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DO JUDGES DEPLOY POLICY?
Mitchel de S.-O.-l'E. Lasser
Ernest Hemingway propagated his own mystique.
--Duncan Kennedy1
In A Critique of Adjudication: Fin de Sicle ("Critique"),
Duncan Kennedy presents a fascinating theory about the
distinctiveness of American legal (and especially judicial)
discourse. Kennedy advances this theory not only by analyzing the
history of American legal discourse, but also by performing a
comparative analysis of contemporary American and Continental
European (civil law) legal discourses. As a result of these
analyses, Kennedy locates American/Civilian difference in the
American "mutation," that is, the birth of a "viral" form of
internal academic critique that led to a distinctively American
discursive practice: "policy" argument.
This Article examines and critiques Kennedy's particular
claim to American distinctiveness by analyzing his comparative
description of American and Civilian legal discourse. This Article
suggests that by deploying the term "policy" in the comparative
context, Kennedy constructs sophisticated but stylized portraits of
distinctively American judicial discourse and of its Continental
European "other." This Article argues that Kennedy's negative
portrayal of Civilian legality is motivated by his particular
jurisprudential projects. This portrayal functions as an object
lesson for his American audience, a lesson that effectively
promotes: (1) the "viral strand" in American judicial discourse; (2)
a similarly viral irrationalism in theory and in politics; and (3) a
resulting politicization of the legal.
Part I briefly summarizes Kennedy's description of American
and Continental European judicial discourses,2
paying particular
 Professor of Law, University of Utah College of Law. Special thanks to Bojan
Bugaric, Daniela Caruso, Karen Engle, John Flynn, Michael McConnell, and the
participants in the "Comparative Law Nights" series at the Harvard Law School.
1 DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SICLE 347 (1997)
[hereinafter CRITIQUE].
2 For the sake of simplicity, the term "judicial discourse" is used generally to describe
legal argumentation (1) by judges, (2) before judges, or (3) about judges. This Article will,
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attention to how Kennedy distinguishes one from the other. This
Part explains Kennedy's "mutation" theory, according to which
American judicial discourse, in response to a "viral strain" of turn-
of-the-century academic critique, has become a combination of
deductive and policy arguments. Part I then relates Kennedy's
claim of Continental difference, according to which Civilian
judicial discourse--despite certain apparent similarities with its
American counterpart--is nonetheless characterized by a
commitment to deduction and by an absence of policy discourse.
In short, Part I stresses how "policy" discourse emerges, in
Kennedy's analysis, as the locus of American/Civilian difference.
Part II disputes Kennedy's difference analysis by questioning
his definition and deployment of the term "policy" in the
comparative context. In Kennedy's analysis, the term "policy" is
deployed, and can be understood, in two different manners. On
some occasions, it is deployed as a broadly descriptive or heuristic
device, as per Kennedy's definition of policy argument as any
nondeductive argument.3
On other occasions, the term "policy" is
used as a restrictive category, as per Kennedy's claim that
American judicial discourse is "very different" from its
Continental counterpart because, "however true it may be that a
functionally equivalent, though unrationalized practice [of policy
discourse] is pervasive [on the Continent] . . . policy is a standard
category in everyday American lawyer-talk" and the judicial
deployment of such policy reasoning is "universally recognized
and accepted" in the United States.4
Part II challenges Kennedy's difference or mutation analysis
by offering counterdescriptions of American and Continental
European judicial discourses. If "policy" is actually deployed as a
broad, descriptive term that encompasses any nondeductive
argument--i.e., if the word "policy" need not be used in an
argument for that argument to be considered one of "policy"--
then American/Civilian difference collapses, as it is absolutely
undeniable that Civilian judicial systems constantly deploy
nondeductive arguments. In order to make this point, this Part
briefly presents several of the judicial discourses that emerge in
the French private law courts, the European Court of Justice
("ECJ"), and the German Constitutional Court. If, on the other
hand, "policy" is deployed as a restrictive and explicit category--
however, also stress the importance of disentangling these three meanings and their
respective contexts.
3 See CRITIQUE, supra note 1, at 109 ("I use [the term `policy'] in its broad sense,
which includes all nondeductive factors.").
4 Id. (emphases added).
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i.e., if the word "policy" must be used in an argument in order for
that argument to be considered one of "policy"--then
American/Civilian difference collapses once again, as it is
becoming increasingly obvious that it is no longer acceptable to
deploy "policy" arguments, identified explicitly as such, in the
American judicial context. In order to make this point, this Part
therefore analyzes how the term "policy" has been deployed in the
United States Supreme Court's decisions in the 1998 and 1999
terms.
Finally, Part III examines the stakes of Kennedy's
comparative analysis. Given the plausibility of a comparative
analysis that would stress either the similarities or the differences
between American and Civilian judicial discourses, and given the
many different ways in which one could plausibly seek to articulate
those similarities or differences, this Part analyzes the advantages
and disadvantages of constructing and deploying the
deduction/policy dichotomy in the comparative context. Finally,
this Part questions how and why this taxonomy might advance
Kennedy's particular projects, while it might preempt others. Part
IV presents conclusions.
I. KENNEDY'S COMPARATIVE DESCRIPTION
A. American Judicial Discourse
Kennedy's description of American judicial discourse
establishes, and hinges on, the fundamental dichotomy between
(1) a deductive form of judicial application of legal norms, and (2)
everything else. Kennedy names this everything else "policy."5
According to Kennedy's analysis, mainstream American judicial
discourse consists of a hodgepodge of deductive reasoning and
policy argumentation: "In American judicial opinions and in
doctrinal writing, the most common [argumentative] mode is
neither deduction nor policy but an intermediate mode, deductive
argument supplemented or `guided' by policy argument."6
Kennedy offers a fascinating, and ultimately extremely
convincing, narrative of how American judicial discourse has
arrived at this conglomerate form. According to this narrative, the
foundational moment occurred at the beginning of the twentieth
century, when a particular set of politically liberal American
academic authors, fed up by consistently politically conservative
judicial decisions, "began to argue that the problem was that there
5 CRITIQUE, supra note 1, at 109.
6 Id. at 104.
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were no correct legal answers to . . . [the] questions [raised in those
cases]. This was the moment of the American mutation, the `birth
of the virus.'"7
According to Kennedy's narrative, the history of twentieth-
century American jurisprudence springs from this "viral" moment
of crisis in interpretive faith. His book represents, in large
measure, the tracing of American jurisprudence's attempts to
wrestle with, digest, and/or defend itself against the implications of
this viral loss of faith.
Critique therefore analyzes the "genealogy" of the "virus,"
that is, the imprint left, or effects caused, by the progression of its
"internal critique" of American legal reasoning over the course of
the twentieth century.8
As Kennedy describes it, this viral strain of
American critique, by explicitly and effectively disparaging the
power of deductive reasoning, eventually imperiled such canonical
distinctions as those between adjudication and legislation, and
between law-application and lawmaking. In the end, the critique
simply claimed that "there was no way to resolve particular gaps,
conflicts, and ambiguities in the existing regime without resorting
to `policy' . . . ."9
In this way, the viral American critique came to
posit a third term, "policy," that was to mediate between the terms
of the now unstable canonical distinctions. The viral strain's
critique of the law-application/lawmaking and adjudication/
legislation dichotomies therefore resulted in the distinctively
American foregrounding of "policy"-oriented interpretation.
Functioning as the mediating American term/concept/
category, "policy" has had to bear the inherent tensions of those
dichotomies. On the one hand, policy offers the prospect of
mediating the law-application/law-making, adjudication/
legislation, and even the law/politics distinctions. In other words,
policy emerges as the third term that might salvage the rule of law
from the viral critique. In the face of the impossibility of purely
deductive application of legal norms, "policy" might offer a way to
avoid jumping to the viral conclusion that judges must necessarily
be engaged in the ideological and political enactment of judicial
legislation.10
On the other hand, far from depoliticizing American
judicial practice, policy discourse is understood to be deeply
suspect. That is, policy is understood to represent a Trojan horse
that permits the tacit introduction of ideology into judicial decision
7 Id. at 81.
8 Id. at 82-92.
9 Id. at 83.
10 See id. at 109-10.
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making.11
Policy discourse in the judicial realm therefore becomes
the locus of high ideological stakes within the American legal
system.
American judicial discourse therefore emerges, in Kennedy's
analysis, as "a hybrid in which policy argument is included as a
supplement to deductive reasoning in both liberal and
conservative appellate opinions."12
Constantly exposed to viral
internal critique, American judicial discourse has acknowledged
the limits of deduction by constructing and deploying "policy"
arguments, arguments that are themselves open to further viral
critique.13
B. European Judicial Discourse
Kennedy sharply distinguishes American judicial discourse
from that of Continental European legal systems, describing the
latter largely in opposition to their American counterpart.
According to his description, European judicial discourse emerges
as deeply committed to deduction and to the passive application of
legislative rules.14
Continental Europe is the land of extreme
positivism and formalism,15
in which serious, "viral" internal
critique of deductive judicial reasoning has never been
developed.16
Of course, Kennedy fully recognizes that Civilians believe that
deductive application of legal rules can fail.17
But he asserts that
the European solution is for judges merely to resolve interpretive
problems by constructing legal solutions thought to be "coherent"
within the overall, codified legislative scheme.18
Even "radical
Continental thinkers" fear the transgressive potential of moving
beyond coherence in order to promote "social evolution" or
"progress."19
Civilians, in short, do not even feel the need to resort
to "policy" debate in the first place.20
It is at this point that one can begin to grasp how Kennedy
distinguishes between American and European judicial discourse.
