The reenchantment of law

Cornell Law Review

Volumn 96, Issue 4, 2011, Pages 633-670

  Blank, Yishai ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 79959446238     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (328)

1. The thesis that since the 1980s the world has been experiencing a "religious revival" and a publicization of religion-a reversal of the tide of its privatization-has been crucial to religious studies as well as the study of secularization and modernization processes; it has been debated ever since.
2. See, e.g., JOSE CASANOVA, PUBLIC RELIGIONS IN THE MODERN WORLD (1994);
3. Thomas Luckmann, Shrinking Transcendence, Expanding Religion?, 51 SOC. ANALYSIS 127, 127-28 (1990).
4. In fact, the move toward reenchantment is, I would argue, what also underlies the religious revival. Put differendy, mystical and irrationalist trends, which were for a long period marginalized in both religion and law, are moving to the forefront, regaining prominence and influence.
5. The legal realists did not only impact the realm of jurisprudence. Their voluminous writings, as well as their different careers and professional trajectories, dealt with and influenced legal institutions, substantive legal fields, legal reforms, and the entire structure of government. For recent works discussing the diverse and far-reaching impacts that legal realists had on these various aspects of the legal system, see, for example, DALIA TSUK MITCHELL, ARCHITECT OF JUSTICE: FEUX S. COHEN AND THE FOUNDING OF AMERICAN LEGAL PLURALISM 2-8 (2007);
6. SPENCER WEBER WALLER, THURMAN ARNOLD: A BIOGRAPHY 76-78 (2005);
7. Roy Kreitner, Biographing Realist Jurisprudence, 35 LAW & SOC. INQUIRY 765, 765-67 (2010)
8. (reviewing TSUK MITCHELL, supra, and WALLER, supra).
9. See Kreitner, supra note 3, at 784-88. For a recent articulation of the impact of the debate between realists and formalists in the U. S.
10. see Pierre Schlag, Formalism and Realism in Ruins (Mapping the Logics of Collapse), 95 IOWA L. REV. 195, 199-200, 223-43 (2009).
11. See infra Part II.
12. See infra Part II.
13. Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 HASTINGS LJ. 1031, 1050 (2004). For further elaboration on this point, see infra Part LB.
14. Ironically, these disenchanting theories are the progenies of what for Weber symbolized the reenchanting and irrational moment in law: legal realism.
15. See infra Part LB.
16. See, e.g., Alan Brudner, The Ideality of Difference: Toward Objectivity in Legal Interpretation, 11 CARDOZO L. REV. 1133, 1198-210 (1990) (developing a formalist-inspired theory of legal interpretation that also enables interpretative objectivity).
17. See infra Part II.
18. According to Weber, the process of disenchantment of the Occident has been going on "for millennia."
19. See MAX WEBER, Science as a Vocation, in SOCIOLOGICAL WRITINGS 276, 286 (Wolf Heydebrand ed., Hans A. Gerth & C. Wright Mills trans., 1994).
20. As one commentator argues, disenchantment is "the key concept within Weber's account of the distinctiveness and significance of Western culture."
21. Ralph Schroeder, Disenchantment and Its Discontents: Weberian Perspectives on Science and Technology, 43 SOC. REV. 227, 228 (1995). Weber himself alternated between several of these concepts-rationality, instrumental rationality, rationalization, and disenchantment-and was not necessarily committed to a strict usage of one rather the other. One argues, however, that Weber distinguished between religious disenchantment and Occidental rationalization and that religious disenchantment was limited to the period that ended with Protestantism.
22. See Friedrich H. Tenbruck, The Problem of Thematic Unity in the Works of Max Weber, 31 BRIT. J. SOC. 316, 321-23 (1980). Regardless of this position (which concerns religious disenchantment), it is clear that disenchantment as a general phenomenon has not ended with the rise of Protestant ethics and is still taking place.
23. See Richard Jenkins, Disenchantment, Enchantment and Re-Enchantment: Max Weber at the Millennium, in 1 MIAX WEBER STUD. 11, 15-20 (2000);
24. Kennedy, supra note 7, at 1032 (suggesting that "the contemporary mode of legal thought [is] an episode in the sequences of disenchantment and reenchantment suggested by Weber's philosophy of history").
25. See Kennedy, supra note 7, at 1057.
26. See id. at 1056-57;
27. Tenbruck, supra note 12, at 319-23.
28. See Kennedy, supra note 7, at 1056-57.
29. See id. There is no way to overemphasize the importance of calculability in Weber's depiction of the evolution of the industrialized West. The development of a calculable and rational legal system is imperative for the functioning of a sophisticated economic market.
30. See 1 MAX WEBER, ECONOMY AND SOCIETY 336-337 (Guendier Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., Univ. of Cal. Press 1978) (1968). For a detailed discussion of diis point
31. see David M. Trubek, Max Weber on Law and the Rise of Capitalism, 1972 WIS. L. REV. 720, 732-45.
32. See Tenbruck, supra note 12, at 319 (quoting W. M. Sprondel's response to Weber's work: "That great religious historical process of disenchantment of the world... disavows all magical ways to salvation as a superstition and sacrilege....").
33. MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM WITH OTHER WRITINGS ON THE RISE OF THE WEST 48-49 (Stephen Kalberg trans., Oxford Univ. Press 4th ed. 2009);
34. see Tenbruck, supra note 12, at 319.
