Book Reviews : ‘Blind Obedience’ in Legal Conclusions . . . and Ethics

The Authoritative and the Authoritarian by Joseph Vining (University of Chicago: $25)

Heracles’ Bow: Essays in the Rhetoric and Poetics of the Law by James Boyd White (University of Wisconsin: $22.50)

Many years ago, when I was a student, I took a philosophy course in ethics. Early on, the professor explained that the goal of contemporary ethical theory was to develop a set of principles that could be applied like a computer to any difficult situation. A person could plug in the circumstances, and the machine would spit out the ethically correct thing to do.

One of the students in the class was puzzled by this and inquired whether a person who followed the machine’s ethical prescription should be considered ethical. After all, he said, you shouldn’t get credit just for doing what a machine says. That’s neither ethical nor unethical.

The professor was speechless for what seemed a long time. Finally he agreed that our notion of ethical behavior does require some decision-making on the individual’s part. A child who does what his parents tell him might be considered well-behaved, but he is not ethical.

Brilliant but Difficult

This distinction between being told what to do and thinking about what to do is what Joseph Vining, a law professor at the University of Michigan, has in mind in the title of his brilliant but difficult book, “The Authoritative and the Authoritarian.” His goal is to find the source of the authority of law, and he worries that lawyers and the rest of us are increasingly replacing the authoritative with the authoritarian.

He worries about the law’s “blind obedience” to the words of judges, many long since dead, and he wonders why anyone pays attention to a system built on piling up quotations from appellate courts in out-of-the-way places.

“Whether brief or fulsome in the statement of their conclusions, lawyers dwell upon what has been said,” Vining scoffs. “In this they are like Isaiah Berlin writing on Tolstoy, Marx or Vico, only the men whose words lawyers turn over in their heads are not Tolstoy, Marx or Vico. They may be excellent men, but they are rarely so excellent as obviously to warrant such attention.”

What is law? is also the topic that James Boyd White addresses in his equally remarkable but much more accessible book, “Heracles’ Bow.” White, who teaches law, English literature and classical studies at the University of Michigan, adopts a less global approach to the material at hand than Vining does. But he is no less provocative.

White argues that what lawyers do is exactly the same as what literary critics do. They massage texts to produce meaning. Literary critics massage poems, he says, and lawyers massage judicial opinions.

“The law is a language, a set of resources for expression and social action,” White writes. “The life of the lawyer is at its heart a literary one--a life both of reading the compositions of others (especially those authoritative compositions that declare the law) and of making compositions of one’s own.”

All of this may come as a surprise to anyone who thinks that the law comes written in stone in a black box with a red ribbon tied around it. Such a person might ask, “What are these authors talking about? Legislators enact laws, judges enforce them, and law students learn the rules and recite them on bar examinations.”

Not so. Law is constantly changing--for the better, we hope. The examples are endless. To cite just one: The Fourth Amendment to the Constitution bars unreasonable searches and seizures. Until 1967, the courts interpreted these words to apply exclusively to physical trespasses by the police. But in Katz vs. United States, the Supreme Court changed the meaning of the Fourth Amendment and made it apply to a person’s reasonable expectation of privacy, not just to a physical search. In that case, the justices ruled that the police had to get a warrant before they could tap someone’s phone, which does not involve a physical trespass and which had not previously been protected.

Argues With Conviction

The job of the lawyer is to persuade a judge that the law should change in a direction that benefits his client. White argues with conviction and style that the relation of a lawyer to the law is the same as the relation of a scholar to his text.

The book claims to be about law and literature, but it is really about much more: the way we organize all of our experience, the way we tell and constantly revise the story of our lives as individuals and as a community.

As with literature, no formulation of the law ever exhausts all possible meanings. Every story leaves something out.

Who has not had the experience of a failed marriage or friendship in which each person honestly tells a completely different story?

“As lawyers we are engaged in a discipline that teaches us again and again what Gibbon also teaches us: that no story can include everything, that every story is a reduction, a fiction, made from a certain point of view.”

Vining’s book also assumes radical uncertainty about the world. But in the end, he says, we act as if there were meaning, as we must. “Complete relativity of knowledge is aloneness, madness, each of us living in a different world.”

The sweep of this book aims to take in everything in 200 pages plus extensive notes and comments. And Vining just about does it. Law, he says, is like theology. At its base, all that law can do is to quote the Old Testament God, who says, “I AM, that is who I am. Tell them that I AM has sent you to them.”

“Theology,” he concludes, “has the perhaps unique advantage that, like law, it leaves nothing out, not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all.”

My copies of both of these books are strewn with underlinings, notes, comments, stars, exclamation points and question marks. Those are signs of books worth reading.