The following is a preliminary draft of an essay that will appear in final form in On Philosophy in American Law (F.J. Mootz, ed., Cambridge: Cambridge University Press, forthcoming 2009):
American philosophy of law is better understood as theology than as that traditional American academic or pragmatic discourse that styles itself “philosophy.” The mechanics of an American philosophy of law provides a basis in reason for an American theology of faith in the perfectibility of law. The relationship between reason, faith and truth (perfection) better defines an American philosophy of law than traditional, merely rational, conceptions. This essay first examines the contours of the exercise of American legal rationality by courts and legislators, and central to this analysis are the famous cases of Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938). It then looks to Benedict XVI’s suggestion that there is a foundational relationship between faith (theology) and reason (philosophy) as a better basis for understanding the American theology of law, the function of philosophy within that theology, and the role of the magisterium of judges in its elaboration.
Since the settlement of Plymouth Bay and the Virginia colonies, Americans have been in obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The Preamble to the American Constitution declares the establishment of the American union: “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Thus, the founding constitutive act of that Republic is expressed as higher law. And that higher law sets as the object of the political community so created the attainment of perfection. The objective is at once transcendental (reflecting universal eternal values) and immanent (immersed in a historical project to that end).
The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in a philosophy, the elaboration of which has been marked by great and hotly contested battles. The theology of perfection is grounded in a faith that the attainment of perfection can be expressed by means of governmental action through a rational mechanics. Through these mechanics Americans can discern the spirit of perfection—as God or as the genius of the American community made manifest – to be embraced as the American nation relentlessly builds that civitas dei americorum. Logos – understood in its modern sense as the union of faith and reason, as the inherent rationality of the divine in a historically immanent form—serves as well as the ancient philosophy of American law. Law is the expression of the present state of the American search for perfection. The quest for perfection is accomplished through government and proceeds on the basis of the simultaneous application of philosophies or theologies of perfectibility embraced by the great stakeholders in the American system—lawyers, politicians, industrialists, religious leaders, and the media – on which “the people” are dependent.
Perfectibility in the American context is a messy business – it is the product of uncontrolled and uncoordinated efforts undertaken independently and in communion with like-minded allies and institutions by every stakeholder in American civic life. Disaggregated – into court cases, statutes, the efforts of particular courts and legislatures – the sense is of something chaotic and directionless. American law appears directionless and reactive. But appearances veil a different picture, one better appreciated in the aggregate and over the long term. From a distance, the patterns become clearer; and that pattern suggests a lurching toward perfection. American law at any moment is a snapshot of that aggregate lurching toward perfection that is always a case and a statute away. The expression, means, and mechanics of perfectibility – this forms the essence of a philosophy of American law in the service of a paramount faith in that perfection.
The expression (and meaning) of perfection through law.
The decisions in Swift and Erie are twin poles of reason joined by a shared faith in a rational basis for legal perfectability. “Swift and Erie address the question of the nature of law and of the common, or unwritten, law in particular.” (Braithwaite 1992:774). The cases offer substantially irreconcilable conceptions of the state, law, the role of legislatures and judges and the relationship between the “higher law” of the federal constitution as an ultimate positive constitutive act and “the law” of the nation. Yet, there is commonality. Both are founded on the same fundamental understanding of purpose of the function of law as an expression of perfectibility. The differences between them, differences that keep American jurisprudence lively, center on the specifics of the relationship of law, the state and its government.
Swift assumes a common national judicial project to approach the perfection of the common law by repeated communal application by the community of judges. Matters of a general nature, affecting the peoples of the states of the union in equal measure, general questions of law, were organic and required a common effort from all judges – where state or federal – to the same task, “that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.” (Swift, 1842, 18). In this context, positive law was a derogation from the common law, the organic and communal law of the people, expressed by them and through their courts, and to which they, like their government was subject. That subjection was both conditional, with respect to those local matters on which government might direct a different result that is, “to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character.” Id. And immutable with respect to the higher law represented by the common law. The judge served the law, and law was an articulation of the lived customs and principles of communal organization of the people who came together in a political union. The obligations of all judges were general and the same – to work together to attain the highest, best, and most just expression of the organic law of the people to apply in any dispute brought before them. Judges thus exist beyond the mechanics of the various governments, and their role is not limited by the political and territorial restraints put on the various elected and administrative officials constituted through the “higher law” of the federal and state constitutions. Their relationship to law, and to the people, is direct and extends, like the common law, to the borders of the union. To abrogate or limit this common law is to abrogate or limit the substantive portion of the “higher law” of the federal (and state) constitutions, which both preceded and served as a foundation for the constitution of government represented by those instruments.
