Devon, PA. No observer of American culture grasped its implicit contents better than did Alexis de Tocqueville, and no one since has better grasped its potencies as they have actually unfolded. Thus, for those with eyes to see, every episode in the bad tragedy of American history is a Tocqueville moment of sorts, and is therefore worthy of a few quotations from Democracy in America. For good reason, four aspects of American culture Tocqueville believed gave our democracy at least a small chance of flourishing tend also to be those regarding which his prescience is most often cited; local self-government, free association, civil Christianity, and the nuclear family stand out in Tocqueville’s analysis like the four corners of American order. Less often remarked, or at least less often quoted, is Tocqueville’s penetrating assessment of the role of lawyers in American society. And yet it may have been his most shrewd, if not his most subtle, observation that the aristocracy of lawyers in democratic societies is the most reliable and effective stay on the excesses of majority rule.
Despite the continual growth of federal powers generally, and of the executive branch in particular, since the Civil War, our age has been notable primarily as that of the unhindered, indeed irrational, bulging of judicial power. Three recent events this summer alone suggest how central the powers of lawyers and judges have become to the drama of American public life, and I should like to rehearse them as occasions to reexamine Tocqueville’s assessment of the importance of lawyers in American society.
The first such event was the statement of Supreme Court Justice Ruth Bader Ginsburg that American courts ought to consult foreign law in making decisions.
The second was, of course, the nomination of Sonia Sotomayor to the Supreme Court; because of the indefensible legal philosophy of the man who nominated her — Barack Obama’s suggestive black hole that deemed the law a sort of superstructure external and subordinate to a quaking sod foundation of “empathy” — Sotomayor’s nomination was rightly suspected from the first. It perforce appeared – to anyone with an intellect – less a deserved honor for a judge both knowledgeable and wise in the Law and more as a bit of spoils for the inchoate Hispanic block in the Democratic party. It appeared thus for several reasons. First, people doubted the qualifications of Sotomayor simply because of what Obama had said he would look for in a nominee. If “empathy” was the chief litmus test then why would that faux-Jamaican empath who advertises her fortune-telling prowess on television not be an equally attractive “affirmative action” candidate? Second, they doubted because of the dubious legal pragmatism Obama had taught to his own students while serving as a lecturer at the University of Chicago; there he instructed them, it seems, that racial gerrymandering is a social good so long as it gets the people one (he) wants elected:
Former students say that Mr. Obama does not particularly prize consistency or broad principle. Adam Bonin arrived in Mr. Obama’s class with the firm belief that drawing districts to ensure minority representation should be illegal. “It struck me as wrong that the legislature should pick and choose what interests should be represented in the legislature,” Mr. Bonin said.
“What I took from the class and the reading materials was the reality that unless these voices are physically present in a legislature, they won’t be heard,” he said. “As long as everyone is grabbing for power, members of racial minority groups ought to do the same.”
If such a haughty simulacrum of intelligence (note the pinched seasoning of Nietzsche, every lawyer’s spiritual mentor, spliced to a kind of adolescent populism) did not put everyone in despair and doubt about anyone Obama might nominate: then, third, they doubted because, upon David Souter’s announcement he would step down, every news outlet reported that Obama insiders were lobbying for him to nominate an Hispanic woman; how could they not after the previous Hispanic-sop, Bill Richardson, had to withdraw his nomination for Energy Secretary consequent to corruption charges? When a “wise Latina” is precisely what we subsequently got, we may justly ask whether Obama had looked into his nominee’s eyes, as Bush did years ago into Putin’s, and saw “empathy,” or if he looked around her eyes and saw unmistakably Latin American features and little else. In other words, one had good reason to suspect the qualifications and good faith of Obama and Sotomayor alike even before it was disclosed that she had made a series of speeches over a the years suggesting that race and sex might positively qualify an Hispanic woman as a better judge than a white person – or that, in the Ricci case, she seemed to affirm not that her race made her more judicious but that the race of white men and women was positive grounds for acting unjustly toward them.