Although he defines "policy" as all that is "nondeductive,"21
and
11 See id. at 111.
12 Id. at 94.
13 See id. at 109-13.
14 See id. at 36-37, 102.
15 See id. at 278.
16 See id. at 95.
17 See id. at 36-37.
18 See id.
19 Id. at 37.
20 See id. at 83.
21 See supra note 3.
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despite his apparent acknowledgment that Europeans routinely
deploy nondeductive arguments,22
Kennedy refuses to grant that
Europeans truly engage in policy discourse. In the key passage of
his comparative analysis, Kennedy states:
It is crucially important that to this day policy is a standard
category in everyday American lawyer-talk. It is not just that
all lawyers and judges at least sometimes do policy argument in
the course of conventional legal practice. That they do it is a
universally recognized and accepted fact. In this respect, the
United States seems to be very different from . . . the Continent,
however true it may be that a functionally equivalent, though
unrationalized practice is pervasive there.23
In this passage, Kennedy offers his fundamental analytic twist: it is
the very existence, universal recognition, and acceptance of the
"standard category" known as "policy" that makes the difference
between American and European judicial discourse. Civilians do
not possess or deploy the concept or term "policy." In fact, as
Kennedy correctly notes, it is unclear how the word "policy"
should be translated into French in the first place.24
According to Kennedy's explanation, policy exists as a
discursive response to the "viral strain" in American legal culture.
This viral strain, however, is distinctively (and perhaps
exclusively?) American. It is, after all, the "birth of the virus" that
created "the American mutation."25
Kennedy therefore tentatively
states: "The next move seems never to have taken place in Europe,
though . . . [my] impression may be wrong . . . . This move was to
assert that there was no way to resolve particular gaps, conflicts
and ambiguities in the existing [legal] regime without resorting to
`policy' . . . ."26
Having never had a "native movement of [viral] internal
critique,"27
that is, having never been properly exposed to the
virus, not only do Civilian judges not truly engage in policy
discourse, but Civilian academics have also maintained a naive
belief in abstraction, deduction, and general coherence. European
legal theory therefore emerges as blindly accepting of a dichotomy
such as that between the "formal" (legal) and the "social," willing
to assume (uncritically) that each side of the dichotomy actually
represents a coherent category.28
Even (and perhaps especially?)
22 See CRITIQUE, supra note 1, at 36-37, 92, 107, 109.
23 Id. at 109 (citations omitted).
24 See id.
25 Id. at 81.
26 Id. at 83.
27 Id. at 95.
28 See id. at 94-95.
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the yeoman American attorney, infected with "the virus" and thus
routinely arguing policy, senses the resulting American/
Continental difference. Kennedy states: "As I've indicated several
times already, your ordinary American lawyer is likely to find
European solutions to classic legal problems blatantly formalist, in
the sense of overestimating the power of deduction, and to find
European legal culture in general formalist in the same sense."29
II. COUNTERDESCRIPTIONS
This Part takes a closer look at Civilian and American judicial
discourse in order to examine and assess Kennedy's particular
claim of American/Civilian difference. Can it really be the case
that Civilian judicial systems, unlike their American counterpart,
do not truly engage in policy discourse? In order to assess this
particular claim of difference, we must first decide what we should
take Kennedy to mean when he uses the term "policy." As a first
step, let us use the definition that Kennedy himself proposes,
namely, that "policy" be understood as a broad, descriptive term
that encompasses any nondeductive argument; as Kennedy states:
"I use [`policy'] here in its broad sense, which includes all
nondeductive factors."30
Can it really be the case, then, that
Civilian judicial systems do not deploy nondeductive arguments?
A. European Discourse
1. Complexity
The law of Continental Europe is an extremely complex and
varied object of analysis. The first objection to Kennedy's
description of European judicial discourse must therefore be
boringly technical: Kennedy tends to treat the civil law as if it were
far more uniform or monolithic than it really is. However
pedestrian an observation this may be--and however certain I may
be that Kennedy would immediately agree with it31
--it must
nonetheless be stressed that European civil law varies enormously
not only from one country to the next, but also within each
country.
As any comparatist would immediately note, assimilating, for
example, French with German judicial discourses under the rubric
of "Continental" or "civil" law poses serious analytic problems.
29 Id. at 107.
30 Id. at 109.
31 Kennedy does note, for example, that his analysis of Continental legal theory is
"doubtless seriously distorted because [he is] much more familiar with Italian thinking
than with that of any other European country." Id. at 92.
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As a practical matter, it is difficult to tell what a decision from the
French Cour de cassation32
has in common with a decision from
Germany's Federal Constitutional Court.33
The first offers a
stunningly deductive and impersonal discourse of mechanical
application of civil code provisions, while the second clearly does
not. Thus French Cour de cassation decisions are all structured
according to the following syllogistic, single-sentence model: "The
Court--Having Seen Article 1342 of the Civil Code; Whereas
Plaintiff did X; Whereas Defendant did Y; Whereas the Appellate
Court ruled Z; quashes the appeal."34
On the other hand, the
decisions of Germany's Federal Constitutional Court not only do
not adopt such a form, but also permit, for example, signed
dissents. One need only take a brief look at Justice Simon's
dissent in the 1975 German abortion decision35
to get a sense of the
enormous discursive variety between different Continental judicial
systems. Justice Simon supports her arguments, for example, in
the following manner:
[T]he legislature cannot be indifferent to the fact that illegal
interruptions of pregnancy lead even today to injuries of health;
and this is true not only in the case of abortions by "quacks"
and "angel-makers," but also, to a greater extent, in the case of
procedures undertaken by physicians because illegality
discourages the full use of modern equipment and assistance of
the required personnel or hinders the necessary follow-up
treatment. Further, the commercial exploitation of women
inclined to an abortion in Germany and in foreign countries and
the social inequality connected with it appears as a drawback;
better situated women can, especially by traveling to
neighboring foreign countries, much more easily obtain an
abortion by a physician than poorer or less clever ones . . . .36
Faced with such an example, one cannot help but begin to wonder
if German judicial discourse has, in fact, significantly more in
common with its American than with its French counterpart, and
thus to feel uneasy with Kennedy's claim that Civilian judicial
discourse does not contain policy discourse (understood to mean
32 The Cour de cassation is the highest court in the French private law judicial
hierarchy.
33 The German Federal Constitutional Court is a separate German Court that
performs, inter alia, abstract and concrete judicial review of legislation.
34 Mitchel de S.-O.-l'E. Lasser, "Lit. Theory" Put to the Test: A Comparative Literary
Analysis of American Judicial Tests and French Judicial Discourse, 111 HARV. L. REV.
689, 746 (1998) [hereinafter Lasser, "Lit. Theory"].
35 See Decision of February 25, 1975, [1975] BVerfGE 1, reprinted in MARY ANN
GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS 96 (2d ed. 1994).
36 Id. at 112.
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"any nondeductive factors"37
). Given this state of affairs, it is quite
debatable whether it makes sense to speak of "Continental"
judicial discourse in the first place.
The next problem, deeply related to the first, concerns the
enormous discursive variations within each of the national legal
systems. Many, perhaps even most, Continental legal systems
divide their judiciaries into several branches. In France, for
example, the private law courts are separated entirely from the
public/administrative law courts, which are themselves separated
from the Constitutional Council.38
Anyone familiar with the
French legal system could not help but recognize the tremendous
discursive variation between the decisions rendered by these three
categories of tribunals (never mind the significant variation
between the discourses within the hierarchy of either the private
or the public law courts). Then, of course, there is the further
complication that yet another layer of judicial discourses has been
added to those already present within each of the national legal
structures, namely, the discourses deployed at the level of the
European Union ("EU").
In short, Continental judicial discourse is extremely complex
and varied, and therefore calls for specific analysis and fine-
grained study. This Part therefore suggests the basic outlines for
the study of two sets of judicial discourses: those of the French
Cour de cassation and of the ECJ.
2. The Propitious Example: The French Cour de cassation
No judicial system appears to lend more support to Kennedy's
analysis of American/Continental difference than the French
appellate private-law judicial system. In particular, it is hard to
conceive of a more deductively formalist discourse than that of the
decisions of the Cour de cassation. These decisions are composed,
quite simply and explicitly, of single-sentence syllogisms.39
Furthermore, as Kennedy notes, the French do not even have a
word for "policy" in the first place.
37 CRITIQUE, supra note 1, at 109.
38 This Article will not bother to address the conundrum of whether, according to
classic Civilian definitions, the administrative and constitutional courts qualify as veritable
judicial "courts." Given that the question is hotly debated in Europe, and given the
undeniably important impact that the ECJ and the constitutional courts are having--both
de facto and de jure--on Civilian legality, I therefore include ECJ and constitutional
decisions in my analysis of contemporary Continental judicial discourse.
39 See supra note 34 and accompanying text.
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As I have analyzed in detail elsewhere,40
however, the
interpretive practice of the Cour de cassation only appears to be
purely deductive. There exists, within the French judicial system, a
vibrant and well-hidden discursive sphere in which French
magistrats41
argue not so much in terms of textual deduction, but
rather in terms of the advantages and disadvantages of adopting
one interpretive decision over another. In this hidden or unofficial
discursive sphere, French magistrats argue overtly in terms of, for
example, equity,42
legal adaptation to social needs,43
and
institutional competence.44
In an excellent example, Advocate General Charbonnier
argues to the Cour de cassation that it should abandon its
comparative negligence rule in favor of a strict liability rule in
automobile accident cases.45
Charbonnier offered a plethora of
policy arguments, including social policy arguments ("social
solidarity" should protect accident victims, regardless of their
fault),46
economic policy arguments (although total
indemnification of victims will increase insurance costs, it will
decrease national health care costs),47
administrative policy
arguments (the new rule would "disencumber and expedite" legal
procedure),48
and institutional policy arguments (judges possess
the power to establish normative rules, and to adapt them in order
to "facilitate the work of the legislature" and to keep up with the
evolution of modern society).49
As soon as one considers the French civil judicial system's
internal discourse, it therefore becomes apparent that French
appellate judicial discourse is composed of a combination of
textual deduction and policy hermeneutics. French judicial
discourse constantly offers what Kennedy terms "the content of
policy argument," namely, "argument about the desirability of a
subrule . . . in terms of some set of social or legal institutional
values," such as "utility, extralegal rights, or morality," "judicial
40 See Mitchel de S.-O.-l'E. Lasser, Judicial (Self-)Portraits: Judicial Discourse in the
French Legal System, 104 YALE L.J. 1325 (1995) [hereinafter Lasser, Judicial (Self-)
Portraits].
