Ari Allen on Law: The Spirit of the Law

7/25/2019 Ari Allen on Law: The Spirit of the Law

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THE SPIRIT OF THE LAW:

EMPATHY AS THE MORAL FACULTY

Ari Allen

Georgetown University Law Center

December 1, 2010


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I. INTRODUCTORY REMARKS

If the project of the Enlightenment was to distinguish man from beast, then the

task of today is to discern man from machine. Without this distinction, man is stripped of

his humanity, and law is forever delegated as a paternalistic perpetuation of patriarchal

power structures. How then, do we overcome the status quo? How do we uproot

ourselves from the deeply entrenched conventional wisdom of the Enlightenment? How

can we view humanity on its own terms, rather than from the objectifying perspective of

reason? After all, in the words of Edmund Husserl: the same Body which serves me as

means for all my perception obstructs me in the perception of it itself.1 In other words, a

perceiver cannot perceive itself objectively without escaping its own subjectivity. The

problem is that it is then impossible to study human subjectivity from an objective

perspective.

Subjectivity can only view itself from the inside, while objectivity can only view

a subject as an objectfrom the outside independent of mind. This is not to disparage

the Enlightenment, reason or objectivity. Rather, this is merely to say that its

epistemological approach is incomplete when it comes to understanding the

phenomenological aspects of mind. While reason and objectivity may be able examine

the brain in a reductionist and computational sense, it misses the irreducible and emergent

aspects of the human mind. Subjective states of mind feelings must be studied on

their own terms. A neural network cannot describe the experienceof these subjective

states only the neural firings correlated with them (which does not always imply

1EDMUND HUSSERL,IDEAS PERTAINING TO APURE PHENOMENOLOGY AND TO A PHENOMENOLOGICAL

PHILOSOPHY,SECOND BOOK.


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causality). Therefore, such objectivity misses the most important (and relevant) aspects

of being alive and human consciousness, self-awareness and experience.

This has important philosophical implications, and thus, implications for the

general realm of metaphysical endeavors. More particularly, it implicates how we

perceive the structure, function and purpose of law. Mainstream theories of jurisprudence

have alternated between objective (e.g., natural law, classical legal thought, formalism,

originalism, textualism, and law-and-economics) and subjective (e.g., legal realism,

critical legal studies) conceptions of the law. On the other hand, there have been attempts

to conceive the law from a middle ground an intersubjective perspective (e.g., legal

process theory). While process theory has had a significant impact on the law, it is

generally not recognized (or even known) as an influential school of thought. Legal

process theory heavily influenced jurisprudence in the 1950s and 1960s, but became less

relevant in the 1970s and 1980s as critical legal studies and the law-ands (e.g., law-

and-economics, -sociology, -evolutionary biology, and-behavioral psychology).

However, after this sharp splintering of jurisprudential thought, this paper suggests a

new intersubjective approach that revives legal process theory by providing it with a

substantive core empathy. In essence, procedural substance (distinguished from

substantive process) is bolstered by recognizing the fundamental importance of empathy

in establishing an intersubjective perspective. On these strengthened grounds, legal

process theory has a clear ideal to work with. Empathy is chosen as a neutral principle

because it is the natural mental process that allows people to relate to one another in a

society. Similarly, empathic reasoning informs our sense of justice. Empathy, as we will


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see, is the intersubjective mechanism by which multiple subjects can come together to

intersubjectively agree upon what thereby become objective standards.

Yet, the process-oriented intersubjective approach is so abstract (due to its general

lack of substantive ideals) that many have been unwilling to approach it, and instead refer

to it as a form of jabberwocky.2 It is the aim of this paper to renew process theory as

something substantive and graspable (without falling, once again, into the trap of

grasping at an independent objectivity that is nowhere to be found).

One may find that I have borrowed many passages from scholars that have long

(and shortly) preceded this writing this is entirely intentional. The intersubjective

approach that I am proposing depends on narratives in achieving a 360-degree view of

the many subjective perspectives available to us. Rather than a view from above (e.g.,

natural law), outside (e.g., law-and-), inside (critical legal studies) or nowhere (legal

realism) this is a view from everywhere. As Friedrich Nietzsche aptly described the

perspective of a post-Enlightenment world:

[T]here is only a perspective seeing, only a perspectiveknowing; and the more affects we allow to speak about

one thing, the more eyes, different eyes, we can use toobserve one thing, the more complete will our concept of

this thing, our objectivity, be.3

Again, this 360-degree view combines the many subjective views into an

intersubjective aggregate that then constructs objectivity. Objectivity falls for the

naturalistic fallacy the way the world ought to beis a function of what the world is and

has become. Furthermore, objectivity cannot be understood a priori rather, it is

2Gunther Teubner,How The Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law and

Society Review 727 (1989).3FRIEDRICHNIETZSCHE,THE GENEALOGY OF MORALS,THIRD ESSAY.


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dependent on time, context and subjectivity itself. Using an important, but relatively

lengthy quote of Nietzsche once again:

The objective man is, in fact, a mirror: accustomed to

submit before everything which wishes to be known,without any delight other than that available in knowingand mirroring back What is still left of his person

seems to him accidental, often a matter of chance, evenmore often disruptive... He readily gets himself confused

with others. He makes mistakes concerning his own needs,and its only here that he is coarse and careless. Perhaps he

gets anxious about his health or about the pettiness andstifling atmosphere of wife and friend or about the lack of

companions and societyindeed, he forces himself to thinkabout his anxieties: but its no use! His thoughts have

already wandered off to some more generalexample, andtomorrow he knows as little as he knew yesterday about

how he might be helped He is cheerful, notfrom anylack of need, but from a lack of fingers and handles for his

ownneeds. His habitual concessions concerning all thingsand all experiences, the sunny and uninhibited hospitality

with which he accepts everything that runs into him Hislove is forced, his hate artificial, more a tour de force, a

tiny vanity and exaggeration. He is genuine only as long ashe is permitted to be objective His mirror soul, always

smoothing itself out, no longer knows how to affirm or todeny. He does not command, and he does not destroy

Moreover, he is no model human being. He does not goahead of anyone or behind. He places himself in general

too far away to have a reason to take sides between goodand evil. When people confused him for such a long time

with thephilosopher, with the Caesar-like breeder andcultural power house, they held him in much too high

honour and overlooked the most essential thing abouthimhe is an instrument, something of a slave, although

certainly the most sublime form of slave, but in himselfnothing The objective man is an instrument, an

expensive, easily damaged and blunted tool formeasurement and an artful arrangement of mirrors,

something we should take care of and respect. But he is nogoal, no way out or upward, no complementary human

being in whom the restof existence is justified, noconclusionand even less a beginning, a procreation and

first cause. He is nothing strong, powerful, self-assured,something which wants to be master. He is much rather


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merely a delicate, finely blown mobile pot for forms, whichmust first wait for some content and meaning or other, in

order to give himself a shape consistent with itusually aman without form and content, a selfless man.

