Extra-Legal

Stephen Sedley

  • Overcoming Law by Richard Posner
    Harvard, 597 pp, £29.95, March 1995, ISBN 0 674 64925 7

The sixth form at the boys’ boarding-school where I was educated was addressed on one occasion by an outside speaker, a sanctimonious pedagogue who announced to us that he and his wife – bootfaced on the platform beside him – had overcome sex. He counselled us to do the same. To an audience of overheated 17-year-olds whose only ambition was for sex to overcome them, the proposition was as mystifying as a book written by a judge and called Overcoming Law.

The judge in this case, Richard Posner, is the Chief Judge of the United States Court of Appeals for the Seventh Circuit. He is also a senior lecturer in law at Chicago University and a widely published polemicist. At the heart of his polemics are three pulses, legal pragmatism, Millian liberalism and legal economics, which Posner believes beat in sympathy. Powered by them, he sets out to overcome ‘law’ in the bad old sense – formalistic, self-referential, supposedly autonomous law of the sort his generation and mine were taught at law school and read in the judgments of a judicial generation which has now passed on. This is a task which today is a great deal easier than overcoming sex, because anybody who seriously propounds the view that the words on the page are an unvarying statement of principle or rule for all time, and the lawyer’s task simply their explication, is in for the kind of bashing which Posner delivers in one of his chapters to the writings of Robert Bork. President Reagan’s capable and ultra-conservative nominee for the Supreme Court whose rejection by the Senate resulted instead in the appointment of Clarence Thomas.

Although legal literalism can crop up almost anywhere, its sharpest American manifestation, ‘originalism’, is a stalking-horse for a movement which wants to see a number of the Supreme Court’s most controversial modern decisions – those on abortion rights, flag-burning and so forth – reversed. Because the Constitution is sacrosanct (short of amendments which are not at present politically feasible), the only way back from these liberal decisions is by a reversal of the Court’s jurisprudence in favour of what the Founding Fathers are imagined to have wanted (or, in the case of abortion rights, to have overlooked). The trouble is, as Posner acknowledges, that everyone in the US claims to be an originalist: they have to be because of the scriptural status of the Constitution and its amendments. In consequence, every one of the liberal decisions which offend today’s originalists is itself loyally couched in constitutional rhetoric. The real debate is extra-legal. It is not whether judges ‘ought’ to be deriving abortion rights, which are not in the Constitution, from a right of privacy which is likewise not in the Constitution but can arguably be spelt out of the Fourteenth Amendment, or whether they should simply acknowledge that the Constitution has nothing to say on the issue: it is whether these cases have posed wrongs which the Supreme Court was right to remedy – a question of policy which the courts cannot duck, since to decline jurisdiction is just as dramatic a policy step as to accept it, but on which equally judges have no moral entitlement to the final word.

By this I do not mean that a legislature, being elected, is morally entitled to immunity for any tyrannical measure it cares to pass: I mean that the highest-profile issues on which, for better or for worse, the judges have to come to a decision are often not legal issues at all except in their formal presentation. We have seen this sharply in the United Kingdom, not only in the decision – which someone had to take – whether Tony Bland’s life support should be discontinued but in Victoria Gillick’s attempt to stop the Department of Health issuing contraceptive advice to, among others, girls below the legal age of consent. Willingly or unwillingly, the courts in such cases become arbiters of public morality. The process has nothing to do with the existence of a written constitution and everything to do with willingness to adjudicate. In fact the great and largely untried strength of a common law system like the United Kingdom’s is that it is relieved of the need to search a constitutional text for legitimation, and therefore of the need to pretend to have found it, before getting down to the task of decision-making.

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