35. See 1 WEBER, supra note 16, at 399-635;
36. Kennedy, supra note 7, at 1056-57, 1061-63;
37. Tenbruck, supra note 12, at 333-42.
38. See Kennedy, supra note 7, at 1057.
39. Another way of articulating the relationship between disenchantment and reenchantment is that the latter is the "dangerous supplement" of the former: the marginal, repressed, and denied "complementary" of the main development or activity that threatens to replace and fully supplant it.
40. See JACQUES DERRIDA, OF GRAMMATOLOCY 141-64 (Gayatri Chakravorty Spivak trans., The Johns Hopkins Univ. Press 1976) (1967) (developing and discussing the structure of "dangerous supplement" in Rousseau's philosophy). I am Uiankful to Roy Kreitner for suggesting this idea to me.
41. See Kennedy, supra note 7, at 1063.
42. See id.
43. See Schroeder, supra note 12, at 232-33 (describing how, in Weber's view, the inner logic of the scientific worldview led to the view's autonomy as its own intellectual sphere).
44. See Luckmann, supra note 1, at 134-35.
45. The idea of the evolution of distinct and autonomous intellectual and vocational spheres is developed in great detail in Weber's famous works concerning science and politics.
46. See, e.g., MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 77-127 (H. H. Gerth & C. Wright Mills eds. & trans., Roudedge 1991) (1948) [hereinafter WEBER, ESSAYS];
47. Weber, supra note 11, at 276-304. For a discussion
48. see Kennedy, supra note 7, at 1060.
49. See Kennedy, supra note 7, at 1058. On the legal mode of domination characterizing western modernity
50. see Trubek, supra note 16, at 731-39. The famous "iron cage of modernity" was extremely influential on the development of Michel Foucault's idea of "power/knowledge" and the emergence of disciplinary power.
51. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., Pantheon Books 1977) (1975);
52. MICHEL FOUCAULT, POWER/KNOWLEDGE (Colin Gordon ed., Colin Gordon et al. trans., Pantheon Books 1980) (1972).
53. See Kennedy, supra note 7, at 1061-63.
54. See 2 MAX WEBER, ECONOMY AND SOCIETY 889 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., Univ. of Cal. Press 1978) (1968).
55. Id.
56. See Kennedy, supra note 7, at 1057-58.
57. Kennedy emphasizes this point. For him, the main tension within Weber's work lies in the opposition between the "iron cage of modernity" narrative, which implies that agents within each sphere are truly bound by formal rationality and cannot bona fide refuse to apply it mechanically, and the irrational/decisionist narrative, which suggests that "all bureaucrats would have the possibility of agency within their jobs, rather than being condemned to vocational formalism."
58. See id. at 1055, 1061-69.
59. -2 WEBER, supra note 29, at 880-95;
60. see also Kennedy, supra note 7, at 1039, 1059, 1064 (describing Weber's notion of "lawfinding");
61. David M. Trubek, Reconstructing Max Weber's Sociology of Law, 37 STAN. L. REV. 919, 925-33 (1985) (reviewing ANTHONY T. KRONMAN, MAX WEBER (1983)).
62. In his "sociology of law", Weber describes evolutions and developments in law and legal theory, which span from antiquity until the early twentieth century.
63. See 2 WEBER, supra note 29, at 641-900.
64. See Kennedy, supra note 7, at 1046 (defining positivism as the "view that lawmaking is a secular process through which a state claiming the monopoly of the legitimate exercise of force enacts valid legal norms as compromises of conflicting interests").
65. See 2 WEBER, supra note 29, at 873-75;
66. see also Kennedy, supra note 7, at 1048 (describing the disintegration of natural law).
67. See 2 WEBER, supra note 29, at 865-76.
68. See Kennedy, supra note 7, at 1048, 1064. As Weber puts it: The disappearance of the old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity by virtue of its immanent qualities. In the great majority of its most important provisions, it has been unmasked all too visibly, indeed, as the product or the technical means of a compromise between conflicting interests.
69. WEBER, supra note 29, at 874-75. It is important to note that in this paragraph Weber is not suggesting that lawyers who operate in a formal rational legal system are political actors; on the contrary, Weber argues that actors within a formal legal system are merely applying law, regardless of its substantive content or its "political" consequences or intentions. Law collapses into politics, therefore, in the sense that legislation is understood as a compromise between competing interests and groups that the political branch-the legislator-undertakes, not as the elaborated articulation of "reason" or as the revelation of divine law.
70. See id.
71. On the possibility that lawyers (and judges) are performing "practical wisdom" that is neither technical nor magical but instead an endeavor committed to the idea that the law is aspirational and manifesting normative ideals (since it is legislated dirough political compromise and has political implications), see infra Part II. D.1.
72. See 2 WEBER, supra note 29, at 1057. On classical legal thought
73. see DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT 3 (Beard Books 2006) (1975) (describing classical legal diought as a "way of thinking [that] amounted to a rationalistic ordering of the whole legal universe");
74. Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 6 (1983) (defining five major traits that legal systems possessed according to classical legal diought: comprehensiveness, completeness, formality, conceptual order, and acceptability).
75. Weber calls this process the "substantive rationalization of sacred law." 2 WEBER, supra note 29, at 815-31.
76. See Kennedy, supra note 7, at 1057.
77. See id. at 1040-41.
78. On the German "free law movement" see James E. Herget & Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 VA. L. REV. 399, 407-19 (1987).
79. See Heikki Pihlajamǎki, Against Metaphysics in Law: The Historical Background of American and Scandinavian Legal Realism Compared, 52 AM. J. COMP. L. 469, 474-75 (2004).