4

This quote is the fundamental inspiration that leads me to the intersubjective

approach. Again: the more eyes, different eyes, we can use to observe one thing, the

more complete will our concept of this thing, our objectivity, be.5 The remainder of

this paper will reveal the view of some of these eyes, but more importantly, it will

explore the consequences of viewing and shaping a worldview based on intersubjectivity.

In order to do this, we must first overcome the postmodern angst the Cartesian

anxiety that represents Nietzsches predicted conclusion to the Enlightenment (the last

man). In order to do this, we return to our original theme: how do we discern man from

machine? The clear answer is to regain what we lost when we distinguished man from

beast: instinct,passionandfeeling. We separate ourselves from both beast andmachine

by being a parallel processor. Not only do we feel, but we also reason. Not only do we

reason, but we also feel. It is not that I think, therefore I am. Rather: I am, therefore I

think; I am, therefore I feel; I am, therefore I am! The only proof of existence under this

view is experience itself. Existentialism reflects the anxious ends resulting from this

Cartesian and Enlightenment perspective. Experientialism embraces the grand

importance of the Enlightenment perspective, but also transcends it by embracing

everything that came before it, and developing toward all that can come from it.

However, at present, we still live in the context of the Enlightenment, and have not found

our way out of the postmodern abyss it has created:

4FRIEDRICHNIETZSCHE,BEYOND GOOD AND EVIL,PART VI.5Nietzsche,supranote 3.


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Feelingis denied recognition and legitimacy under theguise of the rationality of the Rule of Law. Incorporating

experiential understanding of persons or groups into anideological system based on a reductionist concept of

reason, a system that at times seems to have a fetish for

predictability and control under the Rule of Law, raisesterrifying specters of destabilization, chaos, and anarchy.Accordingly, the emotional, physical, and experiential

aspects of being human have by and large been banishedfrom the better legal neighborhoods and from explicit

recognition in legal discourse (although they sometimes getsmuggled in as facts' in briefs and opinions). Ironically,

while emotion may generate laws via politics, once thoselaws meet whatever criteria are necessary to constitute

legitimacy in a system, they are cleansed of emotion underthis vision of the Rule of Law.The law becomes not merely

a human institution affecting real people, but rather TheLaw.6

It is important to recognize this cleansing of emotion and its consequential

stripping of humanity when studying the law. Without this recognition, we are left with

an impoverish view of the law, and have little hope of progressing toward something

more palatable something more human. In other words:

The ideological structures of legal discourse and cognitionblock affective and phenomenological argument: The

normal discourse of law disallows the language ofemotion and experience. The avoidance of emotion, affect,

and experiential understanding reflects an impoverishedview of reason and understandingone that focuses on

cognition in its most reductionist sense. This impoverishedview stems from a belief that reason and emotion are

separate,that reason can and must restrain emotion, thatlaw-as-reason can and must order, rationalize, and

control.7

6Lynne Henderson,Legality and Empathy, 85 Mich. L. Rev. 1574, 1575 (1987).7Henderson,supranote 6, at 1575-6.


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It is important to remember that this is not a typical analysis of a specific laws or

policies. Rather, this is a historically-situated thought experiment in trying to push the

debate further in questioning whether or not we are asking the right questions, and what

marvels exist in the blind spots of our conventional wisdom. On that note, let us begin

exploring, chronologically, the many perspectives that have been endowed to the law.

We will then conclude with a new perspective that aims to transcend these perspectives

by embracing them all.

II. CLASSICAL LEGAL THOUGHT

Classical legal thought relied on the notion that the common law was not man-

made in the ordinary sense; the judges uncovered the law (or found it); they did not

make it, or tamper with it as it was found.8 According to Christopher Columbus

Langdell, a pioneer of legal education as Dean of Harvard Law School in the 1850s, law

was essentially a science. Heavily influenced by Euclidean geometry and biological

taxonomy, Langdells approach to law was characteristically formalistic. Once the basic

premises of an area of law were established, further ratiocination was all that was

required to exhaustively describe the law.9 In this sense, the law was simply a product

of a process of historical development in which the latent logic of the common law had

gradually unfolded as its rules were refined and conflicts among them resolved.10

From

this perspective, hard cases, or cases that did not easily fit within the classifications of the

law, must be rejected as mistakes.11 Therefore, the geometry of the law also performed

a normative function description and evaluation were without distinction, and legal

8ANTHONY KROMAN,THE LOST LAWYER:FAILING IDEALS OF THE LEGAL PROFESSION, 19 (1993).

9Id.

10Id. at 21.11Id. at 23.


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evaluation was merely a process of looking to previous legal descriptions. This

naturalistic fallacy, in which is and ought are collapsed, lies at the core of classical

legal thought.

However, there were certain virtues to this jurisprudential approach. Formalism

provided an objective lens through which decisions could be made, independent of a

potentially misguided, incompetent, wicked, [or] power-hungry decisionmaker.12

Furthermore, deference to so-called natural rights protected our nations valued

individualism with a baseline namely, rights to life, liberty, and property, which would

require further ratiocination. In combination, formalistic process and naturalistic

substance provided the certainty, stability and predictability of law that classical legal

thinkers valued.

This school of thought was clearly influenced by a fear of regressing toward

tyranny a fear that the law would overtake the freedoms that were liberated by our

nations founding. In short, this reflected a cautious aversion to the expansion of the

states police powers. In the 19thcentury, Christopher Tiedman, an American jurist,

reflected that [t]he police power of the government is shown to be confined to the

detailed enforcement of the legal maxim,sic utere tuo, ut alienum non laedas.13

This

libertarian conception of freedom, coercion and the role of government reflected the

normative values at the core of classical legal thought. Formalistic decisionmaking

(inextricably intertwined with literalism)14was the method by which these normative

values would be protected from overzealous decisionmakers. Thus, formalistic

12Frederick Schauer,Formalism, 97 YALE L.J. 509, 543 (1988).

13CHRISTOPHER G.TIEDEMAN,ATREATISE ON THE LIMITATIONS OF THE POLICE POWER IN THE UNITED

STATES, vi-viii (1886) (use your own property in such a manner as not injure that of another).14Schauer,supranote 5, at 538.


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jurisprudence is valuable in that it narrow[s] the decisional opportunities and the

decisional range of a certain class of decisionmakers, in order to restrict misguided,

incompetent, wicked, power-hungry, or simply mistaken decisionmakers whose own

sense of the good might diverge from that of the system they serve.15

However, both formalism and natural rights receive various legitimate criticisms.

