On the Majesty of the Law
Mansfield, Harvey C., Harvard Journal of Law & Public Policy
In the choice of my topic, I unknowingly filched the title of Justice Sandra Day O'Connor's memoirs. I meant to call upon what is awesome and venerable in the law, as I think the good Justice did as well. Majesty is not in our style of democratic informality, in which everything is open to change in the hope of reform. But we are still attached to the formality of procedure and the solemnity of judicial garb designed to maintain respect for the law. We do not need regal magnificence in our judges, but we do require republican assurances that public justice is serious business. Above all, any appearance that the law can be circumvented by private approach or by interested calculation --and this warning is directed to professors--is to be avoided. What happens behind the scenes must stay behind the scenes.
Against this intimation of majesty practiced in our time is the movement of thought known as "legal realism." I will argue in my brief that majesty is good and that legal realism is inadequate. Legal realism is not all wrong, but the view that it is enough is all wrong.
Legal realism has several modes, but they all declare that something other than, and more powerful than, law is the cause of law. The "realism" consists of seeing through mere appearances and establishing the fact of this more powerful force. Once established, that fact must be published, taught, and spread. Legal realism is expected to bring good to society by its inventors, who quickly become, if they were not from the first, its advocates. It asserts that our law will be better if through clear thinking we dispense with its irrational majesty. This realism is really idealism. In the old days, when philosophy was young, the pre-Socratic philosophers thought that laws were made for the convenience of rulers and nothing good was to be expected from politics. They thought that was realism. In America, advocates of legal realism have arisen from the Progressive tradition, joined now by libertarian conservatives, who claim public good will result from their public unmasking of law. Despite the fact (as they maintain) that no one aims for the public good, they believe it does exist; Socrates was right about that.
The sort of thinking our legal realists recommend can be seen in the famous prisoner's dilemma that is the essence of game theory, the most fashionable mode of legal realism. The prisoner's dilemma posits a situation in which a prisoner must choose between defecting from a fellow prisoner and cooperating with him. We do not know whether the prisoner is guilty and should therefore confess his crimes. We do not know whether the law he may or may not have violated deserves to be respected. But the example is not as neutral as it seems. One's sympathies are unjustifiably enlisted on the side of the prisoner by adopting his point of view. From the standpoint of the law, he is defecting from the law instead of cooperating with it by confessing, as is his duty. The example substitutes calculation for duty and is actually about how to evade the law if it is advantageous to do so.
It is not unreasonable to question the coherence of such allegedly neutral strategizing. How is it consistent with respect for the law? Shouldn't people believe that two murderers, two rats, should rat out each other? The phrase "rat out" expresses a noble disdain to which murderers are not entitled. It may be objected that respect for the law is due only when the law seems good to us. But if this were correct, people would simply do what is good for them, harmony would result, and there would be no need for law. It appears that law needs to seem good even when it may not be; it needs, as we say, legitimacy. Does legitimacy require majesty to give it authority?
I have been speaking so far of "the law," as if law were one whole. Even we in pluralistic America use that expression. Yet the law consists of laws, each of them by itself and not necessarily coherent with other laws. …