THE CONSTITUTIONAL MARRIAGE OF PERSONALITY AND IMPERSONALITY: OFFICE, HONOR, AND THE OATH.

• Author: Horwitz, Paul
• Position: Book review

SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. (1) Cambridge University Press. 2017. Pp. x + 180. $99.99 (hardcover), $34.99 (paper).

Randy Kozel's book. Settled Versus Right: A Theory of Precedent, is a splendid accomplishment. It is clarifying in its treatment of the existing law of precedent, reasonable in its proposals for modifications of that law, and thoughtful and careful throughout. More than that, it sparkles. Ideas and apothegms adorn every page. As the diverse responses in this review symposium suggest, despite its concision, Settled Versus Right generates countless questions, befitting both the vital field of law it treats and the depth and breadth of Kozel's discussion. The pleasure and agony consist in selecting just one aspect of the book for discussion, when it provides such a wealth of material to choose from.

One key element of Kozel's book is its identification of "impersonality" as a central good served by precedent. The book's introduction asserts that a key benefit of stare decisis is that "the potential vacillation of constitutional law following changes in judicial personnel is replaced by an abiding sense of stability and impersonality" (p. 18). The book concludes, "Deference to prior decisions takes the abstract ideal of impersonal judging and transforms it into something concrete. Judges come and go, but the law remains the law. That is the promise of precedent" (p. 176). Impersonality--as an essential quality of law, a crucial feature of judging, and a compromise or sacrifice made by individual judges in the service of a "continuous and impersonal Court"--is one of the book's dominant ideals (p. 164).

Such a sacrifice demands a great deal of a judge, or indeed of any individual. This is especially true in a culture in which the dominant modes of self-understanding and action do not involve impersonality, but strong attachments to specific substantive commitments; individual visions of life, law, and justice; political commitments and polarization; and other deeply personal views. In the face of this culture and its powerful motivations, why would one willingly submerge and sacrifice oneself, and one's deepest conceptions of justice, for the sake of a "continuous and impersonal Court" (p. 164)? Even if doing so is understood to be the duty of a "good" judge, why settle for dutiful obedience if it risks sacrificing one's deepest substantive commitments? Why be a mere "good" judge, dutifully following precedent, when one can be a great judge, celebrated for one's boldness and one's dramatic effect on the substance of the law? (3) One can understand why judges often fall short of the mark of impersonality set by Kozel.

Nor is this true only of judges, or of legal officials more generally. Impersonality is in disrepute throughout our culture today: our official and professional culture, our popular culture, and our public discourse. A judge, or some other individual, who is committed to impersonality or required to strive for it will need a substantial amount of virtue and character to resist the call of personality and substantive justice. She will need a strong source of motivation to supply the energy and restraint needed to persist in the face of these dominant social, political, and legal currents. Although I do not doubt that Kozel's book will be much admired, I suspect that many readers will resist any edifice of law and precedent built on a foundation of impersonality. Even those judges who agree with him will need something more than "the loftiest Law Day rhetoric" about '"the rule of law'" to lash themselves to the mast of impersonality. (4)

In this reaction to Kozel's focus on individual subordination to the ideal of impersonality, I focus on a vision of judging--or of any office--that draws on values beyond the constitutional text to supply the energy and motivation necessary to achieve what Kozel seeks. That vision is not impersonal, but personal. It uses personal motivations to tie the individual officeholder to the "impersonal" features of his or her office. It is not a set of prescriptions or an instruction manual for what judges should do, but for who they should be? It is virtue- and character-centered rather than purely institutional, impersonal, or mechanical. (6) And, as both the ancients and the early moderns did, it seeks to ensure virtue and character in part by tying it to personal motives rather than hoping that officials or others will be virtuous for the sake of virtue itself. In short, it seeks to achieve Kozel's vision of impersonality through the device of personality--properly understood, channeled, and constrained.

Given space and other constraints, I offer here only a brief sketch of what such a vision involves, and I do not address the many sound criticisms that could be made of such a vision, whether in its details or in its plausibility, especially in contemporary society. (7) My goal is neither to bury nor to praise Kozel's theory of precedent. It is to supplement it, by offering one way to think about how to achieve the "abstract ideal of impersonal judging" that Kozel sees as one of the central "promise[s] of precedent'" (p. 176).

Our constitutional text and culture (8) rely on three interrelated "institutions" (9) to achieve sound governance by those holding offices under the Constitution. This troika of institutions consists of office, honor, and the oath. I will sketch each institution, and its relationship to the others, in turn.

Office. The notion of office dates back at least to the evolution of the concept in ancient Roman law and government. (10) The term itself derives from "the classical concept of officium, the sense of duty belonging to a person with recognized responsibilities." (11)

This conception remains relevant today, despite considerable change in how (or how strongly) it is viewed. As Steve Sheppard writes. "The building blocks of a modern legal system are offices, and the essential purpose of offices is to fulfill tasks of the legal system." (12) Sheppard defines legal officials as "the individuals in whom all of the powers of the state are allocated, divided among many roles." (13) In each case, "the official is both empowered and limited by the law," both subject to "the legal obligations embedded in that particular office by the rules of law" and, within the scope of that office...