Formalism, in essence, gives up some of the possibility of improvement in exchange for

guarding against some of the possibility of disaster, and doom[s] decisionmaking to

mediocrity by mandating the inaccessibility of excellence.16

Similarly, rules based on

natural rights mask the reality that rules of language reflect a range of political, social,

and cultural factors that are hardly a priori.17

Thus, in combination, formalism and

natural rights disguise a choice in the language of definitional inexorability [that]

obscures that choice and thus obstructs questions of who it was made by and whether it

could have been made differently.18

Consequently, Frederick Schauer notes that this

view takes that vice to be one of deception, either of oneself or of others.19

Classical legal thought reveals its thought process in a variety of early American

legal decisions. However, one case in particular,Lochner v. New York,20

stands out as a

watershed example of such reasoning perhaps due to the fact that it arose in contrast to

the rise of legal realism, on the cusp of waging a harsh critique against such decisions.

Lochneralso represents a foundational example in the history of interpreting due process

claims. Lochner challenged a statute passed by the New York state legislature which

15Id.at 543-44.

16Id.at 539.

17Id.at 524.

18Id.at 513-14.

19Id.at 513-14.20Lochner v. New York, 198 U.S. 45 (1905).


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would limit the number of hours a baker could be required to work. Due process was

invoked because Lochner, the owner of a bakery, contended that the law deprived him of

his liberty of contract without due process of law. Justice Peckham, writing for the

majority, agreed:

The general right to make a contract in relation to hisbusiness is part of the liberty of the individual protected by

the 14th

Amendment of the Federal Constitution. Underthat provision no state can deprive any person of life,

liberty, or property without due process of law. The rightto purchase or to sell labor is part of the liberty protected by

this amendment, unless there are circumstances whichexclude the right.

21

Of course, Justice Peckham went on to consider the circumstances which

exclude the right, namely, the somewhat vaguely termed police powers, the exact

description and limitation of which have not been attempted by the courts.22 And so,

without description and limitation, Justice Peckham went on to make the attempt himself.

However, classical legal thought was clearly evident in his decision:

The question whether this act is valid as a labor law, pureand simple, may be dismissed in a few words. There is no

reasonable ground for interfering with the liberty of personor the right of free contract, by determining the hours of

labor, in the occupation of a baker. There is no contentionthat bakers as a class are not equal in intelligence and

capacity to men in other trades or manual occupations, orthat they are not able to assert their rights and care for

themselves without the protecting arm of the state,interfering with their independence of judgment and of

action. They are in no sense, wards of the state.23

In this dismissal, Justice Peckham established a minimalist interpretation of police

21Id.at 54.

22Id.at 53.23Id.at 57.


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power, and so limited the state from interfering with the right of free contract with

practically no consideration of arguments that supported [t]hose powers [relating] to the

safety, health, morals, and general welfare of the public.24

While explicitly recognizing

the existence of such police powers, Justice Peckham decided that in this instance (and

thus, in most), police power should be intensely restricted the right of free contract

was a natural right protected by substantive due process from the encroachment of

government intervention and police powers. Effectively, Justice Peckham believed that

substantive due process limitations on police powers would prevent natural rights from

slipping down a slope toward excessive regulation, or even tyranny, because [it] might

be safely affirmed that almost all occupations more or less affect health.25

Justice

Peckham elaborated:

Not only the hours of employees, but the hours ofemployers could be regulated, and doctors, lawyers,

scientists, all professional men, as well as athletes andartisans, could be forbidden to fatigue their brains and

bodies by prolonged hours of exercise, lest the fightingstrength of the state be impaired. We mention these

extreme cases because the contention is extreme.26

However, Justice Peckham relied on the common understanding [that] the trade

of a baker has never been regarded as an unhealthy one to justify his deference to the

liberty of contract over police powers that protect public welfare.27 The derivation of

this common understanding is not mentioned in his opinion. Instead, Justice Peckahm

used these few words, the common understanding, to dismiss a debate about whether

such an understanding was actually common or supported. The one-sided nature of the

24Id.at 53.

25Id.at 59.

26Id.at 57.27Id. at 58.


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opinion reveals that it is also markedly formalistic, naturalistic, politically libertarian, and

economically laissez-faire. Justice Peckham however, disguise[s] a choice in the

language of definitional inexorability [that] obscures that choice and thus obstructs

questions of who it was made by and whether it could have been made differently.28

In dissent, Justices Holmes and Harlan exposed this deceptive linguistic choice as

an ideological opinion under the guise of formalistic reasoning. Justice Holmes noted

that:

This case is decided upon an economic theory which alarge part of the country does not entertain. If it were a

question whether I agreed with that theory, I should desireto study it further and long before making up my mind.

But do not conceive that to be my duty, because I stronglybelieve that my agreement or disagreement has nothing to

do with the right of a majority to embody their opinions inlaw.

29

In anticipation of the legal realism Justice Holmes would soon represent, his

dissent recognized that a Constitution is not intended to embody a particular economic

theory It is made for people of fundamentally differing views.30 Further striking

against classical legal thought, and foreshadowing legal realism, Justice Holmes

proclaimed: General propositions do not decide concrete cases.31

With a tone of irony,

he then succinctly stated the foundation of legal realism: Every opinion tends to become

a law.32

It is this notion that led Justice Holmes to caution against these deceptive

arguments especially when they are based primarily on political or economic ideology.

28Schauer,supranote 5, at 513-14.

29Lochner, 198 U.S. at 75 (Holmes, J., dissenting).

30Id. at 76 (Holmes J., dissenting).

31Id. (Holmes, J., dissenting).32Id.(Holmes, J., dissenting).


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Justice Harlan on the other hand, went on to actually evaluate the case from the

perspective Justice Holmes supported by referencing contemporary social science

literature on the matter of health and labor.33

Rather than relying on a common

understanding with no source, Justice Harlan investigated the contemporary research on

the issue. In contrast, Justice Holmes pointed out that Justice Peckhams opinion is

merely an enactment of Mr. Herbert Spencers Social Statics34

a treatise which would

later be relied upon (through Nazi eugenics and beyond) to degrade the very rights Justice

Peckham claimed to protect. Accordingly, Justice Peckham essentially advocated

protecting the liberty of contract as the legitimate libertarian role of government in

preventingphysicalcoercion. Justice Peckham remained blind however to the economic

coercion present in all contracting unequal bargaining power will result in coerced

agreements. Bakers had no choice but to accept their employers contractual stipulations

otherwise, they would likely soon be unemployed. Devoid of this empathic

understanding, Justice Peckham decided that legal coercion (labor regulation) is not an

appropriate use of government power, because he turns a blind eye to the economic

coercion inherent in the carte blanche liberty of contract that he championed. This

blind spot in laissez faire reasoning is the underlying substantive flaw of classical legal

thought presented in cases of due process: granting freedom to one implies permitting the

coercion of another. However, considering Justice Peckhams view of labor as a

commodity, it is unsurprising that he defends the liberty of the employer to purchase or

sell labor35

against the life and liberty of the laborer. Labor was mere property. Thus,

33Id.at 79 (Harlan, J., dissenting).

34Id.at 76 (Holmes, J., dissenting).35Id.at 56.


