Law and Policy
by Mauro Zamboni
I. Introduction
Lawyers, in both their theoretical and practical roles, have always used the concept of policy in their reasoning and in their analysis of legal phenomena. The expression “policy” already appears in Blackstone’s Commentaries and early American legal literature and it is widely used also by the US Supreme Court, beginning already in the nineteenth century and continuing up to the present.1 Contemporary legal theory also uses frequently the term policy, in particular in order to identify the standards that can be and often are invoked by courts or legislative bodies in the same way as moral standards for the purpose of inserting into the legal order non-legal values either through the creation of new legal categories or through the modification of old ones.2 In particular, there are two main features that characterize policy as generally intended by legal scholars: its political location and its being shaped as standard.
II. Policy as political phenomenon
Contemporary legal theory tends to identify the position of policy as being outside or (for the most benevolent of scholars) at the periphery of the legal system. Policy is usually placed in the political arena, that is in the arena in which the values and goals that are to be pursued and introduced into a community by the legal order are selected.3 This tendency of considering policy as something not belonging to the legal world can already be traced in the writings of Oliver Wendell Holmes. He distinguishes between two levels of a legal phenomenon: the logical surface of statutes (or judicial decisions) and the deeper “competing legislative grounds” (or “questions of legislative policy”). Such grounds or policies are the ideological underpinnings of the law (at least as traditionally conceived by lawyers). They are purely political decisions or value-choices upon which the logical surface of the legal rules and categories is built.4 Many contemporary legal scholars, even those who usually are more open to a law and policy discussions, tend to follow Holmes’ path of externalizing and rendering the nature of policy as towards the legal material and the legal phenomenon in general political, although from different approaches. For example, Llewellyn defines the policy of a statute as “the ideas consciously before draftsmen, the committee, the legislature: a known evil to be cured, a known goal to be attained, a deliberate choice of one line of approach rather than the other. ”5 Even if following a different theoretical path, Dworkin in the end arrives at the same idea of the political nature of the policy moment. According to him, policies are among those kinds of criteria that are used by the judiciary, in particular in hard cases, as means alternative to traditional legal categories and concepts. Policy still maintains its non-legal nature, although entering and, to some extent, becoming a constitutive part of the legal phenomenon. In particular, Dworkin defines the policy of a statute as its ultimate goals, that is the goals lying outside the legal world, the world in which the statute has an impact.6 The consideration of policy as a political element in the legal world is evident even for legal scholars such as Kelsen, to whom policy is so integral a part of the political moment of the law-making process that he uses politics and policy synonymously.7 Legal thinkers, by stressing this feature of policy as an entirely political phenomenon, tend to then focus almost exclusively on the relationships that arise between law and policy, the latter perceived as a sub-product of the political system. They concentrate on these relationships as different systems interacting with each other. This perception of law and policy as belonging to two different worlds is also shared by those scholars, such as Duncan Kennedy, that stress more than the others the tight and frequent interactions between law and policy. This emphasis on a “tight and frequent interaction” necessarily presupposes a designation of law and policy as belonging to two different (although intermingling) systems and discourses.8 Likewise, the majority of the criticisms directed at Dworkin’s concept of policy takes the different natures of policy and law for granted. Such criticisms articulate a discussion not of whether law and policy are two different systems, but whether these two systems (should) interact.9 This basic common position, of considering the policy moment as political by nature, however does not prevent contemporary legal theories from differing as to the issue of the relevance such non-legal standards known as policies should have in judicial and legislative law-making activities. The answers stretch from encouraging a further opening of the legal arena to the entrance of policy, such as with the American legal realists or CLS, to an attitude of closing the legal order off from foreign political entities as represented by policies, such as with Dworkin and Antonin Scalia.10
III. Policy as standards
From this collocation by legal actors of the policy moment inside the political world, the second feature of the policy moment according to lawyers is also derived: its being constituted only of standards. This second feature of the concept of policy as understood by legal actors (policy as standards) cannot be easily distinguished from the first (policy as political phenomenon). The difficulty of separating the political nature of policy from its being shaped in the form of standards is primarily caused by the perception legal actors have of the policy moment. Many legal actors tend to characterize policy standards as separate from other types of standards, which can become relevant in the law-making and law-applying processes (e.g. the moral standards), by the very fact that policy standards have their origin mainly in the political world.11 The connection of “policy as standards” to their political nature (i.e. their being created in the environment