Demythologizing Law, Pt. I

The question, “what is law?” is at first glance irreducibly simple. We encounter “law” everyday; it is all around us – manifesting itself in the average everyday activities of common everyday life. Sometimes, as in the case of the criminal law, our encounter with ‘law” can be particularly dramatic – even cathartic. Other times, encounters with law arise within such a trivial and mundane context hardly worth a second thought (for example, when we click the “I Agree” button on any number of “Standard Terms & Conditions” contract encountered in everyday life). Sometimes, we “know” we’re dealing with law because the situation itself is already understood as such (as when we file an application for incorporation with the Secretary of State). Other times, law’s omnipresence is less obvious, and more opaque. All of these circumstances represent a mere sample of the numerous encounters we have with “law,” or at least “law” as its understood in the application of a comprehensive modern Western legal system.

Yet, to ask the question “what is law?” is to move oneself outside of the average-everyday encounter with law, into an entirely new and fundamentally different domain altogether. Lawyers, legal scholars, and laypeople alike rarely have the occasion to deal with the messy problems of ontology and its accompanying metaphysical baggage.  What we’re getting at, however, is a metaphysical question; or rather, an ontological question caught up in the intricacies of a metaphysical tradition. Insofar as legal scholars and philosophers have thought the question “what is law?” it appears they have taken for granted the ontological significance of the question. So what do they (legal scholars) mean when they talk about law?

Take, for instance, the classic line from Justice Oliver Wendell Holmes:

The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.[1]

This brief line from Justice Holmes is a significant source of ontological richness. Without his ever having been conscious of the fact, Holmes keenly demonstrates an ontological pre-understanding with regards his admonition that the life of the law is experience, not logic.  In recognizing that law is “embodied” in the lived-world of experience, Holmes is striking at the heart of Langdellian legal science and its metaphysical framework. Langdell and his followers conceived of “law” as embodying a set of limited, yet identifiable, universal principles that were detectible (by the trained legal professionals and scholars) inductively through the examination of precedent. Without a doubt such a conception of the law takes shape amidst the background of a very definite (and certain) ontological framework. Holmes’ point above, however, is a direct contradiction of the very ontological premises upon which the entirety of the Langdellian project was based. The reader will have surely noticed Holmes’ use of the past participle “been,” (to be). This is the juncture at which we can begin to see that Holmes’ ontological vision of law begins to take shape.

In making sense of Holmes’ claim, we can begin to develop an understanding of the statement’s ontological significance. For something “to be” means for it to “exist.” To exist, Heidegger tells us, is (etymologically speaking) to “stand-out against.” In following the structure of Holmes’ claim then, the life of the law is that which has been borne of experience, and not logic. Put differently, law is the type of being for which its life is experience, not logic. This seemingly innocuous description of “law” packs a metaphysical punch. When we ask, “what is law?” with the emphasis on the copula verb “to be,” we could understand the question in any number of ways. In our common understanding (pre-ontological), “to be” is wholly functional; it connects a subject with a predicate, such as “the book is heavy.” In our “average-everyday” grammatical understanding, this is nothing more than the working-out of predication. However, Holmes is also making an irreducibly ontological claim. When Holmes says, “the life of the law…has been experience,” he’s saying “the law,” is the type of being for which its life is determinable as “experience.” The ontological operation at work here follows the general structure of our shared grammatical practices: a descriptive property is equipped as a description of an object (the law).

This average-everyday understanding of “being,” or “to be” immediately brings to mind what Heidegger calls the “ontological difference.” In Being and Time (1927), Heidegger makes the observation that “Being is essentially different from a being, from beings.” The “ontological difference” delimits the fundamental distinction between “Being” (das Sein in German) and “beings” (das Seiende).  It is only on account of the forgetfulness of Being that permeates the Western philosophical tradition that the distinction is effectively leveled; where ontology (the fundamental question of the meaning of Being) has been lost and forgotten in our circumspective concern for things, entities, beings. Thus, it is with Heidegger’s insight into the ontological difference that we must now re-ask our question: what is law? By forgetting the question of Being as such, and instead preoccupying ourselves with the question of beings – we have altogether left out the most fundamental, most primordial of all: Be-ing. If Heidegger’s lifelong ambition was to get us to think Being again, then ours is an infinitely humbler task: for we want to examine the ways in which this forgetfulness of Being has made itself manifest in our understanding of “what is law?”