41 French judges and other quasi-judicial officers.
42 See Lasser, Judicial (Self-)Portraits, supra note 40, at 1384-86.
43 See id. at 1382-84.
44 See id. at 1386-88.
45 Conclusions of Advocate General Charbonnier, Judgment of July 21, 1982, Cass. 2e
civ., 1982 D.S. Jur. 449-53, translated in Lasser, Judicial (Self-)Portraits, supra note 40, at
1392-98 (citations omitted).
46 Id. at 450.
47 See id.
48 Id.
49 Id. at 449-50.
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competence," or "administrability."50
What Kennedy states in the
American context--that judicial discourse is characterized by
"deductive argument supplemented or `guided' by policy
argument,"51
--therefore holds true in the French context as well.
Kennedy's definition of the distinctiveness of American
judicial discourse thus collapses, even when it is deployed in the
propitious comparative context of French private law. The
pervasive discursive practice within each system is to offer "the
content of policy argument," i.e., nondeductive arguments that can
be characterized as "policy arguments."
3. The Difficult Example: The European Court of Justice
The discourse of the ECJ offers even less support for
Kennedy's claim of policy-based American distinctiveness.
Published in tandem, the ECJ decisions and accompanying
"opinions" of the court's Advocates General clearly demonstrate
that legal discourse at the EU level is utterly dominated by
arguments over large-scale, substantive policy issues.
Perhaps the single most important defining characteristic of
ECJ discourse, as published and readily available, is that it offers a
multiplicity of views on every ECJ case. ECJ decisions, for
example, are always published alongside the arguments (called
"opinions") offered by one of the court's permanent amici, the
Advocates General, and are often accompanied by the "Report"
of one of the court's justices.52
At a minimum, therefore, a
published ECJ decision might offer some three different takes on
every controversy at bar (the Court's, the Advocate General's, and
the Report's). In fact, the published decision offers many more
views than even this would suggest, for the primary purpose of the
Report is to summarize the arguments of each of the parties to the
case, including those arguments advanced by any and all member
states and/or EU institutions that weighed in on the controversy.
The Opinion of the Advocate General does the same, as it
suggests its own solution to the controversy only after having
presented and considered the positions taken by the assorted
parties. Even the ECJ decision tends to canvass and respond to
these assorted views.
50 CRITIQUE, supra note 1, at 99.
51 Id. at 104.
52 The Report is a sort of bench memorandum, written by one of the members of the
ECJ, that summarizes the arguments submitted by the various parties to the case. This
institution exists in France as well. See Lasser, Judicial (Self-)Portraits, supra note 40, at
1355-63.
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It should not, of course, be surprising that so many arguments
are presented and considered in ECJ cases. The arguments are,
after all, presented by the governments of the member states and
by the institutions of the EU, i.e., by entities demanding significant
respect. That said, the sheer number of arguments presented
constructs a peculiar discursive or argumentative context, in
particular, one in which legal interpretation is deeply, persistently,
and publicly controverted. This multifaceted interpretive
controversy, laid out in detail for all to see, places the ECJ and its
Advocates General in a position of having to explain and justify
what now appear to be interpretive choices.
How then do the parties, the Advocates General, and the ECJ
justify their interpretive choices? First and foremost, they do so by
referring to the ECJ's case law. The opinions of the Advocates
General, for example, always refer to the ECJ's jurisprudence,53
typically cite some six to twelve ECJ decisions,54
and tend to quote
significant portions of these decisions.55
Once the opinions have referred to the court's case law, they
often spend several pages doing just the "kind of internal critique
and hopeful reconstruction of judicial opinions that," according to
Kennedy, "is the bread and butter of American critical legalism,"
but that "Continentals don't do."56
In an effort to sway the court,
they perform very detailed, almost academic, historical
reconstructions and analyses of the development of the court's
case law over time. Advocate General Tesauro's opinion in
Brasserie du Pcheur57
offers a good example. In subsection (a) of
the opinion, entitled "The obligation on member states to make
reparations for failures to fulfill obligations as affirmed in the
court's case law: the Francovich judgment and its precursors,"58
Tesauro argues:
15. The judgment in Francovich, which is bound to be the
starting point for any discussion of state liability in damages for
infringements of Community law, still constitutes the court's
53 I have never found an Advocate General's opinion that does not refer to prior ECJ
decisions.
54 See, e.g., Cases C-46/93 and C-48/93, Brasserie du Pcheur v. Germany, [1996] CEC
(CCH) 295, 298-342 (1996); Case C-5/94, Ex parte Hedley Lomas, [1996] CEC (CCH) 979,
982-1016 (1996).
55 See, e.g., Cases 143/88 and C-92/89, Zuckerfabrik Süderdithmarschen AG v.
Hauptzollamt Itzehoe, [1992] 2 CEC (CCH) 468, 496 (1991); Cases C-6/90 and C-9/90,
Francovich & Ors v. Italian Republic, [1993] 1 CEC (CCH) 604, 616 (1991).
56 CRITIQUE, supra note 1, at 94-95.
57 Cases C-46/93 and C-48/93, Brasserie du Pcheur v. Germany, [1996] CEC (CCH)
295.
58 Brasserie du Pcheur, [1996] CEC (CCH), at 306 (emphasis added).
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most precise response in this area. The case turned on . . . .
Consequently, the court was asked . . . .
Although it found . . . the court held . . . .
16. Turning to . . . the court first called to mind . . . .
More specifically, the court inferred . . . . First, it pointed out
that . . . .
The court also stressed that the possibility of obtaining redress
from the member state is . . . .
Secondly, as it had already done in the judgment in
Humblet, [the ECJ] derived and inferred . . . .
. . . .
18. It should not be overlooked that statements relating to
the obligation to provide compensation for breaches of
Community law of various kinds are to be found in the court's
case law, if only incidentally, since the 1960s. I would refer in
the first place to the judgment in Humblet, which I have already
mentioned, where the court held in particular that if it: ". . . ."
. . . .
20. The affirmation of the obligation . . . is even more
direct and explicit in Russo v. AIMA, where the court held that:
". . . ."
21. It is unquestionably clear from the above dicta,
therefore that, . . . .
. . . .
However, the case law makes it clear that . . . .
22. That case law seems to have been overtaken from this
particular point of view by the judgment in Francovich, in
which . . . .59
This passage demonstrates several of the characteristic features of
Advocate General opinions: citation and quotation of several
decisions, reference to the court's jurisprudence as "case law," and
reference to that case law as "bound to be the starting point for
any discussion" on the legal issue. In short, it constructs a detailed
historical narrative of the court's case law. It thereby identifies,
describes, and/or constructs "trends" or "tendencies" in the
"development" of that case law in order to argue that the court
should adopt a particular position in the present case.60
Finally, analysis reveals that EU legal discourse constantly
explains and justifies its interpretive choices by referring to a
relatively small set of substantive policy concerns. In particular,
the parties (including the EU member states and institutions), the
Advocates General, and the ECJ itself tend to approach, consider,
59 Id. at 306-08 (citations omitted). Advocate General Charbonnier's Conclusions
referred to above engages in an extremely similar analytic practice. See supra notes 46-50
and accompanying text.
60 See, e.g., Hedley Lomas, [1996] CEC (CCH), at 992-94.
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and resolve legal controversies not only in terms of the specific
purposes that appear to underlie a specific piece of EU legislation,
but also in terms of very broad and far-reaching "meta" purposes
that are often claimed to sustain and motivate the EU legal order
as a whole.
The discursive universe of the Advocates General (and of the
ECJ) is characterized and defined by this nondeductive
interpretive stance. The Advocates General constantly resolve
legal controversies by analyzing them in terms of fundamental and
recurring "meta" issues of legal policy, such as "the effectiveness"
of Community law, EU "institutional balance," "legal certainty
and uniformity," and the "legal protection" of Community rights.
This interpretive method is patently purposive or policy oriented.
The Advocates General argue that the ECJ has resolved (and/or
should resolve) a given case in one way or another in order to
advance these essential Community purposes or policies. In his
Brasserie du Pcheur opinion, for example, Advocate General
Tesauro treats the ECJ's case law in just such a manner. He
argues:
17. What was contemplated [by the ECJ], therefore, was
the means made available in order to reinforce the effectiveness
of Community provisions through the effectiveness of the
judicial supervision of the legal interests created by those
provisions and likewise in order not to leave member states'
failures to fulfill obligations without--inter alia, tangible--
consequences.
Consequently it is precisely in the light of those objectives
that the position of the individual has been used and given its
proper importance. The states' financial liability vis--vis
individuals for loss or damage caused by legislative inaction has
been created by the court in the final analysis as an instrument
for securing protection for individuals and thereby also the
proper implementation of Community law.61
As this passage readily demonstrates, Advocate General Tesauro
understands the ECJ to be establishing doctrines in order to
achieve important EC "objectives," not because some provisions
of the EC treaties, interpreted deductively, require such an
interpretation; rather, the court's jurisprudence in this doctrinal
area has been intentionally "created" for "instrumental" reasons,
namely, to "secure" the objective of protecting individual interests.
Furthermore, this objective appears to be instrumental as well.
Securing the protection of individual interests "thereby" ensures
an even grander policy objective, "the proper implementation of
61 Brasserie du Pcheur, [1996] CEC (CCH), at 307 (emphasis added).
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 877
Community law."62
According to this portrait, the ECJ uses its
case law as a means to promote and secure particular policies. The
interpretations of the European Community players are thus
almost always oriented toward achieving some large-scale policy
end. It is for this reason that the academic doctrine that surrounds
the ECJ speaks incessantly of "teleological interpretation."63
In this context, it is once again very difficult to support
Kennedy's claim that the presence of policy argument is what
distinguishes American from Continental legal discourse.
