by Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds). Stanford University Press, 2007. 224pp. Cloth, $50.00. ISBN: 0804755256.
Reviewed by Paul Lermack, Department of Political Science, Bradley University. Email: pnl [at] bumail.bradley.edu.
If law had a formal existence, what would it be like? That is, if law were an entity, like a person or an institution, how would it experience the world? How would it perceive, communicate or feel? Though law is not an entity, or not just an entity, it may nevertheless be useful to examine it from this perspective.
Since the 1990s, this vantage point has been occupied by Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Alone or with various collaborators, Sarat has edited collections that explore various aspects of the relationship that law-as-entity would have to have with the rest of the world. How, for example, does law perceive the spatial dimension involved in such concepts as domestic/foreign or “like ourselves”/”unlike ourselves” (Sarat, Douglas and Umphrey, 2003)? What does law “feel” when it inflicts violence (Sarat, 2001; cf. Sarat and Kearns, 1991a) or even kills (Sarat 1999)? What does law do when it finds itself responding to new challenges, like efforts to establish the rule of law in countries in which it previously has not existed, the emergence of vocal minorities, or intellectual attacks from feminism, postmodernism and other developing ideologies (Sarat and Kearns, 1991b)?
The most recent previous book in this series, THE LIMITS OF LAW (Sarat, Douglas and Umphrey, 2005), presents six essays dealing with acts of terror, states of emergency, gestures of surrender, amnesties, reparations, and various attempts at reconciliation and healing. The authors explore, for example, the red scares of 1919-20, the question of paying reparations for slavery, and the applicability of legal procedures to illegal combatants during the present war on terror. In each case, the law found itself dealing with extraordinary situations with a tool kit of procedures and powers developed for routine and better-understood matters. Though it initially appears that law is unsuited to these tasks, the authors find that it responds, in each case, dynamically; it becomes concerned with its own development, renewal and regeneration. The essays “tell how law is challenged, frayed, and constituted out of conditions that lie at the farthest reaches of its empirical and normative force” (2005: 17).
Like THE LIMITS OF LAW, the present volume is an entry in the Amherst series of publications in Law, Jurisprudence and Social Thought. It examines various aspects of the ways in which “legal officials gather information, assess factual claims, and judge people and situations” (p.1). It is not about what law knows. Rather, it is [*278] about how law converts data into decisions. This focus puts it squarely into a long-existing field of scholarly controversy. As information-collector and -processor, law has been extensively criticized; its deficiencies have been catalogued, examined, and held up to blame.
At least since Jerome Frank’s icon-shattering COURTS ON TRIAL (1949), critics have concluded that law knows almost nothing except what litigants choose, for their own reasons, to bring to the attention of passive judges. Even then, information may be screened out by restrictive rules of evidence, thrown out of context or discredited by cross-examination, neglected by unspecialized judges who have been led astray by their own biases or who have their eyes fixed on re-election politics, or just plain ignored by lazy or incompetent jurors. Indeed, much of what law does runs counter to what passes for wisdom in other areas of life. Law proceeds by screening out information, rather than by trying to collect as much as possible. It allows specialized information to be evaluated and weighted by people chosen for the task precisely because they are not specialists and know nothing about it. Finally, it requires those evaluators to confine themselves to answering questions propounded before any information is examined, rather than allowing insight to be obtained from the data directly.
Legal procedures seem to be so inconsistent with the rational decision making model that economists hold out as an ideal, and that the best-run enterprises strive to emulate, that Frank concludes that court-determined facts are no better than guesses. The outcomes of lawsuits are random and unpredictable. So irrational is the process that Frank suggests that it must be guided by unexplored Freudian motives, and aimed at some subconscious goal other than accurate fact finding. Though few scholars will go so far as Frank, many have urged reform of rules of evidence, jury procedures, and jury instructions. Recent controversies over the inappropriate influence of junk science, the unacceptably high percentages of false capital convictions in Illinois and elsewhere, and the improper ascendancy of the originalist fallacy all testify, in various ways, to the all too real difficulty law has in obtaining and using information.
Sarat and his associates argue, however, that law has various ways of knowing. All have developed “in response to developments both internal and external to law itself” (p.1). Though some methods suffer from the defects identified by Frank and others, other methods are perhaps too linked to common attitudes and behaviors, and may suffer from the influence of prevailing prejudices. Presumably, the strengths and weaknesses of each must be studied separately.
The five substantive contributions use varying methods. Barbara J. Shapiro mines the documentary record of the period 1500-1850 to examine how the concepts of “fact” and “proof” developed in the law, concluding that law developed a kind of objectivity – a separation of the notion of fact from the ideal of truth – that later influenced [*279] historians, theologians, philosophers and natural scientists. Classical and medieval models had been quite different.
Donald Braman and Dan M. Kahan redefine the philosophy of legal realism, arguing that what behavioral studies support is a kind of cultural relativism in knowing. Reviewing the empirical literature on the ways in which judges and juries determine facts and decide cases, they find that even when those actors try to behave strategically their knowledge is largely affected by what they bring to the table. Their knowing is culturally mediated, a state of affairs the authors call cultural cognition.
