The generality of rights

Legal Theory

Volumn 6, Issue 3, 2000, Pages 323-336

  Schauer, Frederick ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84920986515     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200063059     Document Type: Article

References (41)

1. See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184-205 (1977).
2. See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT'L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938).
3. Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998).
4. Cf. Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 HARV. L. REV. 959 (1992).
5. I disclaim any goal of locating a “central” theme of Legal Realism, of presenting a view of what is most important about Legal Realism, or of identifying the most important Realists. Legal Realism is itself a contested symbol,and thus itcomes as no surprise that there are peoplewhosee the central importance of Legal Realism as being about empirical investigation into the nature of law and legal decision, see, e.g., John Henry Schlegel, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995), others who focus on the Realist attack on laissez-faire baselines, see, e.g., Barbara Fried, DISCREDITING THE FREE MARKET: THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS MOVEMENT (1998), and many others who focus on the more traditional “indeterminacy” and “particularist” themes of some of the Realists. See Brian Leiter, Naturalism andNaturalized Jurisprudence, inANALYZING LAW:NEW ESSAYS IN LEGAL THEORY 79 (Brian Bix ed., 1998). For present purposes, I make only the claim that some people were concerned to stress the particularity of legal rights and the manipulability and consequent relative unimportance of legal rules, and that some of those people have often beencalled Legal Realists.
6. I will use the term “Realist” as shorthand for Legal Realism, noting, en passant, that Legal Realism bears no relationship to the position in (philosophical) metaphysics known as “realism,” for the two are in fact polar opposites. Metaphysical realism stresses the existence of natural kinds and the existence of categories and concepts antecedent to human construction, a position that is quite close to just what many branches of Legal Realism deny.
7. For a more complete philosophical development of the idea of particularism, see Frederick Schauer, PLAYING BY THE RULES: A PHILOSOPHICAL ANALYSIS OF RULE-BASED DECISIONMAKING IN LAW AND IN LIFE (1991). See also Frederick Schauer, Prediction and Particularity, 78 B.U. L. REV. 773 (1998).
8. Gray, For a more complete philosophical development of the idea of particularism note 3, passim.
9. R.W.M. Dias, JURISPRUDENCE 449 (5th ed. 1985).
10. Wesley Sturges, Book Review, 40 HARV. L. REV. 513 (1931), as quoted in Laura Kalman, LEGAL REALISM AT YALE 1927-1960, pp. 80, 256 n.47 (1986).
11. Jerome Frank, LAW AND THE MODERN MIND 100-04 (1930). “The chief obstacle to prophesying a trial court decision is… the inability… to foresee what a particular trial judge or jury will believe to be the facts.” Id. at 186. For related themes, see Joseph Bingham, Joseph Walter Bingham, in MY PHILOSOPHY OF LAW: CREDOS OF SIXTEEN AMERICAN SCHOLARS 7, 13, 20 (1941); Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 CORNELL L. REV. 274 (1929).
12. Karl N. Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 268-77 (1960). See William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 216-27 (1973).
13. Or is still now. But that is for another day.
14. Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 821 (1935).
15. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
16. John Dewey, Logical Method and Law, 10 CORNELL L. Q. 17, 28 (1924).
17. Karl Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1236 (1931).
18. Herman Oliphant, Facts, Opinions, and Value-Judgments, 10 TEX. L. REV. 136, 138 (1932) (stressing importance of “investigations markedly particular”); Herman Oliphant, A Return to Stare Decisis, 14 A.B.A.J. 161 (1928).
19. Thurman Arnold, Apologia for Jurisprudence, 44 YALE L.J. 730 (1935).
20. William O. Douglas, Some Functional Aspects of Bankruptcy, 41 YALE L.J. 329 (1932); William O. Douglas, A Functional Approach to the Law of Business Associations, 23 ILL. L. REV. 675 (1929).
21. Max Radin, Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika, 33 COLUM. L. REV. 199 (1933).
22. On Logical Positivism generally, see, for example, A.J. Ayer, LANGUAGE, TRUTH, AND LOGIC (2d ed. 1946); Rudolf Carnap, THE LOGICAL STRUCTURE OF THE WORLD (R. George trans., 1965); LOGICAL POSITIVISM (A.J. Ayer ed., 1959); THE PHILOSOPHY OF RUDOLF CARNAP (P.A. Schlipp ed., 1963); READINGS IN PHILOSOPHICAL ANALYSIS (H. Feigl & W. Sellars eds., 1949); Rudolf Carnap, Testability and Meaning, 3 PHIL. & SCI. 419 (1936).
23. Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953). See Lord Lloyd of Hampstead and M.D.A. Freeman, LLOYD'S INTRODUCTION TO JURISPRUDENCE 807 (5th ed. 1985).
24. A. Villem Lundstedt, LEGAL THINKING REVISED (1956).
25. Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958).
26. Karl Olivecrona, LAW AS FACT (2d ed. 1971).
27. Adler, LAW AS FACT note 4, at 14 (footnotes omitted).
28. Steven J.Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. REV. 1275, 1357 (1996).
29. Adam Hirsch, The Problem of the Insolvent Heir, 74 CORNELL L. REV. 587, 604 (1989). For similar themes, see M. Ethan Katsch, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 262-72 (1989), discussed in James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 CAL. L. REV. 1413 (1992); Cass R. Sunstein, Response: From Theory to Practice, 29 ARIZ. ST. L.J. 389 (1997).
30. Ronald Dworkin, LAW'S EMPIRE 36-37 (1987); H.L.A. Hart, THE CONCEPT OF LAW 124-54 (2d ed. 1994).
