Judge-centeredness

If I am right, we must wonder why American theorists focus so much attention on judges and judicial activity rather than on lawyers and legal advice-giving. I think they shouldn’t.

One explanation of judge-centeredness is that American lawyers have inherited a primarily Judaeo-Christian outlook on legality, and that heritage culturally predisposes us to connect law with judges and judgment. God the lawgiver is likewise the God who judges and punishes transgressions. The Jewish liturgy of the high holy days paints the awesome picture of a God who annually passes His creatures like sheep beneath His staff, examining them and decreeing who shall live and who shall die. Even the angels, all too aware of their own faults, tremble at the Day of Judgment. Christians, too, stand in awe at the thought of Judgment Day.

Yet a moment’s thought will show how little the cultural association of divine law with divine judgment has to do with the judicial enunciation of legal meaning. God judges His creatures and their deeds. He does not judge between competing interpretations of what the law commands. God already knows what the law commands; it is only humans who confront legal perplexity and ambiguity everywhere. Legal interpretation is therefore a task solely for human beings. Deuteronomy proclaims that the law “is not in heaven, that you should say, ‘Who will ascend into heaven for us and bring it to us, that we may hear it and do it?’ ” (Deut.

Notice that one obvious argument for judge-centeredness will not work. This is the argument that we should focus on judges because judges are the officials whose job it is to settle questions of law. That plainly begs the question. Other officials need to settle questions of law as well. So do citizens trying to write a will, apply for food stamps, or form a corporation; and so do the lawyers they retain to help them. Recent constitutional scholarship has begun to rebel against locating constitutionalism exclusively in the courts and The Court: why shouldn’t legislative, executive, or popular understandings of constitutionalism play just as important a role in giving the Constitution meaning? Arguments similar to those of extrajudicial constitutionalists can be marshaled in favor of extrajudicial legalism more generally, and so focusing on judges because judges are the officials to focus on merely argues in a vicious circle. Indeed, it goes too far even to insist that we must focus on officials: it may well be that popular understanding of the law matters more than official understanding. It is not in heaven.

Three other arguments for the centrality of judges are much stronger. First is the realist argument that judges are the power people, whose orders and rulings determine our fate. Right or wrong, what they say is the law. Second, and almost the opposite of the realist argument, we find the claim that judicial decisions represent reasoned analysis of the law, which entitles them to special attention based on their intellectual quality. Finally, judges are sup­posed to be neutral and impartial, unlike citizens, who are entitled to be self­interested, or lawyers, who are supposed to favor their clients. So looking at what the impartial judge does is the best way to find out what the law is rather than what some interested party would like it to be.