80. These social jurists included Rudolf von Jhering, Otto von Gierke, Eugen Ehrlich, Francois Gény, and others.
81. See id. at 474-75. On the social jurists and Weber's critique of them
82. see Kennedy, supra note 7, at 1049-50, 1052-55.
83. See Kennedy, supra note 7, at 1054-55.
84. See 2 WEBER, supra note 29, at 815-30;
85. Kennedy, supra note 7, at 1071-76.
86. See Kennedy, supra note 7, at 1053-54.
87. Hence the famous, almost cliché saying, "we are all realists now."
88. See LAURA KALMAN, LEGAL REALISM AT YALE: 1927-1960, at 229 (1986);
89. see also Hanoch Dagan, The Realist Conception of Law, 57 U. TORONTO L. J. 607, 610 (2007).
90. See Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT 19, 21, 63-71 (David M. Trubek & Alvaro Santos eds., 2006) (describing three periods of the "globalization of legal thought" and particularly the last globalization, in which American policy analysis has disseminated throughout the globe);
91. Joseph William Singer, Legal Realism Now, 76 CALIF. L. REV. 465, 467-68 (1988)
92. (reviewing LAURA KALMAN, LEGAL REALISM AT YALE: 1927-1960 (1986)). Alongside the triumph of legal realism and policy analysis in elite law schools, large portions of legal practitioners in the United States remained committed to a fairly formalistic mode of legal reasoning. It is indeed a question whether policy analysis-an accepted practice-is dominant or marginal outside the elite of law schools, judiciary, and the bar. And outside the United States, in continental Europe (especially in Germany and France), Asia, Latin America, and other European-influenced countries, formal rationality remained a favorable mode of legal reasoning, even in elite law schools, until very recendy.
93. Kennedy, supra note 7, at 1068.
94. The need to create concrete, "smaller", and situation-sensitive legal categories and rules that will replace the broad and abstract concepts and categories was a major theme that legal realists developed.
95. See, e.g., Karl N. Llewellyn, Some Realism about Realism-Responding to Dean Pound, 44 HARV. L. REV. 1222, 1237 (1931). Indeed, as Dagan points out, the fragmentation of the legal field by no means unveils its political nature. In various normative discussions, it merely indicates the need to adapt the law to needs and interests, which require case or situation sensitivity, hence breaking down overly broad categories into narrower ones.
96. See Dagan, supra note 50, at 647-51.
97. -2 WEBER, supra note 29, at 874-75.
98. See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 809-21 (1935) (critiquing the "transcendental" and metaphysical mode of legal reasoning, as opposed to the realist, functional mode).
99. Kennedy, supra note 7, at 1061-62.
100. See, e.g., ANTHONY T. KRONMAN, MAX WEBER (1983);
101. Sally Ewing, Formal Justice and the Spirit of Capitalism: Max Weber's Sociology of Law, 21 LAW & SOC. REV. 487 (1987);
102. Trubek, supra note 16;
103. Trubek, supra note 33.
104. See Singer, supra note 51, at 470-503. I do not suggest that the realists did not proffer an impressive, perhaps even convincing, attempt to deal with these challenges by themselves. Nor am I suggesting that the realists' legal conception denied the possibility of all normativity; on the contrary, alongside their critique, the realists paved the way for what could be called a "disenchanted reconstruction/normativity." Indeed, they offered a wide array of reconstructive suggestions to their critique of legal formalism, most notably the social-scientific response-law's indeterminacy can be resolved through the application of social science to legal questions-and the practical reason/wisdom response-legal actors neither merely apply the law nor exert crude power but work within this tension by applying practical wisdom.
105. See Dagan, supra note 50, at 652.
106. See Singer, supra note 51, at 469-70. Giving a comprehensive list of various critical legal theories would be impossible. The leading ones, however, are: critical legal studies, critical race theory, (critical) law and society, some strands of legal feminism, and critical legal history. For a comprehensive overview of the critical legal projects
107. see DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (1997).
108. See also LEFT LEGAUSM/LEFT CRITIQUE (Wendy Brown & Janet Halley eds., 2002) (reviewing the state of the art of critical legal projects).
109. See Singer, supra note 51, at 470-71. More difficult than listing all the critical theories is naming all the legal-reconstruction projects and theoreticians. Those most dominant and influential are: the legal process, law and economics, normative legal feminism (also referred to as governance feminism
110. see JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM (2006)), normative law and society, legal formalism, and empirical legal studies.
111. See supra Part LB.
112. As I elaborate in the following section, this "more" is quite different for different dieoreticians: law is immanendy rational
113. see infra Part HA.; a mode for expressing and inculcating virtue
114. see infra Part H. B.; a form of art, see infra Part II. C; or charismatically audioritative
115. see infra Part H. D.
116. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 225-75 (1986) (charismatization of legal authorities);
117. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 1-17 (1991) (virtue);
118. MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OFJUSTICE 104-09 (1982) (morality);
119. Philippe Nonet, In Praise of Collides, 74 IOWA L. REV. 807 (1989) [hereinafter Nonet, In Praise of Collicles] (law as art);
120. Philippe Nonet, In the Matter of Green v. Recht, 75 CALIF. L. REV. 363 (1987) [hereinafter Nonet, Green v. Recht] (law as a form of art);
121. Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE LJ. 949 (1988) (legal formalism).
122. In this sense, my argument is hermeneutic rather than empirical or positive, as I offer a new interpretative framework for a significant volume of scholarly works. I do not claim to have discovered any new data or facts, but merely suggest that the set of works that I discuss are best read in light of the conceptual framework that I offer.