Whether publicly, as in the ECJ (or even the German
Constitutional Court) context, or privately, as in the French Cour
de cassation's internal context, Continental European judicial
discourse perpetually engages in explicitly nondeductive
arguments, arguments that, by Kennedy's own broad definition,
therefore qualify as arguments of "policy."
B. American Judicial Discourse
Maybe the problem with the comparative counteranalysis just
performed is that it deploys far too broad a definition of "policy."
It cannot really be a great surprise that by using Kennedy's
definition of policy--i.e., "any nondeductive factor"--one finds
"policy" everywhere, even in the French Cour de cassation.
Maybe the solution, then, would be to restrict the definition to
cover only those policy arguments that explicitly identify
themselves as such. For a judge to deploy policy discourse, it
would therefore not be enough for her to refer to nondeductive
arguments; she would have to support her arguments by making an
explicit reference to "policy," whether it be to economic policy,
social policy, institutional policy, or otherwise. The term or
category "policy" would have to be used.
Kennedy's articulation of American/Civilian difference as the
presence or absence of policy discourse might well be more
promising if "policy" is understood in this limited or restricted
manner. However, a threshold question emerges, one that might
at first blush appear to be too obvious to be worth asking: do
American appellate courts actually engage in such policy
62 Id.
63 E.g., JOXERRAMON BENGOETXEA, THE LEGAL REASONING OF THE EUROPEAN
COURT OF JUSTICE: TOWARDS A EUROPEAN JURISPRUDENCE 250-58, 265 (1993);
HJALTE RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE 36,
148, 151, 161, 168, 180, 286, 377, 380, 481, 484 (1986); Kenneth Lord, Bootstrapping an
Environmental Policy from an Economic Covenant: The Teleological Approach of the
European Court of Justice, 29 CORNELL INT'L L.J. 571 (1996); David Mazzarella, The
Integration of Aviation Law in the EC: Teleological Jurisprudence and the European Court
of Justice, 20 TRANSP. L.J. 353 (1992).
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discourse? The answer to this question turns out to be fairly
complex.
If one uses the broad definition of "policy," then Kennedy is
quite correct to conclude that "[i]n American judicial opinions and
in doctrinal writing, the most common [argumentative] mode is
neither deduction nor policy but an intermediate mode, deductive
argument supplemented or `guided' by policy argument."64
As I
have described elsewhere, American judicial discourse is a
conglomerate discourse that not only fuses together deductive and
policy elements, but also engages in what appears to be a constant
and perpetual cycle of give-and-take between them.65
United States Supreme Court decisions that establish and
deploy "multipart" or "multiprong" judicial "tests" offer perhaps
the clearest example of this double quality (deduction + policy) of
American appellate judicial discourse. On the one hand, the form
and discourse of these "test-method" decisions signify the
interpretive necessity of grammatical/formalist textual application.
These decisions are presented as the mechanically deductive
application of judicial "tests," which are composed of two to four
norms that are identified as numbered "parts" or "prongs" and
that are stated in the categorical fashion of a statute.66
On the
other hand, the "prongs" of the "tests" are substantively oriented
toward a hermeneutic analysis of the "purposes" and "effects" of
the constitutional or statutory provision at issue. Test-method
opinions therefore focus their analysis on the purposes or policies
that the given constitutional or statutory provision is supposedly
meant to promote. Test-method opinions therefore engage, inter
alia, in protracted social, economic, and institutional policy
debates.67
United States Supreme Court judicial interpretation, as
exemplified by test-method opinions, therefore emerges as a
conglomerate approach that welds together the discourses of
deductive grammar and policy hermeneutics.
That said, it is worth pausing a moment to consider how I am
using the term "policy" in this context. In my description of
American test-method opinions, I mean to say that the Supreme
Court routinely deploys a series of arguments that can fairly be
described as "policy" arguments (especially if, as does Kennedy,
one defines "policy" argument broadly as all nondeductive
arguments). Thus, for example, in Complete Auto Transit, Inc. v.
64 CRITIQUE, supra note 1, at 104.
65 See Lasser, "Lit. Theory," supra note 34, at 761-70.
66 See id. at 721.
67 See id. at 712, 715, 739.
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 879
Brady,68
Justice Blackmun, writing for a unanimous Court, offers
the following argument for overturning the rule established in one
of the Court's precedents:
There is no economic consequence that follows necessarily from
the use of the particular words, "privilege of doing business,"
and a focus on that formalism merely obscures the question
whether the tax produces a forbidden effect. Simply put, the
Spector rule does not address the problems with which the
Commerce Clause is concerned. Accordingly, we now reject
the rule of Spector . . . .69
I have no problem categorizing the Court's reasoning as
deploying--or at least suggesting--several "policy" arguments,
including an economic policy argument (it would be bad economic
policy to maintain the Spector rule), an interpretive policy
argument (it would be bad interpretive policy to apply the
formalist Spector rule), and an institutional policy argument (it
would be bad institutional policy for the Court to maintain the
Spector rule instead of addressing "the problems with which the
Commerce Clause is concerned"). It is important to note,
however, that the Court never actually uses the term "policy"
anywhere in the passage.70
Instead, the Court is simply engaged in
a discursive and interpretive practice that can be broadly
characterized as "policy" argument; that is, the Court supports its
position with arguments that are not tied deductively to the text
being interpreted.
If, however, in an attempt to differentiate between American
and Civilian judicial discourse, we restrict the definition of
"policy," it becomes distinctly less clear that American judges
deploy self-identified "policy" arguments. In other words, it is not
at all certain, at the fin de sicle, that it is "universally recognized
and accepted"71
practice for American courts--and thus
advocates--to support their arguments by making explicit
reference to "policy."
In an attempt to get a sense of whether "policy"--now
defined narrowly--really is a "standard category in everyday
American lawyer-talk,"72
and whether the judicial deployment of
policy reasoning really is "universally recognized and accepted,"73
it may be worth asking whether, for example, the United States
Supreme Court actually deploys the term/category "policy" when
68 430 U.S. 274 (1977).
69 Id. at 288-89 (citations omitted).
70 See id.
71 CRITIQUE, supra note 1, at 109.
72 Id.
73 Id.
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explaining the grounds for its interpretive decisions. The short
answer is that at the fin de sicle, it does not.
A detailed search of all United States Supreme Court
decisions from the 1998 and 1999 terms demonstrates that it is
extraordinarily rare for the Justices to use the term/category
"policy" in the way that Kennedy describes, that is, as a
nondeductive argument deployed in support of an interpretive
position. "Policy," it must be said, is a term that does surface over
and over again in the Court's opinions. The great majority of the
time, however, the term is used to mean an "insurance policy";
"company policy" (e.g., a company's sexual harassment policy);
"administrative," "state," or "agency policy" (e.g., a police
department's policy to allow members of the media to ride along
with the police making arrests); or "federal" or "congressional
policy" (e.g., "federal Indian policy").
The cases do offer a few other uses of the term. In many
cases, for instance, the Court refers to the "policy" of a statute or
act of Congress. It is therefore common to find references, for
example, to "the purpose and policy of the ADA,"74
or to "the two
recognized policies underlying Chapter 11,"75
or generally, to the
"____ Act's policy of ____."76
In such cases, however, the term
"policy" is used merely as a close substitute for the term
"purpose."77
It is used to express the purpose supposedly served
by the statute, not to express a nondeductive reason for
interpreting the statute in one way or another.
The cases do evince a second, if quite infrequent, use of the
term that corresponds more closely to Kennedy's notion of a
nondeductive reason for an interpretive decision. In a small
handful of cases, the Court makes it clear that a party had
advanced a "policy" argument over the course of litigation. I was
unable, however, to find a single instance in which the Court's
explicit reference to such a policy argument was not followed by
the Court's explicit rejection of the argument. Thus in one case the
Court states:
Although NASA's and NASA-OIG's narrow reading of
the phrase "representative of the agency" is supported by the
text of neither [of the statutes], they also present broader--but
ultimately unpersuasive--arguments of policy to defeat the
application of [the statutes] to OIG investigations.
. . . .
74 Sutton v. United Airlines Inc., 527 U.S. 471, 506 (1999).
75 Bank of Am. Nat'l. Trust & Sav. Ass'n v. 203 No. LaSalle St. P'ship, 526 U.S. 434,
453 (1999).
76 E.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 487 (1999).
77 See id.
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 881
We must presume, however, that Congress took account
of the policy concerns on both sides of the balance when it
decided to enact the [statutes].78
Similarly, the Court argues in another decision:
Finally, the Kawaauhaus maintain that, as a policy matter,
malpractice judgments should be excepted from discharge, at
least when the debtor acted recklessly or carried no malpractice
insurance. Congress, of course, may so decide. But unless and
until Congress makes such a decision, we must follow the
current direction [the statute] provides.79
In yet another decision, the Court argues: "Moreover, . . . L'anza
contends that its construction is supported by important policy
considerations. . . . [W]hether or not we think it would be wise
policy to provide statutory protection for such price discrimination
is not a matter that is relevant to our duty to interpret the text of
the Copyright Act."80
In each of these instances, the reference to policy therefore
serves as a signal for the Court's refusal to consider the argument.81
In the Court's estimation, it is simply inappropriate to ask the
Court (as opposed to Congress) to rule on policy matters or on
policy grounds.82
This notion of judicial role violation brings us to a third small
set of cases that explicitly deploys the term/category "policy." In
these infrequent instances, a Justice writing in a separate opinion
(usually a dissent) uses the term to denounce a position (usually
held by the majority decision) as wantonly violating judicial role
constraints. Justice Thomas, who, with Justice Scalia, appears to
use this line of critique more frequently than his colleagues,
deploys it in his dissent in Mitchell v. United States.83
He blames
the majority for following a 1965 precedent, Griffin v. California,84
which he criticizes in the following manner: "Griffin
constitutionalizes a policy choice that a majority of the Court
found desirable at the time . . . . This sort of undertaking is not an
78 Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations Auth., 527 U.S. 229, 243,
245 (1999).
79 Kawaahau v. Geiger, 523 U.S. 57, 64 (1998).
80 Quality King Distrib., Inc. v. L'anza Research Int'l, Inc., 523 U.S. 135, 145, 153
(1998).
