April 30, 2011
The word “civilmoign” is a nonsense term that appears in Lon L. Fuller’s “The Case of the Speluncean Explorers.”
Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which really stands in need of such regulation is greatly overestimated. There are, of course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free civilmoign system.
The word “civilmoign” has no meaning, but it does have purpose. As James Boyle explains:
With Fuller’s characteristic love of nested insights, Handy then shows how problematic a task it is to pick these ‘foundational’ rules. Having gulled the unwary reader by referring to apparently uncontentious procedural rules of election law, Handy adds, “perhaps the area of basic principle should be expanded to include certain other rules such as those designed to preserve the free civilmoign system.” We must have both form and substance, and Handy wants to restrict our ideas of formal justice to those “few fundamental rules of the game that must be accepted if the game is to go on at all.” But which rules exactly are those? Generations of students have wondered aloud just what exactly “the free civilmoign system” is, only to discover that one of their classmates said confidently “it must be property rights” while another thought it to be human rights and the third, the institutional framework of the market.
One might conclude from this that, long before Jacques Derrida and “dangerous supplementarity,” Lon Fuller was capable of showing us the inherent instability of any attempt to reconcile two concepts that both deny and depend on each other. In this case, the concepts were formal and substantive justice. Fuller was adept at demonstrating that the realists would have to put some limit on the idea that judges act as practical politicians, and yet would be unable to justify those limits in any uncontentious way wihout resorting to the same kind of formalism and essentialism they themselves had criticized. Yet he did not exempt his own alter ego from the same criticism.
James Boyle, Legal Realism and the Social Contract:Fuller’s Public Jurisprudence of Form, Private Jurisprudence of Substance. 78 Cornell Law Review 371 (1993)
July 9, 2009
I came across this quotation from a leading legal positivist, and I can’t help but find it deeply unsettling:
“Justice is an irrational idea. … [T]hat only one of two orders is ‘just’ cannot be established by rational cognition. Such cognition can grasp only a positive order … . This order is positive law… .It presents the law as it is, without defending it by calling is just, or condemning it to call it unjust.” Kelsen, General Theory of Law and State 13 (1961).
The trouble is, however, is that is is very close to the mark. If you want to view justice as rational, then you must have a rational accounting of it. But are there not as many accounts of justice as there are people on the earth? What makes one account better than the other? And if none can be said to be objectively better than the other, does this not merely bring us back the cynical positivism? Karl Llewellyn has some interesting thoughts on the matter, on his view:
Justice [is] not attainable or even describable substance, but a quest, as being an idea conditioned in the first instance by each quester’s view of the Universe, and conditioned secondly (as Law-Government must always be) by the fact of scarcity. Whether within an organized group with firm legal-government traditions or within an emerging, half-chaotic world, the justified desires and demands have always exceeded the wherewithal to fulfill them, and they always will.
I’d like to hear your thoughts on the subject. All comments and perspectives are welcomed!