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 grows out of the work that Professor Lani Guinier and I

have be en doing on political movements, social movements, and the

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

mean the relationship of politics to law in the sense of the relationship of

ideology to law or in the sense that the institutions of law and its practice

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

legal institutions, and their processes are one way in which political

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

as a semi-autonomous system,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 commitments affect our

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

inquiry: law is different from interpretation or any of the other tools we use

to understand and differentiate between those authoritative commands we

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

interpretation suggests. Despite that rather simple and clear 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.

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

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

536CAPITAL UNIVERSITY LAW R EVIEW [37:535

all know that authoritative interpretations of legal principles are part of

what constitutes the web of obligations and contestation that we call law.2

Another way to conceive 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 meaning reflected in the technical application of the law’s

command? Becauselaw is a technical discipline with its own rules

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

and substantive sense),3 the processes of law and the institutions through

which the practice of law is performed must be understood as both

producers and consumers of social meaning. This, of course, is obvious.

Law could scarcely be authoritative (or even really law) if it were not seen

to flow from the ultimate law givers. In a democracy, the ultimate law

giver is “the people.” Social and political movements change the

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

Guinier has written elsewhere, the distinction between law and politics is

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

Court’s authority “to pronounce law depends largely upon popular will and

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2See 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 ANALYSIS( 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).

3See 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 constitutional democracy where even judicial authority is

premised, at root, on consent, the membrane separating law and politics is

necessarily porous.

One of the things that Professor Guinier and I want to do is to sketch

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

expanding the conventional ideas about where the authoritative commands

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

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

behind the usual interpretive strategies. Within the law, any interpretive

strategy assumes that there is something that can be described as a body of

material and as aset of intellectual tools with whichyou identify

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

you to think about is both what the background materials areand where

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

first explain what I mean by the ethical construction of law. As I explain

below, I take this formulation from Professor Philip Bobbitt.7 Next, I will

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

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

carry around. Instead of being a problem, it is precisely in those

disagreements that insight might emerge about the role of “we the people”

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

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

disagreement. I hope that such disagreement is not justcharged 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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5Id. 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 FATE93–136 (1982) (explaining the ethical

constitutional argument and i ts application).