surrounding the legal world) is even more evident in Dworkin and his controversial distinction between policies and principles. As pointed out by Bell, Dworkin characterizes policy as the category of non-ethical standards. Dworkin’s non-ethical standards are those that are designated by the political arena. They are set out in order to justify a decision by showing that it fulfills certain goals of a political, economic, or social nature (i.e. a non-legal nature). These goals, for example, can be greater wealth for the community or a better environment. In contrast, Dworkin’s principles are ethical standards. They have the moral nature of being used in order to justify a result by making reference to a certain “valuable in itself” value. An example of such a principle is fairness.12 It should be noted that this “de-moralization” and politicization of the idea of policy is further stressed in Dworkin’s legal theory by one other element. Dworkin adopts the presence of goals as a qualifying element in order to speak of policy. This allows him to distinguish policy from morals and incorporate it into a stricto sensu politics, as for Dworkin the goal is “a nonindividuated political aim.”13 Most contemporary legal theories also seem to have embraced such an idea of policy as standards.14 Similarly to Dworkin, American legal realists tend to identify policy with the area of (political) standards as opposed to the traditional formal-legal rules. For example, Llewellyn characterizes the Grand Style of the Common Law tradition in terms of a legal thinking focused on the use, both in law-making and in law-interpretation, of policy standards. It is this very use that distinguishes this Style from the Formal Style, in which a dominant role is played instead by the legal rules and the traditional legal logical principles.15 Even Posner, who is extremely skeptical as to the distinction between policies and principles as drawn by Dworkin, does not question the identification of the term policies with the meaning of standards constructed for the purpose of gaining certain collective goals. For him, the processes directed at producing such standards also remain in a field outside the law, a field to be investigated either by policy or ethical analyses.16
IV. The lawyer's policy as political standards
When one comes to the relevancy of policy with respect to law, the positions among legal scholars differ considerably. For example, for legal positivists, policy tends to have an indirect effect on the legal phenomenon. The standards of policy affect the legal arena through a narrow and single channel represented by the Basic Norm or Rule of Recognition as in the legal world. Political standards then have to be either constitutionalized in a first constitution or somehow recognized by the legal community in order to affect the legal decisions of judges.17 In contrast, the effect of policy for CLS is of a more direct character, as policy, once formed in the political surroundings, then moves directly into the legal phenomenon. In this case, the judge directly takes into consideration the standards in his or her reasoning, plucking it directly from the political surroundings.18 Despite these differences, most legal scholars lean towards a similar idea of policy: Policy is constituted entirely by exogenous (political) standards, that is they originate and are formed in the environment surrounding the one in which legal actors work. Policy for legal actors only becomes relevant for their work when it arrives inside the legal world, and then only in terms of results of a certain process occurring in the political surrounding environment, results that can influence the legal working. Lawyers and legal scholars therefore identify policy with the standards chosen by the environment surrounding the legal world. That part of policy dealing with the mechanisms behind the production of such results, the idea of policy as the processes of evaluation and selection of the goals to be pursued through the legal order, remains outside (or at the borders of) the horizon of legal actors, belonging to another landscape (the political one).19 This restricted attitude seems even more peculiar when confronted with the highly articulated and sophisticated production concerning this same issue by political scientists.20 A possible explanation for this self-limiting approach to the policy moment within legal theory can be found in an underlying feature shared by the vast majority of different legal ideologies, cultures and theories produced and embraced in the twentieth century. As pointed out by Boaventura de Sousa Santos: In the twentieth century, and particularly after the Second World War, the law underwent a… metamorphosis. It gave up resistance in docile submission to the whole range of values and beliefs –sometimes complementary, sometimes contradictory –that the different social and political forces imposed upon it. In sum, law became a camel, and the welfare state is the most salient feature of this process of ‘camelisation’ of the law.21 As a result, for instance as for Kelsen, or as a reaction, as for CLS, to such a phenomenon, contemporary legal scholars and practitioners have always been so much more concerned with the question of whether and where to draw a line between law and politics and their respective investigations that, in the end, they tend to not pay sufficient attention to how the disciplines inside the political world have evolved spectacularly in the last century.22
List of key publications
BELL JOHN. 1985. POLICY ARGUMENTS IN JUDICIAL DECISIONS. Oxford: Clarendon Press. DWORKIN RONALD. 1985. A MATTER OF PRINCIPLE. Cambridge, MA: Harvard University Press.
GREENAWALT KENT. 1977. Policy, Rights and Judicial Decision. GEORGIA LAW REVIEW 11: 991-1053.HILL J. MICHAEL J. 1997. THE POLICY PROCESS IN THE MODERN STATE. 3rd ed. Englewood Cliffs, NJ: Prentice Hall.
HOLMES W. OLIVER JR. 1897. The Path of the Law. HARVARD LAW REVIEW 10: 457-478.
