Law and Politics as Play

Liberal theory fails to cope effectively with the common human tendency, under certain conditions, to brutalize other humans. Liberal theory does not adequately accommodate the reality that humans contest concepts of rights, justice, and truth. The necessarily contextual, contested, and contingent character of substantive liberal principles necessarily prevents them, qua principles, from effectively inhibiting human brutality. Liberal theory also does not take adequate account of the passionate and non-rational character of the human animal. Giambattista Vico\u27s remarkably prescient and comprehensive eighteenth century vision of the human condition anticipates these two barriers to achieving liberalism\u27s pacific political and social vision. Vico suggests that the visceral experiences of competitive human play can, and in fact do, displace the political and social conditions and practices that commonly trigger brutal human behavior. Thus framed, the liberal tradition moves humans from righteousness to playfulness

Law and Politics as Play

Liberal theory fails to cope effectively with the common human tendency, under certain conditions, to brutalize other humans. Liberal theory does not adequately accommodate the reality that humans contest concepts of rights, justice, and truth. The necessarily contextual, contested, and contingent character of substantive liberal principles necessarily prevents them, qua principles, from effectively inhibiting human brutality. Liberal theory also does not take adequate account of the passionate and non-rational character of the human animal. Giambattista Vico\u27s remarkably prescient and comprehensive eighteenth century vision of the human condition anticipates these two barriers to achieving liberalism\u27s pacific political and social vision. Vico suggests that the visceral experiences of competitive human play can, and in fact do, displace the political and social conditions and practices that commonly trigger brutal human behavior. Thus framed, the liberal tradition moves humans from righteousness to playfulness

The Hand in the Brew: Judges and Their Communities

Reviewing: Paul W. Kahn, Making the Case: The Art of the Judicial Opinion (Yale University Press 2016); Douglas E. Edlin, Common Law Judging: Subjectivity, Impartiality, and the Making of Law (University of Michigan Press 2016)

The Rule of Law is Dead! Long Live the Rule of Law!

Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue against the notion that the contradictory views must be resolved in order for judicial legitimacy to remain intact. A rule of law built on contending legal and political beliefs is not necessarily fair or just. But it can be stable. At least in the context of law and courts, a house divided may stand

Swearing Attachment: Oath Bran; or, Law, Politics, and Allegiance

This essay extends the remarks I made at the symposium, Language, Law, and Compulsion, but it tries to retain the style and spirit of my oral delivery. Indeed I must retain that spirit if I am to practice what I preach. This essay suggests that the rhetoric of formal academic discourse and our experience of formal academic argument differ vastly from the rhetorics and experiences which sustain everyday political communities. We distort political processes and experiences badly simply by converting them into academic rhetoric at all. For example, the processes that create and sustain communities presumably do not depend on thorough footnoting. The letter killeth, and so on. The very act of thinking and writing in formal academic fashion about law, politics, and the humanities can blind us to the poetic, musical, spiritual, and other mysterious aspects of human bonding. I mean here to preserve some appreciation for the emotional and nonrational qualities of political life that have traditionally concerned the humanities precisely because they are central to our experience of community itself. Hence I write without footnotes. Readers who prefer a more conventionally academic treatment of these issues might consult the last two decades of mainstream writings in ethnomusicology, beginning with John Blacking\u27s How Musical Is Man?, 1973. The organizers of the Symposium asked us - Sunstein, Levinson, Boswell, and myself - to wrestle with the following questions: How do oaths of allegiance and other speech ceremonies serve to create and foster attachments between self and other? How do we constitute communities through words which bind? The oath of loyalty to a company of strangers and the marriage vow to an intimate friend differ on almost every psychological dimension imaginable. Nevertheless, my nutshell answer to both these questions as they apply to nationality and marriage is the same: Speech ceremonies and words that bind are, in the grand scheme of things, not very central to the constitution of intimate attachments or of communities