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the liberty interest (or the freedom to coerce) was granted to the employer (although

Justice Peckham would attempt to disguise this preference: [o]f course the liberty of

contract relating to labor includes both parties to it).36

In short, Justice Peckham reasoned that because there is no contention that

bakers as a class are not equal in intelligence and capacity to men in other trades or

manual occupations they are [] able to assert their rights and care for themselves

without the protecting arm of the state.37 From the analysis above however, it should be

clear that Justice Peckham did not view economic bargaining power as an important

capacity worth protecting. Indeed, it was the very inequalityof this economic capacity

that would leave bakers, and laborers in general, at the whim of coercive contractual

stipulations desired by their advantaged employers. In this sense, classical legal thought

utilized government to displace physical coercion into the economic arena. In contrast,

using legalcoercion to protect individuals from economiccoercion was viewed as

passing beyond the threshold of acceptable government intervention.

In this light, legal realism would soon reveal economic coercion as a mereformof

legal coercion namely, the libertarian form. Far from natural, such libertarian ideals

would be impossible to achieve without decisions likeLochnerto protect, legitimize and

enforce them. After all, without sufficient economic power, the right of free contract

cannot be exercised.

III.

LEGAL REALISM

36Id.at 59.37Id.at 57.


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Felix Cohen, perhaps one of the most outspoken legal realists of his time, wrote

that the language of legal concepts is entirely, entirely useless when we come to study,

describe, predict, and criticize legal phenomena.38

Cohen elaborated on what he termed,

transcendental nonsense39

:

When the vivid fictions and metaphors of traditionaljurisprudence are thought of as reasons for decisions, rather

than poetical or mnemonic devices for formulatingdecisions reached on other grounds, then the author, as well

as the reader, of the opinion or argument, is apt to forgetthe social forces which mold the law and social ideals by

which the law is to be judged.40

Legal realism then, proceeds under the premise that jurisprudence, under the

influence of classical legal thought, has become merely a special branch of the science

of transcendental nonsense.41

In other words, the law should be seen for what it really is

what judges do,42

because there is no brooding omnipresence in the sky43

from

which legal concepts emanate. Rather, when we wash the law with Holmes cynical

acid,44

we recognize the vicious circle inherent in [legal] reasoning,45

which classical

legal thought sought to make the decision seem plausible, legally decent, legally right, to

make it seem, indeed legally inevitable,46

through its language of definitional

inexorability.47

This vicious circle is made apparent by many instances of legal realist

reasoning. For example: The actual value of a utilitys property, then, is a function of

38Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM.L.REV. 809, 812

(1935).39Id.40

Id. at812.41

Id.at 821.42

Oliver Wendell Holmes, The Path of the Law, 10 HARV.L.REV. 457, 462 (1897).43

Id.at 463.44

Id. at 462.45

Id.at 464.46Karl N. Llewellyn, Some Realism About Realism, 44 HARV.L.REV. 1222, 1238-39 (1931).47Schauer,supranote 5, at 513-14.


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the courts decision, and the courts decision cannot be based in fact upon the actual

value of the property. The value is created by the court.48 Legal realism revealed the

intrinsic indeterminacy of legal concepts. What is a reasonable person? How much

process is due? What is liberty? When does life begin? As a result, we converge to a

single conclusion: there is less possibility of accurate prediction of what courts will do

than the traditional rules would lead us to suppose.49

In other words, these majestic

terms are devoid of content without a decisionmaker casting their opinion or judgment on

the matter [t]he conception of law in flux, of moving law, and of judicial creation of

law, [t]he conception of society in flux, and in flux typically faster than the law, and

[t]he conception of law as a means to social ends and not as an end in itself.50

And so, through a process of reductio ad absurdum, realism reduced the

deductive logic of classical legal thought to a mere charade of morality dressed in formal

legal attire or as Justice Holmes wrote, you can give any conclusion a logical form.51

Moreover, morality itself was revealed as subjective, and relative. Justice Holmes also

wrote, quite eloquently:

the logical method and form flatter that longing forcertainty and for repose which is in every human mind.

But certainty generally is illusion, and repose is not thedestiny of man. Behind the logical form lies a judgment as

to the relative worth and importance of competinglegislative grounds, often an inarticulate and unconscious

judgment, it is true, and yet the very root and nerve of thewhole proceeding.

52

There is a concealed, half conscious battle on the question

of legislative policy, and if any one thinks that it can be

48Llewellyn,supranote 39, at 1240.

49Id. at 1241-42.

50Id.at 1236.

51Holmes,supranote 35, at 466.52Id. at 465-66.


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settled deductively, or once for all, I only can say that Ithink he is theoretically wrong, and that I am certain that

his conclusion will not be accepted in practicesimperubique et ab omnibus[everywhere and always].

53

Indeed, an assumption of moral relativism was at the core of legal realism, and as

a result, a primary objective of legal realists was to dispel a confusion between morality

and law.54In other words, legal realism sought [t]he temporary divorce of Is and Ought

for purposes of study because [t]he law is full of phraseology drawn from morals, and

by the mere force of language continually invites us to pass from one domain to the other

without perceiving it,55

and thus, constantly is making trouble in detail without

reaching the point of consciousness.56

Becoming aware of this distinction was to

enlighten the previously ignorant jurist, and to provide jurists and decisionmakers alike

with a renewed sense of confidence and duty:

I think that the judges themselves have failed adequately

to recognize their duty of weighing considerations of socialadvantage. The duty is inevitable, and the result of the

often proclaimed judicial aversion to deal with suchconsiderations is simply to leave the very ground and

foundations of judgments inarticulate, and oftenunconscious, as I have said.57

Indeed, as Felix Cohen revealed:

The ghost-world of supernatural legal entities to whom

courts delegate the moral responsibility of deciding casesvanishes; in its place we see legal concepts as patterns of

judicial behavior, behavior which affects human lives forbetter or worse and is therefore subject to moral

criticism.58

53Id.at 467.

54Id.at 459.

55Id. at 459-60.

56Id.at 459.

57Id. at 467.58Cohen,supranote 31, at 828-29.


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This thinking quickly infiltrated judicial decisions of all kinds yet again, due

process claims prove to be the most revealing. This time however, the Court would not

rely on the mere implication of the right to free contract, instead, they would take the

approach of Justice Harlans dissent inLochner: empathize with bothinterests involved,

describe the dilemma involved and even reach out to non-legal materials in making a

factual determination. In United States v. Carolene Products59

, a manufacturer of milk

disputed the constitutionality of a statute regulating its contents. The Court found the

statute constitutional and made its realist extra-legal reasoning apparent:

In twenty years, evidence has steadily accumulated of thedanger to the public health from the general consumption

of foods which have been stripped of elements essential tothe maintenance of health.60

Essentially, instead of relying on a hardened doctrine of laissez-faire, the Court is

asking the fundamental realist question: Are the evils to be removed by regulation

greater than those that accompany the work of regulation?61

In this way, [t]he method

of procedure [would] be to consider, appraise, and compare the evils on both sides.62

Indeed, Carolene Productscarried forward the following proposition about the fallacy of

laissez-faireeconomic and legal reasoning:

The practical function of economic theory is merely to

prove to statesmen the wisdom of leaving such mattersalone, not to aid them in the process of interfering But a

careful scrutiny will, it is thought, reveal a fallacy in thisview, and will demonstrate that the systems advocated by

professed upholders of laissez-faireare in reality permeatedwith coercive restrictions of individual freedom, and with

restrictions, moreover, out of conformity with any formula

59United States v. Carolene Products Co., 304 U.S. 144 (1938) .