I would note a third event — one that was public enough but hardly a “news story” the way the above were. In late April, I heard Justice Samuel Alito speak in Wilmington, DE, and the subject of his remarks was that the Framers of our Constitution were imperfectly wise in their design of the judicial branch. It was the only branch of government for which the Framer’s provided no avenue of censure or removal from office for abuse of power. They seemed to have simply assumed that judges would be self-governing in a way distinct in kind from the presumed self-government of a citizen, a legislator, or an executive. And they codified no specific limits on the powers of the judicial branch. The weakness of that assumption, given the Whiggish Protestant paranoia foundational to American government, is surprising but no less real for all that.
A curious trinity: Ginsberg imports foreign law; Sotomayor and Obama suggest the Court be transformed into an episode of Oprah Winfrey served with quotas and menudo; and Alito wisely, if belatedly, warns us that there is no legal dam that will not give before the Supreme Court’s flood-tide assertion of judicial will.
It is Tocqueville’s prescience regarding the tendencies of democratic societies we generally hear praised. But regarding lawyers and judges, Tocqueville’s significance lies in what he did not imagine—and what he did not imagine is precisely what we have. In his comparison of European aristocratic societies and American democratic ones, Tocqueville observed that, accustomed to perceiving an infinite variety of gradations and differentiations, persons in an aristocratic society are reluctant to generalize the intricate tapestry of human experience into abstract laws. Generalization impresses them as intrinsically reductive and in generally poor taste. The man in a democratic society, on the other hand,
is aware of beings about him who are virtually similar; he cannot, therefore, think of any part of the human species without his thought expanding and widening to embrace the whole. Any truth which applies to himself seems to apply equally and similarly to all his fellow citizens and those like him.
The aristocrat attends to the particular and judges each thing as he finds it; the democrat gathers men like grain and does not wait on detail, but seeks the briefest and most universal maxim to comprehend and dispose of reality by the barrel. The American files down reality to a few simple laws not by means of clever abstraction but with all the subtlety of a thresher.
We might pause to observe that much of the interest of Tocqueville’s writings depends on his standing in the threshold between the aristocratic and the democratic. Every student of Tocqueville has said as much regarding his sympathies, i.e. he sees clearly the great attraction and achievement of aristocratic societies even as he appreciates a real and ineluctable goodness in the tendency toward equalization of social conditions to which democracy leads. I refer not to his sympathies but to his sensibility. Democracy in America is built of the precise observations of the leisured aristocrat who does not move on from one object until he has taken its measure well; part of its enduring value is the record of the texture of American life Tocqueville took such care to preserve. And yet, especially in the second volume, we find the book driving beyond the empirical peculiarities of democratic society into the mechanical, theoretical innards that move it. Hence the great quotable quality of Tocqueville: he sees the maxim in the marrow with the same clarity with which he has recorded the wrinkles of a face.
Generalizing Tocqueville’s observation on aristocrats and democrats like a good American, I would naturally expect it to extend beyond psychology to the law, but Tocqueville – more or less – says otherwise. Rather, he deploys a more nuanced set of distinctions to contemplate the function of lawyers and legal systems in various types of society. In his scheme, lawyers constitute a cosmopolitan aristocratic class with certain fundamental traits in common regardless of their country or society of origin. Tocqueville observes,
What lawyers love above all is order and the greatest safeguard of order is authority. However, we must not forget that, valuing liberty as they might, they generally rate legality as much more precious. They fear tyranny less than arbitrary power and they are more or less content provided that it is the legislator himself who is responsible for removing men’s independence.
This applies to the lawyer in an aristocracy as much as to one in a democracy; but, whereas lawyers compose just one aristocratic class in the older societies, they stand out as the sole truly aristocratic class in the new world of equality. In consequence, lawyers appear as yet another of the “aristocratic residua” Tocqueville believed stood in the way of democratic societies’ tendency to govern according to an impassioned and wind-blown populism. By their very nature and taste, lawyers form a bulwark against unruliness usurping the rule of law. And so he summarizes,
The lawyer belongs to the people out of self-interest and birth but to the aristocracy by customs and tastes; he is virtually the natural liaison officer between these two and the link which unites them . . .The legal body represents the sole aristocratic element to mix effortlessly with the natural features of democracy and to combine with them in a happy and lasting way.
