What We Ask of Law

abstract. A minimal, reasonably uncontroversial demand of any legal system is that it should stabilize a polity against both the chance hazards of ordinary violence and sudden blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, though, has not so far abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence shadowing democratic politics. The gap between law’s operation in practice and its ultimate aspirations toward social order—especially for the socially and economically marginal—offers a hint that something in our dominant working model of law, or its relation to an ideal of the rule of law, is awry or inaccurate.

This Book Review reconsiders some presently dominant assumptions about how a well-functioning legal system works in light of new evidence of how law has operated across a wide historical and geographic panorama. This exercise in historical and cross-cultural contextualization has implications for our choice of a sound working definition of law, and for a clear understanding of the latter’s relationship to broader rule-of-law ambitions. It also bears on whether law is likely to advance or retard emancipatory projects of social reform, especially those pertaining to racial injustice. The spur for this reconsideration is Professor Fernanda Pirie’s book, The Rule of Laws: A 4,000-Year Quest to Order the World, an extraordinary and ambitious effort to fuse historical, anthropological, sociological, and legal learning across continents and eras into a single narrative arc. Starting with the historical materials eloquently marshalled by Pirie, I refine a new “polythetic” definition of law that is distinct and different from the demotic definition of law commonly used in popular and juristic discourse alike. To illuminate its distinctive form and implications, I bring this polythetic definition into conversation with relevant elements of the leading jurisprudential theories of H.L.A. Hart and Lon L. Fuller. This is done with the aim of sparking new ways of thinking about the relation of law to the state on the one hand, and about legalistic aspirations of the rule of law on the other. In concluding, I consider the implications of the polythetic definition of law for one especially pressing contemporary problem—the question of how law relates to projects of maintaining racial hierarchies or realizing their reform.

author. Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School, with research support from the Frank J. Cicero Fund. I am grateful to Fernanda Pirie, who graciously commented on a draft. Clifford Ando, Claudia Brittenham, Tom Ginsburg, Brian Leiter, and Frederick Schauer gave me invaluable comments on issues outside my very limited domain of expertise and saved me from embarrassing mistakes. Eric Eisner and Aaron Liskov both improved the piece with their close reads and comments, and the editors of the Yale Law Journal did marvelous work on both substance and form. All remaining errors are mine.

Introduction

Much is asked of law, but we seem of late to reap dismayingly scant returns. Take a minimal, reasonably uncontroversial demand. In its totality, a legal system should realize the Hobbesian sovereign’s prerogative of establishing civil order.1 It should stabilize a polity against the chance hazards of ordinary violence and also soften the blows of extraordinary, destabilizing misfortune. But, in the contemporary United States, has law succeeded at even these fundamental tasks? It has not had a visible constraining effect on serial mass shootings of children.2 It has not abated the lethal toll of violent crime,3 which remains balefully associated in the public mind with racial minorities.4 At the same time, it has done too little to stanch the seemingly endless flow of racialized police violence paid for and directed by the state.5 The insurrection at the U.S. Capitol on January 6, 2021, suggests that law no longer seems to “break the irregular rule of the street” to allow for the tedious civility of representative, democratic politics.6 Look beyond violence to larger threats to public order, and law’s ambitions fare little better. It played a questionable role in responses to the global financial crisis.7 Nor could it sustain a public consensus robust enough to combat the viral plague that has just taken more than a million American lives.8

Neither state nor private violence and disorder, then, is firmly circumscribed by the institutions of American law at present. To be sure, we do not reside in a Hobbesian state of nature. But for those most vulnerable to the accumulating costs of private and state violence—especially racialized minorities in the United States—that may well be rather cold comfort.9 To their weary ears, solemn praise for the law might well not ring true. To borrow from W.H. Auden, it may instead sound more like a tinnitus of “impotent grandfathers feebly scold[ing].”10