Erie assumed the necessary subordination of the judiciary and the common law of the nation to that of subordinate political units, the content and power over which were to be distributed in accordance with whatever formula their legislatures may declare. Its foundation is the princely state, in which the popular will is reduced to the positive and instrumental expression of a popular construct//the apparatus of state. Law loses its organic character and the judge her role as the vehicle through which the customary will is articulated and applied. Erie assumes a legislative supremacy to define the confines of law and its character. It rejects “the assumption that there is ‘a transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute,’ that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts ‘the parties are entitled to an independent judgment on matters of general law.’” (Erie Railroad, 1938 (quoting in part, Justice Holmes)). Erie rejects the possibility of the judge as an instrument of the search for the ultimate truth or justice as expressed in law. Quoting Justice Field, Justice Brandeis turns the conceptions of Swift on its head. What passes for a general law of the United States “is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject.” (Baltimore & Ohio R. Co. v. Baugh 1893, 401 (Field, J., dissenting)). The law of the judge is thus both personal and uncontrolled. He is transformed into the unelected legislator usurping legislative authority.
It is to the apparatus of government, rather than to the whim of the judge, that the appropriate measure of law lies, and accountability can be had. This point, perhaps one of the most potent in Erie, has been taken up by legal realists, post modern critiques and conservatives, each seeking to reduce further the authority of the judge and mold the positive acts of the legislature to its own program of legislation. But, Erie does not reject the possibility of perfectibility in general and perfectibility through law in particular. It just moves the source from judge to the “higher law” of the federal constitution, now understood as the source and template of governance in which law is expressed by the legislative organs of the state. Perfectibility becomes a political rather than a judicial act.
Government as the means to perfectibility.
The philosophy of perfection, thus, can be subsumed under a greater objective – the search for perfect order. The amalgamation of rechtsstaat with the substantive basis of a Sozialstaat, the perfect order merges expression (law), means (government) and mechanics (philosophy) into a dynamic whole that ultimately achieves rest (the end of striving) and thus, peace. American jurisprudence embraces, perhaps in an ironic way, the Augustinian insight about the messianic character of peace:
Perfection is an ideal state which is to be served through a philosophy, or better put the rational pragmatics, of law. This ideal state can realized by embracing truth as it exists outside of an individual – either in divine command (or grace, or law) or in the inspired will of the community at its most potent. It is (or apes) messianism, with or without religion, “What I call messianicity without messianism is a call, a promise of an independent future for what is to come, and which comes like every messiah in the shape of peace and justice, a promise independent of religion, that is to say universal.” (Derrida and De Cauter 2006: 268-269). That is, perfection arrives from the top (the divine or the apparatus of government) down (the people and their customs) or from the bottom up, that is organically constructed as an articulation of the community's aggregate beliefs and behaviors. How that occurs, through judge or legislature, is the substance of the philosophy of law.
Perfectibility and the judge. Law in Swift was an organic construct presided over by judges into which the legislature sometimes intruded. The aggregation of that construct, the work of all judges wrestling with the same question, produced perfection, sometimes even against the will of the legislature expressed as statute. This reflects old knowledge. In Dr. Bonham’s Case, Coke reminded us that “when an Act of Parliament is against Common right and reason, or repugnant or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void” (Bonham’s Case 1610: 275). The judge stands between perfection and the political community. American constitutionalism, like American religion, functions on the basis of sin, of error. The source of salvation from error, that is from the sin of unlawfulness, is then focused on the judge, as guidance from sin is vested in the priest. “The priest rules through the invention of sin;” (Nietzsche 1888: Ch. 49 at 631) the constitutional judge rules through the elaboration of doctrine. As Nietzsche reminds us, “Disobedience of God, that is, of the priest, of ‘the Law,’ is now called ‘sin’ [and] the means for ‘reconciliation with God’ are, [of course, the] means that merely guarantee still more thorough submission to the priest: the priest alone ‘redeems.’’ (ibid: Ch. 26 at 598). The judge becomes voice to perfection and the instrument of her own privilege. This serves as the measure of perfection within the philosophical foundation of Swift. But also in Erie. Law in Erie law was an instrumental and conscious expression government. The people were best served by their government, which most legitimately could express the perfection of their law through statute to be guarded and interpreted by the courts. While Swift would rely on the judges for the task of rationalizing perfection, Erie looked to the legislature and statute. In either case, faith in law and in government becomes basic to the rational exercises that serve as its philosophy. And in both cases it is the magisterium of judges that controls.
Perfectibility and the political branches. Still Erie points to the role of the political branches between perfection and its expression in law. The intermediation is represented as a necessary consequence of the construction of a system of divided power in which the community is deemed to have divested itself of direct regulatory power (that is, of its relationship to the construction of a customary law) in favor of a government constituted to exercise all political authority. As Justice Scalia is now fond of noting: “Modern governments . . . are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges—and most especially by unelected judges.” (Scalia 1995: 40). The apparatus of state thus serves as the means of a perfection the measure of which is its constitution and the guardian of which remains the judge.
This sort of institutional intermediation is also tellingly confirmed by the substitution of the great law codes for what remains of the common law in the United States. It is evidenced by the rise of great private bodies of public personages charged with the consideration and development of a harmonized expression of the ideal in law. This project is represented by the great projects of informal legal codification of the American Law Institute (“ALI”) and the National Conference of Commissioners on Uniform State Laws (“NCCUSL”).