123. One such major strand of legal thought includes scholars influenced by the writings of political theologians such as Carl Schmitt, Walter Benjamin, Jacques Derrida, and Giorgio Agamben. These philosophers, in distinct ways, advance the idea that modernity still carries remnants of the theological and of theological modes of reasoning. For legal scholars working in that vein, there is a formidable task to uncover, as Lavi points out, "the sacred past or a transcendent future that lurk beneath the surface of rational-secularized law."
124. See Shai Lavi, Enchanting a Disenchanted Law: On the Jewish Ritual and Secular History in Nineteenth Century Germany, 1 U. IRVINE L. REV. (forthcoming 2011). Some such legal writers unveil law's profound theological structure and content in order to reenchant it and find in it the metaphysical, the divine, and the ideal.
125. See, e.g., Lior Barshack, Constituent Power as Body: Outline of a Constitutional Theology, 56 U. TORONTO L. J. 185 (2006);
126. Lior Barshack, Notes on the Clerical Body of the Law, 24 CARDOZO L. REV. 1151 (2003);
127. Chris Tomlins, Toward a Materialist Jurisprudence, in 2 TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: LAW, IDEOLOGY, AND METHODS (Alfred Brophy & Daniel Hamilton eds., forthcoming 2011).
128. See generally ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995) [hereinafter WEINRIB, PRIVATE LAW] (discussing formalism as a means of understanding private law);
129. Weinrib, supra note 63 (defending legal formalism);
130. Ernest J. Weinrib, The Jurisprudence of Legal Formalism, 16 HARV. J. L. & PUB. POL'Y 583 (1993) [hereinafter Weinrib, Jurisprudence] (refuting the notion that formalism is dead). (Pubitemid 24817558)
131. See, e.g., ALAN BRUDNER, PUNISHMENT AND FREEDOM: A LIBERAL THEORY OF PENAL JUSTICE 28-58 (2009) (arguing that, despite its limits, formalism is a necessary framework for interpreting and developing a liberal theory of penal justice);
132. J. E. PENNER, THE IDEA OF PROPERTY IN LAW (1997) (developing a formalist-inspired conception of property law);
133. ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL PHILOSOPHY 287-95, 314-18 (2009) (defending the notions of formal equality and formal wrongdoing).
134. For example, Weinrib writes: "Formalism is like a heresy driven underground, whose tenets must be surmised from the derogatory comments of its detractors."
135. Weinrib, supra note 63, at 950.
136. The list is lengthy and includes BRUDNER, supra note 67, at 28-48 (criminal law, constitutional law);
137. PENNER, supra note 67, at 103-04 (property);
138. RIPSTEIN, supra note 67, at 30-56 (contracts, property, constitutional law, criminal law);
139. WEINRIB, PRIVATE LAW, supra note 66, at 23-55 (torts);
140. Ernest J. Weinrib, Poverty and Property in Kant's System of Rights, 78 NOTRE DAME L. REV. 795, 800-01 (2003) [hereinafter Weinrib, Kant's System of Rights] (property);
141. Ernest J. Weinrib, Restoring Restitution, 91 VA. L. REV. 861, 862-63 (2005) [hereinafter Weinrib, Restoring Restitution]
142. (reviewing HANOCH DAGAN, THE LAW AND ETHICS OF RESTITUTION (2004)) (restitution).
143. Weinrib, Jurisprudence, supra note 66, at 583.
144. Weinrib, supra note 63, at 966.
145. See id. at 973, 985-99.
146. See supra Part LB.
147. See Weinrib, supra note 63, at 952-55.
148. See id. at 962-63, 966-84.
149. See. id. at 966.
150. See, e.g., Weinrib, Kant's System of Rights, supra note 69, at 795-828.
151. See RIPSTEIN, supra note 67, at 1-30.
152. See BRUDNER, supra note 67, at 34-35, 45-48, 231-32;
153. Brudner, supra note 9, at 1183-98.
154. See Weinrib, supra note 63, at 954 n. 14 (citing Aquinas as the "classic account" of formalism).
155. See id. at 977-81 (noting that Aristotle was the first to describe juridical abstractions in his discussion of justice).
156. The profound historicity of legal formalism is obvious in Weber's sociology of law because all modes of legal thought are historical and change over time.
157. Weber claimed that legal positivism was an essential part of the evoludon of legal disenchantment because it meant that no matter what the legislator determined, the legal system would be able to work it into an elaborate system of rules, bureaucratically applied. 2 WEBER, supra note 29, at 875-76.
158. See BRUDNER, supra note 67, at 21-55. Although Brudner claims that formalism has limits and that a full normative account requires considerations of morality and policy, he generally accepts formalism as a necessary framework for legal theory.
159. See id.
160. See WEINRIB, PRIVATE LAW, supra note 66.
161. See PENNER, supra note 67.
162. See BRUDNER, supra note 67.
163. See Weinrib, Restoring Restitution, supra note 69.
164. I refer here especially to Ripstein and Brudner, who are explicit about their commitment to freedom as the tides of their books suggest for Ripstein it is Force and Freedom and for Brudner Punishment and Freedom.
165. See Kennedy, supra note 7, at 1064.
166. See, e.g., RIPSTEIN, supra note 67, at 255 ("Kant is certainly committed to the idea that 'right must never be accommodated to politics, but politics must always be accommodated to right.'").
167. The problem of law's special relation to morality is obviously one of the themes that twentieth-century jurisprudence deals with most extensively (even more so over the past thirty years) and is not unique to contemporary formalism. Indeed I argue that the renewed interest in natural law and in law's morality is another marker of the reenchantment of law.
