Academic journal article
By Balkin, Jack M.
Harvard Journal of Law & Public Policy , Vol. 26, No. 1
I am delighted that the Federalist Society asked me to participate in its Symposium on Law and Truth. I suspect, however, given my previous jurisprudential writings, that I was invited in order to play the role of Pontius Pilate. But I refuse that responsibility. I wash my hands of it. For I am a great believer in legal truth. Indeed, the theme of this essay is that we are awash in legal truth; indeed, we are drowning in it. In the world in which we live, legal truth is proliferating at an astounding pace, and this truth has important effects on our lives for good and for ill. The proliferation of legal truth and the effects of power produced by that proliferation are the subjects of this essay.
In his remarks for this symposium, Michael Moore suggested that I am a conventionalist when it comes to legal truth. (1) With respect to law, at least, he is right, although not necessarily with respect to other matters. (2) Law is an interpenetrating set of social conventions, and therefore statements of law can be true by virtue of those conventions. To be sure, these conventions may not be fully specified or fully determinate, and their content can change over time. In this essay, however, I focus on the converse point: that when legal conventions are sufficiently specified and sufficiently determinate, they can and do decide what is true or false from the standpoint of law.
There are lots of true legal propositions; indeed, so many that I can't even begin to list them. They are true by legal convention, in virtue of the social practices that constitute law. As Susan Haack puts it, they are true as legal claims. (3) Or as common law lawyers would put it, they are true in the eyes of the law. (4) In fact, one of the most interesting features of law as a system of social conventions is its ability to make things true or, to put it another way, to create legal categories that permit characterizations of situations and practices that are true or false. My point, however, is not simply that propositions of law are true in virtue of legal conventions. It is rather that law creates truth--it makes things true as a matter of law. It makes things true in the eyes of the law. And when law makes things true in its own eyes, this has important consequences in the world.
Consider, for example, the common law distinction between trespassers, licensees, and invitees. Landowners have different tort duties toward people who trespass on their property, enter their property for business reasons, or visit as invited social guests. Simply by making these distinctions, the common law makes it possible for it to be true or not true that a person is a trespasser, licensee or invitee.
Sexual harassment law makes it illegal to engage in sexual harassment. At the same time, it defines a practice as understood by law called sexual harassment. It makes it possible for someone to be or not to be a sexual harasser in the eyes of the law. It creates legal rights against sexual harassment and makes it possible to protect and violate these legal rights. Similarly, when law creates intellectual property rights in computer code, it makes it possible to violate those rights, to be or not to be a copyright infringer.
When law allows companies to create 401(k) plans or when it provides general statutes of incorporation, it defines institutions and practices that people can bring into being. It makes possible true and false statements about these institutions and practices, and about rights and responsibilities with respect to them.
Thus, there are several different ways that law can make things true. Sometimes law makes things true just by creating categories and distinctions that define certain situations or conduct vis-a-vis other kinds of situations or conduct, or that make things equivalent or different from the standpoint of legal doctrine. Sometimes law makes things true by creating causes of action or rights, as in sexual harassment law or intellectual property law. …