Judges Speak On Classical Legal Theory

A Model Opinion By Judge Matey and an Illuminating Lecture By Lord Sales

Here at The New Digest, we are always on high alert for citations to our work, er, I mean, engaging discussions of classical legal theory by the judiciary. Some of the more interesting recent examples are, we think, of broader methodological interest.

The first is an exercise in off-the-bench legal theorizing by a judge. This is a genre that, we have noted, is often treacherous and does not always show judges in their best light. Judging is a craft or skill of practical reasoning and decisionmaking about legal justice, the ars boni et aequi, and it is notorious that because knowing-how differs from knowing-that, craftsmen are not always able to explain their craft. Hence the practice of judges is often better than their theory, with honorable exceptions. So it’s a pleasure to showcase an example of off-bench judicial theorizing that is of undeniably high quality: a recent lecture on “Purpose in Law and in Interpretation” by Lord Sales, a Justice of the U.K. Supreme Court and widely regarded as one of the leading lights of that bench.

Drawing on Lon Fuller’s work as a starting point, Lord Sales argues that the “ubiquitous recourse to the idea of purpose in different legal areas derives from the fundamentally purposive nature of law and the legal system as a whole.” Lord Sales emphasizes, with great power, that the putative opposition between legal meaning and purpose is misconceived, and that “recourse to purpose to derive meaning is inevitable” in many settings, simply because law and legal texts are not formulated as abstract propositions; they are human interventions designed to achieve given rational ends. The assessment of legislative purposes should “be informed by what Adrian Vermeule calls common good constitutionalism in the mode of the classical legal tradition. This calls for a union of well-ordered reason, directed to certain objectives, with public authority.”

We highly recommend reading the whole. At a minimum, Lord Sales’ Fullerian and classical defense of law’s reasoned purposes is already a refreshing change from the wearisome back-and-forth of U.S. legal discourse about interpretation, currently stuck between two main camps: a pseudo-positivist originalism-textualism that usually refuses to admit that it attributes rational purposes to law and can’t help doing so, and progressive or critical theory that is more likely to speak of democratic will than of reasoned purpose, but which routinely betrays itself by implicitly appealing to suprapositive conceptions of law and legal institutions, as when progressives declaim that “this Court is not [really] a court!”

Now for an example of judicial work properly so-called. Classically-curious lawyers often ask us for an example of model judicial opinions in a classical register, and although we have offered a number of examples, new ones are always welcome. Enter Judge Paul Matey of the Third Circuit, who recently wrote a stellar concurrence in an en banc decision, Range v. Attorney General, that provides a comprehensive repertoire of classical principles and arguments. By all rights it ought to appear in textbooks, as a model alternative to the usual approaches.

The issue in the case was whether the federal “felon-in-possession” statute violates the Second Amendment’s right to keep and bear arms. Applying the history and tradition test from Bruen, as clarified and arguably refashioned by the recent Rahimi decision, and sticking closely to the facts, the en banc court held that the government had not shown that the “principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his Second Amendment right to possess a firearm.” In this, one can already see the effect of Rahimi, which (as argued elsewhere in our pages) takes Second Amendment doctrine in an unmistakably classical direction by understanding history and tradition not as a set of empirical data points, but as a set of reasoned principles of constitutional governance, of which history and tradition are evidence.

Judge Matey’s clarifying concurrence, however, puts the issues in a larger coherent framework. Although the Second Amendment right to keep and bear arms reflects a background fundamental natural right of “resistance and self-preservation” (Judge Matey here quotes Blackstone), one that antedates and informs the particular specification of that right in the constitutional text, it is also true that “fundamental rights that predate America are not unlimited, and like any law, never license acting contrary to the common good” (Judge Matey here cites and quotes both James Wilson and St. Thomas Aquinas — in the best style of 18th and 19th century American judicial writing, which frequently drew upon both Anglo-American and continental sources, seeing both as part of a larger continuous tradition). For Judge Matey, historical sources are not ends in themselves or merely positivist evidence of the original understanding. Rather, “[s]urveying history helps us understand the reasons relied on to regulate the right … ensuring a ‘[c]ontinuity of [p]rinciples’ faithful to our inherited tradition” (here citing and quoting St. John Henry Newman’s idea of the development of doctrine, important recent work by Jamie McWilliam on a classical approach to the Second Amendment, and Common Good Constitutionalism). In all this, Judge Matey not only faithfully applies the Rahimi approach, but also offers a better explanation for why judges ought to care about history and tradition, an explanation sorely lacking in many expositions of the test.

One might note that Rahimi rejected a claim of Second Amendment right, whereas Judge Matey upholds it. This just illustrates a longstanding point made by classical lawyers: the common good and the universe of traditional principles surrounding that fundamental criterion provide, not a laundry list of specific results, but a framework for constitutional governance and legal argument. Classical lawyers may and do differ on the application of those principles in particular cases. There is no escape from the irreducible exercise of judgment, of the regnative prudence particular to the judge whose role and mandate is (as the federal judicial oath puts it) to “administer justice” impartially in particular cases. The pseudo-positivism of the hard-core originalist hopes, vainly, that judgment can be entirely wrung out of the judge’s office, and as a result merely drives judgment underground. But the classical lawyer understands that, to repeat, judging is the craft or art of practical reasoning about legal justice, not an algorithm. In all these ways, Judge Matey’s concurrence exemplifies a style of judging that both offers a refreshing departure from the usual approaches, and is also traditionally grounded, authentically American — a style of judging that is, paradoxically, more consonant with the founding era and our subsequent history and traditions than is originalism, which in its dogmatic, exclusive, and over-theorized form is a recently invented pseudo-tradition, a latecomer to American law.