What we make matter.

• Author: Clark, Sherman J.
• Position: FOREWORD

INTRODUCTION

The Michigan Law Review's Survey of Books Related to the Law provides an annual opportunity not only to consider a range of legal issues and views, but also to think about the range of ways we argue about and study the law. In this Foreword, I would like to suggest that we think not only about how we choose to argue, but also the potential consequences of those choices. When we study or argue about law and politics, we routinely and sensibly consider the possible unintended impact of particular substantive rules and policies. Here I suggest that we should attend as well to the potential indirect effects of our arguments themselves.

In particular, the occasion of a broad survey offers a chance to reflect on what we let or make matter about the law--our underlying and often unexamined choices and assumptions regarding what sorts of considerations are worth taking into account. I do not mean simply that a wide range of methodologies can be brought to bear on legal issues. This is of course true, and well-illustrated by the collection of books surveyed here; but I mean to highlight something arguably deeper, for which methodology is an inadequate proxy. Any given piece of legal scholarship not only makes use of some approach or set of methods and not only represents a particular view or set of views about a given issue, but also reveals, or conceals, a set of claims or assumptions about what does or ought to matter about law or politics. Any argument about the doctrinal coherence of legal rules either assumes or argues that coherence matters. Any discussion of the efficiency consequences of law or policy inherently argues or assumes that efficiency is worth thinking about. Any investigation of the interaction between law and culture asks us to recognize that culture matters.

Now, it has long been recognized that law is potentially constitutive of what might be called, loosely, social norms. Segregation, for example, did not just reflect but also helped teach and maintain racism. Indeed, several of the books reviewed in this survey recognize and explore the ways in which law can indirectly form social norms, variously understood. Jennie Suk, for example, in At Home in the Law, recognizes the impact of the law of domestic violence and self-defense on conceptions of privacy and women in society. Naomi Cahn and June Carbone, in Red Families v. Blue Families, highlight the ways in which political debates about marriage and sexuality help construct, and polarize, views on family life. Alexandra Natapoff, in Snitching, recognizes the potential destructive force of the use of informants on community life. The broader lesson is that the law does not simply reflect, but can also construct, our sense of what is acceptable or unacceptable, desirable or undesirable, even right or wrong; so we ought to be aware of this possibility when we think and argue about the law.

This much granted, I suggest that argument itself--including legal scholarship, law teaching, political rhetoric, and public policy advocacy--is also potentially constitutive. Moreover, I would suggest that the ways in which we argue, and in particular the assumptions on which we base our arguments, are potentially constitutive not just of particular norms, but of something arguably deeper. What we let or make matter in our collective conversation about law and policy may help construct our sense of what matters in life. And what we let matter in our lives determines to some extent our capacity to thrive--to live full and productive lives.

So, three questions: First, in what ways might legal and political argument, as opposed to the substance of law or policy, be constitutive of character, broadly defined? Second, how might that construction of character thereby impact our capacity to thrive? Finally, what if anything can or should we as participants in this conversation do about it? Beyond acknowledging and taking responsibility for the indirect consequences of our scholarship, teaching, and advocacy, can we learn to argue in ways that, without compromising our professional obligations or substantive commitments, might enhance rather than diminish our ability to live well and fully?

Before I can say anything more about what that might mean, I need to pause and acknowledge a set of predictable objections, even aversions, to talking about law and politics in this way. Because these reactions are not merely obstacles to thinking and talking about the impact of law on our capacity to thrive, but also symptoms of the underlying difficulty itself, they are worth highlighting at the outset.

First is the sense that legal argument ought not to have to do with such things--questions of what really matters in life or what leads to or constitutes a rich and full life. Perhaps such matters are simply beyond the appropriate realm of law or legal scholarship. If a person hired to fix your DVD player were to opine on what sort of movies you should watch, you might well tell him to just fix the thing and stay out of your business. Perhaps when it comes to the question of what makes for human thriving, law should just stay out of it entirely. This gets to the heart of the matter: any consideration of these issues will presumably have to respect the pragmatic fears and autonomy concerns underlying the objection. But the short answer is straightforward. Law is arguably "in it" already, and perhaps inevitably so.

If law or legal argument does in fact have an impact on our capacity to thrive, it simply will not do to take the position--whether rooted in a political theory, a pragmatic fear of abuse, or an unwillingness to deal with things hard to measure--that law should have nothing to do with thriving. We might desire that the oil, coal, and nuclear power industries should have nothing to do with public health or the environment. They do. My effort in this Foreword, as in other recent work, is to suggest how law in general, and here legal argument in particular, might similarly impact our ability to live rich and full lives, whether we like it or not. If so, we should face it and take responsibility for it.

The other, related reaction I have come to expect when trying to think about the impact of law or politics on thriving is more instinctive than theoretical, and somewhat inchoate. Many legal academics seem to have a strong negative reaction to anything with the odor of preaching. In part, I may have been guilty of inducing this gag reflex by the way I have chosen to address some of these issues--using the language of character and virtue. But to some extent the problem is intrinsic and will have to be confronted by anyone who hopes to consider the indirect impact of law on thriving. Indeed if, as I suggest, one of the ways in which our modes of legal and political argument may diminish our capacity to thrive is by making it difficult for us to talk in public about character or virtue without rolling our eyes, an aversion to this sort of talk is evidence of the need for this kind of conversation rather than reason to avoid it.

1. CONSTITUTIVE PERSUASION

   Recognizing the potential impact of argument on character requires an account of argumentation. This is perhaps most usefully framed as a theory of persuasion. When we make an argument, whether in our scholarship, in court, in the context of some negotiation, or even in the classroom, we are presumably engaged in an effort to persuade-understood broadly as an effort to reach, move, or come to terms with another person. On some occasions we may seek to persuade someone to take some specific action--acquit or convict, vote for or against a legislative measure. Often, however, as in our scholarship, we are simply hoping that our readers will consider a position and take into account something we consider important. In either case, the argument is a kind of social act--a communicative act--which hopes to make something happen, if only in the mind of our listener or reader.

   In general, what determines the success or failure of that effort? It is not solely or even primarily the intrinsic logical force of the argument that determines whether it will reach or move those to whom it is made. We all know this to be true. We have all had the experience of making an argument to which our listener has no good response, yet that fails to persuade. We might sometimes wish, as Robert Nozick mused, that we could craft arguments so powerful that they would set off reverberations in the brain--either accept the argument or die. (1) But fortunately, argument does not work that way. Persuasion is an alternative to coercion, not a form of it.

   Instead, what we...