The ALI has sought uniformity in common law through systematization of decisions, synthesizing and pointing to the “correct” result in a manner reminiscent of the Swift. The American Law Institute, building on the “Bractonian and Blackstonian treatises, declaring the common law on the empirical foundations of judicial decisions” (American Law Institute 2005: vii), fearing the “chaos in a legal world of 48 states” (ibid) but afraid to undertake legislative codification, invented the form of the Restatement. Restatements constituted a synthesis of sorts, “analytical, critical and constructive” (ibid: 5) seeking to reduce to a single systematic form the underlying principles that gave a legal field coherence “and thus restore the coherence of the common law as properly apprehended” (ibid: 5). They serve as once to synthesize and to innovate (ibid:). Though not binding, ALI Restatements have proven to be authoritative in many American courts.
The NCCUSL has worked since 1892 on unification of law through statutory projects more in conformity with the jurisprudential focus of Erie. A non-governmental organization whose members, representing all of the states and other territorial units, are for the most part regulated by statute, NCCUSL commissioners “promote the principle of uniformity by drafting and proposing specific statutes in areas of the law where uniformity between the states is desirable.” Their uniform laws have become a pillar of state legislation and have moved the project of legislative uniformity—of the search for a pan “American” legal ideal closer toward realization. It, too, then, serves a potent illustration of the application of this development of a means to apply the mechanics of perfectibility expressed as law within the American political community. The mechanics of perfection are strikingly similar to that of the Judge. But here the legislator becomes voice to perfection and the instrument of her own privilege.
Whether by means of judicial or legislative command, or through the efforts of quasi-legislative endeavors of political elites, then, the expression of perfection remains law, realized through a institutional techniques the value of which is determined by application of a mechanics of the knowledge of the attributes perfection. And that mechanics of knowledge joins law to philosophy or theology. It is to this last point that this essay now considers.
Logos and law, the mechanics of perfection.
The philosophy of law centers on a rationality of perfection. This faith defines and delimits the scope of those mechanics within the broad parameters of faith and reason. Its foundation is a faith in perfection and the end of striving or peace. Its mechanics is entwined with order, and order fold back into rationality—whether subjective or objective. Faith in perfection, rationally expressed through and as law, expresses a theology of law without religion.
The institutional Catholic dialog about the relationship between faith and reason provides useful insights for contextualizing the philosophy of American law within its theological (or faith) foundations. Within that context, faith becomes the “truth” of perfectibility, and reason the substance of and mechanics for its attainment. As articulated in the encyclical Fides et Ratio (1998) one starts with the knowledge of revealed truth, (Ibid: ¶ 7), a transcendental truth that is also immanent, that is, “immersed in time and history.” (Ibid: ¶ 11). Faith is a fidelity to this revealed truth as both transcendental (eternal and ultimate—perfect) and immanent (leading to perfection). (Ibid: ¶ 13) “Between these two poles, reason has its own specific field in which it can enquire and understand, restricted only by its finiteness before the infinite mystery of God.” (Ibid: ¶ 14) Thus the foundation of the unity of faith and reason: “In God there lies the origin of all things, in him is found the fullness of the mystery, and in this his glory consists; to men and women there falls the task of exploring truth with their reason, and in this their nobility consists.” (Ibid: ¶ 17). God—perfection, peace—is thus encapsulated in the notion of Logos: “Logos means both reason and word - a reason which is creative and capable of self-communication, precisely as reason. John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis.” (Benedict XVI 2006).
Where the community of the faithful includes the world (the founding postulate of universalist religions and philosophies), the internal workings of faith on reason become the paramount relationship. The body of the Divine defines the extent of reality; it serves without limit. Reason without faith, then, becomes method without purpose, and reduces its object to individual satisfaction. Within religion, “any attempt to maintain theology's claim to be "scientific" would end up reducing Christianity to a mere fragment of its former self. But we must say more: if science as a whole is this and this alone, then it is man himself who ends up being reduced.” (Benedict XVI 2006). Reason in the absence of faith and the faith community is reduced to the subjective, and the partial. “The subject then decides, on the basis of his experiences, what he considers tenable in matters of religion, and the subjective "conscience" becomes the sole arbiter of what is ethical. In this way, though, ethics and religion lose their power to create a community and become a completely personal matter. This is a dangerous state of affairs for humanity.” (Ibid).
But in a world in which multiple communities of the faithful exist, and where the scope of faith communities are functionally differentiated (political, economic, etc.), then faith and reason acquire a different direction—communication, collaboration, and evangelization (diálesis) rather than Logos. This is a world with many bodies of the Divine, internally infinite, yet externally limited by the body of faith. In this world, and within that diálesis, an overcoming of parochial faith (one that is inwardly infinite and outwardly limited) might be possible, or power relationships played out.
