A Little E-Garden of "Rule Of Law" (I)
John H. McCloskey
9 July 2001
(( Mr. McCloskey commences an insufferably pompous and eye-glazingly
boring silly-season series for the Muses and himself -- plus of
course all comers. ))
<< http://bostonreview.mit.edu/BR26.2/scheuerman.html >>
"[A] judicial decision is correct today when it can be assumed that
another judge would have decided in the same way." Who, then, was this
"other judge" Schmitt thought capable of providing legal actors with
guidance? In 1912, Schmitt alluded to "the empirical type of the
modern expertly-trained jurist," in other words, the "normal" judicial
professional of Schmitt's day.
--Carl Schmidt (_chez_ William E. Scheuerman)
"It is an epistemological verity that only those are capable of
seeing the facts [of a legal case] the right way, listening to
statements rightly, understanding words correctly and evaluating
impressions of persons and events rightly, ((who)) are participants in
a racially determined type [_artbestimmsten Weise_] of legal community
to which they existentially belong."
--Carl Schmitt (in the 1930's)
-----
Perhaps Great Friend of "lung" will recognize the name of Dr.
Schmitt, which comes from his favorite age and place?
In addition to being a sentence fragment (I put "who" for "if they"
to fix it, but maybe the real predicate was indeed dropped?), that
second citation raises the question of whether _artbestimmt_ meant
"racially determined." The dictionary assures me that it _could_, but
did it? If it only meant something less exciting like
"specificity-specified," the consistency of it with the much earlier
first citations would be perfect.
If you collect "legal positivisms" or "legal realisms" this specimen
may be new to you. Schmitt's sociological view seems quite distinct
from Mr. Justice Holmes's curial behaviorism and Kelsen's baroque
normativities and the raw utilitarianism of Austin and Bentham and
Epstein and Posner. These are clearly four different ideas, although
of course generically similar.
For that matter, you might add a fifth variation, assuming the
second quotation really was _völkisch_ly intended. Or even if not.
Maybe Schmitt didn't mean it that way, but maybe Kipling did mean that
meaning in "Recessional." No, add the fifth kind anyway. Perhaps
that variation of "legal realism" was never written up by a highly
theoretical wingnut like Carl Schmitt, but the view that "Let's be
realistic: WE understand law, but all THEY understand is force" is so
widespread at a popular or Madeleine-Albright level that it would be
absurd to leave it out.
Distinguishing the fourth and fifth varieties, then, the question
would seem to be whether Schmitt switched between them. His 1912
socio-legal positivism would seem to allow that THEY might have their
own sort of Law, which, although mysterious and unaccountable to US,
is nevertheless recognizably Law of some sort and not just force. (If
it were just force, it wouldn't be mysterious. If there is any one
thing everybody human -- and _untermenschlich_ -- understands, it is
force.)
Did Schmitt himself ever move on from sociology to chauvinism? From
Herder to Hitler, so to speak? Did he decide that the so-called
"laws" of the Gentiles aren't really law at all? Absurd to judge such
a question from only a long review of an intellectual biography, but
"absurd to judge" need not exclude "fun to guess," especially in the
silly season.
My own guess assuming Scheuermann (the reviewer) reports Balakrishnan
(the biographer) reports Schmitt at least half right about "the
liberal quest to limit state power by legal means was inherently
'Jewish' in spirit, since Jews naturally evinced an instinctive
hostility to state power because of their historic lack of a state and
country of their own. Schmitt says that the late eighteenth-century
German philosopher Moses Mendelsohn was 'endowed with the unerring
instinct for the undermining of state power that served to paralyze
the alien and to emancipate his own Jewish folk'"
The terminology gets very topsy-turvy hereabouts, even after you set
aside the parochial USA associations of the word "liberal." If
Schmitt actually wrote _that_ passage in what I think of off-hand as
the obviously equivalent German, it is a mystery why the Nazis didn't
have him shot. The Jews are to be accounted mostly _völkisch_ and the
Germans mostly _staatlich_? Schmitt, a very learned wingnut, can
hardly have been so ignorant of how and when and by whom the
continental European Jews were emancipated as to believe what that
passage implies in English. There pretty well must be a short circuit
in translation here. (The name "Gopal Balakrishnan" somehow leads me
to doubt that this biographer is any more a native Teutonophone than I
am....)
But despite all that philological jazz, and even if "people" and
"State" have been flat-out reversed by a misprint, if is clear that
Schmitt must be separating out the Jews as abnormal and unique, as
opposed to the normal (and therefore presumably NOT unique) Germans.
That is sufficient to exclude the gutter or Kipling kind of "legal
realism." Perhaps Schmitt later on excluded wretched unnatural Judaea
from his 1912 socio-legal positivism, but if that was only a single
peculiar exception, if China and Peru and such places were still
accounted in general capable of (their own sort of) Law which Chinese
and Peruvian and other exotic jurists understand all about amongst
themselves even though it sometimes puzzles the faculty at Berlin, he
never touched the absolute bottom of the chauvinist slime.
That's a partial presentation, I admit. "Legal realism" presumably
can't be as bad as I tend to account it when I write about Schmitt if
Mr. Justice Oliver Wendell Holmes, Jr., was a practitioner. And
certainly by Carl Schmitt's own criteria, it would be more sensible
for me to argue with or about Holmes than with or about himself and
Hans Kelsen.
That obviously sound distinction invites another. My five classses of
legal realism can be divided into two supraclasses, the German
realists (Schmitt and Kelsen) and the Anglophone realists (Bentham,
Austin, Kipling, Holmes, Epstein, Posner). It strikes me as obvious
(now that I just thought of it), that the common nouns "realism" or
"positivism" might conceal important specific differences. Schmitt
and Kelsen set themselves up against the supposed "unrealism" of Roman
Law, whereas the rest must have been aiming either at the supposed
"unrealism" of the former Brit. Common Law or of our here-and-now
whatever-it-is (?democratico-statutory?) law in the USA. By the 1912
Schmitt principle (and by lots of other things), these multiple
targets are most unlikely to be exactly identical.
Even though both crews protest that "All Law is only a mystification
of Force" in two different Protestant Christian Germanic languages, it
must be remembered that it is unlikely that either crew has ever even
glanced at China or Peru before framing an idea of the Legal All that
they want to demystify.
They haven't in fact even glanced at ecclesiastically unreformed
Europe much nearer home. Unreformed Europe seems even to this day to
think that Justinian plus an occasional dollop of Aquinas and
Aquinas's Aristotle will more or less do the trick in all
jurisprudence both human and divine. Legal positivism and legal
realism don't seem to sell very well south of the Alps, let alone in
Peru and China. (Plus please don't get me started about Islam!)
Anybody who seriously wants to pronounce about All Law in any sense
whatever, pro-mystification or anti-mystification or
mystification-indifferent, ought to rub her nose in facts like that
for a while as a preliminary Holmesian experience-beats-logic
exercise.
What is Law? Why does Law bind us?
I have no adequate answer. I doubt there is any harder question in
the whole calendar of human events. Yet I do not think Law is
mystification. I think Law is a genuine mystery, a _mysterion_ or
_sacramentum_.
The only perfectly satisfactory intellectual explanation of Law I know
of is precisely the realist or positivist one I have just been
scribbling against, "Law is Force. Law binds you because you are
afraid of pain." That is perfectly crisp and clear and
comprehensible.
But also obviously and utterly wrong.
Happy days.