Human Events (December 1, 2000)

Why Judges Make the Law:
The Roots and Remedy of Judicial Imperialism


Nancy R. Pearcey

There is a delicious irony about the Supreme Court's taking up a case that involves one of the most contentious legal issues of our time: whether judges should interpret the law or make new law. The irony, of course, is that the high court itself has often engaged in legislating from the bench--most notably, for moral conservatives, in Roe v. Wade. The court now has the opportunity, should it accept it, to censure the pernicious philosophy it has so often embraced.

In George W. Bush v. Palm Beach County Canvassing Board, et al., the court has been asked to decide whether the Florida Supreme Court violated the Constitution by overriding the state's election statute in order to give extra time to counties engaged in manual recounts. At issue is Article II, Section I, of the U.S. Constitution, which says that members of the Electoral College shall be chosen by each state "in such manner as the Legislature thereof may direct."

By effectively nullifying the state election law, the Florida judges overrode the express will of the legislature. Conservative commentators were outraged. "The point is not just that the judges made the wrong decision," explained Thomas Sowell. "It was not their decision to make." The Court "has effectively legislated from the bench," argued Cal Thomas. In the Weekly Standard, William Kristol and Jeffrey Bell denounced the Court's "willful encroachment on the roles of both the legislative and executive branches," and called for an end to "judicial supremacy."

Longstanding Trend of Judicial Usurpation

And yet merely repeating stock phrases, however true they are, will not reverse the powerful and longstanding trend of judicial usurpation. The idea that the role of judges is to make law has been incubating in American legal philosophy for a good two centuries, and rooting it out will require serious grappling with this intellectual history.

In his magisterial two-volume set, The Transformation of American Law, Morton J. Horwitz makes clear that the idea that judges should not just apply the law but should shape social policy was already widely accepted at the dawn of the 19th Century.  Until then, Horwitz explains, "the common law was conceived of as a body of essentially fixed doctrine to be applied in order to achieve a fair result between private litigants in individual cases," not to change social policy. Law was thought to be based on nature or reason or divine law, and often all three: In 1728, Daniel Dulany wrote that "the Common Law, takes in the Law of Nature, the Law of Reason and the revealed Law of God; which are equally binding, at All Times, in All Places, and to All Persons." The concept of obligation was thought to derive from the inherent rightness or justice of the law, and the role of judges was not to make law but only to discover and apply pre-existing rules.

By 1800, however, these classic concepts of law had been largely abandoned. To accord with a political system of popular sovereignty, law was redefined as based on will of the people. Popular consent was extended from the political sphere to the legal sphere. Yet the idea that law is an instrument of will was a two-edged sword, for it also meant that law could be shaped by the will of the judge intent on molding legal doctrine according to public policy goals.

"Judges began to conceive of themselves as legislators," Horwitz writes. They "came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct." They began to "formulate legal doctrine with the self-conscious goal of bringing about social change."

Accepting the task of directing social and economic development did not always mean judges pressed for radical innovation; sometimes it meant they practiced a conservative adherence to the past and precedent. Yet the important principle is that even conservative decisions were not based on reverence for any inherent justice in customary law but on purely pragmatic considerations: It was pragmatically prudent to maintain a certain level of predictability in the law so that people can plan more rationally. As Horwitz puts it, adherence to precedent was necessary "only to the extent that it allowed private parties to calculate in advance on the consequences of particular courses of action."

This approach to the law received its most influential philosophical justification in the writings of Oliver Wendell Holmes, Jr., an important founder of a school of thought known as legal pragmatism. Legal pragmatism traces its origins to the early decades of the 20th Century when America was wrestling with the implications of Darwin's theory of evolution. Holmes was one of a group of scholars whose goal was to work out the implications of Darwinism for an overarching philosophy of life, which came to be called pragmatism.

Pragmatism is the only "home grown" American philosophy, and it flowered during the golden age in American philosophy, involving such luminaries as John Dewey, Charles Peirce and William James. All were very much involved with the debates over Darwin, and it is no exaggeration to say pragmatism can be defined as an attempt to work out what Darwinism means for the mind--and hence for the human sciences. In a 1909 essay titled "The Influence of Darwinism on Philosophy," Dewey said Darwin "introduced a new mode of thinking that in the end was bound to transform the logic of knowledge, and hence the treatment of morals, politics, and religion."

Holmes drew out the implications of philosophical pragmatism for the law. Like Dewey, he was greatly influenced by Darwin's theory of evolution; in a letter, Holmes once said he could not remember as a student actually reading Darwin's Origin of Species, but its ideas were very much "in the air." He was later to draw parallels between biological evolution and the evolution of legal concepts, applying Darwinian concepts to the law such as a "struggle for life among competing ideas" and "the ultimate victory and survival of the strongest." In a classic treatment of the subject titled Evolution and the Founders of Pragmatism, Philip Wiener writes: "In Darwinian fashion, [the pragmatists] interpreted the law as a human instrument for adjusting conflicting desires in the struggle for existence among men."