From this the great organizing principle of American legal philosophy. Self-constituted communities are bounded by the ‘truth” of their constitution, a truth that necessarily embodies faith and reason in the sense that is described in John Paul II’s exposition in Fides et Ratio. Political communities, like religious and social communities, are bounded by the “truth” of their constitution—rationally bounded by rules and understandings within which the infinite is possible. Faith provides the ongoing principles of that community—its morals, ethics and theology. Reason serves as the means for incorporation and application of those principles. Together they provide the framework within which the search for “truth”—as perfection—is undertaken by means of government and expressed, ultimately, in law.
Terminus.
There is thus an active and a passive element to the relationship between American law and jurisprudence, its philosophy and theology. On one hand, jurisprudence explains a mechanics of law eschewing any suggestion that it may affect the product. On the other, jurisprudence styles itself the source of a mechanics of law construction. But not just an explanation, or a mechanics. American juristic philosophy, like the cultural-political framework in which it operates, is both fractured and itself seeking that singular perfection of expression that would bring it in line with the sole, exclusive and ultimate reality.
American jurisprudence reduces itself to the conceptual battles represented by Swift and Erie. “The major issue, thus, is to find the ultimate criterion of law, whether in the heaven of juristic ideals or in the earth of social reality. . . . In other words, we are advancing, let us hope, in the direction of agreement that the objective of jurisprudence is the same as of all science—to develop the truth.” (Yntema 1947: 1106). And in this reduction overcomes itself as well: “justice exceeds the law (le droit) but also motivates its movement, the history and becoming of juridical rationality . . . . no justice without appeal to judicial determinations and to the force of law, no becoming, no transformation, history or perfectibility of law without the appeal to a justice that will always exceed it.” (Derrida 1993: 266, translated and quoted in De Cauter).
The philosophy of American law is rational and pragmatic: it seeks to serve its faith. Faith is grounded in perfection through law among the community of the faithful, who together constitute the citizens of the American nation. Together this community lives its faith through a commitment to the attainment of the “more perfect union” on which the American self-creation is based. That more perfect union is expressed in law by means of the apparatus of state—through which the collective genius of the community of the faithful is assembled and through which faith can be authoritatively manifested.
Yet it is the mechanics of this perfection, rather than its content, that continues to dominate the more dynamic aspects of the philosophy of the American theology of law. For Americans, the basic question of philosophy is more often reduced to who, rather than to what, and how rather than why. From common law theory, to liberal positivism, legal realism, natural law and critical theory, all seek to serve as the mechanics of a singular perfectibility. These diverse mechanics provide the structure and context through which the ascendancy of different visions of reason seek primacy in the service of perfection, each constituting pieces in the striving for perfection, an American religion without religion. (Caputo 1997: 116). The contests over the control of its mechanics was the object of the great battle played out between Swift and Erie, and consciously so. The foundations of reason were never in doubt, nor was a necessary conflation of reason with law. Thus Justice Frankfurter could mock Swift even as he affirmed its object. “Law was conceived as a ‘brooding omnipresence’ of Reason, of which decisions were merely evidence and not themselves the controlling formulations. Accordingly, federal courts deemed themselves free to ascertain what Reason, and therefore Law, required wholly independent of authoritatively declared State law.” (Guaranty Trust Co. 1945: 116). But Reason, itself, is bound up in the form of the constitutional order, which itself is an expression of the form perfection—the body of the divine. “The operation of a double system of conflicting laws in the same state is plainly hostile to the reign of law.” (Ibid: 125). Or as Benedict XVI might suggest, “Not to act "with logos" is contrary to God's nature.” (Benedict XVI 2006).
References
American Law Institute. Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work. Philadelphia: American Law Institute, 2005).
Augustine of Hippo. The City of God. Trans. Thomas Merton. New York: The Modern Library, 1950.
Benedict XVI, “Faith Reason and the University: Memories and Reflections,” Address Delivered at the University of Regensburg, Germany, Sept. 12, 2006 available at http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents/hf_ben-xvi_spe_20060912_university-regensburg_en.html.
Braithwaite, William T. “The Common Law And The Judicial Power: An Introduction To Swift-Erie and the Problem Of Transcendental Versus Positive Law.” In Law and Philosophy: The Practice of Theory Essays in Honor of George Anastaplo. Eds. William T. Braithwaite, John A. Murley, and Robert L. Stone. Athens, OH: Ohio U. Press, 1992: 774-818.
Caputo, John D. The Prayers and Tears of Jacques Derrida: Religion Without Religion. Bloomngton, IN: Indiana University Press, 1997.
De Cauter, Lieven. “The Tyrant as Messiah: Messianism and Antinomianism in the Neoconservative Ideology.” The Brussels Tribunal (Sept. 3, 2006) available at http://www.brusselstribunal.org/Messianism.htm#_ednref2
Derrida, Jacques. Spectre de Marx L’état de la dette, le travail du deuil et la nouvelle Internationale. Paris: Galilée, 1993.
---------- & Lieven De Cauter. ‘For a justice to come. An Interview with Jacques Derrida’ (Lasse Thomassen (ed.), The Derrida-Habermas Reader, Edingurgh: Edinburgh U. Press, Edinburgh, 2006:259-69.
John Paul II, Fides et Ratio. Vatican City: Vatican Publication, 1998.