KENNEDY DUNCAN. 1998. A CRITIQUE OF ADJUDICATION (FIN DE SIECLE). Cambridge, MA: Harvard University Press.
MACCORMICK D. NEIL. 1997. LEGAL REASONING AND LEGAL THEORY 262. Oxford: Clarendon Press, 1997.
Footnotes
1 See Dredd Scott v. Sanford, 60 U.S. 414 (1856); Eldred v. Ashcroft, 123 S. Ct. 780, 783-785, 814 (2003); and WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND. VOL. II: OF THE RIGHTS OF THINGS 191 (The University of Chicago Press 1979) [facsimile of the first edition -1766].
2 See, e.g., MELVIN AARON EISENBERG, THE NATURE OF THE COMMON LAW 26-37 (Harvard University Press, 1991). See also BELL, POLICY ARGUMENTS IN JUDICIAL DECISIONS 35-36 (Clarendon Press, 1985).
3 See BELL, POLICY ARGUMENTS IN JUDICIAL DECISIONS, supra at 68-77, 121-125.
4 See Oliver W., Jr. Holmes, The Path of the Law, 10(8) HARVARD LAW REVIEW 465-467 (1897).
5 Karl N. Llewellyn, Remarks On The Theory Of Appellate Decisions And The Rules or Canons About How Statutes Are To Be Construed, 3 VANDERBILT LAW REVIEW 400 (1950).
6 See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 22, 226 (Harvard University Press, 1978); and DWORKIN, A MATTER OF PRINCIPLE 73-78 (Harvard University Press, 1985).
7 See HANS KELSEN, THE PURE THEORY OF LAW 1, 259 (University of California Press, 1970). See also Joseph Raz, Legal Principles and the Limits of Law, 81 YALE LAW JOURNAL 841 (1972).
8 See, e.g., DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIECLE) 83, 101 (Harvard University Press, 1998). But see id. at 135-136.
9 See, e.g., Kent Greenawalt, Policy, Rights and Judicial Decision, 11 GEORGIA LAW REVIEW 1033-1035 (1977). See also NEIL D. MACCORMICK, LEGAL REASONING AND LEGAL THEORY 262 (Clarendon Press, 1997).
10 See JAMES MCCAULEY LANDIS, THE ADMINISTRATIVE PROCESS 111-117 (Yale University Press, 1938); KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE), supra at 99, 112; Dworkin, Hard Cases, 88(6) HARVARD LAW REVIEW 1061-1062 (1975); and Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989(3) DUKE LAW JOURNAL 515-517, 521 (1989).
11 See, e.g., EISENBERG, THE NATURE OF COMMON LAW, supra at 14-37.
12 See BELL, POLICY ARGUMENTS IN JUDICIAL DECISIONS, supra at 23. See also DWORKIN, TAKING RIGHTS SERIOUSLY, supra at 22, 90-91); and MACCORMICK, LEGAL REASONING AND LEGAL THEORY, supra at 263-264.
13 Dworkin, Hard Cases, supra at 1068. For a critical scrutiny of Dworkin’s, see, e.g., Greenawalt, Policy, Rights, and Judicial Decision, supra at 996-1003, 1035-1042.
14But see the exception represented by MACCORMICK, LEGAL REASONING AND LEGAL THEORY, supra at 263.
15 See LLEWELLYN, THE COMMON LAW TRADITION. DECIDING APPEALS 9-60, 62-120 (Little, Brown, and Company, 1960).
16 See RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 105, 239 (Harvard University Press, 1990).
17 See, e.g., Herbert L. A. Hart, Positivism and the Separation of Law and Morals, 71(4) HARVARD LAW REVIEW 614-615 (1958); and KELSEN, THE PURE THEORY OF LAW, supra at 259.
18 See KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIECLE), supra at 108-111.
19 See KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIECLE), supra at 99. But see ADAM PODGÓRECKI, LAW AND SOCIETY 242 (Routledge & Kegan Paul, 1974).
20 See MICHAEL J. HILL, THE POLICY PROCESS IN THE MODERN STATE 7 (Prentice Hall, 3rd ed., 1997); and Harold D. Lasswell, The Emerging Conception of the Policy Sciences, 1 POLICY SCIENCES 6 (1970).
21(de) Sousa Santos, Law: A Map of Misreading. Toward a Postmodern Conception of Law, 14 JOURNAL OF LAW AND SOCIETY 279-280 (1987).
22 See David Nelken, Beyond the Study of “Law and Society”? Henry’s ‘Private Justice’ and O’Hagan ‘The End of Law’? 1986 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 327, 337-338 (1986) (book review).