Having given us an almost Cartesian mathematical formula for the “transhistorical lawyer,” Tocqueville hurries back into the realm of precise observation. If lawyers do not vary from society to society in their foundations, they nonetheless vary radically in their understanding of the nature of the law. In the swiftly decaying aristocratic society of France, the lawyer argues his case according to abstract norms of logic, always rising up to the “constituent principles of law” that subsist in the ether above and beyond historical experience. The French lawyer, then, is like the democratic American in his relentless pursuit of the generalized principle. Things are otherwise for the Anglo-American lawyer, however:
The aristocratic character which I detect in the legal mind is much more pronounced still in the United States and England than in any other country . . . Both English and Americans have kept the law of precedent which means that they still draw their opinions in legal matters and the decisions they have to pronounce from the legal opinions and decisions of their fathers.
An English or American lawyer almost always, therefore, combines his taste and respect for what is old with his love for regularity and legality . . .
The English or American lawyer seeks out what has been done before, whereas the French lawyer inquires what he ought to do; the former looks for judgments, the latter, reasons.
And, finally, in a figure that ratifies Edmund Burke’s account of the English constitutional system, Tocqueville insists that
English legislation is like an ancient tree on to which lawyers have grafted an endless series of the oddest shoots in the hope that, though the fruits are different, the leaves will match those of the venerable stem which supports them . . . Their aristocratic leanings are secretly opposed to the instincts of democracy; their superstitious respect for what is old, to its love of novelty; their narrow views, to its grandiose plans; their taste for formality, to its scorn for rules; their habit of proceeding slowly, to its impetuosity.
The Anglo-American lawyer’s education parallels that of the Catholic seminarian; he is initiated in the intricate, respectful form of labor that appreciates truth can be discovered only in the manifest and organic body of tradition. Precedent serves not so much as an alternative to logic as it does its very ground; without due reverence for and deference to what has been taught, one cannot begin to reason rightly. Tocqueville, as a Frenchman, finds this practice arcane; Tocqueville, as an aristocrat, finds it admirable; but, above all, Tocqueville, as a cautious admirer and advocate of democracy, finds it necessary to the stability and order of an otherwise ochlocratic and inconstant society. By their nature, lawyers are the antidote to excess: the deep rooted tree in an age of dustbowls.
No wonder then that, as Alito observed, the founders did not deem it necessary to place a systematic series of checks upon the judicial branch as they did upon the legislative and the executive. A congressman or a president takes his office, not in virtue of his character, but in virtue of appealing to the masses. But the lawyer enters into his profession by a slow path of initiation that instructs him to embody and defend a cautious, indeed conservative, love of law founded on precedent, impersonal logic rooted in the shared experience of a people. With this tradition in place, to be an American or English lawyer means to be self-governing and self-limiting.
But what if the lawyers throw over these dispositions? What if they decide that organic whole of their particular legal tradition is no longer worthy of deference, and they appeal to systems and practices of law foreign not only in terms of nationality but in spirit? We ask further: what if the lawyer finds the roots of the law not in precedent and tradition but in the momentary passions of the heart? What if the roots that clutch and bind the law and thereby make it sure and coherent, that preserve order and eschew the clamoring demands of present politics, are left to shrivel, and new laws are sewn in the thin soil of ahistorical abstractions?
Aristotle tells us: the greatest good, when perverted, becomes the greatest evil. Self-governing, conserving, order-loving lawyers, Tocqueville suggests, not only limit their own ambitions but instruct and delimit the ambitions of democratic society. But if they lose their fidelity to tradition, we have nothing in place to rule them when they refuse at last to be ruled. This tour of the Tocqueville archive is not an arcane exercise, but a warning both timely and untimely. In our lifetimes, we have seen the Supreme Court and its lower iterations grow increasingly committed to an ever more abstract, ever more generalized and simplified, logic of “rights,” and an ever more unbounded assertion of judicial power. The tree of precedent has been stuffed down the wood chipper. The American lawyer grows Cartesian in his sense of spiritual privilege and French in his absorption in maniacal principles anathema to a stable, ordered, and flourishing civil society. And he grows more confident with every decision, knowing that nothing the hand of man hath wrought can stop him. What we should find most frightening is that here is one instance of legal tyranny that can only be answered by the law, by the promotion of some other entity to greater power than that already arrogated by Justices of Ginsberg’s ilk; we may expect to see the Constitution abandoned before we see a chastening of those tyrants of “empathy” on the highest bench.