168. See infra Part H. B.
169. Some have therefore argued that Weinrib's formalism is reminiscent of natural law. See George Brencher IV, Formalism, Positivism, and Natural Law in Ernest Weinrib's Tort Theory: Will the Real Ernest Weinrib Please Come Forward?, 642 U. TORONTO L. J. 318, 350 (1992).
170. See Kennedy, supra note 7, at 1064 ("Weber's theory of the disenchantment of lawmaking ended with its fusion into politics-specifically legislative politics.").
171. See, e.g., Weinrib, supra note 63, at 985-99.
172. -2 WEBER, supra note 29, at 874-75.
173. See WEINRIB, PRIVATE LAW, supra note 66, at 6.
174. "It is not accidental that our greatest art is intimate and not monumental, nor is it accidental that today only within the smallest and intimate circles, in personal human situations, in pianissimo, that something is pulsating that corresponds to the prophetic pneuma, which in former times swept through the great communities like a firebrand, welding them together."
175. MAX WEBER, The Origins of Modern Capitalism, in SOCIOLOGICAL WRITINGS 151, 155 (Wolf Heydebrand ed., Frank H. Knight trans., 1994).
176. See PIERRE SCHLAG, THE ENCHANTMENT OF REASON 1 (1998). In a book review, Kennedy identifies four different meanings of the phrase enchantment of reason in Schlag's theorization: first, an immoderate confidence, an excessive belief in one's own reason; second, the rule of reason; third, denying reason's vulnerability; and fourth, "'an odd conjunction of the magical and the technological' in thinking about law."
177. See Duncan Kennedy, Pierre Schlag's The Enchantment of Reason, 57 U. MIAMI L. REV. 513, 516-39 (2003).
178. -2 WEBER, supra note 29, at 874-75.
179. Classical works advocating the need to reinsert virtue into our political and legal systems include PHILIPPA FOOT, VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 1-19 (1978);
180. GLENDON, supra note 63, at 1-17;
181. ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 210-46 (1981);
182. SANDEL, supra note 63, at 104-09;
183. Martha C. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in 13 MIDWEST STUDIES IN PHILOSOPHY: ETHICAL THEORY 32, 32-34 (Peter A. French et al. eds, 1988). Bonnie Honig argues that contemporary-virtue theorists (such as John Rawls and Michael Sandel) use the concept of "virtue" to quench real politics, which is about irresolvable contests and disagreements.
184. See BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS 126-213 (1993).
185. See, e.g., Eduardo M. Penalver, Land Virtues, 94 CORNELL L. REV. 821, 860-87 (2009).
186. See Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 METAPHILOSOPHY 178, 179 (2003) (arguing for a "virtue-centered theory of judging", which looks to encourage certain desirable characteristics of judges and which can account for the role that judges play in the legal system). It is important to distinguish the interest that virtue theorists find in "character" and the attention that legal realists' interest gave to the concrete character of legal actors, especially judges. While for virtue theorists character is an object of interest due to the importance of intentions to the evaluation of the actions (and therefore it is important that judges, for example, would have an ideal character)
187. see id., for realists the investigation of the character of judges was necessary to predict what they might do in a specific dispute.
188. See Penalver, supra note 102, at 864.
189. See Solum, supra note 103, at 181 ("Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous..., what are the implications for the content of the laws?").
190. See, e.g., Penalver, supra note 102, at 863-64 (reintroducing the Aristotelian ethical tradition into the study of property and land use).
191. See Martha C. Nussbaum, Virtue Ethics: A Misleading Category?, 3 J. ETHICS 163, 164-67 (1999).
192. See, e.g., Weinrib, supra note 63, at 977 n. 8.
193. See, e.g., BRUDNER, supra note 67, at 26.
194. See, e.g., id. at 1-30.
195. See, e.g., Mark Neal Aaronson, Be Just to One Another: Preliminary Thoughts on Civility, Moral Character, and Professionalism, 8 ST. THOMAS L. REV. 113, 113 (1995) ("The practice of law as a profession presupposes a commitment to civility in rational discourse.");
196. Robert John Araujo, Justice as Right Relationship: A Philosophical and Theological Reflection on Affirmative Action, 27 PEPP. L. REV. 377, 378-79 (2002) (using theories of virtue in assessing the role of justice in legal, political, and human history);
197. Miriam Galston, Taking Aristotle Seriously: Republican-Oriented Legal Theory and the Moral Foundation of Deliberative Democracy, 82 CALIF. L. REV. 329, 378-86 (1994) (using Aristode's theory of virtue to defend the argument that communities must morally educate citizens to make politics more deliberative); (Pubitemid 24780892)
198. Linda R. Hirshman, The Virtue of Liberality in American Communal Life, 88 MICH. L. REV. 983, 987, 1012 (1990) (arguing that America's problem of a "permanent underclass" reflects a failure of virtue);
199. Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1425 (1995) (premising his view of the criminal-justice system on Aristotle's dieory that criminal law serves the greater good of humanity by promoting virtue);
200. David Lametti, The Concept of Property: Relations Through Objects of Social Wealth, 53 U. TORONTO L. J. 325, 340 (2003) (describing Western property regimes as exhibiting "some teleology of virtue");
201. Eduardo M. Pefialver, supra note 102, at 862-87 (introducing virtue as an alternative to economic land-use dieory);
202. Solum, supra note 103, at 178-79 (introducing a virtue-centered theory of judging).
203. See Pefialver, supra note 102, at 865.
204. Pefialver includes most liberal values and virtues within a "fully developed conception of human flourishing" thus leaving the enormous task to balance between them at the hands of the judge (as well as the administrator and even the landowner).
