Commentators: Professor Richard Ekins, Mikolaj Barczentewicz

Full paper: 


  In law, as elsewhere, what we say is not always what we do. Everyday practices in a legal system often diverge from the official stories the system tells to describe and explain those practices. In the United States, for example, the originalist tenor of official legal rhetoric stands in stark contrast to the myriad nonoriginalist decisions of actual courts, officers, and legislatures.

    This contrast creates a puzzle for those who see law as a function of social practice. It gives them two contradictory practices to choose from: the practice of legal actors conventionally doing a particular thing, and the practice of legal actors conventionally saying something else. If we just want to know what the law is, which do we pick?

    The hard-headed realist response would be that rhetoric is all very nice, but law is what actually happens on the ground. A second response would be that both practices matter, and that law is a product of reflective equilibrium between the two. This talk tentatively defends a third possibility. It extends the suggestion of an earlier paper of mine, "The 'Constitution in Exile' as a Problem for Legal Theory," that these official stories are what matter -- at least to someone desirous of complying with the law. This can remain true even if many of the official stories are predictably ignored in practice; even if all or most officials are telling those stories in bad faith; and even if the officials are doing so in coordinated, rule-governed fashion (in what William Baude has called the "Illuminati Problem"). The same impulses that lead positivists to look beyond mere predictions of official behavior, or to consider the internal perspectives of legal actors, might also lead to a view that the law is what the relevant participants in the legal system publicly accept and defend as law. In other words, the law is what we say it is, and not what we do.


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