What, after all, do the French know about chastity?
James, many thanks for this article and the thought provoking content. Following an equally absorbing piece by MARK T. MITCHELL one is again amazed at the richness of Tocqueville’s insight.
The dignity of man is always under threat from the powers that be and the Law is our defence. Status from the attainment of material wealth, or political preferment, is undermining the position and possibly the role of the professions, and most worryingly amongst Lawyers as you have described.
Fascinating post. As I was reading, I thought of how the tensions and dissonance between the authority of law and the democratic drive to be free of authority are on display in French-influenced American lawyers like our president, who resort to the moral imperative of the right to perfect equality to assuage their conscience for what is to them the necessary evil of using authority in the first place.
French-influenced American lawyers are, in this way, already participants in a “ends justify the means” culture of pragmatism, which really isn’t pragmatic over the long haul.
The use of their place in the hierarchy to undermine hierarchy also represents a low view of law and politics.
Ahhhh yes, the Aristocracy of the Leveling Meritocracy abrades apace. This case of the Clap we are now enjoying is ably dissected by Mr. Wilson. Tocqueville continues to astonish but is ignored by our current generation of scholars and their living constitution.
Justice Alito’s brick-brat thrown at the Framers for failing to provide an avenue for impeachment of members of the Supreme Court is an implicit admission, on his part that the Supreme Court is no longer the last bulwark of the Government against violation of the Law. Rather, like it’s fellow branches, it is but another politicized congeries for use as is seen fit…through empathy, best-friendship or , as the case may be, top dollar in service to public opinion. The Justices were given a lifetime sinecure to buffer them from Public Opinion and with the knowledge that the Law was and would always be paramount. That Alito, another historicide of the current neo-con infested Foggy Bottom would seek to gloss over this fact is altogether consistent with the general trend. Washington is intent upon obliterating the Separation Of Powers and the Rule of Law in favor of the kind of grab-ass generally found in more despotic palm-treed climes where the banana doth grow. In other words, with the Law as their guide and the Constitution their charter, the Supreme Court “don’t need no Stinken Badges”. This generation thinks a badge is everything and so stinks at near all it does.
To underscore this destructive cannonball jump into the shallow pool of empathy, we might want to recall two cases of Justice Sotomayor and cringe at will. First, we have Didden v. the Village of Port Chester where two men attempting to build a CVS on their property were denied a zoning and building permit by the City and their property was promptly condemned under the law of Imminent Domain. During the trial, it came out that apparently a favored developer had attempted to entice….shall we say…the property away from the owners to no avail. The machinery of imminent domain then had its way with the property owner. In finding for the City against the property owner, Judge Sotomayor cited the Kelso decision in New London …a patently imprudent granting of license to municipalities to exercise the right of imminent domain not just for sewer lines, trains and highways but for private re-development plans of developers as well. Much mischief will cascade out of this law.
We can also look at the New Haven Fireman’s case, where Judge Sotomayor and her associates took a flying leap into empathy by deciding against fireman who had passed an examination for promotion and in favor of the firemen who had failed it.
Empathy is a fine and noble sentiment but sentiment can frequently erode into sentimentality and without the Law as a retaining wall, we can all wallow in the mud of the great slide we can expect.
D.W., I confess I didn’t intend to group Alito with Ginsberg and Sotomayor. I found his comments very insightful and conscientious. That said, the intervention of the Court in 2000 in Bush v. Gore may suggest — as so much else has — that the limited vision of judicial authority proper to judges is not manifest in the practice of even our most conservative justices (allow me to say that, but also to confess that I never read the decision and so there may have been rightful jurisdiction). I find Scalia, Thomas, Roberts, and Alito to be the great political men of our age; my only complaint is that, as Supreme Court judges, they should not HAVE to be those great men. They should be what Sotomayor claimed to be in her hearing (no doubt purjuring herself in the process): a functionary applying the written law to particular situations. Prudence rather than empathy is the only virtue a judge should require.
JMW,
We can use the Kelso case as a good example of how even our so-called “conservative” Justices are traipsing down posey paths straight to a hell of our own making. Any notion that a man’s home is his castle went right out the window with Kelso.
Scalia, at least, has a fine sense of humor.
