That is the topic about which I have been invited to speak. As a professional matter, I am afraid that although I know a few things about law, I know really nothing about politics. What I remember from my college courses in political science can be boiled down to the Harold Lasswell view that politics is about who gets what, when, and how. (1)
So I come to this topic with a very limited toolkit. Nevertheless, I shall take out my hammer and see if I can turn the topic into some nails. My forte, if I have one, is taxonomy and analysis. Not exciting perhaps, but I hope clarifying. And clarity is, in this as in so many matters, a necessary pre-condition for wise policy, and confusion is a recipe for disaster.
I begin with some stipulations. First, politics--as I shall be using the term--is the process of deciding what a group, or a part thereof, should do based on first-order practical reasons. First-order practical reasons are all-things-considered reasons, moral and prudential. (2) Those reasons may dictate that a particular action should be taken (or omitted) by a particular actor in a particular situation. But they may also dictate that all or many actors should take (or omit) a particular action in a range of situations.
Second, law--as I shall use the term--is those norms that, through the first-order practical reasoning of politics, those who have the authority to do so have decided should obligate those to whom those norms are addressed. Although it is perhaps not the only outcome of politics, it is the most significant outcome. The primary aim of politics is to produce the norms that are law. (3)
Third, legal norms can either be rules or standards. When they fully and clearly determine what the law's subject should do in a range of situations, they are rules. When addressed by rules, law's subjects are supposed to do what the rules require rather than what they believe their first-order practical reason dictates that they do. (4) When those norms do not fully determine what the law's subjects should do, but instead leave open a domain in which those subjects should follow the dictates of first-order practical reasoning, then those norms are to that extent standards. (5)
But why have rules at all? In other words, why not decide everything by means of first-order practical reasoning? Put differently, why is not our only law what I call the Spike Lee law: "Do the right thing."? (6) The Spike Lee law is the queen of standards. Lesser standards are circumscribed by rules. But what is the problem with the Spike Lee standard? To repeat, why have rules at all?
The answer is obvious. When I ask my first-year law students this question in their very first law school class, they have no trouble coming up with the right answer. In a society such as ours, people cannot agree on what "the right thing" to do is. There are many reasons why they cannot. First, they have different opinions about what the correct moral principles are. Second, even when they agree about moral principles at an abstract level, they disagree about how those principles apply. For they disagree about the factual matters on which correct applications of moral principles depend. And that means that at least some of the people, even if well motivated, will end up doing "the wrong thing." Moreover, because of these disagreements, they cannot coordinate their actions with those of others, and the lack of coordination will produce huge moral costs from everyone's perspective. Thus, settlement of what ought to be done is necessary to avert the moral costs of mistaken moral views, mistaken applications of correct moral views, and lack of coordination. Settlement is achieved by determinate rules. Even first-semester law students understand this when asked "Why not just the Spike Lee standard?"
Having now discussed politics, law, and legal norms as either rules or standards and why rules are desirable, let me now turn to the topic of legal interpretation. Some--even members of the Harvard Law School faculty--believe that there is no one thing that interpretation is. (7) I agree that there are many things that can be called interpretation. But we should not get hung up on the word. What we need to ask in the legal context is what is the proper approach by those subject to laws when questions arise regarding the meaning of those laws. (8) That is the activity we should be interested in when the...