Nietzsche, Friedrich. The Antichrist. In The Portable Nietzsche. Ed. and trans. Walter Kaufmann. New York: Penguin Books 1968 (originally published 1888): 565-656.
Scalia, Antonin. “Book Review.” Reviewing Steven D. Smith. Law’s Quandary. Harvard University Press, 2005. First Things 157:37-46 (2005).
Uniform Law Commission, “Organization,” available http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=11.
Yntema, Hessel E. “Book Review.” Yale Law Journal 56:1101-1106 (1947). Reviewing Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound. Ed. Paul Sayre. New York: Oxford U Press, 1947.
Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368 (1893).
Dr. Bonham’s Case. 1610. Hilary Term, 7 James I. In the Court of Common Pleas. Reports, vol. 8, 113 b (8 Co. 107a (1610)), reprinted in Coke 2003, vol. I, 264.
Erie Railroad Co. v. Tomkins, 304 U.S. 64 (1938).
Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
Swift v. Tyson, 41 U.S. (16 Peters) 1 (1842).
American philosophy of law is better understood as theology than as that traditional American academic or pragmatic discourse that styles itself “philosophy.” The mechanics of an American philosophy of law provides a basis in reason for an American theology of faith in the perfectibility of law. The relationship between reason, faith and truth (perfection) better defines an American philosophy of law than traditional, merely rational, conceptions. This essay first examines the contours of the exercise of American legal rationality by courts and legislators, and central to this analysis are the famous cases of Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938). It then looks to Benedict XVI’s suggestion that there is a foundational relationship between faith (theology) and reason (philosophy) as a better basis for understanding the American theology of law, the function of philosophy within that theology, and the role of the magisterium of judges in its elaboration.
Since the settlement of Plymouth Bay and the Virginia colonies, Americans have been in obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The Preamble to the American Constitution declares the establishment of the American union: “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Thus, the founding constitutive act of that Republic is expressed as higher law. And that higher law sets as the object of the political community so created the attainment of perfection. The objective is at once transcendental (reflecting universal eternal values) and immanent (immersed in a historical project to that end).
The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in a philosophy, the elaboration of which has been marked by great and hotly contested battles. The theology of perfection is grounded in a faith that the attainment of perfection can be expressed by means of governmental action through a rational mechanics. Through these mechanics Americans can discern the spirit of perfection—as God or as the genius of the American community made manifest – to be embraced as the American nation relentlessly builds that civitas dei americorum. Logos – understood in its modern sense as the union of faith and reason, as the inherent rationality of the divine in a historically immanent form—serves as well as the ancient philosophy of American law. Law is the expression of the present state of the American search for perfection. The quest for perfection is accomplished through government and proceeds on the basis of the simultaneous application of philosophies or theologies of perfectibility embraced by the great stakeholders in the American system—lawyers, politicians, industrialists, religious leaders, and the media – on which “the people” are dependent.
Perfectibility in the American context is a messy business – it is the product of uncontrolled and uncoordinated efforts undertaken independently and in communion with like-minded allies and institutions by every stakeholder in American civic life. Disaggregated – into court cases, statutes, the efforts of particular courts and legislatures – the sense is of something chaotic and directionless. American law appears directionless and reactive. But appearances veil a different picture, one better appreciated in the aggregate and over the long term. From a distance, the patterns become clearer; and that pattern suggests a lurching toward perfection. American law at any moment is a snapshot of that aggregate lurching toward perfection that is always a case and a statute away. The expression, means, and mechanics of perfectibility – this forms the essence of a philosophy of American law in the service of a paramount faith in that perfection.
The expression (and meaning) of perfection through law.
The decisions in Swift and Erie are twin poles of reason joined by a shared faith in a rational basis for legal perfectability. “Swift and Erie address the question of the nature of law and of the common, or unwritten, law in particular.” (Braithwaite 1992:774). The cases offer substantially irreconcilable conceptions of the state, law, the role of legislatures and judges and the relationship between the “higher law” of the federal constitution as an ultimate positive constitutive act and “the law” of the nation. Yet, there is commonality. Both are founded on the same fundamental understanding of purpose of the function of law as an expression of perfectibility. The differences between them, differences that keep American jurisprudence lively, center on the specifics of the relationship of law, the state and its government.
Swift assumes a common national judicial project to approach the perfection of the common law by repeated communal application by the community of judges. Matters of a general nature, affecting the peoples of the states of the union in equal measure, general questions of law, were organic and required a common effort from all judges – where state or federal – to the same task, “that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.” (Swift, 1842, 18). In this context, positive law was a derogation from the common law, the organic and communal law of the people, expressed by them and through their courts, and to which they, like their government was subject. That subjection was both conditional, with respect to those local matters on which government might direct a different result that is, “to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character.” Id. And immutable with respect to the higher law represented by the common law. The judge served the law, and law was an articulation of the lived customs and principles of communal organization of the people who came together in a political union. The obligations of all judges were general and the same – to work together to attain the highest, best, and most just expression of the organic law of the people to apply in any dispute brought before them. Judges thus exist beyond the mechanics of the various governments, and their role is not limited by the political and territorial restraints put on the various elected and administrative officials constituted through the “higher law” of the federal and state constitutions. Their relationship to law, and to the people, is direct and extends, like the common law, to the borders of the union. To abrogate or limit this common law is to abrogate or limit the substantive portion of the “higher law” of the federal (and state) constitutions, which both preceded and served as a foundation for the constitution of government represented by those instruments.
