THE RULE OF LAW AS THE LAW OF RULES9

The failure to come to terms with this question of disciplinary boundaries reflects a deep ambivalence about law This ambivalence has both a meth­odological and a substantive dimension Methodologically the question is whether ‘‘doing” law is a specialized distinct activity What if those ‘‘internal” conventions I mentioned earlier - following precedent, distin­guishing and harmonizing factual scenarios drawing analogies - what if these conventions in some sense define the practice of law?¹⁰ If they do, lawyers might still wish to read Charlotte Bronte Richard Wright, or (for that matter) Franz Kafka but when they do so they should not understand themselves in any meaningful sense to be doing ‘‘law’’¹¹

Substantively the question raised by the law/lit enterprise concerns the “content,” if you wilt of law Why might law need the moral uplift that literature is said to provide? Why does it need lessons in the complexity of human nature the diversity of human experience? Presumably it needs these things because it suffers from a lack a deficit - it is not alone sufficiently moral; it is nofl itself capable of dealing with human beings in their concrete particulars This is not an especially attractive picture and one could par­don lawyers - and especially legal academics - if they did not want to have their noses rubbed in it

Now neither the methodological or substantive anxiety is self-evidently correct Methodologically let us assume (and it is a big assumption) that there are truly distinct techniques associated with legal reasoning Appellate briefs after all, do not read like newspaper articles and judicial opinions do not read like New Yorker short stories It does not follow however that these specialized techniques exhaust the field of legal thought More importantly it does not follow that lawyers and judges who resort to other techniques or sources including literature are somehow not doing law It is in fact rare to find a contemporary judicial opinion particularly in a politically or socially contested area of the law that does not reach beyond technical principles such as stare decisis or ‘‘law of the case’’ to for example, social science data or explicit instrumentalist visions of the social good (Posner 1997) If we can look to psychological studies or economic analysis and still be doing law why cannot we be doing law when we read Shake­speare?

The same skepticism applies on the substantive side It simply defies imagination that a legal system could survive let alone be constitutive of our culture if it had no moral basis or were completely insensitive to human complexity It is true that sometimes courts recognize a gap between what the law permits and what seems moral or right under the circumstances But it is also true that sometimes courts reject legal rules precisely for the reason that they are of questionable morality Just as not every work of literature is morally uplifting not every legal opinion is morally bankrupt

How could we have gotten to this point, where the “law” of law and lit is a mere caricature of itself? The answer I submit lies partly in the not- always-articulated vision of law as composed of and constituted by rules Austin Sarat and Nasser Hussein’s (2004) recent study of the ‘‘lawful law­lessness” of Illinois Governor George Ryan’s decision in 2003 to grant clemency to all those then on death row throws this vision of law into sharp relief Clemency Sarat and Hussein argue ‘‘is best understood as a form of ‘legally sanctioned alegality’’’ (p. 1313) a power that is ‘‘lawless’’ because it is inherently discretionary and ‘‘by its very nature unbound by rules’’ (p.

In actuality of course ‘‘law’’ is not reducible to rules as Sarat and Hussein know well Clemency may be a form of ‘‘alegality’’ or of ‘‘lawless­ness,’’ but it is not wholly ‘‘lawless’’ or ‘‘alegal’’; it is ‘‘lawful” lawlessness, ‘‘legally sanctioned” alegality That is clemency is itself a part of the law that it stands above ‘‘a rule breaker which serves to improve the law’’ (Sarat & Hussein p. 1321) Sarat and Hussain thus conclude by noting that ‘‘if Ryan’s pardon was an ‘injury to law itself,’ it is an injury that the law authorizes and requires a form of lawful lawlessness without which the law would indeed be rendered meaningless’’ (p. 1343).

Despite the sophistication and subtlety of Sarat and Hussein’s under­standing of clemency’s challenge to law the very project of analyzing Ryan’s decision and its announced rationale would be incomprehensible without a vision of law as fundamentally composed of rules Only this vision enables Sarat and Hussein to describe clemency as ‘‘essentially lawless’’ (p. 1319). The idea of the rule of law as a law of rules resonates powerfully with the Langdellian idea of law as distinct science independent and specialized¹² It

also resonates powerfully with visions of law as a professional craft, rather than an academic discipline (Balkin 1996) Finally a vision of law as fun­damentally doctrinal resonates powerfully with many practitioners’ percep­tions of what they actually do i.e., manipulate rules for the benefit of clients, and with the idea that that is what they should do (Edwards 1992).