A Reply to Professor Joseph Reisert’s Review of MATERIAL LAW: A JURISPRUDENCE OF WHAT’S REAL

by John Brigham. Philadelphia: Temple University Press, 2009. 240pp. Cloth. $54.50. ISBN: 9781592139644. Electronic Book. $54.50. ISBN: 9781592139668.


Author’s reply: John Brigham, Department of Political Science, University of Massachusetts. Email: brigham [at] polsci.umass.edu.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

There is a lot to appreciate in Joseph Reisert’s review of my book MATERIAL LAW (March 2010). He read the book. His summaries are succinct. He notes the project of distinguishing between instrumental and constitutive in law. He comments on its challenges and records his skepticism.

He says: “Although the contrast Brigham seeks to develop, between instrumental and constitutive conceptions of law, is tantalizingly suggestive, it was also frustratingly elusive.”

I would like to address the perceived elusiveness of this distinction. To me the most telling point in the review is when Reisert says: “. . . it is not clear that the contrast between constitutive and instrumental conceptions of law is likely to yield any radically new insights into the nature of law, because each perspective entails the other.”

I think that the perspectives can be distinguished, and, I believe, the distinction between instrumental and constitutive in law can be put to good use. I am aiming for insights and, I think entailment is a hobgoblin.

The idea of constitutive law comes from the Constitution. The Constitution in the United States lays out the rules of the game, the way things are. Often we focus on controversy because that is where we can see the politics. But most of the Constitution is about basic things that we take for granted. Obama is President, there are states, there is a Senate and a House of Representatives.

The study of law that constitutes, in this sense, is about the way things are. In MATERIAL LAW I follow the constitutive force of law beyond identities, which I discussed in THE CONSTITUTION OF INTERESTS, to the law that makes something what it is. Because I focus on law constituting things I called the book MATERIAL LAW. It is in this sense that constitutive law tells us what is real. It suggests a focus on institutions rather than outcomes.

Law as idea, aspiration, theory or rule I call an instrumental conception. An instrumental view of law looks at a speed limit in terms of the stipulated legal speed. Instrumental law may or may not have the effect of making anything “what it is.” A constitutive view of law looks at law as a function of [*142] practice, that is, how fast drivers are going.

White suburbs, fetuses, trademarks can all be constituted by law. I say, for instance that the fetus became an actor in American politics after ROE v. WADE. Even though earlier laws on abortion protected the fetus, it was ROE that mobilized the “unborn” and its advocates. Instrumental views of law often miss this dynamic. ROE of course allowed termination of a pregnancy. Those who opposed the decision pointed out that this was not good for the fetus. At the same time, I argue in the book, we had a new social force. In the aftermath of ROE I contend that seeing law as allowing abortions is not enough. We also need to see the politics of ROE changing what it means to be pregnant by giving new social status to the fetus.

Another example is the American suburb – particularly the nearly all white ones that ring American cities. Constitutional law does not see the white suburbs that exist today as a violation of equal protection. We call that pattern of segregation de facto as if law was not involved. An instrumental view holds that this segregation is not unconstitutional. After all, the signs directing Blacks and Whites be separated have been taken down. The law is cleared of the intention to segregate. I argue that suburbs are legal entities. They are constituted by laws. These laws are different from the ones that segregated drinking fountains in the American South. But there is law behind the current segregation in the United States.

Constitutive law suggests that we should not simply look at the purposes laws are meant to serve but also the ways the world is different because there is a law. Harry Blackmun may not have meant for ROE to make so much of the fetus. But ROE did more than Blackmun planned. It is not necessary to see white suburbs as planned to avoid integration in order to appreciate law’s role in constituting racial segregation today. One simply has to stop thinking of law in instrumental terms.

Some scholars find that it helps, in understanding this constitutive project, to see law as an independent variable. Another approach sees law as operating beyond the ends sought by those who wanted it to pass. My colleague Ira Strauber notes that the effort to get beyond the instrumental view of law as idea or norm to law in social and material life is inherently less clear and harder to understand because it is unconventional. I appreciate his insights, and I have tried to make the effort seem worthwhile.

Brigham, John. 1996. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York: New York University Press.

© Copyright 2010 by the author, John Brigham.