60Id.at 148.

61Cohen,supranote 31, at 830.62Carolene, 304 U.S., at 152.


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of equal opportunity or of preserving the equal rights ofothers. Some sort of coercive restrictions of individuals, it

is believed, is absolutely unavoidable, and cannot be madeto conform to any Spencerian formula.

63

The simple fact that Congress relied on extra-legal and social scientific materials

was enough for the Court to determine that due process was not violated. This reflected a

belief that due process involved processing all of the relevant factual information of the

age. The majority opinion noted, [t]he Filled Milk Act was adopted by Congress after

committee hearings, in the course of which eminent scientists and health experts

testified.64

This was evidence of due process, and weighed against the

unconstitutionality argument. Regulation could be used to protect public health and

interstate commerce, and such protections could only be afforded by recognizing the

intrinsic inequalities of society liberty and security could not be afforded without

equality and property. Rather, a doctrine of the positive contents of rights,65

was

necessary to protect, and provide, substantive liberty to all. As a result, the majority

opinion of Carolene Productswould take this matter to issue and would provide the most

important footnote in legal history footnote 4:

prejudice against discrete and insular minorities may bea special condition, which tends seriously to curtail the

operation of those political processes ordinarily to be reliedupon to protect minorities, and which may call for a

correspondingly more searching judicial inquiry.66

This footnote would inspire and spur an entire line of jurisprudential thought on

the functioning of the Courts in maintaining the protections afforded under the

Constitution most importantly, due process of lawand equal protection under the laws.

63Id. at 153.

64Id. at 147.

65Cohen,supranote 31, at 829.66Carolene, 340 U.S., at 152 n.4.


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Essentially, a tiered system of judicial review would afford different levels of process to

different deprivations, and different circumstances. The recognition that due process

refers to the need for judicial review ofprocess to determine if what was due was

actually afforded. It also inherently recognizes that due is a variable in this legal

equation, and so, with different levels of judicial inquiry are required in the implication of

different rights and interests. Specifically, it was committed to protecting more strongly,

rights that implicate the participation in the political process the essential ingredient of

democracy. This would foreshadow (and perhaps inspire) the great contributions of legal

process theory to be discussed in the final section of this note.

Legal realism however, cast a shadow over the entire province of the law. The

crisis of legitimacy that followed from the rise of legal realism was particularly

contentious during the 1930s. Confronted with a massive economic depression, and the

rise of fascism around the world, many jurists argued that the ideas associated with legal

realism and ethical relativism, by themselves, would lead naturally and inevitably away

from traditional democracy to a ruthless totalitarianism.67 Rather than viewing the

realist shift as one which rejected the legal enforcement of Spencerian Social Darwinism,

many critics viewed it as a free-for-all in which such fascist policies could naturally arise

or if not fascist, surely socialist or communist. As one scholar attempted to frame it:

Democracy versus the Absolute State means Natural Law versus Realism.68

As such,

the belief was that the pragmatism of legal realism led directly to the doctrine that

67Cohen,supranote 31, at 831.

68Lucey,Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in

a Democratic Society, 30 GEO.L.J. 493, 533 (1942).


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might makes right.69

Notably, Lon Fuller remarked, the realist view approaches

perilously close to the proposition that the law is the way everyone behaves.70 In other

words, legal realism separated the is from the ought and then tossed the ought aside

without regard. Consequently, Fuller warned:

the notion that the law lies in the meanings of particularindividuals in particular situations can offer no definition

criterion of positivism, and no assurance against arelativistic subjectivism in which the distinction between

what is and what ought to be is lost.71

In other words, legal realism had exposed jurisprudence as a fraud and as a

result, has threatened its own jurisprudence with collapse. Separating is from ought

might destroy the ought, and inevitably, destroy the renewed distinction between them

as well.

Yet, of legal realism, Justice Holmes even realized: We are only at the beginning

of a philosophical reaction.72

As such, we must remember the timeless ideal that the

reaction of legal realism sought to reinvigorate: belief in hope, change and progress.

Without a specific ought, legal realism was without ground, but if the search for new

oughts were stimulated, legal realism would serve its purpose. It sought to empower us

with the notion that every generation has the power to better its world even in the face

of the threat that some may abuse that power to worsen it. The folly and malevolence of

the few should not discourage the passion, compassion and action of the many. Again,

Justice Holmes wrote with profundity:

69EDWARD A.PURCELL,JR.,THE CRISIS OF DEMOCRATIC THEORY:SCIENTIFICNATURALISM &THE

PROBLEM OF VALUE, 168 (1973).70

LON FULLER,THE LAW IN QUEST OF ITSELF, 55 (1940).71Id. at 56.72Holmes,supranote 35, at 467.


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For the incompetent, it sometimes is true, as has been said,that an interest in general ideas means an absence of

particular knowledge But the weak and foolish must beleft to their folly. The danger is that the able and practical

minded should look with indifference or distrust upon ideas

the connection of which with their business is remote.

73

IV.LAW-AND-ECONOMICS AND CRITICAL LEGAL STUDIES

In this section, I will offer only a brief summary of the law-and-economics and

critical legal studies perspectives on jurisprudence. As I will attempt to show, these

schools of thought are recapitulations (with the same flaws) of their underlying classical

and realist legal roots.

From the very beginnings of legal realism, economics was eager to assert its

dominance as the lens of reason and objectivity in the otherwise overly subjective social

sciences. Based in utilitarian thought, coming from the likes of Jeremy Bentham, the

slogan could be: the most good for the most people. However, law and economics

would have its own subjectivities to deal with. For instance, what is good? Who is it

good for? How much before its no longer good, and it becomes too much? Law and

economics struggles with an inability to quantify the importance of the varying intensities

of human preferences, ideals and values. More rudimentarily, it struggles with

identifying these preferences in the first place. It also places an unsupported amount of

emphasis on the value of efficiency. Certainly efficiency can lead us toward some

pursuits of happiness, but there are plenty of scenarios in which efficiency plays no role

at all. In others, efficiency gone awry and unchecked could result in an ultra-efficient

totalitarianism certainly not my pursuit of happiness. No, law and economics is rather

73Id.at 477-78.