Robert P. Burns reviews the prevailing theory of how jurors know – which he calls the received view, and which is heavily influenced by narrative and literary theory – and argues that in reality the jurors’ knowing is a lot more constrained by rules, and by the legal situation itself, than the received view allows for. He has previously argued (1991) that the legal situation has its own rules and requirements. As a result, its decision-making task is unique. Narrative, and its shaping influence, is different in trials than elsewhere. He continues his argument here, stressing the extent to which law’s choice of method is heavily influenced by its need for practicality.
The need for practicality is a running theme also in David L. Faigman’s contribution, on fact-finding in constitutional cases. In the received view, based on the work of Kenneth Culp Davis, adjudicative facts relate to who-did-what. These are determined by the trier of fact in each case. But other kinds of facts figure prominently in constitutional adjudication. Faigman attempts a taxonomy and classification. Facts relating to the task of establishing facts, or to the process of deciding cases, can be established by legislatures, or by tradition. In the constitutional arena, represented by the cases Faigman discusses, they seem heavily influenced by political or cultural requisites. Law knows, for example, that racial segregation is harmful.
Finally, Valverde discusses various methods that have been used for the study of how law knows, and argues that the relatively new approach of actor-network theory (ANT) has made useful contributions and holds out the promise of making more. Drawing on her own empirical work on drinking and driving cases, she argues that imputed knowledge plays a significant role in factual determinations.
The contributions are at different levels of abstraction, deal with different areas of the substantive law, and reach varying conclusions. Some are more concerned with difficulties or dangers in studying how law knows rather than in the ways of knowing themselves. And all focus on one way of knowing, the adversary method as it plays out through testimony during litigation in courts. Taken as a group, the five studies do not provide much support for a general thesis that law has many different ways of knowing, each with its own strengths and weaknesses. [*280]
But one valuable and perhaps unanticipated theme emerges: law’s decisions are heavily influenced by whatever knowledge the triers of fact bring with them when they enter their courtrooms. This can include a sense of the importance of the task, or an awareness of practical or political needs, or simply an acceptance of popular prejudices. It can be called imputed knowledge, mediating cultural cognition, preexisting rules, or simply a collection of biases. Sarat argues that law knows in many ways, “some strange, others familiar, some highly ritualized and formal, others informal and grounded in social practice” (p.19). That’s one way of putting it. However, one could also say that law does not know so much as it assumes and deduces. It fits testamentary material into the framework that is already there. That is the “ground[ing] in social practice.”
If that is an established reality, it is also an obvious danger. Unless the cultural conditioning is made explicit, and unless the narrative requisites are constantly re-examined, law may “know” that African Americans are genetically inferior, that women are genetically unsuited to such vulgar tasks as the practice of law, or that persons called to the Protestant ministry are incapable of telling lies and perjuring themselves. The procedural law, based on long experience, is meant to bring under control future versions of such conclusions. Law-as-rules represents an effort of law’s better nature, an attempt to keep the biases inherent in law-as-entity’s efforts at knowing from having an entirely free hand.
If this is so, then perhaps the problems that Jerome Frank identified so many years ago can be clarified. The restrictive rules of evidence and the other barriers to law’s knowing may be necessary. The task of knowing may be so subject to infection by prejudice that it must be limited at every stage. The trier of fact must be kept on the narrowest and best-defined path. Perhaps it is not a good thing that law has many varied ways of knowing, some grounded in social practice—unless other ways of knowing are explicitly not grounded in social practice.
Some of Sarat’s edited collections emerge from his classroom work and all, including this latest one, have obvious classroom applications. But there is also a scholarly value in this work taken as a whole. Over time, the contributions have identified, showed the pervasiveness of, and partly fleshed out, something in law that is dynamic, adaptive and creative. While so much sociolegal work treats law as essentially passive – as something that people invoke and use for their own purposes – Sarat reminds us that law has goals of its own, and can adapt to move toward them. This volume may be somewhat wider of its intended mark than its predecessors, but it points in the same direction. If the volume implies a need for attention to the procedural law, as I think it does, it also reminds us that those procedures were developed by courts over time. In the past, law has grown and changed when it was “challenged, frayed, and constituted out of conditions that lie at the farthest reaches of its empirical and normative [*281] force” (Sarat, Douglas and Umphrey, 2005:17), and it may do so again.
Burns, Robert P. 1991. A THEORY OF THE TRIAL. Princeton: Princeton University Press.
Frank, Jerome. 1949. COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE. Princeton: Princeton University Press.
Sarat, Austin (ed). 2001. LAW, VIOLENCE AND THE POSSIBILITY OF JUSTICE.
Princeton: Princeton University Press.
Sarat, Austin (ed). 1999. THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS AND CULTURE. New York: New York University Press.
Sarat, Austin, Lawrence Douglas and Martha Merrill Umphrey (eds). 2003. THE PLACE OF LAW. Stanford: Stanford University Press.
Sarat, Austin, and Thomas R. Kearns. 1991a. “A Journey Through Forgetting: Toward a Jurisprudence of Violence,” in Sarat and Kearns (eds). THE FATE OF LAW. Ann Arbor: University of Michigan Press, 209-275.
Sarat, Austin, and Thomas R. Kearns (eds). 1991b. THE FATE OF LAW. Ann Arbor: University of Michigan Press.
© Copyright 2007 by the author, Paul Lermack.