It is against this backdrop that one must understand Holmes's famous aphorism that "the life of the law has not been logic: it has been experience." What did Holmes have against logic? The answer is that "logic" was shorthand for legal formalism, with its ideal of reaching judgments by deduction from a system of precise, abstract general principles, on the model of Euclidean geometry. Such legal formalism had become an increasingly mechanical process of finding precedents and applying them, whether or not the result made any sense under the rapidly changing conditions of modern industrialization. Against formalism, Holmes argued that laws emerge by an evolutionary process through a nation's history: "The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Yet, if the origin of law is evolving historical custom, for Holmes the justification of law must be in terms of its practical consequences. Indeed, the whole purpose of historical research was to liberate us from the notion that there is any finality or universality to the law--to stress its contingent and variable character--in order open the way for social transformation. In Holmes's words, "History sets us free and enables us to make up our minds dispassionately" whether the old legal rules still serve any purpose.

Law Only a Product of Cultural Evolution

And the way to determine whether they serve any purpose is through "considerations of social advantage," determined by the empirical studies conducted by economists and social scientists. For Holmes the law should be established "upon accurately measured social desires instead of tradition." In his highly influential 1897 essay "The Path of the Law," Holmes even reduced law to a summary of the social and economic policies shown scientifically to work best. As he put it, "The man of the future is the man of statistics and the master of economics." Law was redefined as a tool for identifying and manipulating factors aimed at creating social harmony and progress.

In short, law was little more than a tool for social engineering, using the coercive power of the state to enforce the policies deemed by bureaucrats to be most desirable. To quote Holmes again, the justification for a law is not that it is consistent with universal principles but "that it helps bring out a social end which we desire."

Holmes does concede (in vague terms) that law is related "in a certain sense" to morality, yet it is clear that the morality he is most concerned about does not reflect a transcendent moral standard but only the feelings and needs of a particular culture: "The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong." Holmes views morality from the perspective of an anthropologist who is interested in how a culture's beliefs develop and are expressed, not in whether those beliefs are objectively true or valid: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race." The language clearly implies the perspective of cultural relativism.

In some passages, Holmes seems to want to sever law from even this relativist morality. In the "Path of the Law," he says that in order to understand law in itself, we must consider it from the viewpoint of a "bad man." Whereas most of us connect law with moral ideals such as justice and fairness, a "bad man" who cares nothing for morality is interested only in what will happen to him if he violates the law: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict. . . . A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can."

In short, for Holmes law is not based on any eternal or divine moral law; it is strictly a product of cultural evolution, and it functions as an instrument of social policy.

Both legal and philosophical pragmatism declined somewhat around the middle of the century, only to come charging back in the 1960s in the neopragmatism of Richard Rorty, the well-known postmodernist and most influential philosopher in America today. The revival of pragmatism was followed in the 1970s by critical legal studies, and in the 1980s by a school called legal neopragmatism.

The neopragmatist Richard Posner is the most frequently cited legal scholar alive today, and is considered the founder of the "law and economics" movement. His application of economic reasoning to moral issues has often yielded startling results. In a notorious 1978 article in the Journal of Legal Studies, he suggested making it legal for parents to buy and sell unwanted babies on the free market in lieu of government-regulated adoption.

In the third edition of Economic Analysis of Law, he added new material on rape that substitutes economic for moral reasoning: "Allowing rape would be the equivalent of communalizing property rights in women. . . . Allowing rape would lead to heavy expenditures on protecting women, as well as expenditures on overcoming those protections. The expenditures would be largely offsetting, and to that extent socially wasted."

In Sex and Reason, he described prostitution as a "substitute for marriage": The difference between them is "not fundamental. In . . . marriage, the participants can compensate each other for services performed by performing reciprocal services, so they need not bother with pricing each service." Prostitution is simply a case of those same services being traded for ready money.

Posner Separates Morality From Law

Perhaps Posner's most controversial argument, however, is that moral reasoning is irrelevant to law. In October 1997, he delivered the prestigious Oliver Wendell Holmes lectures at Harvard University (reprinted in the Harvard Law Review), using the occasion to launch a blistering attack on moral theory and moral theorists. He called moral philosophers "textmongers" whose own "moral values are those of their professional set."

The notion that law is "suffused with moral theory" is mistaken, Posner said, an error caused in part by "the law's frequent borrowing of moral terminology, of such terms as 'fair' and 'unjust' and 'inequitable.' " He harkened back to Holmes, who "warned long ago of the pitfalls of misunderstanding law by taking its moral vocabulary too seriously."

Moral reasoning does not persuade anyone anyway, Posner charged. Nor is it how we acquire morality in the first place. We acquire our moral views "mostly in childhood, when moral instruction that appeals to reason takes a back seat to parental example, experience, and religion." Philosophical arguments are "only window dressing." (Posner offers an example from personal experience: "I dislike abortion more since my grandchildren were born," he confides; but "this change in 'moral' feeling has nothing to do with argument.")