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another useful tool, based in the logical, rational and powerful laws of mathematics. It

certainly proves useful in areas such as property and corporations (among others), but in

the laws of torts, constitutionality and crime (among others), it should probably play a

more subdued role (although it does have contributions to offer). The point is this: law

and economics is useful, after all it is based in utilitarian thought but it is not a tool

meant to serve as a jurisprudential ideology at least if our personal dignity and

humanityis to play any role in its own future. Indeed, this statement by Justice Holmes

provides a view of such human degradation and commoditization:

On the other hand, the economic value even of a life to thecommunity can be estimated, and no recovery, it may be

said, ought to go beyond that amount.74

However, law-and-economics was foreshadowed, if not encompassed within legal

realism. Justice Holmes noted at the outset of legal realist thought:

For the rational study of the law the black-letter man maybe the man of the present, but the man of the future is the

man of statistics and the master of economics.75

Unlike legal realism however, law-and-economics claimed a sense of objectivity,

even in the face of the underlying subjectivity proclaimed by legal realism. Again,

economics was easer to assert its dominance as the lens of objectivity previously

occupied by classical legal thought. It was able to do so because legal realism

destabilized such objectivity, allowing new schools to claim the crown. Felix Cohen

noted this future struggle amongst many schools connecting law and something else: It

becomes the part of discretion, in law schools aware of such advances, to admit that legal

74Id.75Id. at 469.


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science necessarily involves us in psychology, economics and political theory.76

However, as Morris Cohen warned, specifically against law-and-economics:

It is certainly a shallow philosophy which would make

human welfare synonymous with the indiscriminateproduction and consumption of material goods Thisprofound human need of controlling and moderating our

consumptive demands cannot be left to those whosedominant interest is to stimulate such demands.77

As a result, critical legal studies were an analogous reaction to law-and-

economics, as legal realism was to classical legal thought. It sought to maintain human

dignity in the face of law-and-economics by considering a multitude of human

perspectives on different issues. Unfortunately, from critical race theory to feminism, the

school offered no coherent view. Subjectively pluralistic, it offered interesting views on

the law, certainly useful in busting up new attempts at asserting determinacy in the law,

but utterly incomplete. This was a jurisprudence of splintering a direct result of its

attachment to the indeterminacy of the law. Consequently, it would not provide much

substance to battle the overly substantive law-and-economic calculationism. Rather,

critical legal studies would need to be utilized within the realm of a larger school of

thought one that could tie these critical loose ends together. It will be argued in the

following section that although emerging prior to critical legal studies, legal process

theory could provide a new home for the scattering of useful recognitions provided by

critical legal studies. Legal process theory could also balance such recognitions with the

tools of law-and-economics. Indeed, legal process theory believed in a careful

76Cohen,supranote 31, at 830.77Id.


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methodology, like law-and-economics, but also an evolving mutability, as provided by

critical legal studies.

V. LEGAL PROCESS THEORY AND THE FUTURE OF JURISPRUDENCE

On this basis, it is argued that none of these schools of thought offers a

comprehensive and coherent view of the law as an organic system of jurisprudence

governed as an ongoingprocess. Justice Holmes noted:

The development of our law has gone on for nearly athousand years, like the development of a plant, each

generation taking the inevitable next step, mind, likematter, simply obeying a law of spontaneous growth. It is

perfectly natural and right that it should have been so.78

However, legal process theory attempted to offer a middle way through the

conflict between classical and realist legal thought in the mid-20th

century. The impact of

the legal process school of thought is widespread and lasting, but it hardly gains the

acknowledgement it deserves. As a result, its jurisprudential evolution remains stalled,

and has found little momentum since its initial formulation. Overcoming this

jurisprudential stagnation is the aim of the remainder of this paper.

Unlike classical legal thought, in which isand oughtwere indistinguishable, and

unlike legal realism, in which is and ought are distinguished, but not connected, legal

process theory focused rather on howis becomesought rather than distinguishing or

collapsing them. One scholar noted:

Yet the is is not really an is but a special kind ofought a statement that, for the reasons just reviewed, adecision which is the duly arrive at result of a duly

established procedure for making decisions of that kindought to be accepted as binding upon the whole society

78Holmes,supranote 35, at 467.


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unless and until it has been duly changed.79

Legal process theory then, views this is/ought as a dynamic the future is is the

ought distinguished, but interdependent and connected. Indeed, judges neither found

law in the old-fashioned sense nor made it in the sense of the Realists; they reasoned

toward it and then articulated their reasoning processes.80

As such, legal process theory proceeded under the premise that:

Realists had observed that judges made law rather thanmerely found it, they had failed sufficiently to explore the

implications of that observation. In their rush to show thatjudges were human beings the Realists had unduly

minimized the place of institutional constraints in judicialdecision-making.81

The point that the legal realists missed was that the process of reasoning itself

constrained judicial decisions: They had failed to grant due respect to the fact that a

judges use of these devices was itself constrained by the expectations of others.82

As

such, a new set of questions about judicial decision-making emerged, revolving around

the reasoning of opinions. Had the courts adequately articulated reasons for its result?

What assumptions lay behind the reasoning process?83 These were the important

questions and it seems, the fundamental question of justice and the primary object of

democracy.

The legal process scholars relied on the principle of institutional settlement, and

inquired about institutional competence in providing a solid ground for a theory that

79HENRY M.HART,JR.&ALBERT M.SACKS,THE LEGAL PROCESS:BASIC PROBLEMS IN THE MAKING AND

APPLICATION OF LAW, at 4-5 (1958).80

G. Edward White, The Evolution Of Reasoned Elaboration: Jurisprudential Criticism And Social

Change, 59 VA.L.REV. 279, 289 (1973).81

Id.82Id.at 285.83Id.


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trailed the footsteps of the groundlessness of legal realism. After all: Knowledge about

law, it seems, is easier to acquire and retain, and more readily accessible for effective use,

if it can be related to a coherent and intelligible view of the legal system as a whole.84

Unlike legal realism, however, legal process theory was

concerned with the study of law as an ongoing,functioning, purposive process and, in particular, with the

study of the various institutions, both official and private,through which the process is carried on. The objective is a

better understanding of law generally rather than of anyparticular field of law.

85

The law was not simply what judges do, but rather, similarly to the reasoning in

Carolene Products:

different procedures and personnel of different

qualifications invariably prove to be appropriate fordeciding different kinds of questions Thus, a system of

institutionalized procedures is developed. An organizedsociety is one which has an interconnected system of

procedures adequate, or claiming to be adequate, to dealwith every kind of question affecting the groups internal

relations, and every kind of question affecting its externalrelations with the group can establish competence to deal

with.86

The protection of adequate and due processes were thus the intersubjectively

agreed upon objectives of the law:

The constitutive arrangements serve to establish and togovern the operation of regularly working that is,

institutionalized procedures for the settlement ofquestions of group concern. These institutionalized

procedures and the constitutive arrangements establishingand governing them are obviously more fundamental than

the substantive arrangements in the structure of a society, ifnot in the realization of its ultimate aims, since they are at

84Holmes,supranote 35, at 467.