205. See Peñalver, supra note 102, at 867-74, 869 n. 197;
206. see also Eduardo M. Peüalver, Restoring the Right Constitution?, 116 YALE LJ. 732, 748 (2007) ("Drawing the appropriate limits around permissible state action in the private sphere ultimately depends upon the consideration of the effectiveness of legal norms in particular contexts as well as the development of an adequate account of human flourishing and the role of human freedom within that account.").
207. See, e.g., Máximo Langer, The Rise of Managerial Judging in International Criminal Law, 53 AM. J. COMP. L. 835 (2005);
208. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982) (describing the rise of "managerial judges" in U. S. civil procedures).
209. See Peiialver, supra note 102, at 865.
210. This is, to my mind, the crucial difference between virtue theory of adjudication and an institutional dieory such as the one developed by Owen Fiss.
211. See also infra Part II. D (discussing the reenchantment of legal audiorities).
212. See Peñalver, supra note 102, at 876.
213. See id.
214. See id. at 887. !
215. Dagan advocates this position, according to which the realist conception of law is based on judges applying practical wisdom in order to deal with the tensions inherent in any legal system.
216. See Dagan, supra note 50, at 644-45, 648, 652.
217. See, e.g., Nonet, Green v. Recht, supra note 63;
218. Nonet, In Praise of Collides, supra note 63;
219. Philippe Nonet, What Is Positive Law?, 100 YALE LJ. 667 (1990) [hereinafter Nonet, Positive Law];
220. Philippe Nonet, Sanction, 25 CUMB. L. REV. 489 (1995);
221. Philippe Nonet, Time and Law, 8 THEORETICAL INQUIRIES L. 311 (2006).
222. See Nonet, Green v. Recht, supra note 63, at 375-77.
223. Lavi eloquently explains this resistance in his contribution to this issue. Theory, he argues, suggests a perspective that is therefore already limited by the position of the observer. It is, he claims, part of the move to epistemology, which has given up on truly knowing the object.
224. See Shai Lavi, Turning the Tables on "Law and... ": A Jurisprudential Inquiry into Contemporary Legal Theory, 96 CORNELL L. REV. 811 (2011).
225. See MARIANNE CONSTABLE, JUST SILENCES: THE LIMITS AND POSSIBILITIES OF MODERN LAW 9-14 (2005);
226. MARIANNE CONSTABLE, THE LAW OF THE OTHER: THE MIXED JURY AND CHANCING CONCEPTIONS OF CITIZENSHIP, LAW, AND KNOWLEDGE (1994)
227. [hereinafter CONSTABLE, THE LAW OF THE OTHER];
228. Marianne Constable, Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law, 19 LAW & SOC. INQUIRY 551, 554-55 (1994). (Pubitemid 24835290)
229. See ROGER BERKOWITZ, THE GIFT OF SCIENCE: LEIBNIZ AND THE MODERN LEGAL TRADITION 1-10 (2005);
230. Roger Berkowitz, Friedrich Nietzsche, the Code of Manu, and the Art of Legislation, 24 CARDOZO L. REV. 1131, 1134-35 (2003).
231. See Linda Ross Meyer, Herbert Morris and Punishment, 22 QUINNIPIAC L. REV. 109, 109 (2003);
232. Linda Ross Meyer, Is Practical Reason Mindless?, 86 GEO. LJ. 647, 648-52 (1998). (Pubitemid 128429257)
233. See Mark Antaki, The Critical Modernism of Hanna Arendt, 8 THEORETICAL INQUIRIES L. 251 (2007);
234. Mark Antaki, The World (lessness) of Human Rights, 49 MCGILL L. J. 203, 205-06 (2004).
235. See SHAI J. LAVI, THE MODERN ART OF DYING: A HISTORY OF EUTHANASIA IN THE UNITED STATES 1-14 (2005).
236. Lavi argues that the needed move is not to bring metaphysics back into the law but actually to engage in an ontological investigation of it, which will enable us to see "the law as it is" rather than as it is perceived by various perspecdves or disciplines.
237. See Lavi, supra note 123, at 816-17.
238. See Nonet, Green v. Recht, supra note 63, at 377 ("A dark age has
239. See CONSTABLE, supra note 124;
240. Nonet, Positive Law, supra note 121, at 669-72.
241. See Kennedy, supra note 7, at 1055-61.
242. Nonet describes "law and..." as follows: [T]he odors of law and... are among the foulest.... Look at the people with whom law and... has populated the earth. Look at that swarming mass of busy, hurried, restless, racing, radike humanity.... See what and how these beings are: wanting and needing, being deficient, crippled, hence dependent, eager recipients, sufferers, motivated, acted upon... never responsible, never punishable, never deserving, only able to have their future predicted, therefore also superstitiously crawling at the feet of fortunetellers in abject fear of pain and deam.... In law and..., though not by it, humanity is defiled.
243. Nonet, Green v. Recht, supra note 63, at 376-77.
244. BERKOWITZ, supra note 125.
245. LAVI, supra note 128.
246. CONSTABLE, THE LAW OF THE OTHER, supra note 124.
247. Indeed, the main of legal history could be labeled as another disenchanted theory of law, which strips it off its metaphysical dignity, unity, and coherence by exposing law as the outcome of mundane and profane processes and interests. For a critique of this disenchanted mode of historicizing
248. see Tomlins, supra note 65.
