Vol. 8 No. 5 (May 1998) pp. 247-249.

JUSTIFYING JUDGMENT: PRACTICING LAW AND PHILOSOPHY by Vincent J. Samar. Lawrence, Kansas: University Press of Kansas, 1998. 324 pp. Cloth $40.00. ISBN 0-7006-0854-0.

Reviewed by Mark A. Graber, Government Department, University of Maryland.

Many legal theorists responded to Ronald Dworkin's (1977: 149) call "for a fusion of constitutional law and moral theory" but few were moral philosophers. Rather, numerous academic lawyers appropriated philosophical works, typically to advance their preferred political and legal goals. JUSTIFYING JUDGMENT is the rare example of a work on legal philosophy written by a professional philosopher. Professor Vincent Samar's precise arguments on moral epistemology are different and probably more sophisticated than the standard law review tract. His substantive conclusions on legal questions, however, are the standard fare of legal liberalism. Thus, while his book calls on lawyers to learn more philosophy, readers may decide that non-philosophers know enough moral theory to write adequately on the subject.

JUSTIFYING JUDGMENT begins by properly noting how legal justifications are predicated on philosophical justifications. "Justice," Professor Samar writes "is best served in a legal system justified under a broader theory of political morality" (1). From this principle, Samar draws the conclusion that while justices in a just society are obligated to rely on the internal morality of that society when deciding cases, justices must rely on moral philosophy or natural law when their society is unjust or where the internal morality of their society does not yield clear answers. In his view, "courts are justified in deciding if the laws are unjust since there is no duty to obey an unjust law and certainly none for the courts to follow one" (62).

One difficulty with claims that justices should decide justly is who determines what is just. Opponents of such a wide-ranging judicial role frequently claim that morality is subjective, that justices cut loose from legal moorings merely follow their personal policy preferences. Critical legal theorists similarly challenge the "objective" principles of legal reasoning they believe are taught in law schools and used by conservative justices to mystify their decisions. Professor Samar recognizes that numerous moral philosophers have reached different answers concerning the philosophical questions judges deciding hard cases must consider, but he is confident that right answers can be found in the work of Alan Gewirth. Indeed, his book might best be subtitled ALAN GEWIRTH EXPLAINS IT ALL. At every point when a philosophical difficulty arises, Samar insists Gewirth provides the solution. JUSTIFYING JUDGMENT maintains problems associated with moral subjectivity should not trouble lawyers because Gewirth's "Principle of Generic Consistency" (54) demonstrates how persons may make valid truth claims by deriving ought-statements from is-statements. "Gewirth's delving into the normative structure of agency," Samar claims, "allows him to derive not just an ought from an is but an ought that applies universally within normative discourse and not just to particular cases" (230). Samar thinks Gewirth equally compelling on particular legal questions. If only antebellum Americans had read Gewirth, they would have known what was wrong with slavery (150). All Samar thinks necessary to resolve the abortion debate is for people to read what Gewirth has written on the subject. "Why, then, is there so much controversy [over abortion]?" JUSTIFYING JUDGMENT asks. The answer is "[n]ot everyone in society knows Gewirth's theory, let alone shares his moral outlooks, even though his view on reflection might resolve the issue" (155).

The constant references to Gewirth may annoy or amuse readers, but JUSTIFYING JUDGMENT is little different than other works which explicitly or implicitly assume that basic philosophical problems have been solved by John Rawls, F. A. Hayek or some other philosophical notable. The problems with this approach have less to do with specific features of Gewirth's work, than with the work Gewirth is asked to do in JUSTIFYING JUDGMENT. Gewirthian principles rarely require any alteration in inherited liberal understandings of legal practice and in Professor Samar's hands fail to distinguish sufficiently between justifications of legal decisions and justifications of legal institutions.

