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Sunday, October 06, 2013

What the Difference Between Clothes and a Fig Leaf?

The question occurs to me after reading this snippet from Richard Posner's new book, Reflections on Judging, which strikes me as pretty minor Posner but still has its moments. The snippet takes place in the context of a discussion of what he believes is judges' "refusal . . . to confront, even to recognize, the challenge of complexity" posed by technology and other challenges:

Many lawyers are technologically challenged, just as the judges are, and so are drawn to the same avoidance techniques that judges retreat behind, while those who know better are anxious about deviating from the orthodox methods of legal argument, or fearful that judges will feel insulted to be spoon-fed appropriately simplified descriptions of the technological background to a case. I can assure the reader that we will not be. What would anger most judges would be a lawyer's telling them that it's time they dropped the pretense that judicial decisions are based on faithful adherence to statutory and constitutional language and to precedent. That's a fig leaf that almost all judges want to continue wearing.

I'm generally sympathetic to Posner's views on such matters and that's the case here, although I wonder whether it doesn't apply more to litigators, especially appellate litigators, than to lawyers in other areas.What I wonder is: If the kind of legalism he's referring to is a fig leaf that everyone insists on wearing, is there a point at which it becomes something other than a fig leaf? It's a truism that constitutional law, and perhaps other forms of law as well, is "just" a constrained or conventionalized form of politics. Is there a point at which the constraints are meaningful and accepted enough that they become more than "just" a concealed or constrained method of doing something else, and deserve to be taken seriously in their own right?

A fig leaf is a form of clothing that, at least in the biblical story, does nothing but conceal--and doesn't even do a good job of that, in God's eyes. Its only real function, in the end, is to reveal its own shameful and ridiculous nature. And yet there are vast industries devoted to taking clothes perfectly seriously, and occasions on which clothes serve a useful purpose. Is law, or the kind of legalism Posner is talking about, especially in constitutional interpretation, closer to the fig leaf or to what we generally think of as perfectly meaningful and heavily rule- and convention-bound clothing?

A couple of ways to think about this come from taking the metaphor seriously and thinking about (or, really, riffing on) the evolution of clothing. First, there is this possibility, which I think is an implicit theme of the chapter from which this quote is taken. Some clothing actually serves a useful function, particularly guarding us from injury--from scratches, freezing, and so forth. Clothing designed to serve that function might look quite different and work much better than clothing that purports to serve that function but really serves no functional purpose, either because it's not functional at all or because it has been designed for some other function. (I have bought some beautiful leather gloves for winter wear, in shops selling them as winter wear, that were largely useless for that purpose.) Perhaps legalism, in Posner's view, is similar. Obviously some very smart people have spent years working on better and better versions of textualism, originalism, and so on. These days some very smart liberals are working on very elaborate versions of the same thing. Some of this work seems pretty attractive. But, like working on a better pair of thin leather gloves, it might still be a massive waste of resources--wasted because it wasn't really undertaken with the underlying function in mind, overinvests in roundabout ways of achieving the actual function, and still doesn't do that great a job. It's like spending millions of hours and dollars working on a really scratch-resistant, durable, temperature-sensitive fig leaf, when what you really need is a decent piece of cloth and a string--or just plain nudity.  

Another way to justify all this investment in legalism is more or less the way we justify most of what goes on with clothing. It serves little functional purpose physically speaking, but it does a variety of other things we care about: helping to signify social rank, or to preserve and extend moral norms, or to discriminate between or against different people, or to provide us with pleasure. It helps us to coordinate our actions, too, although it may do so inefficiently or improperly. Serving these kinds of convention can be a function, too, and one that matters a great deal to us, whether it should or not. Even if it should, of course, it can still do so badly, especially when we end up forgetting that we're really serving convention and pretending that we're doing something that's practically functional, or ask too much of those conventions, or hold on to them after they've served their purpose and another end is needed. This, too, seems like a pretty good description of legalism. I suspect Posner has little patience for this kind of justification. I have more patience for it than Posner does, although not all that much more. Certainly, in the final analysis, I am not inclined to be any more romantic about it than I am about the necktie or the codpiece, and I doubt that a good deal of legalism is any less wasteful than your average bowtie or periwig. 

 

Posted by Paul Horwitz on October 6, 2013 at 08:14 PM in Paul Horwitz | Permalink

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