They may all stumble occasionally upon a stance of principled respect for the law if it suits the politics of the day but the partisanship of the Supreme Court today is thinly veiled if veiled at all. Graham, in his too-smart by half questioning of Sotomayor struck on an interesting theme….the Judges history of browbeating council. The President is well aware of the so-called mistake of an earlier president with their appointments of Justice Souter and he picked a partisan of the liberal cause who will no doubt find a bully pulpit to belligerently further the liberal agenda of making it up as they go along.
As to The Law, its spin the bottle time and as you know, the French will daly only briefly at first base.
Touché, Sabin.
Dr Wilson and Sabin,
I think you’re being a bit too skeptical about the role that some notion of empathy ought to play as a legal sensibility, or at least as a factor in legal decisions, and that skepticism has to a degree straw-manned the President’s position. First, I don’t think he ever indicated that “empathy” or an “empathetic sensibility” was a sufficient condition for nominating Judge Sotomayor. And unless he did indicate that and I just haven’t read it, the Jamaican empath example is either confused or disingenuous.
Now, I think you’re clarifying your problem with empathy when you discuss the President’s notion of legal pragmatism, but I’m enormously surprised to find that notion so derided on the Front Porch. Obama’s pragmatism–which, I think, serves as the foundation for his idea of legal empathy–has to do with the application of law in particular instances rather than in generalized abstractions (how’re those for pleonasms?). A problem with any law is that it attempts to generalize a particular. Why is that a problem? Because in the act of generalizing, necessarily certain features of the particular must discarded for in order that the particular might fit the form of the general. Obviously, this isn’t always a problem, because many times, particular actions fit snuggly into the generalization. But just as obviously, there is a gradation in any class of actions deemed to fit a generalization such that particular instances of the action will fit the generalizations to greater and lesser degrees. So, when a particular action fits the generalization to a lesser degree, it is a role of judges and of juries to sort out those instances with their greatest concern being for justice (in the Aristotelian sense). What Obama’s notion of legal pragmatism seems to advocate for, then, is something like this: when judges and juries perform that “sorting out” it is better for them to adjudicate in accordance with the facts of a particular case, even if that adjudication does not fit the letter of the law, because in such instances, either the law is unclear or the particular facts do not justly fit legal generalization, because if either of those two conditions had been met, the action would fit obviously into a category that the law had established.
Here’s a good example (full disclosure: this comes from a law student at Notre Dame): Suppose there were a law stating that any person who is convicted of two felonies will automatically receive prison time upon conviction of the second offense. Now, suppose there were a man who, when he was 17 was convicted of mail fraud after taking his report card out of his parent’s mailbox, and when he’s 30, he is arrested for dealing small amounts of marijuana to other adults. Is this really the hardened criminal who the felony law was mean to deter? I doubt it. In this instance, then, it might be prudent to ask: Is it better for the commonweal if a judge or jury makes the particular action fit the generalized form of the law and sends the man to prison, or is it better if the judge or jury empathizes with the man’s situation, understanding that he has not really had the first of two strikes that the law allows? Pretty clearly, it’s better for society if the judge or jury acts with empathy–that is, with concern for this man’s particular circumstances.
This concern for the particular over the generalized, for the present over the abstract, was a concern that I had always taken to be at the heart of the world toward which the Front Porch has worked. And indeed, on this site there are numerous posts that sing the praises of authors who have developed very strong cases for the reconsideration of the particular–especially insofar as it is a hallmark of liberalism that it reduces the particular to the general. Perhaps no stronger contemporary case has been made than Wendell Berry’s Life is a Miracle, a book devoted in its entirety to this cause. Berry asks how might it come about that “the ultimate standard of our work were to be, not professionalism and profitability, but the health and durability of human natural communities”? He answers, in part:
“We should recognize the insufficiency, to our life here among living creatures, of the abstract categories of reductionist thought. Resist classification! Without some use of abstraction, thought is incoherent or unintelligible, perhaps unthinkable. But abstraction alone is merely dead.”