"The only warrant for believing that there is a moral law that is 'out there' in the very strong sense claimed by a Plato or an Aquinas," Posner says, "is a certain type of religious faith, the faith in a Supreme Lawgiver and in a spiritual reality as real as a material reality." But this position Posner excludes by definition, without any argument, from academic discourse: "religious arguments are not a part of academic moralism." In a recent essay, he writes that a pragmatist judge facing a new situation for which there is no clear legal precedent "does not look to God or other transcendental sources of moral principle." For Posner, the only sound basis for a legal rule is social advantage; instead of attending to moral theory, he says, judges, lawyers, and law professors must attend to economics, sociology, evolutionary biology (sociobiology), and psychology, balancing benefits against costs.

It is no surprise to learn that Posner terms his position "pragmatic moral skepticism," nor that his hero is Holmes, whom he has called "the American Nietzsche." Thus the influence of Holmes's legal pragmatism lives on, with its instrumentalist view of the law as a tool of social policy.

The chief theoretical failing of pragmatism is that its only measure for evaluating law is whether it "works"--whether it achieves desired social goals: It offers no transcendent principles by which to say whether those goals themselves are good or bad. Indeed, Posner defines the heart of legal pragmatism as "a rejection of a concept of law as grounded in permanent principles . . . and a determination to use law as an instrument for social ends." Yet how do we know whether particular social ends are morally right or wrong?

There is an old joke among philosophers that the problem with pragmatism is that it doesn't work. As law professor Phillip Johnson puts it, "A philosophy that deals only with means and has nothing to say about ultimate ends is inadequate. Who wants to rely upon people who think that the only truth is that we should employ the most effective means to get whatever it is we happen to want?" Legal pragmatism frees judges to rule according their own private sense of what will achieve the most desirable social ends.

Worse, since pragmatism treats law as an instrument for getting whatever we want, it offers no protection against the powerful using it to achieve whatever they want. In a personal letter, Holmes once wrote these chilling words: "[W]hen it comes to the development of a corpus juris the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way."

It's not surprising, perhaps, that Holmes once defined truth as "the majority vote of the nation that can lick all the others." A pragmatic rule based on "social advantage" or "a social end which we desire" (Holmes's favored phrases) ends up in practice as the rule that the most powerful come out on top.

The development of American legal philosophy underscores the crucial role played by the Darwinian view of origins in every area of thought. Darwinism is not only a biological theory; it is also the basis for a comprehensive worldview--implying a new philosophy of mind, knowledge, morality and law. In modern society, science is given authority to tell us "what really is," with the result that philosophy and the humanities adapt to its vision of reality. Thus a direct line connects Darwinism to both the postmodernism of Richard Rorty and the pragmatic moral skepticism of Richard Posner. In these philosophies, the only objective and absolute truth is that there are no objective and absolute truths. In essence, the death of God substitutes for the existence of God, in the sense that it functions as the one fundamental truth that cannot be doubted.

Effective Critique Asks Basic Questions

Thus if conservatives want to make a thorough-going critique of what Kristol and Bell denounce as "judicial supremacy," we must begin with Darwinism as a scientific theory. Philosophical and moral critiques of pragmatism have been offered by several philosophers, from Bertrand Russell to Ronald Dworkin. But such critiques will remain ineffective if Darwin described what is in fact the case in nature: If natural forces alone produced the human mind, for example, then we must accept the naturalistic and reductionist conclusion that the mind is merely a tool adapted for survival--along with the relativistic and skeptical implications this has for morality and law. Thus we need to be prepared to take the intellectual battle into science itself. The controversy over Darwin versus design is not a peripheral issue but lies at the heart of the cultural crisis of our day.

The lesson to be drawn is that the legal controversy over judicial supremacy has deep intellectual roots, and that in order to change the prevailing legal philosophy, we need to dig in for the long haul. The influential thinker and cultural analyst Francis Schaeffer used to urge Christian moral conservatives to stop reacting to single issues and events, and to grasp the large, underlying ideas that give rise to those events. The egregious case of judicial usurpation in Florida is a wake-up call to conservatives, and we ought to use it to mount a serious and sustained challenge to the legal pragmatism that reigns in American law schools. That legal philosophy has reduced law to an instrument of social policy and turned judges into legislators.

At issue is the validity and viability of the rule of law itself. For if the courts make law, then why do we need legislative bodies? The courts would become a law unto themselves, which is precisely the monopoly of power that the separation of powers was designed to prevent. Restoring the separate functions of each branch of government is the surest institutional protection of American liberty.

Mrs. Pearcey, a fellow with the Discovery Institute and managing editor of the science journal Origins & Design, is co-author of The Soul of Science and How Now Shall We Live?

A fuller version of this article will appear in the spring 2001 issue of the Regent University Law Review (Scopes Edition, vol. 13, no. 2). The law review can be contacted at LawReview@regent.edu.

Copyright 2000. Nancy R. Pearcey, Human Events. All rights reserved. International copyright secured.
File Date: 3.01.01