81 It would be interesting to examine whether the parties had actually used the term
"policy," or whether it is the Court that labels an argument as one of "policy" in order to
reject it out of hand. Such an analysis, unfortunately, lies beyond the scope of this Article.
82 See Brogan v. United States, 522 U.S. 398, 408 (1998) ("Courts may not create their
own limitations on legislation, no matter how alluring the policy arguments for doing
so . . . .").
83 526 U.S. 314 (1999).
84 380 U.S. 609 (1965).
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exercise in constitutional interpretation but an act of judicial
willfulness that has no logical stopping point."85
In a dissent to a
certiorari denial, Thomas levels a similar charge against the
decision rendered by a Sixth Circuit panel: "As with its void-for-
vagueness holding, the [Sixth Circuit] panel majority's quarrel with
the wishes of the Ohio Legislature on this score appears to be
grounded in abortion policy, not constitutional law."86
In his
Calderon v. Thompson87
dissent, Justice Souter exclaims:
"Whatever policy the Court is pursuing, it is not the policy of [the
congressional Act]."88
Finally, Justice Scalia, in his Minnesota v.
Carter89
concurrence, offers the following line of argument:
I am not sure of the answer to those policy questions. But I am
sure that the answer is not remotely contained in the
Constitution, which means that it is left--as many, indeed most,
important questions are left--to the judgment of state and
federal legislators. We go beyond our proper role as judges in a
democratic society when we restrict the people's power to
govern themselves over the full range of policy choices that the
Constitution has left available to them.90
In each of these examples, the disgruntled Justice explicitly
disparages the judicial entry into the field of "policy" as a per se
violation of the judicial role.
"Policy," in short, is a term/category that is extremely rarely
used by United States Supreme Court Justices at the fin de sicle.
Furthermore, on those rare occasions when it is deployed
according to Kennedy's meaning (a nondeductive reason for a
decision), "policy" functions more or less as a dirty word.
According to the Court's own discourse, "policy" argument
emerges as precisely what judges should not be doing. It is almost
always explicitly associated with congressional or legislative
prerogatives, i.e., with the "political." In the current state of
Supreme Court discourse, if a Justice associates the word "policy"
with judges or courts, it is almost invariably in order to condemn
the association.91
85 Mitchell, 526 U.S. at 343 (Thomas, J., dissenting).
86 Voinovich v. Women's Med. Prof'l Corp., 523 U.S. 1036, 1039 (1998) (Thomas, J.,
dissenting).
87 523 U.S. 538 (1998).
88 Id. at 573 (Souter, J., dissenting).
89 325 U.S. 83 (1998).
90 Id. at 98-99 (Scalia, J., concurring).
91 I would like to stress that this analysis does not claim that policy, narrowly defined,
has never been an important element in American appellate judicial discourse. In this
regard, it may be worth noting that in the 1998-99 period, the Supreme Court did briefly
quote from two earlier Court decisions (from 1981 and 1989) that explicitly deployed
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 883
In fact, after this exhaustive search of two years' worth of
United States Supreme Court discourse at the fin de sicle, I could
only find one clear example of a Justice using the term/category
"policy" as if it were a legitimate basis for deciding a legal issue.
In his dissent in Crawford-El v. Britton,92
Chief Justice Rehnquist
addresses the issue of whether immunity should be extended to a
corrections officer in a particular context. He writes:
Every time a privilege is created or an immunity extended, it is
understood that some meritorious claims will be dismissed that
otherwise would have been heard. Courts and legislatures craft
these immunities because it is thought that the societal benefit
they confer outweighs whatever cost they create in terms of
unremedied meritorious claims. In crafting our qualified
immunity doctrine, we have always considered the public policy
implications of our decisions . . . .
. . . .
The policy arguments thus point strongly in favor of
extending immunity in the manner I suggest.93
This passage finally offers us an example of a Supreme Court
Justice actually arguing for a result on the basis of "policy."
Unlike the prior examples that rejected, out of hand, the
consideration of policy, this passage embraces it, even going so far
as to place "courts and legislatures" on the same normative plane:
Both weigh "social benefits," "consider . . . public policy
implications," and "craft immunities" accordingly.94
This passage,
however, represents but an extremely rare example of explicit
policy discourse in fin de sicle Supreme Court decisions, and a
rather insignificant example at that. It is after all, but a single
short passage from a dissenting opinion.
"policy" arguments. See Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 203-04
(1999). The Court states:
In addition, the rule is in accordance with the sensible policy of avoiding the
obstruction to just claims that would come from permitting the harassment and
cost of a succession of separate appeals from the various rulings to which a
litigation may give rise, from its initiation to entry of judgment.
Id. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). See also
Richardson v. United States, 526 U.S. 813, 820 (1999) ("It is our settled policy to avoid an
interpretation of a federal statute that engenders constitutional issues if a reasonable
alternative interpretation poses no constitutional question." (quoting Gomez v. United
States, 490 U.S. 858, 864 (1989))). It may well be the case, in fact, that policy argument
once played a more important role in American appellate discourse. The refusal to use
the term "policy" openly may therefore represent a contemporary, conservative backlash
against earlier, purportedly "activist," liberal decision making. Such a historical analysis
unfortunately lies beyond the scope of this Article.
92 523 U.S. 574 (1998).
93 Id. at 606, 609 (Rehnquist, C.J., dissenting).
94 Id. at 606.
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On the whole, then, it is simply "a legal `blunder'" to make
explicit arguments of "policy" in current United States Supreme
Court discourse, whether or not they are phrased "in explicitly
distributive, or explicitly religious, or explicitly `partisan' terms."95
The narrowing of the definition of "policy" to cover only those
arguments that explicitly identify themselves as policy arguments
therefore leads to the surprising conclusion that, at this particular
moment in time, the Supreme Court simply does not argue
explicitly in terms of policy.
Of course, the Court constantly engages in arguments that can
be broadly and appropriately characterized as "policy arguments."
It routinely deploys all of the types of policy arguments that
Kennedy so brilliantly describes, maps, and analyzes, for example,
in A Semiotics of Legal Argument96
and Freedom and Constraint in
Adjudication.97
The Court therefore regularly argues on the basis
of what Kennedy calls "the content of policy argument," that is,
"argument about the desirability of a subrule in terms of some set
of social or legal institutional values," such as "utility, extralegal
rights, or morality," or "judicial competence," "administrability,"
and "federalism."98
But then again, if we are willing to use this
broad definition of "policy," Civilian judges routinely argue in this
fashion as well.
III. WHAT IS THE DIFFERENCE?
Given the counterdescriptions of American, French, and ECJ
legal discourses briefly offered above, what "really" distinguishes
the American discourse from the other two? The difference
cannot simply be that American judicial discourse consists of
"deduction `guided' by policy,"99
whereas Continental discourse
does not deploy--and may not even possess--"policy" discourse at
all. If "policy" is defined broadly, and thus used as a merely
descriptive term for nondeductive arguments, then American,
German, French, and ECJ legal discourses are all composed of
some conglomerate of deductive and policy elements. As I have
stated elsewhere, for example, "French and American judicial
discourses therefore reveal themselves to be historically and
culturally contingent variations on the same basic combination of
95 CRITIQUE, supra note 1, at 110.
96 Duncan Kennedy, A Semiotics of Legal Argument, 42 SYRACUSE L. REV. 75 (1991).
97 Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical
Phenomenology, 36 J. LEGAL EDUC. 518 (1986).
98 CRITIQUE, supra note 1, at 99.
99 Id. at 104.
LASSERGLY.DOC 04/20/01 1:08 PM
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formalist [deductive] and hermeneutic [policy-oriented]
reading."100
If, on the other hand, "policy" is defined narrowly, and thus
only covers those arguments that support interpretive decisions by
referring explicitly to "policy" (of whatever kind), then, at this
particular historical moment, even American appellate decisions
do not deploy such policy discourse. In short, American judicial
discourse does not overtly deploy the term "policy" and
Continental judicial discourses constantly deploy substantive
policy arguments.
Are we to conclude, then, that American and Continental
judicial discourses are fundamentally similar? This question of
similarity versus difference is an impossibly difficult and even
intractable question, one that is currently all the rage in
comparative law circles.101
Rather than delve too deeply into these
sectarian disciplinary debates, suffice it to say that the comparatist
can readily and legitimately choose to stress either similarity or
difference, or both. At the very least, she picks and defines what
to compare (and thus constructs in part the objects of her analysis)
and decides how she is going to compare them (and thus constructs
a methodology that contributes to the construction of the objects
of her analysis).102
Any comparative description focusing on elements of what is
being described, treats such elements as significant, characteristic
or meaningful for some reason or another, and does so at the
expense of other facets of the described object. This set of analytic
decisions is neither "correct" nor "incorrect," but merely more or
less useful for the sake of advancing a particular comparative
project. The comparative question therefore becomes: Why, given
all of the interesting, insightful, and entirely legitimate ways that
one can analyze, describe, and compare, would one want to
analyze, describe, and compare these particular objects in this
particular way?
100 Lasser, "Lit. Theory," supra note 34, at 739.
101 See, e.g., Mitchel de S.-O.-l'E. Lasser, A Matter of (Non-)Understanding, reprinted in
COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS, A CONFERENCE AT
THE MILLENIUM (Pierre Legrand & Roderick Munday eds.) (forthcoming 2001); Pierre
Legrand, Codification and the Politics of Exclusion: A Challenge for Comparativists, 31
U.C. DAVIS L. REV. 799 (1993); Pierre Legrand, Structuring European Community Law:
How Tacit Knowledge Matters, 21 HASTINGS INT'L & COMP. L. REV. 871 (1998); Ugo
Mattei, The Issue of European Civil Codification and Legal Scholarship: Biases, Strategies
and Developments, 21 HASTINGS INT'L & COMP. L. REV. 883 (1998).