And such pragmatic–or empathetic–notions arise in numerous authors present to the minds of writers on this site. Among those authors: Flannery O’Connor, the Southern Agrarians, Edward Abbey, Christopher Lasch, Aldo Leopold, and others. Whether these amount to a case for legal pragmatism specifically (although, O’Connor and the Agrarians make one explicitly) remains to be seen. But it isn’t at all clear, to me anyway, how concerns for legal pragmatism would differ significantly from Berry’s notion of scientific (or perhaps, metaphysical) pragmatism.
But all of that said, Dr Wilson, I’d be remiss if I didn’t mention the gross incongruity between the quotation you hand-picked from the New York Times article and the thesis of that article as a whole. You make it sound like the President is beating the drums for some kind of racial reparations, the likes of which can only be realized through radical judicial activism and an intense cynicism for the political process. While you may take this to be one of his motivations for nominating Judge Sotomayor, you really should finish reading the article, which also states that
“Former students and colleagues describe Mr. Obama as a minimalist (skeptical of court-led efforts at social change) and a structuralist (interested in how the law metes out power in society). And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.”
And, given the above, how could he favor the kind of judicial activism of which you seem to accuse him when also “Mr. Obama led Mr. Bonin in a more conservative direction than the student had expected [regarding sentencing]. The primary victims of black criminals were fellow blacks — and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught”?
And finally, would FPR readers really oppose the President’s legal philosophy as strongly as you encourage them to if they knew the same NYT article you cited also wrote that the President’s distinguishing quality as a legal thinker may be “an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives”? Which is to ask, would we oppose with such fervor the President’s legal philosophy if we knew that its distinguishing features aligned exactly with principles that so many (though, by all appearances, not all) writers on the FPR have championed? Likely not.
Citation for the Berry quotation: Life is a Miracle, 135-136.
Dear Aaron,
I am surprised at your enormous surprise, and I am normally reluctant to respond to two kinds of accusations. The first, that I uniformly hold in contempt is the “You shouldn’t be wasting your time arguing about X, but rather should focus on the tougher question of Y” (e.g. “Why worry about pornography? Don’t we have bigger problems to worry about?!). The other formulation that usually peeves me is one you deploy, to wit, “Based on my assumptions about your position on X, you ought to argue Y but instead you argue not-Y.” Having stated my distate for this rhetorical formulation, I also concede I understand your using it in this situation. Let me see if I can respond bullet-pointedly, as it were, to some of your compelling objections.
I noticed some complaints in response to one of Lew Daly’s posts that it seemed FPR was betraying its platform in proposing the solutions that Daly proposed. But this misunderstands the mission of FPR. We’re obviously in many respects a conservative place, but I think that a number of the founders of FPR wanted to frame its mission in terms that did not presume political positions writ-large, but rather carved out a few key concerns in which people with perhaps radically variant general political visions might nonetheless engage. Hence, almost everything Kirkpatrick Sale writes on this site I agree with, though I know much of what he believes I could not endorse. Russell Arben Fox obviously feels a great common spirit with others at FPR, but I usually find myself disagreeing with what he writes here (even as I enjoy what he writes precisely because it is concerned with matters about which I deeply care). Let me cut this off by stating the obvious: FPR isn’t yet another ill-funded little known political outfit with party, platform and campaign buttons. It is just a place where, I hope and, I think, all of us hope, a new way of arguing about intractable problems might reach a new and wider audience. If it were just a branch of “movement conservatism,” I don’t think it would be doing very much good. Therefore, it is hard not to resent a formulation that suggests somehow this or that argument of mine might appear not to “fit” with the presumed prejudices of the Front Porch.
Moving on. The NYT article I quote is trash and has been justly attacked elsewhere on the web. Aside from misreporting facts, it strikes me as a rather obvious example of the rosy reporting on its idol the NYT has decided to make its bread-and-butter. Naturally, that was beside the point for my essay, but it seems worth stating now if for no other reason than that I could hardly feel obliged to engage its overall soporific coddling of Obama. But I had read the quotation that I in turn quoted and found it troubling; and in context or out, that quotation should trouble anyone who reads it. My wife rightly observed over dinner that one possible weakness to my quoting it was that it was hearsay; true enough, but so is all reporting.