And yet, the encomiums for law and a related (but not identical) normative ideal of the “rule of law” keep gushing forth.11 For example, Justices of the U.S. Supreme Court—most recently Justice Gorsuch—rhapsodize “the rule of law” as preferable to the “rule of men.”12 Law, Justice O’Connor once intoned, guards against a government driven by “caprice, passion, bias, and prejudice.”13 Law, said Justice Scalia, lays the groundwork for “rudimentary justice.”14 It “protects the rights and liberties of all Americans . . . . [W]ithout the rule of law, any rights are meaningless.”15 Similarly, the rule of law is, for academic lawyers like Richard H. Fallon, Jr., “central to our political and rhetorical traditions, possibly even to our sense of national identity.”16 Fallon’s position echoes across the Anglophone world. In an influential book, the English Law Lord Tom Bingham concluded that “it is on the observance of the rule of law that the quality of government depends.”17 Bingham’s vision of “government . . . in accordance with established and performable norms” is indeed twice as old as our nation. It has been traced back to the thirteenth-century English jurist Henri de Bracton.18 Its influence perhaps reached an acme in 1975, when the preeminent Marxist historian E.P. Thompson pronounced that “the notion of the rule of law is itself an unqualified good”19—much to his fellow travelers’ chagrin.20

Underlying many of these endorsements of law, I think, is an implicit “folk theory” of how law—that is, how a well-ordered legal system, not just a single rule or enactment—actually works to produce the social good of the “rule of law.”21 I cannot point to a single place where this model is written down. It is not, to be clear, the famous jurisprudential concept of law offered by legal positivists working in the vein of H.L.A. Hart (to which I will return later).22 It is a demotic rather than formal understanding. As such, it often works as a pretheoretical presupposition that can be silently put to work by the conservative jurist, the liberal legal scholar, and the Marxist historian alike. Once set forth here, I hope it will resonate. Once stated, that is, I hope it will seem sufficiently intuitive to lay claim to a measure of generality as an operative presumption behind much everyday talk of law and its relationship to the rule of law.

I call the demotic, or folk, theory of law the “conveyor-belt model of law.” It has three elements, which correspond respectively to the moments of law’s production, application, and output. First, the law typically has a temporally distinct origin in an officially authorized source.23 This origin is known and fixed, both in time and institutional source. The law is hence capable of legitimation by its pedigree.24 Second, a cadre of specialized state actors, usually judges, later apply that law to disputes involving new facts and parties. Law therefore has not only a proper pedigree but also a proper armature.25 And third, applying that body of early forged law in new cases creates general benefits beyond the localized good of resolving a specific dispute.26 The larger good most commonly associated with law relates not just to predictability, but also to the possibility of binding powerful actors in a society, especially those wearing badges of state authority, in ways that foreclose capricious, whimsical, or self-interested action. This last result is often captured in the otherwise vague term “rule of law.”27 I call these three steps a “conveyor-belt” model because they together imagine a linear and unidirectional pathway from written law to judicial application, and then to a state characterized by the rule of law.

The image of a conveyor belt captures a motivating metaphor embedded deeply in the self-understandings of many actors within the American legal system. It formalizes, albeit in somewhat facile terms, what those actors believe themselves to be doing when they act out their roles in a formal legal system. It also captures one way in which a normative, evaluative element of some sort is irreducibly comingled into law’s description. Mere words, it implies, can and do enchain power. Mere parchment barriers hence work as a positive force for social good. This is not to say that law must meet a moral criterion to count as law.28 It is simply a claim that law is a social fact with “normative” force and hence desirable consequences.29 Specifically, the official act of following or enforcing a duly enacted piece of law creates a positive social good of the rule of law—that is, the binding of powerful actors by ex ante rules in ways that limit capricious or arbitrary conduct.

So, what’s gone wrong? If the folk theory of law is widely held and in good working order, why doesn’t law do its core job of constraining power and creating order
better?30 And why does this afflict the economically and socially marginalized most of all? There are, to be sure, obvious local and contingent reasons for law’s present shortfalls that have nothing to do with our working theory of law. Specific legislative and judicial choices elicit the structural conditions of public violence, distrust in the public-health apparatus, and poorly regulated security forces. Pick your poison. Yet these observable shortfalls in law’s ambitions invite the question not just of whether we are making bad policy choices (although we certainly are), but also whether our understanding of law as a ground for producing the rule of law is flawed or incomplete. Perhaps our expectation that law is a social technology capable of delivering certain social results is simply implausible. Perhaps we have overlooked law’s limitations by failing to grasp clearly some of its common constituent elements. Or perhaps we have just misperceived how law works in the first instance.