31. One of the (many) problems with understanding rights in case-specific and eventspecific ways is that such an understanding gives us no way of comprehending the way in which rights, like reasons, duties, and obligations, may have nondispositive force. It makes little sense to say that this plaintiff had a right but did not win unless rights function as ex ante and defeasible reasons or arguments rather than as ex post descriptions of highly particular claims. On the general question of the overridability of rights, the property of rights that generates the foregoing sentences, see Alan Gewirth, Are There Any Absolute Rights?, 31 PHIL. Q. 1 (1981); Robert Nozick, Moral Complications and Moral Structures, 13 NAT. L. F. 1 (1968); Frederick Schauer, On the Supposed Defeasibility of Legal Rules, 51 CURRENT LEG. PROBS. 223 (1998); Frederick Schauer, A Comment on the Structure of Rights, 27 GA. L. REV. 415 (1993); Judith J. Thomson, Some Ruminations on Rights, 19 ARIZ. L. REV. 45 (1977).
32. The example comes from a very recent and still unreported Second Circuit opinion and its surrounding events. See Benjamin Weiser, Appeals Court Bars Klan Masks: Group Still Plans to Stage Rally, N.Y. TIMES, LATE EDITION, October 23, 1999, at A1.
33. See McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511 (1995); Talley v. California, 362 U.S. 60 (1960).
34. For the more sustained argument to this effect, see Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633 (1995).
35. See Schauer, For the more sustained argument to this effect note 8; Frederick Schauer, Rights as Rules, 5 LAW & PHIL. 115 (1987).
36. Social differentiation as a sociological phenomenon is a perspective largely associated with Niklas Luhmann. See, e.g., Niklas Luhmann, SOZIALE SYSTEME-GRUNDRISS EINER ALLGEMEINEN THEORIE (1984); Niklas Luhmann, THE DIFFERENTIATION OF SOCIETY (1982).
37. See especially Eric J. Mitnick, Taking Rights Spherically: Formal and Collective Aspects of Legal Rights, 34 WAKE FOREST L. REV. 409 (1999).
38. The words “social construction” are for some a rallying cry and for others fighting words. Here I make only the modest claim that many of our categories are socially constructed, which is not the claim that all or even most of our categories are socially constructed. One can believe in the social construction of the game of bridge, or even of the George Washington Bridge, without believing in the social construction of the categories of ants or volcanoes, or of the concepts of gravity and color. On some of these issues, see John Searle, THE CONSTRUCTION OF SOCIAL REALITY (1992).
39. Most prominently, see Mary Ann Glendon, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991).
40. It is important to recognize that the substance and the specification of the right may still have an important effect on the nature of the groups or affinities created. The ability of a right to free speech to create affinities across wide political divisions, for example, is significantly a function of the strong American rule requiring viewpoint-neutrality in the specification of free speech rules and doctrines. See R.A.V. v. St. Paul, 505 U.S. 377 (1992); Dawson v. Delaware, 503 U.S. 159 (1992); Texas v. Johnson, 491 U.S. 397 (1989); Steven Shiffrin, Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 CORNELL L. REV. 43 (1994). But if the rules were specified differently and less agnostically about morally and politically important viewpoint differences, as, for example, with racist speech, see, e.g., Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320 (1989), the nature of the affinities created by free speech rules, rights, and doctrines would be quite different. Because nothing in the very idea of a right requires that it be “neutral” in a certain substantive way, see Gerald Dworkin, Non-Neutral Principles, in READING RAWLS: CRITICAL STUDIES OF A THEORY OF JUSTICE 124 (N. Daniels ed., 1975); Frederick Schauer, Exceptions, 58 U. CHI. L. REV. 871 (1991), my larger point here about the affinity-creating capacity of rights is radically indiscriminate about the types of affinities that might be created.
41. A large recent literature has usefully focused on a number of complex issues surrounding “as-applied” and “facial” constitutional challenges to legislation. This includes not only Adler, It is important to recognize that the substance and the specification of the right may still have an important effect on the nature of the groups or affinities created. note 4, Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994), Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853 (1991), and Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM U.L. REV. 359 (1998), but also a number of the papers for this Symposium. E.g., Larry Alexander, Rules, Rights, Options, and Time, 6 LEGAL THEORY (forthcoming 2000); Michael C. Dorf, The Heterogeneity of Rights, 6 LEGAL THEORY (present issue); Richard Fallon, As Applied, Facial and Overbreadth Challenges, 113 HARV. L. REV. (forthcoming 2000); Emily Sherwin, Rules and Judicial Review, 6 LEGAL THEORY (present issue). In light of this, it is worth noting that the decision by a court to accept a facial challenge, or to understand (and accept) a challenge in facial rather than in “as-applied” terms, is a decision by that court to adopt a more, rather than less, general understanding of the right, and to produce a more, rather than less, general outcome. In this sense, therefore, as-applied challenges are likely far less affinity-and identitycreating, because as-applied challenges, by their very particularity, try to avoid placing a particular plaintiff or a particular situation within a much larger grouping. By contrast, facial challenges decide in advance (nothing wrong with that, see Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Schauer, Giving Reasons, It is important to recognize that the substance and the specification of the right may still have an important effect on the nature of the groups or affinities created. note 37) that a particular case, a particular event, and a particular plaintiff are to be grouped with a potentially much larger group of other potential cases, other events, and other plaintiffs. In this sense, therefore, the acceptance of a facial challenge creates a large group of beneficiaries of that challenge, and consequently creates the category and generalization of all of those who would be such beneficiaries.