History in the American Juridical Field: Narrative, Justification, and Explanation

Abstract

Law in the contemporary United States has achieved unchallenged ascendancy as the principal arena and discourse for decisionmaking in social and political affairs. Law's capacity to dominate in such decisionmaking is largely dependent on popular confidence in the legitimacy and efficacy of the rules it produces. Legitimacy is in turn grounded upon the repeated invocation over time of foundational values associated with the juridical form: law's objectivity in application (no one is above the law), universality in implementation (one law for all), and neutrality in outcome (the law does not take sides). Together, these values compose what I shall call law's meta-character-the normative idealization of the workings of law in society that emanates from "the world of the law." As resort to law proliferates, however, actual "legalities"-the legal conditions of social life-are produced not through the elaboration of holistic jurisdictional narratives, but from competitive struggles, adversarial or bureaucratic, to achieve specific, instrumental outcomes. Individuals, agencies, interest groups and social movements (including legal professionals themselves) make particular, self-serving investments in law. The availability of law for widespread use furnishes a practical quotidian basis for law's social efficacy, but use itself is indifferent to, and may even contradict, law's meta-character. How is law's legitimacy - and thus its overall social authority maintained when actual legality is produced in self-serving competition? This Article holds that maintaining law's social authority is the principal concern of the complex of institutions, actors and ideologies that comprise the world of the law. In particular, it ascribes to the juridical professions (of bench, bar and academy) a major interest in sustaining law's claim to legitimacy in rulemaking in the face of the particularism and fragmentation that the professions' pursuit of their own self-interest simultaneously encourages. That is, even as their members use law instrumentally in the service of particular clients, outcomes, or ideas, the juridical professions perform a crucial managerial role in the state formation composed by law's ascendancy by maintaining a representation of law that validates its proclamations of objectivity, neutrality, universality-and therefore autonomy.