Picking up on that last possibility, my aim in this Book Review is to reevaluate some dominant assumptions about a well-functioning legal system in light of new evidence of how law operates across a wider historical and geographic panorama. With this analysis in hand, I hope to offer a new perspective on what makes law distinctive as a tool of social regulation, and thus to elucidate some of the consequences of a new model of law for current disputes in legal theory and contemporary legal debates. By moving away from parochial conceptions of law and instead asking what marks law as a transhistorical social practice, I further hope to make some progress toward understanding the relationship between law’s operation and the elusive normative ideal of the rule of law. In so doing, I hope to gain purchase on how law’s modal vectors facilitate some, but by no means all, kinds of social orderings.31 In particular, I ask whether law as a mode of social action is oriented toward the creation of hierarchy or more emancipatory projects. To be clear, I make no claim to explain all the shortfalls in our current social order.32 More modestly, I want to probe why our implicit conception of law might foster infeasible or misleading expectations.

Such queries are invited by Professor Fernanda Pirie’s 2021 book, The Rule of Laws: A 4,000-Year Quest to Order the World.33 As its title suggests, Professor Pirie’s book is an extraordinarily ambitious effort to fuse historical, anthropological, sociological, and legal learning across continents and eras into a single narrative arc. It begins in 2112 B.C.E. with a series of clay tablets inscribed with the Sumerian dynast Ur-Namma’s rules for his city.34 Among the temporally final elements of the book is the 2015 promulgation of an international agreement on cross-border sales under the auspices of the United Nations Commission on International Trade Law (UNCITRAL).35

Unlike Pirie’s previous monograph on similar themes,36 The Rule of Laws is crafted for a nonspecialist audience. It does not foreground theory. But it can be profitably read alongside that earlier scholarship to extrapolate a more abstract “theoretical” claim about the modal elements of law as a social practice. In particular, it can be read for the light it casts upon the three critical moments of the conveyor-belt model: law’s sources, the institutional mechanisms through which it affects ordinary people, and its ensuing capacity to yield an enduring ordering of social relations.

By bringing our implicit, yet hegemonic, notions of law into conversation with Pirie’s work, I hope to broach questions about both the theory and the practical promise of law in relation to the rule-of-law ideal. To begin with, an effort toward deparochializing our understanding of law fleshes out ways in which the conveyor-belt model—which I have suggested lurks somewhere behind views of figures as disparate as Gorsuch, Fallon, Bingham, and Thompson—does not accurately or completely capture the actual sources, development, and modal operation of law. This model is, instead, at best contingent and at worst misleading. Pirie’s work also provides an empirically grounded perspective from which to reconsider other widely shared theoretical claims about law. Her analysis sheds light on the influential concept of law developed by H.L.A. Hart using his own distinctive brand of “descriptive sociology.”37 It also has implications for claims about the “morality” of law tendered by Lon L. Fuller.38 Engagement with Fuller’s work further casts useful light on the relationship between “law” and the “rule of law,” understood as a project for the constraint of state power. Finally, that definition’s implications for contemporary problematics of legality are worth exploring. I conclude by reconsidering the relation of law to one particularly important challenge to legality: the persistence and recreation of racial hierarchy and subordination in the American context.

It is helpful to unpack here the first of these points since it is central to much of what follows—that is, how the elements of law, and their relation to the rule of law, vary from the conveyor-belt model in subtle but consequential ways. In brief, Pirie’s work suggests that law indeed does have historically recurrent (albeit not invariant or necessary) characteristics. But the conveyor-belt model gets these wrong. Law, Pirie first shows, connotes rules of general application maintained by a hieratic caste. Second, it is recurrently characterized by an aspiration toward acontextual generality and atemporality. This aspiration may be best embodied in a written text. But such writings are not always or necessarily the source of law. Finally, law’s relation to the state and the practical fact of compliance is a contingent rather than a necessary matter.

