Vol. 10 No. 7 (July 2000) pp. 419-423.

IT'S ALL IN THE GAME: A NONFOUNDATIONALIST ACCOUNT OF LAW AND ADJUDICATION by Allan C. Hutchinson. Durham, NC: Duke University Press, 2000. 374 pp. Cloth. $54.95.

Reviewed by Jack Wade Nowlin, University of Mississippi School of Law.

Allan C. Hutchinson - formerly a law professor at York University in Toronto and currently a research professor at Cardiff Law School, University of Wales - is a scholar of the postmodern, deconstructionist, or critical school. Not surprisingly, then, the primary emphasis of this work on law and adjudication is an elaboration upon one of the central claims of "critical theory:" that law is simply a form of politics. Indeed, as his title suggests, Hutchinson maintains that there is no foundation, no central or primary foundational interpretive method, from which to build a non-contextual, non-contingent, non-political truth claim about the meaning of a legal provision. In fact, Hutchinson provides, from this nonfoundationalist perspective, a serious, systematic, and quite sophisticated response to an important set of normative and empirical concerns revolving around the question of the proper judicial role: "What do/can/should judges do?" (p. ix).

The main thrust of his account of adjudication is that judging is "an engaged game of rhetorical justification" (p. ix) in which the rules a judge must interpret, such as a statute, a line of precedents, or the Fourteenth Amendment, and the set of rules governing interpretation and judging themselves, such as the degree of fit with legal materials a legal conclusion must display in order to be considered a legitimate act of adjudication, are both open to question and thus both in argumentative "play." Hutchinson, a man of the left, is also deeply concerned by the potential negative political implications of his nonfoundationalist position, and he therefore provides a serious response to the common "liberal" contention that deconstructionist accounts of adjudication, whatever their motive force may be, are actually reactionary or quietist in their ultimate tendencies.

Hutchinson, then, rests his account of law on a "nonfoundationalist" basis. In essence, this nonfoundationalist approach asserts that our understanding of truth, coherence, and objectivity must always be understood in light of the influence of the surrounding social context-the contingent set of sociohistorical circumstances, including politically-charged power relations - that forms much of our view of reality. Indeed, this social context inevitably shapes one's apprehension of truth to such a degree that it eliminates any epistemic claim of "neutrality" and any claim to moral or political certainty. Hutchinson thus observes that the particular "hallmark" of nonfoundationalism is its "thoroughgoing skepticism toward the belief that there are any essential, final, or foundational truths" (p. 43). For this reason, he notes, nonfoundationlists wish "to dispense with the privileged vocabulary of accuracy and representation," replacing it pragmatically

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with "the more prosaic standards of usefulness and acceptability" (p. 45). In the nonfoundational approach, then, Hutchinson maintains, "different NOTIONS of ["]truth["] are encouraged for the benefit of an intellectual endeavor that is nondogmatic and experimental" (p. 43, emphasis added).

In this vein, legal nonfoundationalism rejects any foundationalist account of law, any attempt to argue that one can find an "objective" standpoint or foundation that can serve as "neutral" basis from which to make "true" statements about legal meaning. In particular, then, Hutchinson rejects any theory or account of law that seeks "right" answers to legal questions by "privileging" one particular interpretive approach or methodology over others. In fact, Hutchinson asserts that ALL legal interpretation is ultimately political, and this includes, importantly, the debate over the proper understanding of the very conventions that govern legal interpretation itself. Also, one of Hutchinson's central points is that there are TWO sets of legal rules involved in adjudication, both of which must be understood in a nonfoundational sense: First, there are the legal rules that are the object and substance of adjudication, and, second, there are the interpretive rules that stipulate how one is to interpret the first set of legal rules. (p. 292)

As a nonfoundationalist, Hutchison argues that a politically-charged, contingent, unstable, sociohistorical context shapes our understanding of both the interpretation of legal rules and the "rules" of legal interpretation. The influence of this value-laden and politically non-neutral social context on our judgments about law is simply unavoidable. Indeed, what we commonly experience as the core of uncontestable, "settled meaning" of a legal rule, whether it is a rule being interpreted or a "rule" that is itself a canon of legal interpretation, is the result of a (mere) social agreement rooted in a particular social context that is ultimately contingent, unstable, political in nature, and thus subject to challenge and to social change. There is, then, no foundationalist basis for discovering "right" answers to either set of questions about legal rules, though there may be many answers at any given time which we are able to agree upon as a matter of social convention. Hutchinson thus concludes that adjudication is ultimately "never fixed or grounded," but always involves the politically colored interpretation of "both the formal rules of law and the informal conventions that govern how those formal rules are to be interpreted." As a result, judges inevitably "play the dual role of player and referee" in the social practice of adjudication, both playing the "language game" of law and deciding the very rules of the game as they "play" it (p. 52).