102 See William Alford, On the Limits of "Grand Theory" in Comparative Law, 61
WASH. L. REV. 945 (1986); Gunter Frankenberg, Critical Comparisons: Re-thinking
Comparative Law, 26 HARV. INT'L L.J. 411, 434-40 (1985).
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My sense is that Kennedy's comparative analysis is the latest
in an extremely distinguished line of American comparative
analyses whose guiding purpose is not merely comparison for
comparison's sake (if such a thing can even be said to exist), but
rather comparison as a means of identifying and describing what is
peculiar or special about the American common-law system,
precisely in order to stress some facet of American law that the
comparatist wishes to promote or defend, whether at home or
abroad, or both. As Kennedy states:
This chapter has two goals: first, to contribute to the
comparative law enterprise of distinguishing what I will call
"American critical legalism," an odd combination of utter faith
and utter distrust in law, from Western European attitudes;
second, to explain the difference by identifying the "viral"
strain of ideology-critique in American legal thought, the strain
whose relation to the "body" of thought is the theme of this . . .
book.103
This tactically reflexive American comparative tradition began
most notably with Roscoe Pound, whose comparative legal history
promoted a vision of legal progress designed to defend against
possible American relapses into mechanical jurisprudence.104
The
tradition then continued with John Dawson, whose Oracles of the
Law offered a comparative ode to the American common-law
system that promoted Llewellyn's vision of the Grand Style of
American judicial decision making.105
This American comparative tradition is now taken up by
Duncan Kennedy, whose primary project is to foster the "viral
strand" in American judicial discourse. As Kennedy explicitly
states: "This book is an attempt to develop and extend this [viral]
American form of internal critique."106
Kennedy promotes this project by advancing traditionalist and
nationalist claims. First, argues Kennedy, the viral strand of
internal critique is old and time-honored. It dates back,
impressively and conveniently enough, one hundred years, to "the
turn of the century."107
Its "genealogy," furthermore, is not merely
respectable, but positively noble. The progenitors are none other
103 CRITIQUE, supra note 1, at 73.
104 See Mitchel de S.-O.-l'E. Lasser, Synthetic Readings of Pound's Jurisprudence,
reprinted in THE MASTERS OF COMPARATIVE LAW (Annelise Riles ed.) (forthcoming
2001) [hereinafter Lasser, Pound's Jurisprudence]; ROSCOE POUND, JURISPRUDENCE
(1959).
105 See JOHN DAWSON, THE ORACLES OF THE LAW (1968); KARL LLEWELLYN, THE
COMMON LAW TRADITION: DECIDING APPEALS (1960).
106 CRITIQUE, supra note 1, at 82.
107 Id. at 81.
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than "Holmes, Wesley Hohfeld, Henry Terry, Arthur Corbin,
Walter Wheeler Cook, Felix Cohen, Robert Hale, and
Llewellyn."108
Second, the viral strand of internal critique, as the above list
of ancients suggests, is distinctively American. The "birth of the
virus" one hundred years ago constitutes precisely "the moment of
the American mutation."109
It is in this context of the rehabilitation
and normalization of American critical jurisprudence that
Kennedy's comparative analysis comes into play. It is no accident
that Kennedy immediately follows his American "Summary
genealogy" section110
with his explicitly comparative section, "The
Continent versus the United States."111
The comparative
description of the Continent as rigidly formalist, or at least rigidly
rationalist, promotes Kennedy's underlying argument: "Foster the
viral," he almost explicitly argues, "for it is the Grand American
Tradition."112
"Don't be European: They look almost pre-
Realist."113
Needless to say, this argument--that Europeans represent the
perils of prerealist thinking--is hardly novel. Kennedy himself
notes: "The history of American legal thought has been written
overwhelmingly by realists and . . . their mainstream successors,
who have had a passionate commitment to the ideas that there was
a misguided Formalist Period and that European legal thought in
general is prerealist."114
But Kennedy moves the argument to a
new level of sophistication. Dawson had already made a great
advance by sustaining the argument while recognizing that, for
example, French judicial decision making was not as formalist as it
appeared to be. Dawson argued that despite the formalist
appearance of French judicial decisions, "the results reached in
particular cases usually become intelligible when matched with the
results of other cases . . . . [O]ne usually discovers continuity in
patterns of action, realism, and practicality in the solutions
108 Id. at 82.
109 Id. at 81 (emphasis added).
110 Id. at 82.
111 Id. at 92.
112 Id. at 81-82.
113 Id. at 107-08. Note that Kennedy demonstrates that he is aware of comparative
work that challenges this "vulgar" image of "formalist" European legal thought; but it is
quite unclear whether, in the end, he does not in fact subscribe to the image nonetheless.
See id. For example, see his argument about how Continentals "haven't developed the
particular practices and techniques, transmitted from generation to generation through the
case method and the Socratic classroom, that define American legal culture." Id. at 95.
The passage is all but identical to Dawson's critique of French judicial method. See
DAWSON, supra note 105, at 415-16, 431.
114 CRITIQUE, supra note 1, at 108.
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reached."115
According to Dawson, the problem therefore was not
that French judges actually were formalists, but that they had to
appear to be formalists, which was bad enough; merely "keeping
up appearances" preempted the adoption of the sincere, American
grand style of "effective case-law technique."116
Kennedy's major contribution to this traditional line of
American comparative analysis is that he starts from the premise
that, to the advanced American observer, American and
Continental legal cultures can actually appear to be remarkably
similar. He therefore begins the section entitled "The Continent
versus the United States" as follows: "Continental legal theory is
uncannily `other' for an American, perhaps because just about
everything in our legal culture is present in theirs, often translated
word for word, but nothing seems to have the same meaning."117
This passage offers two very important twists on the traditional
American comparative argument. First, it starts from a premise of
apparent similarity, rather than one of apparent difference.
Kennedy's comparative analysis therefore assumes that his
readership is either up-to-date on current comparative work, or
intimately familiar with Continental legality. That is, he assumes
that his readers are sufficiently familiar with Continental legal
systems that they are not misled by the immediately apparent
differences between Continental and American legality. His task,
then, is to reformulate American/Continental difference in the
context of the apparent similarity of the legal cultures.
Second, Kennedy's analysis shifts the discussion from one
about judicial method to one of legal theory. In other words,
Kennedy's project to foster the "viral strand" in American judicial
discourse spills into the theoretical and political realms. His
comparative analysis therefore seeks to promote a second project,
deeply related to the first, namely, to foster irrationalism in theory
and in politics. Kennedy states: "An important strand, a defining
strand in the mpm [modernist-postmodernist] project, is a
particular attitude toward rightness . . . . This is the attitude that
the demand for agreement and commitment on the basis of
representations with the pretension to objectivity is an enemy."118
In Kennedy's description of objectivist and rationalist theorists,
Europeans once again play a central role. In particular, Kennedy
distinguishes his version of critical legal studies ("cls") from two
sets of academics. First, he responds to the critiques of "the
115 DAWSON, supra note 105, at 409-10.
116 Id. at 415.
117 CRITIQUE, supra note 1, at 92.
118 Id. at 341.
LASSERGLY.DOC 04/20/01 1:08 PM
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Amherst seminar, which loosely grouped left `law and society'
people, left legal anthropologists, and sociologists working in the
European critical tradition."119
Then he distinguishes his own
"irrationalist" cls subgroup from the rationalist cls "systematizers."
This latter group once again reveals itself to be profoundly
European. Its models ranged from "neo-Marxism, Weber's theory
of law in capitalism, Parsonian structural/functionalism, and
Habermas's theory of communicative action."120
Both groups, the
Amherst "law and society" types and the rationalist cls
systematizers, demonstrate the perils of European association:
They believe in objective, rationalist definitions and distinctions.
Apparently, the former actually believed in the "books/action"
distinction,121
the latter in "stages" in the development of the legal
system.122
In both cases, to be associated with the European is to
be objectivist and rationalist.
It should hardly come as a surprise, therefore, that although,
"there is a Continental critical tradition in legal theory,"123
that
such a tradition turns out to fetishize an objectivist distinction,
namely, that between the "formal" and the "social."124
Nor should
it be surprising that American critical jurisprudes have, on the
other hand, periodically presented "a deep challenge to the
possibility and even the desirability of the kind of coherence that
the Continentals still take for granted within the formal and within
the social."125
In Kennedy's analysis, therefore, continental
Europeans represent the objectivist/rationalist tradition, even
within the critical genre. One can only conclude, as with the
"viral," that to be properly American, one must take Kennedy's
"irrationalist" turn.
The third of Kennedy's projects--deeply related to the first
two--is to politicize legal consciousness. As Kennedy states, "my
thesis is that some part of judicial law making in adjudication is
best described as ideological choice carried on in a discourse with a
strong convention denying choice, and carried on by actors many
of whom are in bad faith."126
Having stated this thesis, Kennedy
immediately turns to Europe for support. On the one hand, he
notes that in Europe, "the Judge is a far less potent figure than in
119 Id. at 266.
120 Id. at 281.
121 Id. at 267.
122 Id. at 281.
123 Id. at 92.
124 Id. at 93.
125 Id. at 95.
126 Id. at 4.
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890 CARDOZOLAWREVIEW [Vol. 22:863
the United States."127
"On the other, the subordination of the
judge seems to function to sustain rather than undermine the
power of an hypostasized image of the law."128
Europeans, he
argues, are even more mystified about the ideological nature of
judging than are Americans. Why? Kennedy suggests the
following, overtly consequentialist explanation: "Subversive
doctrine has progressed less far [in Europe], and perhaps as a
consequence the subordinated judge can function in politics as a
criminal prosecutor with a kind of mystified authority that is hard
to imagine here."129
Kennedy therefore deploys comparative
analysis once again to offer a negative lesson or cautionary tale for
his American audience. Rather than adopting a position
reminiscent of misguided and mystified Europeans, his readers
should adopt American subversive doctrine, become conscious of
judging as a site of ideological choice and struggle, and thus
politicize the legal.