85Fuller,supranote 61, at 56.86Hart,supranote 72, at 4.


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once the source of the substantive arrangements and theindispensable means of making them work effectively.

87

In this sense, legal process theory recognized the inherent intersubjectivity of the

law, and of reality itself something that made it both objective andsubjective, in certain

aspects. In other words, objective realities were those shared and agreed on by subjective

perspectives:

The starting point of the response which human beings

seem invariably to make to the basic conditions of humanexistence is to recognize the fact of their interdependence

with other human beings and the community of interestwhich grows out of it.

88

Consequently, legal process theory sought to define institutional settlement on

procedural grounds, rather than the substantive due process protections of the right to

free contract championed by classical legal thought. Legal process theory offered an

alternative:

To leave decision of these questions to the play of raw

force would defeat the purpose. The alternative todisintegrating resort to violence is the establishment of

regularized and peaceable methods of decision. Theprinciple of institutional settlement expresses the judgment

that decision which are the duly arrived at result of dulyestablish procedures of this kind ought to be accepted as

binding upon the whole society unless and until they areduly changed.

89

More important however than defining how intersubjective agreement was settled

upon, legal process theorys primary contribution to legal thought was probably in

defining how agreements were reasoned. Indeed, reasoned elaboration was the holy

grail of legal process theory:

87Id. at 3-4.

88Id.at 2.89Id.at 4.


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The articulation process was the vehicle through which ajudges professional competence was revealed. A judge

who failed to give reasons for his decisions did not meet hisobligation to allow the public to evaluate the manner in

which he was performing his office. Secondly, articulation

of the reasoning process in opinions highlighted thedifference between a society, such as America, where lawallegedly attempted to conform to public notions of

reasonableness and fairness, and totalitarian regimes wherelaw was synonymous with the fiats of officials.90

Due process cases in particular required such attention to reasoned elaboration.

Indeed, as Felix Cohen noted:

Legal reasoning carries a peculiar freight of human hopes

and human suffering in the realm where the phrase dueprocess of law serves as a text for judicial review of social

legislation. Here, at least, one might hope that a decentrespect to the opinions of mankind would lead courts to

formulate with some clarity their own conception of what itis that they are doing.

91

This is where I shall inject a new principle of thought into the legal process

school, namely: empathic consideration. One may at first believe that empathic

consideration is opposed to legal process championed neutral principles, but as we

shall see, empathy is merely an engaged extension of neutrality rather than focusing on

principles that are neutral, it focuses on everything (facts, principles, interests, etc.), so as

to neutralize everything else. Neutral principles did not deny the possibility of empathy:

Neutrality for Wechsler did not mean that judges should

refrain altogether from taking positions on social issues:they were, in fact, fated to condemn or condone the

activities of the other branches of government. He did,however, imply that judges were required to support their

choices by a type of reasoned explanation, whichinvolved reaching judgment on analysis and reasons

90White,supranote 73, at 285-86.91Cohen,supranote 31, at 830.


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transcending the immediate result.92

As an example, Wechsler would have held that decisions likeBrown v. Board of

Education93

are flawed because they do not extend themselves, through reasoned

elaboration, to the broader universe of legal decisions: The Court did not declare [in

Brown], as many wish it had, that the fourteenth amendment forbids all racial lines in

legislation.94

Indeed, the Court instead handed down a decision in which the separate-

but-equal formula was not overruled in form but was held to have no place in public

education on the ground that segregated schools are inherently unequal.95

Why is empathy important? Justice Holmes wrote:

I cannot but believe that if the training of lawyers led themhabitually to consider more definitely and explicitly the

social advantage on which the rule they lay down must bejustified, they sometimes would hesitate where now they

are confident, and see that really there were taking sideupon debatable and often burning questions.

96

In other words, empathy allows us to step into the shoes of another, take different

perspectives on a matter and understand the full range of interests involved offering a

360-degree view of the matter at hand, rather than a disinterested view from above.

Carolene Products sought to empathize with voices that were often drowned out,

primarily becausethey were voices that were drowned out:

prejudice against discrete and insular minorities may be

a special condition, which tends seriously to curtail theoperation of those political processes ordinarily to be relied

upon to protect minorities, and which may call for a

92Id.at 832.

93Brown v. Board of Education, 347 U.S. 483 (1954).

94Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV.L.REV. 1, at 31.

95Id. at 32.96Holmes,supranote 35, at 468.


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correspondingly more searching judicial inquiry.97

the meaning of terms such as due process of law andequal protection of the laws changed. In place of the

older judicial technique of undertaking an even-handed

weighing, in equal protection cases, of the legitimacy of thestates interest in making a discriminatory classificationand the right allegedly invaded by that classification, the

Warren Court substituted an approach which elevatedcertain rights (such as voting) by declaring that they were

too fundamental to be burdened or conditioned.98

Other cases such as Goldberg v. Kelly99andMathews v. Eldridge100would

attempt to extend due process, empathically, toward understanding other types of

deprivations as well namely, welfare rights and entitlements in the administrative

bureaucratic state. Indeed:

Many of the Warren Courts most controversial decisionsconcerned criminal procedure or other questions of what

judicial or administrative process is due before seriousconsequences may be visited upon individuals process-

oriented decisions in the most ordinary sense. But aconcern with process in a broader sense with the process

by which the laws that govern society are made animatedits other decisions as well.

101

Slowly, due process was becoming more applicable and more inclusive

throughout the entire province of the law. Indeed, without noticing it, reasoned

elaboration was hinting at a requirement for empathic understanding in judicial decisions,

and thus intrinsically incorporated the view that social progress entails greater inclusivity

under the law:

The phrase demanded, first, that judges give reasons for

their decisions; second, that the reasons be set forth in a

97Carolene, 304 U.S., at 152 n.4.

98Wechsler,supranote 87, at 33.

99Goldberg v. Kelly, 397 U.S. 254 (1970).

100Mathews v. Eldridge, 424 U.S. 319 (1976).101Wechsler,supranote 87, at 34.


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detailed and coherent manner; third, that they exemplifywhat Hart called the maturing of collective thought; and

fourth, that the Court adequately demonstrate that itsdecisions, in the area of constitutional law, were vehicles

for the expression of the ultimate social preferences of

contemporary society.

102

Thus, as a whole, legal process theory offered the most coherent view of the law

yet: as an organicprocessrather than afixedset of values. However, legal process theory

failed to see that even neutralprinciples were subject to process the accepted definition

of neutrality would itself change and come to accept the promotion of greater and greater

social inclusivity within the law. Wechsler came close to this realization in his analysis

ofBrown, without actually writing the opinion:

But if the freedom of association is denied by segregation,

integration forces an association upon those for whom it isunpleasant or repugnant Given a situation where the state

must practically choose between denying the association tothose individuals who wish it or imposing it on those who

would avoid it, is there a basis in neutral principles forholding that the Constitution demands that the claims for

association should prevail? I should like to think there is,but I confess that I have not yet written the opinion.