Erie assumed the necessary subordination of the judiciary and the common law of the nation to that of subordinate political units, the content and power over which were to be distributed in accordance with whatever formula their legislatures may declare. Its foundation is the princely state, in which the popular will is reduced to the positive and instrumental expression of a popular construct//the apparatus of state. Law loses its organic character and the judge her role as the vehicle through which the customary will is articulated and applied. Erie assumes a legislative supremacy to define the confines of law and its character. It rejects “the assumption that there is ‘a transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute,’ that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts ‘the parties are entitled to an independent judgment on matters of general law.’” (Erie Railroad, 1938 (quoting in part, Justice Holmes)). Erie rejects the possibility of the judge as an instrument of the search for the ultimate truth or justice as expressed in law. Quoting Justice Field, Justice Brandeis turns the conceptions of Swift on its head. What passes for a general law of the United States “is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject.” (Baltimore & Ohio R. Co. v. Baugh 1893, 401 (Field, J., dissenting)). The law of the judge is thus both personal and uncontrolled. He is transformed into the unelected legislator usurping legislative authority.
It is to the apparatus of government, rather than to the whim of the judge, that the appropriate measure of law lies, and accountability can be had. This point, perhaps one of the most potent in Erie, has been taken up by legal realists, post modern critiques and conservatives, each seeking to reduce further the authority of the judge and mold the positive acts of the legislature to its own program of legislation. But, Erie does not reject the possibility of perfectibility in general and perfectibility through law in particular. It just moves the source from judge to the “higher law” of the federal constitution, now understood as the source and template of governance in which law is expressed by the legislative organs of the state. Perfectibility becomes a political rather than a judicial act.
Government as the means to perfectibility.
The philosophy of perfection, thus, can be subsumed under a greater objective – the search for perfect order. The amalgamation of rechtsstaat with the substantive basis of a Sozialstaat, the perfect order merges expression (law), means (government) and mechanics (philosophy) into a dynamic whole that ultimately achieves rest (the end of striving) and thus, peace. American jurisprudence embraces, perhaps in an ironic way, the Augustinian insight about the messianic character of peace:
Peace between man and God is the well ordered obedience of faith to eternal law. Peace between man and man is well ordered concord. Domestic peace is the well-ordered concord between those of the family who rule and those who obey. Civil peace is a similar concord among the citizens. The peace of the celestial city is the perfectly ordered and harmonious enjoyment of God, and of one another in God. The peace of all things is the tranquility of order. Order is the distribution which allots things equal and unequal, each to its own place. (Augustine 1950: Bk XIX, Sec. 13, p. 690)
Perfection is an ideal state which is to be served through a philosophy, or better put the rational pragmatics, of law. This ideal state can realized by embracing truth as it exists outside of an individual – either in divine command (or grace, or law) or in the inspired will of the community at its most potent. It is (or apes) messianism, with or without religion, “What I call messianicity without messianism is a call, a promise of an independent future for what is to come, and which comes like every messiah in the shape of peace and justice, a promise independent of religion, that is to say universal.” (Derrida and De Cauter 2006: 268-269). That is, perfection arrives from the top (the divine or the apparatus of government) down (the people and their customs) or from the bottom up, that is organically constructed as an articulation of the community's aggregate beliefs and behaviors. How that occurs, through judge or legislature, is the substance of the philosophy of law.
Perfectibility and the judge. Law in Swift was an organic construct presided over by judges into which the legislature sometimes intruded. The aggregation of that construct, the work of all judges wrestling with the same question, produced perfection, sometimes even against the will of the legislature expressed as statute. This reflects old knowledge. In Dr. Bonham’s Case, Coke reminded us that “when an Act of Parliament is against Common right and reason, or repugnant or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void” (Bonham’s Case 1610: 275). The judge stands between perfection and the political community. American constitutionalism, like American religion, functions on the basis of sin, of error. The source of salvation from error, that is from the sin of unlawfulness, is then focused on the judge, as guidance from sin is vested in the priest. “The priest rules through the invention of sin;” (Nietzsche 1888: Ch. 49 at 631) the constitutional judge rules through the elaboration of doctrine. As Nietzsche reminds us, “Disobedience of God, that is, of the priest, of ‘the Law,’ is now called ‘sin’ [and] the means for ‘reconciliation with God’ are, [of course, the] means that merely guarantee still more thorough submission to the priest: the priest alone ‘redeems.’’ (ibid: Ch. 26 at 598). The judge becomes voice to perfection and the instrument of her own privilege. This serves as the measure of perfection within the philosophical foundation of Swift. But also in Erie. Law in Erie law was an instrumental and conscious expression government. The people were best served by their government, which most legitimately could express the perfection of their law through statute to be guarded and interpreted by the courts. While Swift would rely on the judges for the task of rationalizing perfection, Erie looked to the legislature and statute. In either case, faith in law and in government becomes basic to the rational exercises that serve as its philosophy. And in both cases it is the magisterium of judges that controls.
