Efficient Causes of the Five Eras of American Law

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 463

The four distinct judicial decisionmaking styles, discussed in Chapters 3 and 9-12, have resulted in five eras of American law, as discussed in Chapter 13. As noted in Chapter 14, these five eras are also reflected in changing political and social events. Factors associated with those changes are considered in Chapter 15, particularly factors that can be identified as efficient causes tending to bring about the changes and give them distinctive characteristics.

The basic thesis in this Chapter is that when a critical mass of social actors in any society attain a particular level of cognitive development, social perspective-taking, and moral reasoning, the legal and political institutions in that society will change to reflect that fact. Part of that change in the United States will be the appointment of Justices to the Supreme Court whose views on these matters will more likely reflect the new level of reasoning. These appointments help create and support the progression in American legal history, discussed in Chapters 13 and 14, from the traditional natural law era, through formalism, Holmesian, and instrumentalism, into a period of modern natural law.

To begin with consideration of moral reasoning, the ideals and goals of citizens and judges regarding how society and its laws should be directed are among the underlying efficient causes of political and social events. It is true, of course, that decisions by judges on constitutional matters are hemmed in to a large extent by text, context, history, practice, and precedent, and the facts of particular cases that are before the Court. However, as a consequence of general judicial predispositions, discussed at § 4.4.1, the judge's views on the content of constitutional text, context, and history are likely to be influenced by the judge's predispositions regarding moral reasoning. Further, to the extent that society's legislative, executive, and social practices change to reflect a new kind of moral reasoning, those later practices will be a "gloss" on constitutional meaning for all but formalist judges. For natural law and instrumentalist judges, there is also some room for relying on background moral principles embedded in the law, with those background principles affected by the moral reasoning in society, particularly as reflected in social practices or moral ideals embedded in common-law, statutory, or constitutional doctrine.

Although ideals and goals form the moral reasoning of all persons in society, many variations occur. Some persons judge what is right in terms of following the customs of neighbors and friends in the local community, including customary notions of morality as reflected in traditional religious doctrine. Other persons judge rightness by following either the letter or the purpose of majority- supported rules in society at large. Others may judge rightness by using only rules that have emerged from a process of reasoned choice. Still others may rely on a system that derives rules rationally, starting from a general premise such as "love of neighbor as oneself" or "treat persons with equal concern and respect." At any given time, one of these perspectives may predominate in a given society, just as one of the judicial decisionmaking styles may predominate for legal reasoning.

As discussed in Chapters 13 and 14, it is clear that there has been a sequential evolution in American legal history with regard to views on the nature of the judicial decisionmaking task, as reflected in the five different eras of judicial decisionmaking. There is a related question of whether there has been a similar sequential evolution in the views of individuals in American history regarding Page 464 different kinds of moral reasoning, and whether that sequence is predictable. According to some scholarly observers, there are regular and predictable stages in terms of how individuals develop in terms of their cognitive development, social perspective-taking, and moral reasoning skills. Chapter 15 summarizes these stages and shows connections between the evolution of capacities in these areas and the five eras of American law, as well as in the evolution of societies in general.

The analysis in Chapter 15 begins with Professor Michael Walzer's views describing five general kinds of societies that have existed in world history, discussed at § 15.1. Next, Professor Lawrence Kohlberg's theory is addressed. Professor Kohlberg's theory postulates that there is a fixed set of six stages of moral reasoning through which individuals progress from childhood to becoming an adult. Each one of Professor Walzer's kinds of societies can be seen to be related to one of Professor Kohlberg's moral reasoning stages, as discussed at § 15.2. These stages of moral reasoning development in turn replicate what happens during the cognitive maturing process of each individual, as described by Doctor of Science and Professor Jean Piaget, and during the related advances in social perspective-taking ability, as described by Professor Robert Selman, as discussed at § 15.3. When a critical mass of social actors in any society attain a particular level of cognitive, social perspective-taking, and moral reasoning development, then attitudes toward the political and legal institutions of that society should tend to reflect that new stage of moral development. In both American legal and political history in particular, and in the development of societies in world history in general, this is what one tends to see. The relationships among the stages described by Piaget, Selman, and Kohlberg, and legal and political history, is discussed at § 15.4. Based upon this discussion, Chapter 16 addresses how these considerations affect the final cause or purpose of legal and political change, that is, the ends toward which societies evolve over time.

In order to present and interrelate the views of Walzer, Kohlberg, Piaget, and Selman, even in the summary form attempted here, it is necessary to introduce their terminology. Many of these terms are not likely to be familiar to the average reader of legal materials. To overcome this problem, an effort has been made in the sections which follow to provide examples, analysis, and restatements that should help make the unfamiliar terms more meaningful to individuals trained in the law. In addition, it may be helpful to refer ahead, when one of four Tables is mentioned, to that Table, all of which appear at the end of this Chapter, at § 15.4.4 text following n.106. Although the materials at the beginning of the Chapter may seem to focus on matters somewhat removed from constitutional law, the material will soon refocus on constitutional decisionmaking and its relation to world events.

§ 15 1 Kinds of Societies in World History

In his book, On Toleration,1 Professor Michael Walzer identified five kinds of societal arrangements in world history: individual nations in international society, multinational empires, consociations, nation states, and immigrant societies. Walzer also identified five different approaches toward diversity: resignation, indifference, stoicism, curiosity, and enthusiastic endorsement.2 Although Page 465

Walzer did not make the point explicitly, his discussion showed that each kind of societal arrangement can be associated with one of the approaches to diversity. These associations appear in Table 15.1 at the end of this Chapter, and are discussed below.

Individual nations in international society are associated with resignation. They put up with the different views and traditions of their neighbors because, short of war or economic sanctions, they must. As Professor Walzer phrased it, resignation is defined as "resigned acceptance of difference for the sake of peace."3 Individual nations in international society are associated with resignation because, given the nature of international society, "the costs [of intervention] are likely to be high: they involve raising an army, crossing a border, killing and being killed."4 Nevertheless, as Walzer noted, individual nations may "use force to stop what is going on if what is going on is awful enough [such as] . . . cruelty, oppression, misogyny, racism, slavery, or torture. . . . [In addition,] intolerable practices in sovereign states might be the occasion for economic sanctions."5

Multinational empires are associated with indifference: the ruler of such an empire tolerates regional variation because it is irrelevant to maintaining power over the empire. Walzer defined indifference as "relaxed, benignly indifferent to difference: 'It takes all kinds to make a world.'"6 This attitude is associated with multinational empires because "settled imperial rule is often tolerant - tolerant precisely because it is everywhere autocratic (not bound by the interests or prejudices of any of the conquered groups, equally distant from all of them)."7

Consociations, basically multinational empires of only two or three main groups, like Belgium divided into French and Dutch halves, are associated with stoicism. Stoicism is defined by Walzer as "a principled recognition that the 'others' have rights even if they exercise those rights in unattractive ways."8 The idea of a consociation, Walzer noted, is "a simple, unmediated concurrence of two or...

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