Now, on to pragmatism. My comment to Sabin gives us the word I need to oppose your definition of pragmatism. Prudence is a virtue; pragmatism is bad philosophy. Based on the quotation in the NYT, one can extrapolate what Obama’s pragmatism might look like. A judge should be prudent, i.e. the virtue of prudence is the ability to apply a universal principle to a particular situation wisely and judiciously. Legal pragmatism, based upon the history of that word and the example of Obama’s so-called pragmatism, seems to be the independent deciding on a desirable consequence and the willingness to ignore procedural or other norms to achieve that consequence. There should be no place for the latter in a system of justice, since the “system” part of “system of justice” has only so much integrity as its procedures have.
The Jamaican empath was not an example; she was a sneer and a joke. The example you give of pragmatic empathy is a good example, because it shows where our disagreement lies. I would generally agree that any his of rigorous sentencing law is an unwise law; it restricts rather than aids prudential judgment. But if a sentencing law is on the books, a judge acts “pragmatically” but not prudently or rightly in ignoring it to sate his empathy. I think a great number of laws currently in effect are bad, dumb, or evil laws. But a judge qua judge — so Sotomayor tells us (rightly, even if she doesn’t really believe it) — applies the law. He doesn’t make it.
Now, the real rich thought you offer is in considering the relation of pragmatism and empathy with a commitment to local traditions and the particular. This is worth addressing at greater length than I shall here. But let me say just a couple things with curt, summary phrasing that I hope clarifies rather than obscures. I’m a Thomist and an intellectualist. I objected in the essay to Cartesian abstraction because it inaugurates an irrational conception of reason that is often called simply “rationalism.” To the extent that Berry sustains a kind of Romantic dichotomy between the concrete and the abstract, the local and the universal, I find his formulations poor. Overall, I don’t think he really falls into that kind of worn trap, but if he does I part company with him there. No less than anyone at FPR, I’m a staunch believer in local culture, a deference to tradition, and a suspicion of the placeless rationalism typical of modern markets and modern culture in general. But these things do not stand in opposition to right reason; rather, right reason affirms that the embodied particularity of the human intellect and human life as a whole flourishes best in a local culture cultivated through long, slow-developing traditions. To put it another way — as I did in my first FPR essay, in fact — I don’t buy into the theoretical Burkean conservatism that identifies deference to tradition and devotion to the particular as simply a means of ensuring slow, prudent change over the long term. That is, the conservatism that is just a reluctant and skeptical liberalism I don’t abide. A thorough and complete understanding of the human condition and of human nature tells us that we should defer to traditions not in a superstitious and skeptical fear but because they are the language of thought, the condition that makes human reasoning (as opposed to the intellection of the angels or of God) possible (that’s Rousselot, incidentally). For one sort of conservative reality is shrouded in mystery and so we have to take much on an uncertain, hesitant faith. But, again, good Thomist that I am, I understand faith as not simply fragile intuition but the form of knowledge that derives from divine revelation; it is not so much our squinting in the darkness as it is our knowing by means of an infused virtue. As such, the world is shrouded in a kind of mystery — one that would remain intact and overwhelming even should we know it perfectly (that’s Hopkins speaking, incidentally).
I go on about this because I think any dichotomy between the concrete particular and the universal law is specious. Universal laws are the knowledge we attain by abstracting from concrete particulars; they are not oppositions but rather, respectively, the achievement of the intellect and the condition of possibility for intellection.
Not only have I gone on too long, but I realize now that I could have answered your complaint much more briefly. The argument of my essay was that the Constitution and our system of justice was founded on a particular understanding of the character, tradition, and practice of “lawyering.” Any violation of the spirit of that character, tradition, and practice is therefore by definition a threat to the system. There are further connotations to the essay that you and I alike may find worth discussing, of course, but that was the main argument.
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Oliver Wendell Holmes, “The Path of the Law” .
Holmes attacks the sanctity of precedent, arguing as stated above that law is a prediction of what the courts will do in a given case. This destroys the notion of the rule of law, which the legal realists would probably argue is only a figment of the imagination to be overcome. To fill the vacuum, Holmes advices the judge to think about “social considerations”. Enter Sotomayor and her statement that judges do in fact make policy. It can be based on empathy or whatever other emotion the judge may have. The law is dead, we have killed it. What those dead white men wrote on a piece of paper is totally irrelevant.
Holmes’ Piece is really foundational for understanding what is going on in the judiciary today.
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