Social Movement and the Ethical Construction of Law

AuthorGerald Torres
Pages535-582
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
_______________________________________________________
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
_______________________________________________________
2See WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN
JUDICIAL REASONING 6566 (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.
_______________________________________________________
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).

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