Monthly Archives: July 2014

Additional Conversation: Hajjar and Mertz Respond to Margulies

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, 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).


Margulies on LSA: Ruminations on Law, Legal Realism, and Emotional Attachments

Following the 50th Anniversary Law & Society Conference in Minneapolis, we at NLR Conversations had the idea of sharing some reactions to the experience. I’ve been thinking about this a great deal, and wanted to set down some thoughts about the first and last panels I attended. Sorry for the shameful delay in putting this to paper, for which I can offer the usual, pedestrian excuses as well as the chaos associated with a move from Northwestern to Cornell.

The first panel I attended—in the wee hours of the first day—was on constitutional change, including a presentation by my former student, Amy Myrick, who summarized her very interesting doctoral research about congressional proposals to amend the Constitution. It was quintessential new legal realism—or at least, so it seemed to me.  Each paper not only acknowledged but actually emphasized the sometimes-wide gulf between law as it exists within the four corners of a case or statute, and law as it enters and alters the life of the community.

For example, Ken Kersch, who teaches political science at Boston College, presented an excellent paper about the modern conservative attachment to the myth of the common law, especially an idealized conception of 19th-century laissez-faire jurisprudence, which conservatives accept as an archetype and use to inform policy judgments about what 21st-century jurisprudence ought to be.[1]

It was obvious from all the papers, as well as from the comments both by the discussant (my Cornell colleague Aziz Rana) and the audience, that everyone in the room understood that “law” acquired meaning not simply from its production, but from its injection into the public square, where it becomes subject to continual contest and negotiation, and that there was almost no point in talking about “law” as an abstract, fixed thing except to mark the distance between such a notion and reality, which is immeasurably more complex.

Contrast this with so much of the writing that we find in modern law reviews. For example, as I was writing this little missive, I scrolled down the archives of the Cornell Law Review and plucked, at random, Volume 97, Issue 4, and pulled up the lead article, Alexander Tsesis, Self-Government and the Declaration of Independence, 97(4) Cornell L. Rev. 693 (2012).

Over the course of 60 pages and 273 footnotes, Professor Tsesis argues that the Declaration should be read as a legally binding text that “sets constitutional obligations to protect life, liberty, and the pursuit of happiness,” and that it imposes on all three branches of government a duty “to protect inalienable rights on an equal basis.” Id. at 695. Tsesis then uses this argument to critique City of Boerne v. Flores, 521 U.S. 507 (1997), and Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).

The Declaration, in other words, is an 18th century super-case, the four corners of which not only can but must control the resolution of legal controversies 250 years later, without reference to historical, political, or intellectual context. In fact, the only context Tsesis provides comes when he catalogs nearly every mention of the Declaration by judges, legislators, and scholars over the course of two-plus centuries, all of which combine to show that We the People have more or less always revered it.

I certainly do not mean to criticize Professor Tsesis, whom I do not know. As far as I can judge, he wrote an excellent article, as articles of this sort go, and he seems to be a perfectly competent legal academic. But this is not the sort of scholarship one would expect from New Legal Realists. The Declaration was a document written by a particular person with a particular set of biases and objectives at a particular moment in time for quite particular purposes. It was injected into the colonial blood stream, where it acquired a complex cluster of meanings, the precise content of which may be difficult or impossible to reconstruct. In time, it acquired symbolic, mythical meaning, the content of which we worship (but also change) as much or more as we do the original understanding. Of course, the same can be (and has been) said of the Constitution.[2]  To speak of “the Declaration,” therefore, without reference to its symbolic life, to its many meanings, and to its particular creative history, is at best incomplete – and at worst, seriously misleading..

The last panel I attended was an author-meets-reader session. Three authors, of which I was one, discussed each other’s books, and were in turn critiqued by Jothie Rajah of the American Bar Foundation, Rick Abel of UCLA Law, and Maureen Duffy from Calgary Law. Broadly speaking, the topic was torture, and discussion naturally turned to the torture memo, written in 2002 by John Yoo. Here, unlike in the first panel, nearly everyone on the panel and in the audience seemed to want to treat the torture memo as “bad law” and the enhanced interrogations as indisputably illegal. Much more importantly, discussion about the torture scandal took place without regard for how the torture memo has in fact been used since it became public in 2004.

In fact, I would go further than this. The lesson that seemed self-evident at the first panel (viz., that this thing we call law is an odd compound which immediately changes its character upon exposure to the outside world) had been forgotten. People wanted to believe, contrary to what they know to be true, that we could pick up the torture memo, measure it against existing statutes by applying conventional tools of statutory interpretation and legal analysis, and conclude in some definitive way that George Bush was a crook. It reminded me of Larry Kramer’s observation about the Constitution, made in a very different context:

If the Constitution is law …, it is not (supposed to be) politics. It is, of course, political, in the sense that all law is political: it has political consequences, those who interpret and apply it cannot help but bring their politics with them into the interpretive process, and so forth. But modern recognition of the inherently political nature and structure of law still accepts the fundamental premise that law can and should be separated from politics. Law is, if you will, the part of politics that is supposed to be left to courts and judges.[3]

Yet this is precisely the idealized, mythologized view of law that realists reject, or so I had thought.[4]  Law is not, if you will, separate from politics. And this is true not simply for the reasons collected by Kramer. It is political not simply because interpreters have biases, but because the meaning of any text is inherently and inevitably constructed, torn down, and reconstructed again in an intensely social and never-ending process; it is political, in other words, in the very broadest sense, and so much so that there is really no point talking about law in the pure form envisioned by Kramer.

The upshot of all this, it seems to me, is clear enough. In the second panel, many of the participants were seduced by an emotional attachment to a particular understanding and followed it to a point that was intellectually indefensible. This of course is something we must guard against. We can condemn the enhanced interrogation program and its trappings without sacrificing intellectual convictions about the nature of law in American society. Even more importantly, we can condemn it for the horrors it produced without getting into sterile and unwinnable debates about whether the torture memo is faithful to that iconic but “essentially contested” symbol of all things good, ‘the rule of law.’[5]

And as scholars trying to devise a consistent and defensible vision of law in society, it behooves us to do so.

Joe Margulies
Cornell University
July 2014


[1] The paper was adapted from, Ken I. Kersch “Constitutive Stories About the Common Law in Modern American Conservatism,” in Sanford Levinson and Joel Parker, editors, NOMOS: American Conservatism (New York University Press, forthcoming) (to appear with comments by Lino Graglia).

[2] See, e.g., Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred Knopf 1986).

[3] Larry D. Kramer, The Supreme Court 2000 Term Forward: We the Court, 115 Harvard Law Review 4-169 (2001).

[4] Now is as good a place as any to disclose that I have been closely involved in these issues since late 2001. I was lead counsel in Rasul v. Bush, and now represent Abu Zubaydah, the person for whose interrogation the torture memo was written. I am one of the few people in the world who actually know what was done to Abu Zubaydah, and have no doubt in my mind that it was torture and morally repugnant.

[5] Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, Law and Philosophy 21: 137-164 (2002). For a discussion of how the torture memo has been used in the public square, see Joseph Margulies, What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale Univ. Press 2013).