The Limits of Law

Vol. 15 No.11 (November 2005), pp.972-975

THE LIMITS OF LAW, by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds). Stanford: Stanford University Press, 2005. 336pp. Cloth. $60.00. ISBN: 0-8047-5235-4.

Reviewed by Daniel E. Smith, Department of History, Humanities, Philosophy and Political Science, Northwest Missouri State University. E-mail: desmith [at] mail.nwmissouri.edu .

As a graduate student years ago, I took a jurisprudence course with a focus on feminist jurisprudence. One day after class, somewhere between discussing the “totality” of Catharine MacKinnon’s theory of male dominance and Janet Rifkin’s discussion of law’s role in creating and sustaining patriarchy, a classmate of mine commented that “we construct ourselves through law.” My response, while perhaps a bit glib (and no doubt demonstrating an unfortunate lack of social skill), was nonetheless essentially correct: her statement represented an exaggerated notion of law. Certainly law as a system of rules is a tool of the sovereign, and whoever else can effectively use it to affect human behavior; but it is not the sole source of the social construct, nor even necessarily the most important source. Nor is law insulated from other sources, be they tradition, morality or economics. Regardless of which among the many definitions of law one embraces, it is inevitably restricted in its authority, its utility, and its impact; law is a bounded concept, which must be understood in terms of its limits— practical, theoretical, geographical, even temporal.

The six essays in THE LIMITS OF LAW are loosely connected by their focus on transition— political situations that the status quo of existing legal systems are ill-equipped to manage. The book is not, however, simply a collection of essays depicting the emerging field of transitional justice. Rather, the essays depict challenges faced by mature, stable legal systems, international and multi-national crises, as well as the paradigmatic “unjust to just political system” transition. Focusing on moments of transition, where law is limited in its efficacy, if not its very applicability, the essays “tell how law is challenged, frayed, and constituted out of contact with conditions that lie at the farthest reaches of its empirical and normative force” (p.17). Thus, the editors argue, law is not merely defined by limits, it is constituted, empowered and legitimated by limits; and it evolves and renews itself when these limits are pushed in times of crisis or transition. These insights, while hardly earth-shattering, are vividly illustrated in essays that are not only fascinating case studies, but highly sophisticated and extremely well-written jurisprudential arguments, enhanced by the editors’ artful discussion of how each author addresses empirical, normative and/or constitutive limits. Rather than illustrate the connection between each author’s thesis and the editors’ creative integration of the essays in the book’s introduction, I offer a few brief observations which will hopefully encourage others to read this collection. [*973]

Laura Dickinson’s essay, “Terrorism and the Limits of Law: A View From Transitional Justice” (pp.21-74), offers a compelling challenge to those who view terrorism as an extralegal problem demanding responses outside the limits of existing legal systems. Contrary to those who would suspend the rule of law to combat terrorism, whether due to moral or instrumental reasons, or because the evil confronted is beyond the capacity of law to mete out justice, Dickinson sees value in law’s expressive and discursive capabilities; and she finds potential in numerous forms of traditional and hybrid legal mechanisms to obtain justice, new behavioral norms, and dialogue amongst affected groups. The transitional justice framework is useful in challenging the widely-held beliefs regarding the limits of law, particularly American domestic law. However, many of the insights and innovations Dickinson mentions are not inevitably precluded in traditional law, or even domestic law. Many, if not all, of the benefits available through hybrid transitional justice mechanisms can be achieved in domestic proceedings as well, arguably even to the same degree; the differences appear to be differences of scope, not necessarily in form or structure. This is not true regarding international legitimacy, but it is regarding the descriptive and constitutive paradigmatic limits of law; examples can be found in domestic law, particularly in alternative dispute resolution initiatives and innovative administrative proceedings, where social and legal presumptions may be discarded or modified (Minow 1990).

David Dyzenhaus’ discussion of retroactivity, the Hart-Fuller debate and the Canadian Head Tax case, “The Dilemma of Legality and the Moral Limits of Law” (pp.109-154), is an ambitious essay, at times difficult to follow. The problem of retroactivity in transitional justice is a serious one, which raises the problem of limits in a similar fashion as Dickinson’s discussion of transitional justice and terrorism. The illustrations of this dilemma are particularly insightful – the “Nazi wife” case which spawned the Hart-Fuller debate, and the Head Tax case – and do not lend themselves to simple resolution. Dyzenhaus’ defense of Fuller’s position, and his critique of Hart’s separation thesis, is compelling, albeit somewhat lacking in clarity. In particular, while I appreciate the need for brevity, it might have been helpful to expand somewhat upon Fuller’s “internal morality of law,” its relationship to conventional morality, and the importance of this distinction to the criticism of Hart. Absent such discussion, the claim that laws are valid only insofar as they comply with “fundamental principles of legal order” (p.117) does not appear to be the equivalent of conventional morality; thus, the assertion of “morality on both sides of the dilemma” (p.144) may appear to be circular. Is the moral compulsion to obey law a product of law itself, or is it due to the commingling of law and morality in an effort to supplement or foster legitimacy for law? If the latter, the moral dilemma ostensibly posed by law is no different than any other moral dilemma and may exist independent of law. Fuller’s explanation is not sufficiently developed in the essay to clear up this concern.