In summary, Kennedy's comparative analysis functions as a
complex game of comparative cultural politics. His comparative
analysis of Continental judicial discourse is geared not so much to
explain Continental legal thought as to offer a description of
American/Continental difference. This extremely sophisticated
description not only portrays Continental legal thought in a rather
consistently negative light, but does so in order to present as
characteristically American precisely those traits that Kennedy
seeks to promote: (1) the "viral strand" in American judicial
discourse; (2) a similarly viral irrationalism in theory and in
politics; and (3) a resulting politicization of the legal. Above all
else, therefore, Kennedy's comparative analysis fosters a cultural
pride, bond, and identification between his American readers and
American critical theory. As he openly states: "This book is an
attempt to develop and extend this American form of internal
critique."130
Personally, I have grown increasingly uncomfortable with the
kind of comparative analysis that Duncan performs in Critique.
While his comparison quite brilliantly rehabilitates and normalizes
the critical tradition within American jurisprudence, it does so, I
think, at the price of partaking in, and perhaps even contributing
to, a certain American legal chauvinism. Although the American
portraits and critiques of Continental legality have become ever
more sophisticated and nuanced over the course of the twentieth
127 Id.
128 Id. at 4-5.
129 Id. at 5.
130 Id. at 82.
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2001] JUDICIAL POLICY 891
century, the fundamental point often remains very much the same:
American legality is superior to, or more advanced than, its
Continental counterparts because the former is pragmatic and
realist, while the latter are formalist and prerealist.131
This type of
analysis, for all of the deserved eminence of its practitioners (e.g.,
Pound, Dawson, and Kennedy), and for all of the tactical reasons
for its deployment (i.e., to promote the practitioners' own, often
particularly attractive, visions of what the American common-law
tradition should be), simply strikes me as vaguely unpalatable, and
I don't think that my discomfort is just a matter of Gallic pride.
Not only is this continuing chauvinism distressing in and of
itself, but it also depends on the construction and deployment of a
highly problematic comparative analytic framework, one that in
many respects stacks the deck irremediably in favor of American
perspectives. In the case of Critique, the methodological or
analytic problems come from Duncan's deployment of the term
"policy" in the comparative context. The first, and ultimately less
interesting, problem surfaces from the fact that the term has
multiple meanings even within the American legal context. Not
only can it be used to refer, for example, to any "nondeductive"
argument deployed by an interpreter of a legal text, but also to a
specific purpose or goal supposedly envisioned or targeted by the
drafter of that text, or to juridical arguments considered to be
neither truly legal nor entirely political. In other words, it is less
than clear that "policy" means the same thing when it is used to
describe the following three sentences: (1) "This statute should be
interpreted in the following manner because such an interpretation
fosters economic efficiency"; (2) "The policy of the statute is (or
Congress' policy in passing the statute was) to increase citizen
access to the courts"; or (3) "The defendant should be held liable
for the damage because, as between two innocents . . . ."
131 Kennedy offers an explicit version of this American superiority argument in the
"European Introduction" to his Semiotics of Legal Argument article. See Duncan
Kennedy, A Semiotics of Legal Argument, in 3 COLLECTED COURSES OF THE ACADEMY
OF EUROPEAN LAW, bk. 2, 309, 317-24 (1994). In that piece, which foreshadows a number
of his comparative analyses, Kennedy argues that although "European lawyers in casual
discussion of legal issues use exactly the same [policy] argument-bites as do Americans. . . .
Europeans do not recognize the bites . . . because they are unfamiliar with the analysis of
policy argument as a practice." Id. at 318. Because Europeans lack such "self-
consciousness," Kennedy suggests a stunning "alternative theory, that European legal
culture is simply undeveloped by contrast with the American." Id. at 324. Kennedy's
"European Introduction" does, however, possess a significant advantage over the
comparative analysis offered by Critique: in the former piece it is clear that he is referring
to a lack of juristic metadiscussion or metatheory about policy argumentation. See id. at
319-24.
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The second, more interesting and probably more important
problem comes from deploying the parochial terms and categories
of one legal system in order to describe and analyze another. The
deployment of the term "policy" is a case in point. As Duncan
correctly notes, "it is still an issue how the word `policy' should be
translated [into French] when it is used in legal texts."132
There is,
quite simply, no French word for "policy."
If an American comparatist nonetheless insists on using the
term when performing a Franco-American analysis, she has
several options. She could use an extremely broad definition of
"policy," one that, for example, does not require the use of the
actual word "policy" and that covers "any nondeductive factor."
This approach, as we have seen, has limited descriptive power. Its
categories are so enormous that it simply collapses
American/French difference.
The comparatist could also use a very limited definition, that
is, one that requires the actual use of the term/category "policy."
Given that this word does not exist in French, this approach
arrives summarily at the circular and tautological conclusion of
American/French difference. But this conclusion also has limited
descriptive power. It is open to the critique that other French
words or concepts may effectively substitute for, or play a
functionally similar role as, "policy."133
Furthermore, even if such
were not the case, the comparatist would still have to demonstrate
that the lack of the term "policy" or of an equivalent is in some
way significant or meaningful. If nothing else, this demonstration
would require a clear showing that the term, narrowly defined,
plays an important role in the American system.
I would argue, however, that it would probably be more
promising for the comparatist not to use the term "policy" at all, or
at the very least, not to use it as a foundational term in the
comparative analysis. It is for this reason that I have tended to
substitute "lit. theory" terms for the American jurisprudential
terms "formalist deduction" and "policy."134
At least in this way,
the analytic terms are not parochial to either of the compared legal
systems.
I would like to suggest, however, that even this move to
literary terminology--that is, to using the terms "grammatical
reading" and "hermeneutic reading" instead of "formalist
deduction" and "policy orientation"--has not been enough. The
132 CRITIQUE, supra note 1, at 109.
133 This is not to suggest that a "functionally similar" term would not be meaningfully
different nonetheless.
134 See Lasser, "Lit. Theory," supra note 34.
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 893
resulting categories are still far too large to have much in the way
of descriptive power. The next step in serious comparative
analysis should therefore be to refine the descriptions.
Although it is obviously far beyond the scope of this Article to
describe and analyze American, French, and ECJ judicial
discourses in detail, I would like to suggest, however briefly, what
might now be the most fruitful avenue for comparative analysis.
In particular, I would like to propose that comparatists focus on
the relationships between different subtypes of judicial discourses
and the discursive contexts in which they emerge.
Comparative discursive analysis must take into account the
discursive context in which different judicial arguments are
deployed. Although I argued above that American, French, and
ECJ judicial discourses all consist of a hodgepodge of deductive
and nondeductive elements, there can be no denying that the
nondeductive elements, for example, manifest themselves quite
differently from one system to another. The nondeductive
discourse of American test-method decisions is deployed in the
extremely public and visible discursive context of, for example,
published Supreme Court decisions. In the French civil judicial
system, on the other hand, overtly nondeductive discourse only
surfaces in the hidden or unofficial discursive sphere internal to
the French judicial system, in which judicial magistrats argue
among themselves about how to resolve the cases at bar.
Comparative discursive analysis should therefore seek to
relate specific judicial discourses to specific judicial contexts. In
particular, the discursive analysis should bear in mind the audience
of a particular type of judicial argument, and the degree and kind
of publicity such an argument typically receives. French Cour de
cassation argument, for example, occurs in two very different
discursive contexts. In the public discursive context of its judicial
decisions, the Cour deploys a discourse that is as explicitly
deductive as one might imagine. Arguing among themselves and
hidden from public view, however, members of the Cour
nonetheless deploy a stunningly open-ended and fluid form of
nondeductive "equity" discourse.
Unlike this bifurcated French judicial discourse, American
judicial argument offers an integrated discourse that offers neither
the extreme, syllogistic deduction of public French judicial
decisions, nor the remarkably open-ended quality of the hidden
French nondeductive, "equity" discourse. Finally, ECJ discourse,
which is composed of the same three documents as the French--
official decision, Report of the Reporting Judge, and Opinion of
the Advocate General--but which publishes all three, produces, as
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does American judicial discourse, far more uniform and middle-of-
the-road types of argument. As a result, the styles of the judicial
decisions and of the Advocates General opinions resemble each
other far more closely in the ECJ context than they do in the
French judicial context.
Comparative discursive analysis should therefore seek to
analyze the relationship of discursive context to specific subtypes
of judicial discourses. It is not enough to note that French,
American, and ECJ judges deploy discourses of deduction and of
policy. Rather, the analysis must be refined to the point of
identifying, for example, what kinds of nondeductive discourse
each system produces, and in what contexts such discourses are
deployed. For example, is there a relationship between French
"equity" discourse, which explicitly refers to notions of substantive
justice, and the fact that such a free-wheeling discourse occurs in a
hidden discursive sphere in which the audience is composed only
of other magistrats? Can one imagine the deployment of such a
discourse in a more public context? Is it surprising that when the
same types of documents that deploy such a discourse in the
French context (i.e., the Reporting Judges' Reports and the
Advocates General's Opinions) are produced in the ECJ context,
the open-ended "equity" discourse disappears? In the ECJ
context, after all, these same documents are published alongside
the ECJ's decisions. As public documents, the Advocates General
Opinions instead deploy, for example, a plethora of institutional
and administrability "policy" arguments ("the effectiveness" of
Community law, EU "institutional balance," "legal certainty and
uniformity," and the "legal protection" of Community rights) that
are far more recognizable to the student of American judicial
discourse.
Finally, comparative discursive analysis should consider how a
particular judicial discourse, deployed in a particular context,
seeks to enlist the support of its audience. The ECJ, for example,
operates in a discursive context in which the addressees of its
prescriptive judgments are, to a significant extent, sovereign
member states. In such a context, the ECJ can hardly rule by fiat;
the member states cannot be expected simply to take orders from
the court. The ECJ therefore takes great pains not only to
recognize and address the member states' arguments, but also to
explain the reasons for its prescriptive judgments. The court does
not simply address the States in the second person: "You must
do . . . ." The court instead offers an explanation, a description of
the state of affairs that leads to the court's decision. The court
therefore offers a third person description of the state of the law
LASSERGLY.DOC 04/20/01 1:08 PM
2001] JUDICIAL POLICY 895
and of the relevant factual world: "The law is . . . . The facts
are . . . . The interest in EU institutional balance is . . . ." This
third person, referential description seeks to motivate the member
states to accept being placed in the position of the addressee. That
is, the third-person description seeks to explain and justify why the
member state should accept being addressed in the second person;
why it should accept the court's prescription. The court, in short,
must enlist the support of the member states for its decisions.
