Social Movement and the Ethical Construction of Law

• Author: Gerald Torres
• Pages: 535-582

SOCIAL MOVEMENTS AND THE ETHICAL

CONSTRUCTION OF LAW+

GERALD TORRES*

I. INTRODUCTION

This article gro ws out of the work that Profess or Lani Guinier and I

have be en doing o n poli tical mov ements, social movements, and the

relationship of politics to law. I want to be clear at the outset th at I do not

mean the rel ationship of politics to law i n the sense of the relation ship of

ideology to law or in the sense that th e instit utions o f law and its p ractice

should be understood as a subspecies of politics. Instead, because law,

legal i nstitutions, and their proces ses are one way in which political

differences are worked out, even conceding that the legal system operates

as a semi-autonomou s syst em,1 an analyst has to situate law and its

performance within the broader political commitments that underlie the

social order and to understand how those changing commi tments affect our

understanding of what counts as law. This might seem to be a s imple

inquiry: law i s different from i nterpretation or any of the ot her tools we us e

to understand and differentiate bet ween th ose authoritative commands we

recognize as lawful and those we do not. Put more baldly, law commands,

interpretation suggests. Despite that rather simple and cl ear distinction , we

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Copyright © 2009, Gerald To rres.

+ Article presented at the 29th Annual John E . Su llivan L ecture sponsored by the

Capital University Law Rev iew held April 4, 2008.

* Bryant Smith Chair in Law, The University of Texas at Austin School of Law; B.A.

Stanford Un iversity; J.D. Ya le Law Scho ol. I reserve special gratitude for Professor John

E. Sullivan who se service to Capital Univ ersity Law School inspired the creation of the

John E. Sullivan L ecture. My lecture and this article honor your service. I also thank Dean

Jack A. Guttenberg, and Professors Daniel T. Kobil, James R. Beattie, Jr., and Dennis D.

Hirsch. I h ave long been an admi rer of Professor Hirsch’ s, and when he invited me to give

the lectur e, I readi ly agreed. Ms. Carmel Martin and the Capital Univ ersity Law R eview

provided exemplary logis tical support and also deserve to be recognized.

1 See, e .g., Robert W. Gordo n, Critical Legal Histories, in CRITICAL LEGAL STUDIE S

93, 96 (James Boyle ed., 19 92).

536 CAPITAL UNIV ERSITY LAW R EVIEW [37:535

all know that authoritative interpretations of legal principles are part of

what constitut es the web of obligat ions and contestati on that we call la w.2

Another way to con ceive of the task I am undertaking is to ask: How

do social and political movements facilitate the creation of social meaning

and how is that mean ing reflected in the technical application of the law’s

command? Because law is a technical di scipline with its own rul es

regarding what counts as autho ritative and what does not (in both a formal

and substantive sense),3 the processes of law and the insti tutions through

which th e pra ctice o f law is performed must be understood as bo th

producers and consume rs o f so cial meaning. This, of cours e, is o bvious.

Law could scarcely be authoritat ive (or even really law) if it were n ot seen

to flow fro m the ulti mate law gi vers. In a democracy, the ulti mate law

giver is “th e people.” Social and political mov ements change the

constitution o f the people, not the locus of legitimacy.4 As Professor

Guinier has written elsewhere, the distinction between l aw and politics is

difficult to sustain in a constitutional democracy to the extent that the

Court’s authori ty “to pronou nce law depends largely upon popular will and

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2 See WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN

JUDICIAL REASONING 65–66 (Walter Wheeler Cook ed., 2002) (1964) (discussing how eight

fundamental conceptions can be “applied in judicial reasoning to the so lution of concrete

problems of litigation”); Adrian V ermeule, Many-Mind s Arguments in Legal Theory, 1 J.

LEG AL ANAL YS IS ( fort hco ming 20 09) (m anus cri pt 27– 29, av aila ble at

http://www.law.harvard.edu /faculty/workshops/open/papers0708/vermeul e.paper.pdf).

3 See Duncan Kennedy, Form an d Substance in Private Law Adjudication, 89 HARV . L.

REV. 1685 , 1685 (1976) (“There are . . . two opposed modes for dealing with question s of

the form in which legal solutions to the substantive problems should be cast. One formal

mode favors the u se of clearly defined, highly administrable, general rules; the other

supports the use o f equitable standards producing ad hoc decisions with relatively l ittle

precedential value.”).

4 I re cognize that that sentence contains much that is disputable both becaus e of the

words I have ch osen and because of the qu estion what constitutes demo cracy in our

republican form of government. Lani Guinier, Fo reword: Demosprud ence Through

Dissent, 122 HARV. L. REV. 4, 48 (2008) (describing d emosprudential intuition as

“democracies, at their best, make and interpret law by expanding, informing, in spiring, and

interacting with the community of consent , a commun ity in constitutional terms better

known as ‘we the people’”).

2009] SOCIAL MOVEMENTS 537

popular will is forged through public discussion and deliberation.”5 Put

another way, in a constitu tional democracy where even judicial aut hority is

premised, at root, on consent, the membr ane separat ing law and politics is

necessarily porous .

One o f the things that Professor Guini er and I want to do i s to sketch

out the role that popular understanding plays in how law is created, thus

expanding the conventional i deas about where the authorit ative commands

that we call law originate. Now much of the analy sis will, of course, hinge

on questions of interpretati on. What I am going to do is ask you to look

behind the usu al interpretive strategies. Withi n the law, any interpretive

strategy assumes that there is s omething th at can be described as a body of

material and as a set of intellect ual tools with which you identify

authoritative statements and treat them as l aw.6 What I am going to ask

you to think ab out is both what the backgrou nd materials are and where

some of the tools of interpretation co me from . To accomplish this , I will

first explain what I mean by the eth ical con struction of law. As I explain

below, I take this formu lation fro m Professo r Philip Bobbitt.7 Next, I will

analyze a series of cases. I suspect t hat my versions of the cases will not

exactly squ are with the interpretation those who are familiar with the cases

carry around. Instead of bei ng a problem, it is precisely in t hose

disagreements that insight mig ht emerge about the role of “we the peo ple”

in making and interpreting law. If my reading of those decisions strikes

you as subject to dispute, we will have to ask about t he roots of the

disagreement. I hope t hat such disagreemen t is not just charged as

willfulness on my part, but to a difference in our understanding of the

varied sources of interpretation that encompass the construction of legal

meaning.

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5 Id. at 1 17; see also Robert Post, The Supreme Court Opinion as Institutional

Practice: D issent, Legal S cholarship, and Decisionmaking in the Ta ft Court, 85 MINN. L.

REV. 1267, 1357 (2001).

6 I know there are thos e, especially thos e associated with Professor Stanley Fish, who

will argue that this is either non sense or an impossible task. See, e.g. , STANLEY FISH, IS

THERE A TEXT IN THI S CLASS? THE AUTHORITY OF INTERPRETI VE COMMUNITIES 1–17

(1980); JOHN LANGE, THE COGNIT IVITY PARADOX: AN INQUIRY CONCERNING THE CLAIMS OF

PHILOSOPHY (1970). While it does run the risk of infinite regress, it need not.

7 PHILIP BOBBITT, CONSTITUTIONAL FATE 93–136 (1982) (explaining the ethical

constitutional argument and i ts application).