In taking the ontological question seriously, we begin to see the limitations of our average-ordinary way of understanding “Being.” The underlying significance at play here is two-fold: first, it shows that the traditional responses proffered to our question “what is law?” are inadequate if they do not think through the difference between Being and beings; second, it forces us to second-guess the standard framework that serves as the basic grounding of our entire metaphysical preconception of how we understand we who ask the question– that is, the problem of subjectivism, whereby we mean the metaphysical tradition’s positing of the relation between subjects (perceivers) and objects (entities encountered in the world). In other words, in posing the question, we are immediately brought into confrontation with our own presuppositions as to how we relate to, and describe, the phenomena of existence – including “law.”

What the canon of legal theory has taken for granted is the problem of the binary opposition of subject/object, the inherited tradition of the cogito.[2]  It is from this inherited tradition that modern legal theory has taken upon itself to describe the phenomena of law as an object to be perceived, observed, described, and explained.  It is against this backdrop of the tradition that our inquiry makes its first point of departure by way of problematizing any attempt at “objective” accounts of what law in fact is.

Throughout Western scholarship, there is a presumption towards the primacy of “objective” (versus subjective or otherwise non-objective) knowledge. This inherited privileging of the “objective” brings with it a number of important consequences, least of all its subsequent ontological dimensions. In the context of legal philosophy (and philosophy generally), this “objectifying” way of philosophizing manifests itself in the way in which legal scholars and philosophers attempt to take up a detached, disinterested, or theoretical point of view in describing the phenomena of “law.” It is as if the observer were capable of removing himself from his or her factical world, relieving him or herself from the complex of circumspective concerns of average-everyday being-in-the-world, and offering up what Thomas Nagel called “the view from nowhere.” [3] This preferential treatment of the objective account of the phenomena of law is supposed to relieve the neutral observer from the biases and prejudices of contingent human existence; in effect, it is an attempt to escape from the “hermeneutic circle” whereby understanding is always already interested and engaged.

To be sure, the “objective” account of law has necessarily transformed itself from the days of Langdell’s rigorous scientific formalism. The reader would be hard-pressed to find many legal philosophers and professional practitioners nowadays holding fast to the idea that law is an embodiment of universal “rules” that are both discoverable and discernible to the trained legal mind. But the objectification of law need not necessarily imply some faith in any sort of metaphysical “realism” of the legal concepts[4]; rather, objectivity in the post-Langdellian sense has taken its cue from positivism and empiricism, whereby legal concepts are indelibly part of the world of experience, conditioned and manufactured by the complex working out of social organization and practices that invariably constitute what we readily take to be “law.” In this respect, the primacy of objectivity can be defined as resting on a (pseudo)grounding in what may be called a “metaphysics of presence.”

In its metaphysical sense, the objectivity of law is grounded in presence; or rather, representation.[5] That is, the meaning and source of law is conceptually prefigured, something re-presentable. The existence of law as “objective presence” comes into being in the very language by which we speak of law or legal concepts. For example, when we say that a contract is a “meeting of the minds,” we take for granted that there is something “out there,” represented or referred to in our speech acts, constitutive of a “contract.” Legal concepts (and law more generally) are re-presented as being imbued with a positive content – something that is ultimately discernible, identifiable, and describable. This pre-eminence placed on the presence of law and its legal concepts gives the entire discourse of law the appearance of an unalterable, pure grounding — whereby the task of legal scholars, thinkers, lawyers, judges, policymakers, and laypeople alike is to determine its meaning (an epistemological-interpretive question).  This has the tendency to ratify an entire framework of discourse that subsumes the question “what is law?) into an altogether different question – what is the meaning of law. This has a tendency to reify law, rendering it static, immutable, and ultimately determinate and fixed. In short, by proclaiming legal meaning as arising from undifferentiated and determinable sources, legal scholars and others seeking to answer the question “what is law?” have completely glossed over the ontological question, and in their haste, moved briskly on to the epistemological question.