Official French civil judicial discourse, on the other hand,
does not seek to produce the same type of justification. The Cour
de cassation, for example, offers no significant public explanation
of its decisions. Instead, the decisions simply refer to a code
provision, cited by number. The Cour's decisions therefore seek
to portray themselves as mere conduits for the transmission of the
code's commands.135
Given that the code represents the will of the
people, however, the addressee of a decision of the Cour is in the
position of having become the addressee of her own prescription.
The French judicial decision therefore justifies itself by moving the
second-person addressee into the position of the first-person
addressor. It is not insignificant, therefore, that when, behind
closed doors, the French judge must enlist the support of her
brethren, she adopts a very different form of justificatory
language.
I am arguing, in short, for a far more precise form of
comparative discursive analysis than American comparatists
(including myself) have tended to perform in the past. This
precision should offer several advantages. First, it should produce
a far richer and more fine-grained description of the objects of
comparative analysis. Instead of limiting the analysis to a gross
distinction between "deduction" and "policy," or between
"grammatical" application and "hermeneutic" interpretation, the
analysis can focus on the myriad subarguments ("equity,"
"economic efficiency," "institutional competence," "legal
modernization," etc.) and the contexts in which they are deployed.
Second, this precision should help to combat the tendency to apply
automatically to "foreign" legal systems the terms, concepts, and
categories specific to one's own. The more one must delve into the
contextualized discursive universe of a "foreign" system, the more
sensitive one becomes with respect to how unrepresentative and
ultimately unsatisfactory such parochial "translations" really are.
In short, I am arguing for a comparative technique that induces the
comparatist to make his analysis as consistently difficult for
135 See Lasser, Judicial (Self-)Portraits, supra note 40, at 1343.
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himself as possible. The comparatist should resist projecting
comfortable categories and concepts "abroad," and resist
deploying them uncritically "at home."
CONCLUSION
As should be quite obvious by now, my problems with
Kennedy's analysis are clearly parochial in their own right. My
parochialism simply happens to be "disciplinary." That is, it is the
petty and yet necessary objection of a comparatist to the tactical
deployment of comparative analysis for domestic jurisprudential
ends.
My objection, however, is not to the tactical deployment of
comparative analysis. Comparative analysis is probably always
deployed for some purpose, whether it be, for example, to
"advance knowledge or understanding," or "to harmonize law,"
or "to improve the national legal system." Kennedy's analysis falls
squarely under the first and last of these time-honored and
eminently respectable categories. My objection therefore cannot
simply be to his deployment of comparative analysis for domestic
ends.
My objection, rather, is to the comfortably peripheral status of
Kennedy's comparative analysis relative to his greater "viral"
project. Although the description he offers of Continental legality
in fact marks a significant advance within the American
comparative reflexive tradition of Pound and Dawson, his
description suffers from being too closely tied to that tradition, and
from being pressed explicitly into the service of the "viral" project.
In the end, one cannot help but feel that Duncan's comparative
analysis represents but a convenient vehicle for the promotion of
his notion of the "American mutation." In his analysis--as in
Dawson's and in much of Pound's136
--the Continent emerges
above all else as a fine negative example. In some important
respect, further complexification of the portrait of the Continent
would only detract from the negative example and thus weaken
the reflexive argument.
I would like to argue that focusing on, or prioritizing,
comparative analysis offers at least one great advantage over
Duncan's approach: it tends to problematize the terms, categories,
and methods of analysis. This advantage comes immediately into
use in the comparative context. It forces the comparatist to
recognize the vagueness and parochialism of, for example, the
136 Pound's analysis is somewhat more equivocal. See Lasser, Pound's Jurisprudence,
supra note 104.
LASSERGLY.DOC 04/20/01 1:08 PM
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term/category "policy," thereby inducing more precise and refined
analysis of (a) the subgenres of foreign legal discourses, and (b)
the contexts in which they are deployed. It offers, in short, a
thicker description of the foreign legal system.
The advantage does not end there. This problematization of
"policy" suggests that one ought to call into question the other half
of the deduction/policy distinction. This analysis, which for space
considerations was not and will not be performed here, is
nonetheless worth identifying. It is less than clear that the notions
of "deduction," or "formalism," or even "application" can be
appropriately used to describe what Continental judges are
supposed to be doing, even in the emblematic French Cour de
cassation context.
Although the form of the official French decision is overtly
syllogistic, I am increasingly convinced that this does not mean
that the French judge is either seen to be, or expected to be, a
passive or mechanical applicator of the code. Rather, it may well
be that in the French context, the notions of "application" or
"deduction" include what Americans jurists might think of as
"nondeductive" or "policy" elements. Thus even Portalis, when he
presented the draft of the French Civil Code (of which he was the
primary author), announced explicitly that "it is the role of the
[codified] legislation to fix, in broad outline, the general maxims of
the law," but that "it is up to the judge and the jurisconsults,
penetrated by the general spirit of the law, to direct its
application."137
It may in fact be the case that in France, there is no real
expectation that the civil judge should be engaged in the
mechanical or grammatical application of the code, at least not in
any way that American jurists would think of as formalist
"deduction." In fact, every time I find myself at a conference with
French judges, they invariably praise the "flexibility" of code-
based interpretation!138
The primary source of American
misunderstanding of the French civil judicial system may simply be
that, in France, there has been little traditional expectation that
137 Portalis, Discours Préliminaire, Prononcé le 24 Thermidor an VIII (1799), Lors de la
Présentation du Projet Arrté par la Commission du Gouvernement, reprinted in OTTO
KAHN-FREUND ET AL., A SOURCE-BOOK ON FRENCH LAW 91, 93 (2d ed. 1979).
138 Although it may appear paradoxical to the common-law jurist, French academics
have long praised the flexibility or "suppleness" of their codified legal system. See, e.g.,
CHARLES SZLADITZ & CLAIRE GERMAIN, GUIDE TO FOREIGN LEGAL MATERIALS:
FRENCH 85 n.26 (1985); Jean Boulanger, Notations sur le Pouvoir Créateur de la
Jurisprudence Civile, 59 R. TRIM. D. CIV. 417 (1961), cited in Lasser, Judicial (Self-)
Portraits, supra note 40, at 1405 n.294; Adhémar Esmein, La Jurisprudence et la Doctrine,
1 R. TRIM. D. CIV. 5, 12 (1902), cited in Lasser, Judicial (Self-)Portraits, supra note 40, at
1405 n.294.
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the judge should give a serious--let alone binding--public
explanation of his decisions.139
Faced with written judicial
decisions that may represent little more than formalities, American
jurists have thus tended to project onto the French what it would
mean for American judges to write such judicial decisions.140
The
resulting American deployment of the term "deduction" or
"formalism" may therefore be no more than an inapposite
projection onto Continental judicial systems generally, and onto
the French legal system in particular.141
Comparative awareness
can therefore help to problematize the deployment of such
parochial terms, concepts, and categories as "deduction" or
"policy" in foreign contexts, thereby yielding richer and far more
finely grained comparative analyses.
This comparative vantage point, complete with the
perspective shifts that it can induce, should not, however, be left
behind as the comparatist turns her attention back to her "home
system." The great advantage of comparative analysis is that it can
provoke, for example, the American comparatist to confront and
reconsider the full range of significations that accompany such
terms as "policy," "formalism," or "deduction" in the American
legal context. It can induce the comparatist to historicize such
terms and the conceptual apparatuses that they reflect and
construct. What did and do such terms mean, to whom, and when?
How, when, and where were they deployed? This Article's
reflexive query about whether contemporary American appellate
courts actually deploy the term "policy" (narrowly defined)
represents just such a question, and it yielded results that ought to
be taken into account before describing "policy-based" American
judicial discourse. In short, comparative analysis is a device that
often provokes a more comprehensive and detailed analysis than
might otherwise be performed.
One of the most stunning of Kennedy's attributes is his ability
to generate such analyses without the significant help provided by
a rigorously comparative approach. Critique actually offers a brief
history of the terms "policy"142
and "formalism,"143
and defines at
least two different kinds of "deduction."144
Given that his analysis
starts from this fabulous baseline, I cannot help but imagine what
it might yield if it were more tenaciously comparative, if, for
139 See DAWSON, supra note 105, at 406-15.
140 I certainly do not mean to suggest that these "formalities" are not in fact terribly
important or deeply meaningful.
141 Of course, this projection is deeply meaningful in its own right.
142 CRITIQUE, supra note 1, at 108-09.
143 Id. at 105-07.
144 Id. at 101-04.
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2001] JUDICIAL POLICY 899
example, Kennedy did not take for granted (a) that American
courts actually deploy policy argument in a way that Continental
courts do not, or (b) that what appear to be "deductive" forms of
argument mean the same thing in continental Europe as they do in
the United States.
Kennedy's questions, only slightly modified, would strike at
something even more basic and central. For example, what does it
say about a legal culture that it uses a single term such as "policy"
to express several different meanings, whereas another legal
culture, which apparently has no such overarching term, divides
the concept into multiple subparts, such as "equity" or "legal
adaptation"? What does it mean that one legal culture divides the
notion of "deduction" from that of nondeductive "policy," while
the other does not make such a clear distinction because it assumes
that the two are inherently intertwined?
These impossibly difficult yet terrifically suggestive questions
are but a hairbreadth away from those directly posed and
addressed in Duncan's analysis. In the end, what a fabulously rich
book Critique turns out to be! Even when it addresses issues
obliquely and in passing--as, in all fairness, is the case with its
brief comparative moments--it not only offers important and
novel analysis, but also triggers the most difficult and exciting
analytic possibilities.