It is on this basis that Hutchinson affirms his understanding of the truth of the "law is politics" thesis. Even so, it is important to be clear that Hutchinson's nonfoundationalist "law is politics" thesis is not an ("antifoundationalist") assertion that judges simply exercise sweeping political discretion in every decision and construct ad hoc, post hoc rationales for those decisions. On the contrary, Hutchinson is quite critical of David Kairys for taking precisely this position, and Hutchinson's nonfoundationalist account strives to "take seriously both the restrictive PULL of rules and the liberating PUSH of interpretation." (p. 187, emphasis added.) Hutchinson's account of law, then, involves the more modest and common-sense claim that the important and very real constraints judges feel to interpret legal rules in a one way

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rather than another are themselves only social conventions and thus contingent products of a unstable, value-laden social context rather than a stable, "neutral" source of objective legal "truth." Plainly, judges actually do experience both sets of rules as a sources of constraint, but the MEANING of both sets of rules, and thus the nature and degree of constraint, is also always in "play," politically charged, and subject to challenge and (re)interpretation as well. Adjudication, then, in Hutchinson's view, must be understood as involving the complex and fundamentally political interplay of interpretive freedom and convention- and rule-based restraints on that freedom.

This understanding of the nature of law leads Hutchinson to characterize adjudication as ultimately a "rhetorical language game of justification." The reasons for this characterization of law overlap substantially. In Hutchinson's view, adjudication is best understood as a "playful game" (the "ludic" account of law) because the judicial enterprise is simply not a project of precise, technical, "bounded" legal reasoning about the scope and content of legal rules within a rigid set of fixed canons relating to the proper method of adjudication. Rather adjudication requires a "choosing among values in contingent circumstances" as those values relate to both "playing WITHIN the rules" and "playing WITH the rules" of interpretation-and then attempting to justify one's value choices rhetorically.(p. 11, emphasis added) Adjudication is therefore "playful," in an important sense, precisely because there is such much "play" in the rules and because, as a result, the successful pursuit of the judicial craft requires virtues associated with "play," such as imagination and creativity, in additional to "technical" legal skills (p. 11).

Adjudication is also a RHETORICAL "game" because, consistent with a nonfoundationalist outlook, legal reasoning is actually about the "justification" of value-laden choices, not the technical "demonstration" of legal truth. Adjudication, then, is essentially rhetorical in nature and involves persuading "someone to prefer one result or line of justification to another," rather than discovering the one pre-existing "right" answer to a legal question in a foundationalist sense (p. 176). The role of the judge, then, involves the imaginative deploying of rhetorical moves in creative combinations, not unlike the game of chess, but, where, of course, the actual rules of the game governing permissible moves ("the rules of adjudication") are also in play as well. Indeed, one of the most attractive features of Hutchinson's book is an appendix outlining in schematic and static form (in light of the present "contingent" social context) the "standard set of argumentative maneuvers that constantly repeat themselves in legal debate and that can be used to support or undermine each other."(p. 333). This appendix nicely drives home Hutchinson's point about the rhetorical flavor of adjudication and should be of interest even to those who may disagree with his larger nonfoundationalist argument.

Of course, one may be forgiven for supposing that this understanding of law could have a destabilizing effect, particularly in American constitutional law, where the "law is politics" thesis could call the basic doctrine of judicial review seriously into question. Hutchinson does express real concern about the political implications of his nonfoundationalist account of adjudication, but his main worry is clearly not with American-style judicial review or American debates about interpretive theory, judicial restraint, and

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judicial activism. Rather, Hutchinson's chief concern is that a nonfoundationalist account of law may threaten "progressive" politics, that it may be thought to be "deconstructive" without being in any way constructive - promoting quietism and fatalism rather than progressive social change.

