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The process leading to the eventual swearing in of Amy Cony Barrett as an Associate Justice of the US Supreme Court on 26 October 2020 (here) has absorbed the American elites, no elite field more than ts lawyers and lawyer academics. There was good reason for that, of course. And that is the problem. Having legalized politics over the course of the last century, and constructed the judiciary as its arbiters, the fortunes of political factions ride on the selection of appointees to its highest court. Serendipity and longevity favored the liberal faction in the short run--producing majorities or close dissents by a group of jurists who held on during the last years of the last Democratic Administration. But in the long term, it appears, fortune favored certain factions of traditionalists, especially since the (to their political enemies) unexpected election of Mr. Trump in 2016. So now, having invested authority and legitimacy in the courts, having placed them as the overseers of law, of administrative discretion, and of the meaning of political action, the political enemies of the forces assumed to be represented by the newest Associate Justice face the prospect of a court which would no longer reliably be their instrument (at lest from the perspective of ideology)
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 among reason, faith, and truth (perfection) better defines an American philosophy of law than do traditional, merely rational, conceptions. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law,' in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009).
Americans continue to ask a sideways (I was going to write "wrong" but that itself suggests the alignment of law with some sort of state pf perfection) question of their law and of their judges; they ask if the law is perfect and the application is the right "one." They seek judges who can be instruments of this striving toward perfection--will the judge deliver the "right" result in the form of a "correctly written" opinion? Perhaps they might better ask whether the law is suitable for the times and whether the judge is able to deliver some sort of plausible interpretation. The core question, perhaps, then should be plausibility rather than perfection. Perfection belongs to the realms of morals, politics, theology, and ideology--subjects suitable for argument, and battle in which the legal system serves as crucible. Americans, however, have long rejected the notion law follows rather than leads social transformation. It is just that the ancient document through which this transformation is to be realized continues to pull in the opposite direction in a sometimes most inconvenient way.
Still, Americans now embrace the ideology of perfection. A perfectible law requires perfectible jurists. Neither is possible. Our system was not designed to produce the perfect state, reflected in perfect law, overseen by a perfect magistracy. Americans once left that striving toward perfection to moralists, politicians. . . . and eventually to our Leninists. The task of the law (once essentially private) was to strive toward perfectibility as it suited the times. It was left to moral-politics to guide suitability. That is both the genius and the tragedy of the contemporary American political-juridical system, now built as it is on the necessary scientism (ad with it notions of perfection) of the administrative state. The conflict around the suitability of Amy Coney Barrett, then, reflects the way law is now understood as the expression of a striving for (eternal?) perfection--a theological and Leninist conception--one that requires the perfectible instrument for its delivery. And it is to that that these brief reflections are directed.
1. Americans (or at least those of its legal and academic elites who constitute its self appointed magisterium) have come a long way from the notions of Justinian's Institutes and that of the ancient common law that law and justice is understood as an interactive process in which people are accorded their due. (Institutes Bk 1, tit. 1 § 3 ("The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.")). "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." (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra).
2. Perfection, though, is ultimately a moral concept. From the "Latin perfectus "completed, excellent, accomplished, exquisite," past participle of perficere "accomplish, finish, complete" (here), it suggests the end point of a process that leads from darkness and error, from that which is incomplete and unfinished, to that which in itself requires nothing further. It is the ultimate state of rest, the end of striving--of thinking. For some that well describes death (of individuals, society, moral systems,etc) but to others it signas the end of politics, of conflict.
3. Law can be made perfect. That is what one learns today. It is an instrument but also the evidence of the striving toward fulfillment, toward the end of striving, toward the "right" answer "correctly" derived. It is in this sense a moral (and for secularists a Leninist) project. But at the same time it is inherent in the ideology of Enlightenment science that saw in all things (including the social (now understood itself as a "science" in its own right) the right answer to identified problems. Together this Fides et Ratio (faith ad reason) provided the foundation for the sense that law did not merely strive express and apply social or communal custom (changed either as a matter of course as generations of its members were born, lived and died) or by its political instruments established through public and private organs. Rather law was the expression of social perfection.4. In the US:
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. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra citing Jacques Derrida & Lieven De Cauter. ‘For a justice to come. An Interview with Jacques Derrida’ (Lasse Thomassen (ed.), The Derrida-Habermas Reader, Edinburgh: Edinburgh U. Press, Edinburgh, 2006:259-69).As Justice Scalia was fond of saying: “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, Antonin. “Book Review.” Reviewing Steven D. Smith. Law’s Quandary. Harvard University Press, 2005. First Things 157:37-46 (2005), p. 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.
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 the apotheosis of reason in perfection can be achieved , an American religion without religion. (Caputo 1997: 116). The contests over the control of its mechanics are what keeps American jurisprudence lively, a playing out as the endless battles over form. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra).