601:732. LEGALISM (2)
[revised October 2008]
Commentators and ordinary citizens often criticize attorneys, judges, political leaders, and even their fellow citizens for being “legalistic”or resorting to “legal hairsplitting.” These attacks, and their occasional vehemence, should trouble us as lawyers and law students. For if the worst examples of rhetorical weaseling and even absurdity can honestly be described as forms of “legalism,” then our profession has some explaining or soul-searching to do. And even if genuine “legalism” is something else entirely, then we need to try to understand, and communicate, the difference.
When critics assail someone or other for being “legalistic,” they sometimes mean that he or she is hiding behind overly technical distinctions that defy common sense. But the relationship between legal thinking and “common sense” is necessarily complex. On the one hand, we have learned from the first day of law school that the law is a special place, with its own language, logic, and concerns. Legal meanings, legal rules, and legal results often violate everyday intuition, and that’s sometimes a good thing. Arguably, legalism, in at least some form, is a necessary aspect of the rule of law itself. On the other hand, when law diverges too sharply from ordinary thinking, it risks its moral and intellectual legitimacy.
This seminar will ask what “legalism” is, and whether there are “good” and “bad” forms of it. It will also try to make moral and legal sense of “legalistic” thinking, in a variety of settings. For example, we will try to unravel the law’s relationship to testimonial truth. How does the law treat evasive, misleading, and half-true statements? What does it take to commit perjury? Does the law enforce different standards of truth-telling for different legal purposes? If so, why? Is “legalistic” evasion ever morally justified?
The seminar will also look at “legalism” in other contexts, including, for example, the interpretation of statutes, wills, and other legal instruments. When does the law follow the “ordinary” reading of language, and when does it go its own way? Does “legalism” always mean “hairsplitting?” Might there be instances in which outlandish lawyerly interpretations make more sense than ordinary reading?
Most importantly, the seminar will try to provide a larger historical and theoretical perspective on the problem of “legalism.” Is criticism of “legalism” bound up with criticism of law itself? And are there circumstances, such as some that we’ve witnessed during the “war on terror” in the past few years, in which forms of “legalism” can become a tool to subvert the rule of law?
Course requirements include active class participation and paper-writing. The seminar will also provide opportunities for in-class oral presentations and student-led discussions.