"On the Majesty of the Law," Wiley Vaughn Lecture, Harvard Law School, 4 April 2012.
In the choice of my topic I have stumbled upon the title of Justice Sandra Day O’Connor’s memoirs. I had meant to call upon what is awesome and venerable in the law, as I think the good Justice did as well. Majesty is not in our style of democratic informality, where everything is open to change in the hope of reform. But we are still attached to the formality of procedure and the solemnity of judicial garb designed to maintain respect for the law. We do not need regal magnificence in our judges, but we do require republican assurances that public justice is serious business. Above all, any appearance that the law can be got around by private approach or by interested calculation —and this is directed to professors—is to be avoided. What happens behind the scenes must stay behind the scenes.
Against this intimation of majesty practiced in our time is the movement of thought known as “legal realism.” I will argue in my brief that majesty is good and that legal realism is inadequate. Legal realism is not all wrong, but the view that it is enough is all wrong.
Legal realism has several modes, but they agree in declaring that something other than, and more powerful than, law is the cause of law. The “realism” consists in seeing through the appearances and establishing the fact of this more powerful force. Once established, that fact must be published, taught, and spread. Legal realism is expected to bring good to society by its inventors, who quickly become, if they were not from the first, its advocates. Our law will be better if through clear thinking we dispense with its irrational majesty. This realism is really idealism. In the old days, when philosophy was young, the pre-Socratic philosophers thought that laws are made for the convenience of rulers and nothing good was to be expected from politics. They thought that was realism. In America, advocates of legal realism have arisen from the Progressive tradition, joined now by libertarian conservatives, who claim public good will result from their public unmasking of law. Despite the fact that no one aims at the public good, it does exist; Socrates was right about that.