Perfectibility and the political branches. Still Erie points to the role of the political branches between perfection and its expression in law. The intermediation is represented as a necessary consequence of the construction of a system of divided power in which the community is deemed to have divested itself of direct regulatory power (that is, of its relationship to the construction of a customary law) in favor of a government constituted to exercise all political authority. As Justice Scalia is now fond of noting: “Modern governments . . . are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges—and most especially by unelected judges.” (Scalia 1995: 40). The apparatus of state thus serves as the means of a perfection the measure of which is its constitution and the guardian of which remains the judge.
This sort of institutional intermediation is also tellingly confirmed by the substitution of the great law codes for what remains of the common law in the United States. It is evidenced by the rise of great private bodies of public personages charged with the consideration and development of a harmonized expression of the ideal in law. This project is represented by the great projects of informal legal codification of the American Law Institute (“ALI”) and the National Conference of Commissioners on Uniform State Laws (“NCCUSL”).
The ALI has sought uniformity in common law through systematization of decisions, synthesizing and pointing to the “correct” result in a manner reminiscent of the Swift. The American Law Institute, building on the “Bractonian and Blackstonian treatises, declaring the common law on the empirical foundations of judicial decisions” (American Law Institute 2005: vii), fearing the “chaos in a legal world of 48 states” (ibid) but afraid to undertake legislative codification, invented the form of the Restatement. Restatements constituted a synthesis of sorts, “analytical, critical and constructive” (ibid: 5) seeking to reduce to a single systematic form the underlying principles that gave a legal field coherence “and thus restore the coherence of the common law as properly apprehended” (ibid: 5). They serve as once to synthesize and to innovate (ibid:). Though not binding, ALI Restatements have proven to be authoritative in many American courts.
The NCCUSL has worked since 1892 on unification of law through statutory projects more in conformity with the jurisprudential focus of Erie. A non-governmental organization whose members, representing all of the states and other territorial units, are for the most part regulated by statute, NCCUSL commissioners “promote the principle of uniformity by drafting and proposing specific statutes in areas of the law where uniformity between the states is desirable.” Their uniform laws have become a pillar of state legislation and have moved the project of legislative uniformity—of the search for a pan “American” legal ideal closer toward realization. It, too, then, serves a potent illustration of the application of this development of a means to apply the mechanics of perfectibility expressed as law within the American political community. The mechanics of perfection are strikingly similar to that of the Judge. But here the legislator becomes voice to perfection and the instrument of her own privilege.
Whether by means of judicial or legislative command, or through the efforts of quasi-legislative endeavors of political elites, then, the expression of perfection remains law, realized through a institutional techniques the value of which is determined by application of a mechanics of the knowledge of the attributes perfection. And that mechanics of knowledge joins law to philosophy or theology. It is to this last point that this essay now considers.
Logos and law, the mechanics of perfection.
The philosophy of law centers on a rationality of perfection. This faith defines and delimits the scope of those mechanics within the broad parameters of faith and reason. Its foundation is a faith in perfection and the end of striving or peace. Its mechanics is entwined with order, and order fold back into rationality—whether subjective or objective. Faith in perfection, rationally expressed through and as law, expresses a theology of law without religion.
The institutional Catholic dialog about the relationship between faith and reason provides useful insights for contextualizing the philosophy of American law within its theological (or faith) foundations. Within that context, faith becomes the “truth” of perfectibility, and reason the substance of and mechanics for its attainment. As articulated in the encyclical Fides et Ratio (1998) one starts with the knowledge of revealed truth, (Ibid: ¶ 7), a transcendental truth that is also immanent, that is, “immersed in time and history.” (Ibid: ¶ 11). Faith is a fidelity to this revealed truth as both transcendental (eternal and ultimate—perfect) and immanent (leading to perfection). (Ibid: ¶ 13) “Between these two poles, reason has its own specific field in which it can enquire and understand, restricted only by its finiteness before the infinite mystery of God.” (Ibid: ¶ 14) Thus the foundation of the unity of faith and reason: “In God there lies the origin of all things, in him is found the fullness of the mystery, and in this his glory consists; to men and women there falls the task of exploring truth with their reason, and in this their nobility consists.” (Ibid: ¶ 17). God—perfection, peace—is thus encapsulated in the notion of Logos: “Logos means both reason and word - a reason which is creative and capable of self-communication, precisely as reason. John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis.” (Benedict XVI 2006).