249. BERKOWITZ, supra note 125, at xiii.
250. See Berkowitz, supra note 125, at 1134 (finding exemplary, "good" legislation in ancient codes such as the Code of Manu);
251. Nonet, Green v. Recht, supra note 63, at 376.
252. Nonet, Green v. Recht, supra note 63, at 376.
253. BERKOWITZ, supra note 125, at ix.
254. Berkowitz, for instance, claims that "we know that there is more to being a neighbor than paying for the damage one does. Only one who understands that he is enmeshed in a moral world keeps his promise even when it is convenient, efficient, and legal to break it."
255. Id. at xii.
256. LAVI, supra note 128, at 75-98, 126-71.
257. Constable, supra note 124, at 572-80.
258. BERKOWITZ, supra note 125, at xii.
259. Nonet, Green v. Recht, supra note 63, at 376.
260. See supra Part I. B.
261. See Kennedy, supra note 7, at 1065 (quoting 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 875 (Guenther Roth & Claus Wittich eds., Univ. of Cal. Press 1978) (1921-1922)).
262. See Langer, supra note 114 (describing a global movement towards managerial judging).
263. See, e.g., ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986) (critique of law as ideology);
264. Cohen, supra note 55, at 846 (the need to study the psychology of judges);
265. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 CORNELL L. Q. 274 (1929) (on judicial "hunch" as the determining factor in judgment).
266. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (defending judicial review on the basis of political theory and legal process theory);
267. HENRY M. HART, Jr., & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr., & Philip P. Frickey eds., 1994) (defining procedures and processes that would legitimate the legal process and adjudication).
268. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (presenting constitutional theory legitimating the Supreme Court).
269. xhe various law and social-science schools of thought are too many to name, yet most dominant are "law and economics" and "law and society" (usually meaning sociology and anthropology. For the purposes of this discussion, normative law and economics is the best example of a theory that legitimates the judge by subjecting her to the methodology of economics.
270. See, e.g., Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980).
271. See Hanoch Dagan & Roy Kreitner, The Character of Legal Theory, 96 CORNELL L. REV. 671 (2011);
272. see also Brett G. Scharffs, Law as Craft, 54 VAND. L. REV. 2245, 2274-322 (2001) (exploring the similarities between the law and other craft traditions).
273. Dagan & Kreitner, supra note 154.
274. OWEN FISS, THE LAW AS IT COULD BE 160-67 (2003).
275. See Solum, supra note 103, at 192-93.
276. Herman Oliphant, A Return to Stare Decisis, 14 A. B. A. J. 71, 73-75 (1928) (emphasis added). This characterization might seem somewhat unfair, given Oliphant's attempt to bind the judge through institutional arrangements much like Fiss. Yet, I think that there is enough in Oliphant to render him a reenchanter of the judges' charisma or traditional authority.
277. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 325-28 (1993).
278. See RONALD DWORKIN, LAW'S EMPIRE 239-50 (1986) [hereinafter DWORKIN, LAW'S EMPIRE];
279. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 105-30 (1977).
280. See DWORKIN, LAW'S EMPIRE, supra note 160, at 6-10, 96-98, 219-24, 254-70.
281. On the concept of deliberative democracy, see JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT (1994);
282. DELIBERATIVE DEMOCRACY (James Bohman & William Rehg eds., 1997);
283. DELIBERATIVE DEMOCRACY (Jon Elster ed., 1998);
284. Seyla Benhabib, Introduction: The Democratic Moment and the Problem of Difference, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL 1, 16 (Seyla Benhabib ed., 1996) (introducing a collection of essays aimed at convincing "intellectuals... that democracy can be defended with rigorous argument... not only with good faith and pious wishes");
285. Seyla Benhabib, Toward a Deliberative Model of Democratic Legitimacy, in DEMOCRACY AND DIFFERENCE, supra, at 67 [hereinafter Benhabib, Deliberative Model];
286. Jürgen Habermas, Three Normative Models for Democracy, in DEMOCRACY AND DIFFERENCE, supra, at 21. For a discussion and critique of Habermas's theory of discursive democracy
287. see Joshua Cohen, Reflections on Habermas on Democracy, 12 RATIO JURIS 385 (1999).
288. See supra note 162 and accompanying text.
289. For the classic work on the crisis of parliamentary democracy in the early twentieth century, see CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY (Ellen Kennedy trans., 1985). For a more recent account of the severe deficiencies of contemporary parliamentary democracies
290. see Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711 (2001); (Pubitemid 33656782)
291. Mark Seidenfeld, A Civic Republican fustification for the Bureaucratic State, 105 HARV. L. REV. 1511 (1992).
292. Although it would be impossible for me to discuss it in length, I would like to note that the surge of constitutional theory and of constitutionalization-in the United States and abroad-is another mark of the legitimacy crisis of the parliamentary administrative state and of positive law. Although a constitution is clearly a positive legal document, enacted (and amended) according to legal procedures, therefore obtaining its legitimacy from its being posited, it enjoys a unique status, either because it is often understood to be a direct articulation of moral principles or because it embothes a more authentic will of the population (due to requirements of supermajorities, plebiscites, and so forth). Once adopted, a constitution, especially if accompanied by judicial review of legislation-a practice adopted in more and more jurisdictions throughout the world-gives the entire legal field a moral and democratic legitimacy. Furthermore, it gives the legal system an image of a practice dedicated to the protection of an ancient, sacred, coherent, and authoritative text.