Professor Samar does a thorough job detailing the important epistemological differences that divide Gewirth from other liberal philosophers, but he fails to provide any examples where those differences influence legal practice or the structure of a legal system. Samar's claim that courts should make decisions on the basis of justice and legislatures make policy seems almost identical to the Dworkinian claim that courts are unique fora of principle. Samar criticizes Dworkin for calling on justices in an unjust society to use the internal morality of law to decide cases where that morality is in question. Dworkin, however, makes no such claim. Rather, he insists that when law is sufficiently unjust, law cannot be put in its best possible light. Thus, neither Dworkin nor Samar would have the Nazi judge decide in ways that make Nazi law most consistent. More generally, as Samar sometimes comes close to admitting, persons likely to become justices are unlikely to think their society fundamentally unjust. Such jurists may think such particular practices as bans on homosexuality or legal abortion wrong, but they will typically be able to find enough resources within existing social morality to give legal expression to those moral beliefs. Because internal morality can be used to resolve most conflicts that excite a society, Dworkinian justices in practice are likely to reach the same results as Gewirthian justices.

Dworkin certainly concurs with every conclusion Samar thinks Gewirthian justices should reach. JUSTIFYING JUDGMENT maintains that BOWERS V. HARDWICK, LOCHNER V. NEW YORK, PLESSY V. FERGUSON, AND DRED SCOTT V. SANFORD were wrongly decided, and that ROE V. WADE and BROWN V. BOARD OF EDUCATION were correctly decided. Gewirthian opinions in these cases would differ from Dworkinian opinions, though the difference seems more similar to the (real) differences between Justices Brennan and Marshall than the (much greater differences) between Justices Marshall and Thomas. Samar may be philosophically correct when he claims the above cases are hard because social morality conflicts with more general principles of justice (or at least the requirements of social morality are not clear). Still, as a matter of 1998 politics, PLESSY, BROWN, DRED SCOTT, and LOCHNER are easy cases universally, and most liberals regard the just result in ROE and BOWERS as almost self-evident. Certainly, nothing in JUSTIFYING JUDGMENT (or any other contemporary liberal tract) is likely to persuade the great unwashed to complete the constitutionalization of the sexual revolution. For this reason, the book might have been more interesting had Professor Samar discussed hate speech or exemptions for religious minorities, matters on which liberals disagree. Such a discussion, at the very least, might indicate whether and the extent to which his philosophical differences with Dworkin make a practical difference.

Professor Samar's extensive use of Gewirthian philosophy as a justification of legal practice is more problematic theoretically because justifying law means, in part, justifying legal institutions. Institutions cannot be justified merely because they would be justified if they functioned in a certain way. No Marxist would say judicial review is justified when courts hand down decisions consistent with communist equality because American courts are not structured in ways that make such results likely. As this example suggests, a legal system can be justified only if legal institutions are structured in ways to privilege just results (however one defines just results). Thus, Samar needs to ask whether the rules laid down in Article III and present political practice for staffing the federal judiciary is likely to yield justices sympathetic to Gewirthian principles, or at least justices more sympathetic to Gewirthian principles than elected officials.

Finally, the overreliance on Gewirth may have squandered the real advantage Samar brings to the study of legal philosophy. Too many interdisciplinary legal studies treat non-legal disciplines as sources for authoritative answers, whether those answers concern moral philosophy, history, literary interpretation or economics. In fact, Gewirthian philosophy, the status of republicanism during the late eighteenth century, deconstruction, and rational choice are far more controversial within the academy than a glance at much legal writing suggests. Of course, individual scholars have their opinions and Samar is certainly entitled to believe that among philosophers, Gewirth has gotten it right. Still, given Samar's talents as a moral philosopher, JUSTIFYING JUDGMENT might have made a better contribution to legal philosophy by spending more time pointing out the numerous areas of disagreements among leading professional philosophers than by pointing out how the work of a particularly distinguished, but controversial philosopher would improve legal scholarship and legal practice.

REFERENCES

Ronald Dworkin, TAKING RIGHTS SERIOUSLY (Harvard University Press: Cambridge, Massachusetts, 1978).