John Torpey’s “Legalism and its Discontents: The Case for Reparations for Black Americans” (pp.75-108), and Bonnie Honig’s “Bound by Law? Alien Rights, Administrative Discretion, and the [*974] Politics of Technicality: Lessons from Louis Post and the First Red Scare” (pp.209-245), offer different visions of the intersection of law and politics. Torpey criticizes the reparations movement from both empirical/practical and normative perspectives. Not only is the effort unlikely to gain support amongst the majority – due to the temporal gap between the actual victims of slavery and today’s victims of slavery’s legacy – but the reparations movement has been unsuccessful in creating or sustaining a parallel political movement. In this regard, Torpey makes an argument not unlike Rosenberg’s (1991) regarding the courts’ capacity to effect social change. His claim, however, goes deeper in that he raises normative, rather than purely instrumental concerns with the use of law to achieve social change. While there is an almost natural propensity to seek redress in court – “The legal path is appealing because the political context is so frustrating” (p.99) – he laments the juridification of politics, citing Jennifer Hochschild’s concern that “using the court system to debate a deeply political and moral issue distorts the case for reparations by framing it in ‘legalese’” (p.100). Honig’s essay, while similarly illustrating the limits of existing legal rules and norms to respond to an issue outside its traditional limits, offers a more positive vision of law’s adaptability. Faced with a Justice Department bent on arbitrarily deporting thousands of immigrants following Word War I, Assistant Secretary of Labor Louis Post reinterpreted deportation legislation and applied constitutional due process rights to administrative proceedings decades before the U.S. Supreme Court followed suit. Honig depicts Mr. Post as utilizing a crisis situation to exercise administrative discretion, not merely subjecting himself to legal rules, but (arbitrarily) choosing to apply previously inapplicable legal rules; he thereby employed executive discretion to reconstitute the law. Interestingly, while the editors characterize Mr. Post’s actions as a dramatic illustration of reconstituting legal limits, such behavior is also reminiscent of relatively mundane legal interpretation by administrators and judges, a point Honig concedes in her concluding discussion of decisionism (pp.227-230). It might have been illuminating, therefore, to compare Mr. Post’s treatment of administrative due process with the Supreme Court’s recognition of the same in 1970. These two essays therefore illustrate how the intersection of law and politics creates opportunities for law to influence, and be influenced by, political issues and actors; in this way law’s “limits” are akin to the creative opportunities inherent in legal reasoning (Brandeis 1921).

The final two essays, Robin Wagner-Pacifici’s “The Conditions of Surrender: Reconstituting the Limits at Conflict’s End” (pp.155-208), and Adam Sitze’s “At The Mercy Of” (pp.246-308), work outside the traditional boundaries of law – outside the limits of the state, and beyond the very notion of the rule of law. Yet, the essays demonstrate how surrender and amnesty not only are informed by pre-existing law, but each serves to stimulate the emergence of legal rules and norms. Wagner-Pacifici depicts the act of surrender as submission to raw power; although there are rules and norms present, the act is in many ways a repudiation of the prior legal order, a void created by the dissolution of recognized legal authority [*975] (pp.157-159). She goes on to discuss the rituals and practices of surrender at length, concluding that these exercises serve to forge and codify new legal and political relations (p.199). Although many acts of surrender do not result in massive suspension of pre-existing legal rules regarding the internal laws of the defeated party, Wagner-Pacifici’s essay is remarkably insightful in its depiction of the most extreme cases (unconditional surrender) and in its explanation of what occurs between the victor and the vanquished, both in terms of ritual and in terms of recreating rule-governed relationships. Sitze’s theoretical discussion of amnesty, focusing on close readings of Kierkegaard and Arendt, is not grounded in practical politics as are the other five essays, and is understandably less accessible to readers not well-versed in the theorists he is studying. Nonetheless, presentation of forgiveness as an extralegal exercise of raw power completes the picture begun by Wagner-Pacifici and, to a lesser extent, Honig; the act of granting amnesty allows the sovereign, and therefore the law, to evolve beyond existing temporal and normative limits.

In sum, the essays collected in THE LIMITS OF LAW, and the editors’ well-crafted introductory essay, present “law” in all of its richness and complexity. While the role and power of law at times appears inflated, or equated with the concept of a political system, the editors to their credit eschew a single consistent definition of law, instead focusing on the overlapping limits – empirical/descriptive, normative/prescriptive and constitutive – that apply to whatever definition of law one might embrace. (One editorial note: It may be a flaw in the copy this reviewer received, but the notes to the introductory chapter are incomplete; the endnotes stop at 34 while the text references notes up to 51.)

REFERENCES:

Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven: Yale University Press.

Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Oxford University Press.

MacKinnon, Catharine. 1993. “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” in D. Kelly Weisberg (ed), FEMINIST LEGAL THEORY: FOUNDATIONS. Philadelphia: Temple University Press.

Minow, Martha. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW. Ithaca: Cornell University Press.

Rifkin, Janet. 1993. “Toward a Theory of Law and Patriarchy,” in D. Kelly Weisberg (ed), FEMINIST LEGAL THEORY: FOUNDATIONS. Philadelphia: Temple University Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCE:

GOLDBERG v. KELLY, 397 U.S. 254 (1970).

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