Where the community of the faithful includes the world (the founding postulate of universalist religions and philosophies), the internal workings of faith on reason become the paramount relationship. The body of the Divine defines the extent of reality; it serves without limit. Reason without faith, then, becomes method without purpose, and reduces its object to individual satisfaction. Within religion, “any attempt to maintain theology's claim to be "scientific" would end up reducing Christianity to a mere fragment of its former self. But we must say more: if science as a whole is this and this alone, then it is man himself who ends up being reduced.” (Benedict XVI 2006). Reason in the absence of faith and the faith community is reduced to the subjective, and the partial. “The subject then decides, on the basis of his experiences, what he considers tenable in matters of religion, and the subjective "conscience" becomes the sole arbiter of what is ethical. In this way, though, ethics and religion lose their power to create a community and become a completely personal matter. This is a dangerous state of affairs for humanity.” (Ibid).
But in a world in which multiple communities of the faithful exist, and where the scope of faith communities are functionally differentiated (political, economic, etc.), then faith and reason acquire a different direction—communication, collaboration, and evangelization (diálesis) rather than Logos. This is a world with many bodies of the Divine, internally infinite, yet externally limited by the body of faith. In this world, and within that diálesis, an overcoming of parochial faith (one that is inwardly infinite and outwardly limited) might be possible, or power relationships played out.
From this the great organizing principle of American legal philosophy. Self-constituted communities are bounded by the ‘truth” of their constitution, a truth that necessarily embodies faith and reason in the sense that is described in John Paul II’s exposition in Fides et Ratio. Political communities, like religious and social communities, are bounded by the “truth” of their constitution—rationally bounded by rules and understandings within which the infinite is possible. Faith provides the ongoing principles of that community—its morals, ethics and theology. Reason serves as the means for incorporation and application of those principles. Together they provide the framework within which the search for “truth”—as perfection—is undertaken by means of government and expressed, ultimately, in law.
Terminus.
There is thus an active and a passive element to the relationship between American law and jurisprudence, its philosophy and theology. On one hand, jurisprudence explains a mechanics of law eschewing any suggestion that it may affect the product. On the other, jurisprudence styles itself the source of a mechanics of law construction. But not just an explanation, or a mechanics. American juristic philosophy, like the cultural-political framework in which it operates, is both fractured and itself seeking that singular perfection of expression that would bring it in line with the sole, exclusive and ultimate reality.
American jurisprudence reduces itself to the conceptual battles represented by Swift and Erie. “The major issue, thus, is to find the ultimate criterion of law, whether in the heaven of juristic ideals or in the earth of social reality. . . . In other words, we are advancing, let us hope, in the direction of agreement that the objective of jurisprudence is the same as of all science—to develop the truth.” (Yntema 1947: 1106). And in this reduction overcomes itself as well: “justice exceeds the law (le droit) but also motivates its movement, the history and becoming of juridical rationality . . . . no justice without appeal to judicial determinations and to the force of law, no becoming, no transformation, history or perfectibility of law without the appeal to a justice that will always exceed it.” (Derrida 1993: 266, translated and quoted in De Cauter).
The philosophy of American law is rational and pragmatic: it seeks to serve its faith. Faith is grounded in perfection through law among the community of the faithful, who together constitute the citizens of the American nation. Together this community lives its faith through a commitment to the attainment of the “more perfect union” on which the American self-creation is based. That more perfect union is expressed in law by means of the apparatus of state—through which the collective genius of the community of the faithful is assembled and through which faith can be authoritatively manifested.
Yet it is the mechanics of this perfection, rather than its content, that continues to dominate the more dynamic aspects of the philosophy of the American theology of law. For Americans, the basic question of philosophy is more often reduced to who, rather than to what, and how rather than why. From common law theory, to liberal positivism, legal realism, natural law and critical theory, all seek to serve as the mechanics of a singular perfectibility. These diverse mechanics provide the structure and context through which the ascendancy of different visions of reason seek primacy in the service of perfection, each constituting pieces in the striving for perfection, an American religion without religion. (Caputo 1997: 116). The contests over the control of its mechanics was the object of the great battle played out between Swift and Erie, and consciously so. The foundations of reason were never in doubt, nor was a necessary conflation of reason with law. Thus Justice Frankfurter could mock Swift even as he affirmed its object. “Law was conceived as a ‘brooding omnipresence’ of Reason, of which decisions were merely evidence and not themselves the controlling formulations. Accordingly, federal courts deemed themselves free to ascertain what Reason, and therefore Law, required wholly independent of authoritatively declared State law.” (Guaranty Trust Co. 1945: 116). But Reason, itself, is bound up in the form of the constitutional order, which itself is an expression of the form perfection—the body of the divine. “The operation of a double system of conflicting laws in the same state is plainly hostile to the reign of law.” (Ibid: 125). Or as Benedict XVI might suggest, “Not to act "with logos" is contrary to God's nature.” (Benedict XVI 2006).
References
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Augustine of Hippo. The City of God. Trans. Thomas Merton. New York: The Modern Library, 1950.
Benedict XVI, “Faith Reason and the University: Memories and Reflections,” Address Delivered at the University of Regensburg, Germany, Sept. 12, 2006 available at http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents/hf_ben-xvi_spe_20060912_university-regensburg_en.html.
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