The proliferation of legal truth.

AuthorBalkin, Jack M.
PositionPanel I: Law & Truth: Pre-Modernism, Modernism, and Post-Modernism - Federalist Society 2002 Symposium on Law and Truth

I am delighted that the Federalist Society asked me to participate in its Symposium on Law and Truth. I suspect, however, given my previous jurisprudential writings, that I was invited in order to play the role of Pontius Pilate. But I refuse that responsibility. I wash my hands of it. For I am a great believer in legal truth. Indeed, the theme of this essay is that we are awash in legal truth; indeed, we are drowning in it. In the world in which we live, legal truth is proliferating at an astounding pace, and this truth has important effects on our lives for good and for ill. The proliferation of legal truth and the effects of power produced by that proliferation are the subjects of this essay.

In his remarks for this symposium, Michael Moore suggested that I am a conventionalist when it comes to legal truth. (1) With respect to law, at least, he is right, although not necessarily with respect to other matters. (2) Law is an interpenetrating set of social conventions, and therefore statements of law can be true by virtue of those conventions. To be sure, these conventions may not be fully specified or fully determinate, and their content can change over time. In this essay, however, I focus on the converse point: that when legal conventions are sufficiently specified and sufficiently determinate, they can and do decide what is true or false from the standpoint of law.

There are lots of true legal propositions; indeed, so many that I can't even begin to list them. They are true by legal convention, in virtue of the social practices that constitute law. As Susan Haack puts it, they are true as legal claims. (3) Or as common law lawyers would put it, they are true in the eyes of the law. (4) In fact, one of the most interesting features of law as a system of social conventions is its ability to make things true or, to put it another way, to create legal categories that permit characterizations of situations and practices that are true or false. My point, however, is not simply that propositions of law are true in virtue of legal conventions. It is rather that law creates truth--it makes things true as a matter of law. It makes things true in the eyes of the law. And when law makes things true in its own eyes, this has important consequences in the world.

Consider, for example, the common law distinction between trespassers, licensees, and invitees. Landowners have different tort duties toward people who trespass on their property, enter their property for business reasons, or visit as invited social guests. Simply by making these distinctions, the common law makes it possible for it to be true or not true that a person is a trespasser, licensee or invitee.

Sexual harassment law makes it illegal to engage in sexual harassment. At the same time, it defines a practice as understood by law called sexual harassment. It makes it possible for someone to be or not to be a sexual harasser in the eyes of the law. It creates legal rights against sexual harassment and makes it possible to protect and violate these legal rights. Similarly, when law creates intellectual property rights in computer code, it makes it possible to violate those rights, to be or not to be a copyright infringer.

When law allows companies to create 401(k) plans or when it provides general statutes of incorporation, it defines institutions and practices that people can bring into being. It makes possible true and false statements about these institutions and practices, and about rights and responsibilities with respect to them.

Thus, there are several different ways that law can make things true. Sometimes law makes things true just by creating categories and distinctions that define certain situations or conduct vis-a-vis other kinds of situations or conduct, or that make things equivalent or different from the standpoint of legal doctrine. Sometimes law makes things true by creating causes of action or rights, as in sexual harassment law or intellectual property law. And sometimes law makes things true by creating institutions or devices, like a corporation or a Roth IRA or a 401(k) plan. When the law does any of these things, it simultaneously creates the possibility of things being true or false in the eyes of the law.

So in this sense law is continuously proliferating truth into the world. It is making things real. It is making things true and false. These things are not true and false from the standpoint of mathematics or natural science. Rather, they are true and false from the standpoint of law. But the truth that law produces is nothing to sneeze at. Because law is a form of power that is backed up by and helps constitute the authority of the state, what the law says is real, and what the law says is true or false has important consequences in the world. Put another way, law's capacity to create truth and make things real is the flip side of its power. Law has power because it can make things true or false in ways that matter to us; conversely, law can make things true or false in ways that matter to us because it has power over us.

Why is this proliferation of legal truth and legal reality important? It is important, I think, for three reasons. First, the proliferation of legal truth shapes, directs, and constrains how people live their lives. It produces incentives and disincentives for people's conduct. Second, the proliferation of legal truth shapes people's beliefs and understandings. Law has power over people's imaginations and how they think about what is happening in the world. Third, the proliferation of legal truth is important because law's truth is not the only truth, and law's vision of reality is not the only reality. Law's power to enforce its vision of the world can clash with other practices of knowledge and with other forms of truth.

Let me address each of these points in turn.

Law continuously creates a form of knowledge--legal knowledge. As soon as law creates a category or an institutional structure, it is possible for things to become true or real in the eyes of the law whether or not they are judged true or real from another perspective--for example the standpoint of medical science, religious belief, or political philosophy. So as soon as we create a doctrine that says that money is speech, then money is speech in...

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