COMMENTS ON ALEXANDER'S LAW AND POLITICS: WHAT IS THEIR RELATION?

• Author: Stoner, James R., Jr.
• Position: Article by Larry Alexander in this issue, p. 355

Professor Alexander delivers on his promise to bring clarity to the question of the relation of law and politics, although I am afraid that by the end of these remarks I will attribute to him a confusion or two. Fortunately, I do not agree with his supposition that confusion always leads to political disaster, (1) much less that clarity is a necessary condition for wise policy (2)--though I do agree that we are obliged as professors to do our best to be clear. I want to begin with a point of agreement between us, then suggest where I think he errs and what can be done to repair the fault.

I agree that what Alexander calls "rule-sensitive particularism" (3) is the most promising way to close the "gap" he identifies between legislated rules and what "first-order reasoning tells you you should do," (4) that is, the gap between law and conscience. As he was counting through the strategies to close the gap, I was looking for this one and was pleased when I saw it. It corresponds, I think, to Aquinas's reason why, although there is no strict obligation to obey an unjust law, obedience ought sometimes to be given "to avoid scandal," that is, to avoid leading others, perhaps of less refined conscience, to think that laws can be disobeyed whenever they want. (5) I do not think the distinction is so rigid between the "rule-sensitive" and the "rule-fetishists," despite my reference to refinement. As Tocqueville noted that even the best philosopher relies on other minds for a million things, (6) so most of us find it necessary or convenient to rely on thousands of rules without inquiring too precisely into their desirability or justice, even if from time to time we raise objections to one or another. I like to think of myself as sensitive to the rules that govern the classroom and the duties and privileges of students and faculty, but I leave to others to worry about the details of paychecks and pensions and parking, and just follow the rules, however grudgingly--and that is just to consider university regulations, which are only a fraction of the rules I encounter in life.

Part of the gap between general rules and judgment in circumstances is what Aristotle identifies as properly settled by equity, the ability of a judge to recognize when the letter of the law would do an injustice against the intention of the author of the law. (7) Acting equitably requires good judgment, a little learning (to discern the legislator's intention), and good faith (to...