This account differs from the conveyor-belt model along three margins. First, it identifies a subtly but importantly different source for law from the one assumed by the conveyor-belt model. Second, the relationship between the law and the state is not immutable in the way that the conveyor-belt model implies. Law is akin to ordinary commerce in that it can get along perfectly well without the enforcement and adjudicative institutions ordinarily associated with the state.39 Indeed, Pirie’s historical work suggests it is the state and those who aspire to its command that are the needier, and hence the overly dependent, party in this relationship. Finally—and in some tension with Pirie’s own conclusions—her empirical synthesis suggests that the relationship of law to the rule of law (again, understood as the project of constraining state power) is not straightforward or linear. It is inconstant and murky. Many social goods associated with the rule of law—for example, predictability, stability, and regularity—can be realized without law, and indeed without the state. And it is possible to envisage a legal system that neither constrains powerful state actors nor adds much predictability for its subjects. Such has long been true of one of the world’s great legal traditions in China.40 It is possible, therefore, to have law, as well as a powerful state, without much by way of the rule of law.

One obvious worry at the outset about this kind of analysis and these conclusions is methodological: how can historical materials, marshaled however extensively, speak to purely conceptual questions about the “nature” of law? Why should history fix the present semantic content of a term such as “law”? Even if covering laws or other generalizations can be derived from historical regularities about law, an effort to derive normative conclusions from them would seem to commit the naturalistic fallacy: it would derive normative prescriptions from social facts. A short answer is that law is a concept that does not, and could not, exist detached from the long run of actual social practices and patterns of expectations held by participants in legal systems.41 It is impossible to talk meaningfully of a “concept” of law independent of those practices and associated beliefs.42 Obviously, “law” refers to distinct arrangements across varied jurisdictions at different times. But even if the term “law” may translate in different ways in different nations at different times, Pirie powerfully shows that there are also characteristics that recurrently transcend historical contexts and, in consequence, are presupposed by the “ordinary usage” of the term “law” as a transnational and transhistorical referent.43 A society, in other words, does not use the term “law” in a vacuum. Rather, the understandings implicit in that term are unlikely to float free of earlier ways in which the term was used, or concurrent patterns of employment in other jurisdictions. As a result, reflection on the conditions of possibility of law and the rule of law can usefully begin with the study of what, historically, has recurrently been the case with law. This exercise is worthwhile in part because it can help us to get past parochial “ideas and procedures” keyed to present practice, which may cloud our perceptions and judgments.44 It allows us to reach a more realistic accounting of what we plausibly ask of law because we better understand what law is, and how it produces social effects.

Pursuing this wider enterprise, I frankly acknowledge that I risk losing sight of Pirie’s ambitions for her own volume and straying from the job of the reviewer: reviewing the book rather than deploying it as a footstool for my own aspirations. I hope to avoid that snare. Part I, in particular, engages closely with Pirie’s text in its riches and demerits alike. That said, I shall acquit my central obligation up front: as a work aimed at a nonspecialist audience, The Rule of Laws succeeds marvelously. Pirie’s narrative rarely flags or loses the reader’s interest. She deftly moves forward in time and space, darting across continents and jurisdictions without losing a singular narrative thread. She also avoids the facile parsimony that mars many other humanity-spanning histories for popular audiences. Hers covers an exhaustive breadth of human life with clarity and vigor but without cliché or condescension. No one scholar can be expert in all of the heterogeneous legal practices she touches. (Certainly, I’m not). So, one might well cavil with details or matters of emphasis.45 But reflect a moment on the absence of any general text on the history of law—let alone one encompassing four millennia within and also beyond the strictures of state building—and the magnitude of her accomplishment snaps into focus. It is little short of breathtaking.

Part I introduces The Rule of Laws, focusing on its implicit definition of “law.” Part II then derives from Pirie’s work a new, general accounting of law, which I call the “polythetic” definition. To be clear, I cannot ascribe this theoretical claim to her (or blame her for its flaws!), even though it flows from her historical assemblage. Part II also contrasts this definition with the conveyor-belt model. Part III considers implications of a polythetic definition for key elements of the leading jurisprudential theories of Hart and Fuller. I pay particular attention to the relation of law to the state and to the rule of law, because these are points on which the conveyor-belt model and the polythetic model of law sharply diverge. Finally, Part IV takes up one practical question—the relation of law to racial hierarchy and projects of racial reform—as a way of showing that a highly abstract account of law can nonetheless yield (modest) insight on its propensity for emancipatory ends.