that it matters most when the cases are simplest. The political scientist in me wants to develop a model to explain all this, while the historian doesn’t really think that’s necessary. But the lawyer in me says we need to think carefully about the work we ask the single word, “doctrine” to do.
I also think this figures into the second part of your question. If we can refine what we mean by doctrine, I think we can develop a language that allows us to take doctrine seriously when we’re talking w colleagues but not abandon what we know about law-in-action. And I hope we can be more sophisticated than to say, “Well, it’s like the old nature-nurture debate. Both matter some.”
Joe and Beth are regular bloggers here at “New Legal Realism Conversations.” Lisa is on the Sociology faculty at University of California-Santa Barbara. Her areas of expertise include sociology of law, law and society, international and global studies, and political sociology. Her research interests include human rights, international law, torture, war and conflict. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, 2005) and Torture: A Sociology of Violence and Human Rights (Routledge, 2012).