103

In essence, the addition of empathic consideration to reasoned elaboration

accounts for the fact that society advances toward greater association, even in the face of

some who would prefer to avoid it. Process theory strengthened by such an opinion as a

substantive value to identify with could go a long way in assuring theprocess of progress

itself. Indeed, such decisions are:

certainly interventionist decisions, but the

interventionism was fueled not by a desire on the part ofthe Court to vindicate particular substantive values it had

determined were important or fundamental, but rather by a

102White,supranote 73, at 291.103Wechsler,supranote 87, at 34.


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desire to ensure that the political process which is wheresuch values are properly identified, weighed, and

accommodated was open to those of all viewpoints onsomething of an equal basis.

104

Carolene Productsprovided us with one such decision:

I have suggested that both Carolene Products themes are

concerned with participation: they ask us to focus not onwhether this or that substantive value is unusually

important or fundamental, but rather on whether theopportunity to participate either in the political processes

by which values are appropriately identified andaccommodated, or in the accommodation those processes

have reached, has been unduly constricted.105

The beauty of process as a substantive value (procedural substance as opposed

to substantive process) may have been best summarized by John Hart Ely: unlike an

approach geared to the judicial imposition of fundamental values, the representation-

reinforcing orientation is entirely supportive of, the American system of representative

democracy.106

Of course, this is entirely consistent with the purposive (as opposed to

the formalist, or functional) approach.107

When the purpose is defined as preserving the

ideals of democratic participation, we recognize that elected representatives are the best

reflectors of conventional values, and that the judiciary should devot[e] itself instead to

policing the mechanisms by which the system seeks to ensure that our elected

representatives will actually represent.108

Indeed:

there may be an illusion of circularity here: myapproach is more consistent with representative democracy

because thats the way it was planned. But of course it

104JOHN HART ELY,DEMOCRACY AND DISTRUST:ATHEORY OF JUDICIAL REVIEW, 74 (1980).

105Id.at 77.

106Id. at 101-02.

107The purposive approach can be seen as a third-way between formal and functional approaches. The

purposive approach would hold that function is the purpose of form, and reproducing that form is the

purpose of function e.g.,structural coupling.108Ely,supranote 97, at 102.


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isnt any more circular than setting out to build an airplaneand ending up with something that flies.

109

This is the nature of purposivism it balances the flexibility of the functional

approach, with a certain level of direction, as is so forcefully provided by formalism.

More recently, we have seen attempts to inject this purposive and empathic

jurisprudential approach into the Supreme Court itself. In appointing Justice Sotomayor

to the Supreme Court, President Obama himself set empathy as a criterion for a judicial

candidate. Unfortunately, his adversaries are not as well versed in the English language,

and confuse empathy with sympathy, and thus associated his call for bench-empathy

as a call for socialism. However, such name-calling and jurisprudential attacks are

nothing new to the presence of progressive legal concepts. Indeed, at the outset of legal

realism, Justice Holmes noted:

When socialism first began to be talked about, the

comfortable classes of the community were a good dealfrightened. I suspect that this fear has influenced judicial

action both here and in England, yet it is certain that is nota conscious factor in the decision to which I refer.

110

Similarly, and around the same time, Morris Cohen noted:

because law has become more interested in defending

property against attacks by socialists, the doctrine ofnatural rights has remained in the negative state and has

never developed into a doctrine of the positive contents ofrights.111

Indeed, such scare tactics and name-calling is business as usual in jurisprudential

evolution. However, if they can provide any use at all, perhaps such allegations provide

us with a benchmark. Perhaps the screaming of socialist! in the streets merely provides

109Id.

110Holmes,supranote 35, at 468.111Id.at 470.


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evidence that progress is being made, and that socialism as a concept is sorely

misunderstood. As our society becomes more inclusive it becomes more democratic, but

it also becomes more socialized. These two concepts are not mutually exclusive as many

would like to suggest. And certainly, empathy is not the culprit that will destroy

democracy. On the contrary, empathy is the foundation of a moral democracy: the ability

of people to come together and come to mutual understandings. Without such ability,

democracy, let alone government, could not function. Hopefully, like legal process

theory, these procedures and their accompanying doctrines and practices will come to be

seen as the most significant and enduring part of the whole legal system, because they are

the matrix of everything else.112

Empathy is procedural substance and it is the growth

principle by which the law proceeds and progresses toward greater and greater

substantive value. Empathy is "the ideal toward which [the law] tends."

VI.CONCLUDING THOUGHTS

Equal protection under the law is the substantive foundation of due process

requirements. Unsurprisingly, Congress included both of these ideals, procedural and

substantive, when drafting the 14th Amendment to the Constitution. Unfortunately

however, the deeper meaning of the interdependence between these two ideals remains

largely explored. The question: How much process is due? resembles other legal

attempts at objectivity, such as What is a reasonable person? Utilizing such

transcendental nonsense is useful in providing legal discourse with standards of

terminology, but is confounded when it begins to believe in itself independent of context

112White,supranote 73, at 287.


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or intersubjective agreement. These two nonsense questions will be explored extensively

in this note, in an attempt to make sense of them.

In essence, due process is a guarantee of an individuals right to be heard which

casts dual legal principles: an opportunity to elaborate ones own position and an

obligation to take that elaboration into account when making a decision that may deprive

someone of life, liberty or property. In this sense, due process promotes empathy within

the law. Due process provides for the necessity of understanding different (and often,

minority) perspectives on contentious issues before they are written off as unreasonable

and irrelevant a natural human reaction to novel and unfamiliar situations. In order to

compensate for this natural human tendency toward biasing ones own perspective, due

process reminds the law to be mindful of the shifting and evolving nature of neutral

principles. In this recognition, neutral principles become more than mere transcendental

nonsense they become dynamic ideals dependent upon shifting societal norms and

intersubjective agreement. Legal process theory calls this the principle of institutional

settlement. And so, the 14thAmendment is really a reflection of the middle way between

textual and realist perspectives on the law. It maintains neutral principles as the evolving

substance of law, encourages reasoned elaboration as the process by which these

principles evolve, and concludes that the principles are finally determined by institutional

settlement, or intersubjective agreement (which maintains the rule of law). In this way,

legal process theory and the 14thamendment are both reflections of a middle way

approach to jurisprudence. Rather than as a revelation of objective law, or a projection of


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subjective policymaking, the law arises as an intersubjective and ongoing conversation

due process.113

113The concept of due process can be traced back to the Magna Carta the foundation of what has

become modern constitutionalism. It is interesting to note that from this perspective, we have come full

circle and returned to the fundamental ideal upon which our current intellectual movement was founded

pon This is an ndeniabl int iti e concl sion

Ari Allen on Law: The Spirit of the Law

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