In thoroughly forgetting the ontological question of law, much of traditional legal thinking centers on the epistemological grounding of law: taking up questions of how we know the meaning of law, which meanings should prevail over others, which methods are best suited to arriving at the “truth” of law (or original intent), and other similar questions. Again, it must be reiterated that all of these questions presuppose something fundamental – not only about law itself, as the object of knowledge, but also the knower (the knowing subject). But again, there is a circularity here that must not be underestimated: insofar as the meaning of the Being of law is itself something always-already presupposed in our discourse of the nature of law, then it’s perfectly legitimate to focus on the epistemological-interpretative problem of what the law “means.”  Nowhere is this problem made more explicit than within the discourse of law school, where traditional “casebook method” problems arise in the context of institutionalizing and reproducing the discursive framework associated with the American adversarial system. Students are inaugurated into a mode of thinking about law that sees it constituted in an adversarial (binary) opposition whereby opposing parties offer varying, sometimes contradictory, interpretations of the law. What constitutes “a meeting of the minds” in contracts; or “reasonable person” in torts; or sufficient nexus for a party to open itself up to liability in an outside jurisdiction are all subjected to the interpretive process upon which the adversarial system has become known. Students are taught that similar interpretive events can occur among the legal authorities themselves, as when Circuit court decisions are “split,” or when the opinion of the trial court is overturned and remanded by a superior appellate court. Finally, nowhere is the interpretive problem brought to light in such an apparent and explicit way as in the field of “constitutional law,” where the Supreme Court (as the court of final determination on Federal Constitutional questions) is often times explicitly and self-consciously engaged in the penumbra of interpretive problems. Yet despite these interpretive variances, all the parties, and countless legal philosophers and scholars alike, concede that there’s a right answer “out there.” Different participants in the give-and-take of the hermeneutical maneuverings of law may disagree in countless ways on how to interpret legal rules and other phenomena; which methodologies and practices are most appropriate and best-suited for deciphering the “correct” answer; and what is allowable and what is not in carrying out such interpretations – but all agree that there is something definable, determinable, and essentially knowable about the law. [6] It should become clear now that the epistemological objectivity of law necessarily depends, and is intertwined with, the metaphysical objectivity of law as pure presence. But, as we shall see, these purely epistemological problems of knowing or discovering the meaning of law rest upon an inherited notion of truth by which legal philosophy has taken for granted, namely truth as adequatio (correspondence theory of truth).

In outlining the ways in which the question “what is law?” has been largely ignored, and instead substituted with a fetishistic preoccupation on the meaning of law, we can begin to see how law comes to take on a particular mythos. An exploration of this mythos will be dealt with in detail in Part II.

[1] Holmes, O. W. The Common Law (1881)

[2] After subjecting everything to his methodical doubt, Descartes discovered that the only thing remaining was his doubting itself – in other words, his doubting itself was and remained indubitable. Descartes follows this by declaring that I who doubts (thinks) exist; therefore, “cogito, ergo sum.” In effect, Descartes makes the move from epistemology to ontology by positing “thought” prior to “existence.” 

[3] Nagel, Thomas. The View from Nowhere. 1986.

[4] By “realism” I mean here the view that legal concepts are discoverable entities somewhere “out there” and exist in and of themselves, for themselves. Not to be confused with “legal realism,” which attacked such a view. 

[5] By this I mean Derrida’s term “metaphysics of presence.” Derrida, Jacque. Of Grammatology. (Baltimore: John Hopkins University Press, 1997) p. 49.

[6] For a comprehensive analysis of this, see Schlag, Pierre. “Hiding the Ball.” New York University Law Review, 1996.


One comment

  1. Eli Cummings

    Experience of what ? To not ask is to think law to be some sort of pragmatic exercise of trial and error. Spoken or written, law is an extension of power whether in the presence of Authority or remembered in Authority’s absence. The ontology of law is lost to us. One might imagine that it existed even before language. Simple presence may have been enough as when a dominant male causes the scattering of young males away from a harem of females.

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