293. See HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 212 (1967).
294. See Benhabib, Deliberative Model, supra note 162, at 67;
295. Cohen, supra note 162, at 387-90;
296. Habermas, supra note 162, at 21.
297. Wealth maximization or efficiency can be seen as such a principle or idea because, at least for some law and economics scholars, it should serve as the principle according to which all norms and decisions should be shaped, interpreted, and received.
298. See LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002);
299. Posner, supra note 153;
300. see also Alon Harel & Ariel Porat, Commensurability and Agency: Two Yet-to-Be-Met Challenges for Law and Economics, 96 CORNELL L. REV. 749 (2011) (defending a more eclectic law and economics perspective).
301. This is the case of the rise of "dignity" as a foundational value or right in various jurisdictions throughout the world. In South Africa, Germany, Israel, Canada, and the United States, as well as in numerous international documents, dignity has become, over the past twenty years, an explicitly enshrined or implicit fundamental value or right Submitting the entire legal system to one core value or right-even if understood as serving functional goals and as rational procedure-is a highly reenchanting maneuver since it gives the legal system coherence, unity, and moral legitimation. On the rise of dignity
302. see generally THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES (Michael J. Meyer & William A, Parent eds., 1992);
303. EDWARD J. EBERLE, DIGNITY AND LIBERTY: CONSTITUTIONAL VISIONS IN GERMANY AND THE UNITED STATES (2002).
304. Indeed, even those who see law as an effective expression or vehicle for the achievement of "ideology", be it socialist, Marxist, free marketer, feminist, or nationalist, in fact reenchant law to a certain degree. For example, some feminist legal scholarship, highly committed to structuralist conceptions regarding the relationship between men and women (what Halley calls the "men over women" conception), belongs to this type of legal reenchantment.
305. See HAMEY, supra note 60.
306. When I talk about "ideality" I do not mean "normativity. " Although normative endeavors might often include what I call "marginal" or "supplementary" reenchantment, ideality refers to an antirealist and antifunctionalist view of the law.
307. See discussion infra Part III. B.
308. In April 2010, the conference "'Law As... ': Theory and Method in Legal History" was held at the University of California, Irvine Law School. The public invitation to the conference reads as follows: The "law and" problematic has been highly productive. The question nevertheless arises whether we have arrived at an intellectual moment in which, a century after its invention, "law and" has run its course. If so, what might be the implications for legal history? "Law and" relies on empirical context to situate law as a determinate domain of activity. The result is a causally functional and empirical account of law.... Suppose we dispense with the conjunctive metaphors of "law and", and instead reach for different metaphors. What might they be? One possibility is optical metaphors-that is, metaphors of appearance, or image, or resemblance. Instead of parsing relations between distinct domains of activity, between law and what lies "outside" it, the objective of legal historical research might be to imagine them as the same domain: what do we get if we imagine law and economy as the same phenomenon-that is, law as economy (or economy as law)? What of law as art, as science, as war, as peace? What new method or theory might be the result?
309. Dan Ernst, "Law As... "at UC Irvine, LEGAL HIST. BLOG (Feb. 3, 2010, 2:23 AM) http://legalhistoryblog.blogspot.com/2010/02/law-as-at-uc-irvine. html [hereinafter UC Irvine Invitation].
310. Indeed, "law as culture" often entails some antirealist impetus. This is the case because cultural analysis of law often involves hermeneutic arguments about meaning and signification rather than empirical, consequentialist, or instrumentalist assertions. As Robert Cover asserts, "the capacity of law to imbue action with significance is not limited to resistance or disobedience. Law is a resource in signification that enables us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate or dignify."
311. See Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 8 (1983). Likewise, "law as art" might be a critical and disenchanting project focused on the power dimension in law-if we see art as a locus of power struggles (as in a Nietzschean "will to power"), contestation, and politics.
312. See UC Irvine Invitation, supra note 172.
313. This ideal world (of Kant and Hegel) is the object of Marx's critique.
314. See Karl Marx & Frederick Engels, THE GERMAN IDEOLOGY 39-41, 68-72 (CJ. Arthur ed., 1970).
315. As Lavi argues, the ontological investigation aims at discovering what the law really is and not what we can know about it from one perspective or another.
316. Lavi, supra note 123.
317. See Cover, supra note 173, at 8.
318. See, e.g., MENACHEM MAUTNER, LAW AND THE CULTURE OF ISRAEL (2011).
319. Indeed, while the legal realists were predominantly progressive, their contemporary progenies and legal instrumentalists are not The realist cry that law should reflect current social reality was the basis for politically progressive reforms a hundred years ago, but it is no longer the case now.
320. See Peter Gabel & Duncan Kennedy, Roll over Beethoven, 36 STAN. L. REV. 1 (1984) (discussing the irrationalist position within critical legal studies).
321. -2 WEBER, supra note 29, at 875.
322. See supra text accompanying note 38.
323. See 2 WEBER, supra note 29, at 874-75, 1031-32.
324. Id. at 889.
325. See Kennedy, supra note 7, at 1030-52.
326. I am aware of the great difference that can be made between Nietzschean and Heideggerian hope. For Heideggerian reenchanters, there is an obvious mourning for a lost world, and we must try to find our way back into it; Nietzschean reenchantment, however, basically-and perhaps desperately-calls upon us to reenchant the world not by finding our way back to the lost world, but by creating a new world through our will and joy. I thank Pierre Schlag for this point.
327. See Kennedy, supra note 7, at 875.
328. WEBER, ESSAYS, supra note 26, at 155.