Hutchinson's response to this charge, in essence, is that a nonfoundationalist critique of law, rightly understood, simply has no necessary political consequences of any kind, that asserting the legal system's lack of "objective" foundations will not plainly result in any particular political outcome but is consistent with any number of eventualities. More directly to the point, he also maintains that while it is certainly possible that such a critique might promote political quietism, it is also true that "a more poetic and playful jurisprudence might shake . . . complacency and represent a bold affirmation of the collective and personal responsibility to change the world for the better" (p. 261). In short, Hutchinson maintains that the political consequences of an embrace of a nonfoundationalist account of law are ultimately unpredictable and the (mere) risk of a negative effect on the "progressive" cause, particularly when offset by its possible benefits, is an insufficient basis for rejecting it.

Hutchinson, then, recognizes, rightly, that a nonfoundationalist account of law is compatible with a diverse range of political orientations and political results-a conclusion that should not be surprising given that the genealogy of critical theory, deconstruction, postmodernism, and their various precursors ultimately includes several figures with "right-wing" associations, including Paul de Man, Martin Heidegger, and Friedrich Nietzsche. One might also note here the obvious similarities between the work of a progressive critical theorist such as Hutchinson and the nonfoundationalist moral skepticism and legal pragmatism of a "non-progressive" (classical liberal, libertarian, or conservative) legal theorist and judge such as Richard Posner.

Moreover, nonfoundationalism is also quite consistent with opposition to the sort of expansive judicial power commonly supported by liberal Democrats in the United States. Hutchinson recognizes that - despite the conventional view of academics and jurists on the subject - in fact it "should take little effort or imagination" to conceive of a political society strongly "committed to democracy and social justice" that also declines to "place courts and judges" at its "political epicenter" (p. 37, 345, n. 36). Therefore, it seems clear that Hutchinson's nonfoundationalist view also has no "necessary" political implications for American-style judicial review and could be used to support expansive judicial power, judicial restraint, or even opposition to the doctrine of judicial review. In fact, it is quite easy to imagine a deconstructive reading of American constitutional law attacking the elitist "privileging" of the Supreme Court vis-...-vis the other institutional and political actors and exposing the potentially false dichotomies involved in distinguishing between "legal" and "political" institutions or between fora of "principle" and "policy."

Hutchinson's book, whatever its political implications, will not be without its critics. Many readers will be unsympathetic to his nonfoundationalist perspective-his stand with the sophists against Socrates - and therefore will find they disagree with many of his conclusions for the simple reason that they disagree with the assumptions from which those conclusions

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follow. Furthermore, "foundationalists" in general may also be put off by some of Hutchinson's critical school tics and mannerisms, including the constant references to "play," "games," sports, pop culture, and the like, and the slightly flippant and schoolboyish tone that so often seems to accompany this approach. Some political scientists will also be disappointed in Hutchinson's willingness to make descriptive claims about the nature of adjudication without drawing on the empirical literature concerning judicial politics and behavior.

Even so, this book is a serious contribution to legal theory and one very well worth reading. Hutchinson's argument is thought provoking, informative, well written, engaging, and quite cogent. His work is also very well grounded in the scholarly literature and draws on and/or critiques the work of numerous legal theorists and philosophers, including H. L. A. Hart, Ronald Dworkin, Lloyd Weinreb, Cass Sunstein, Catherine MacKinnon, Roberto Unger, Ludwig Wittgenstein, Jacques Derrida, and Richard Rorty. All in all, Hutchinson has crafted a quite sophisticated and highly plausible middle ground between foundationalism and antifoundationalism, one that is a welcome corrective to the numerous caricatures and self-caricatures of legal postmodernism that so often appear in the debates in this field.

Additionally, Hutchinson's broader comparative perspective, drawing on judicial decisions from the U. S., Canada, the United Kingdom., and South Africa, is also quite valuable and greatly enriches his arguments. Moreover, as a non-U. S. citizen, Hutchinson's critical distance from the legal and political battles surrounding the U. S. Supreme Court is also very welcome and refreshing. One detects here, for instance, simply no note of axe grinding for or against ROE v. WADE. Finally, even those scholars whose interest in "critical school" accounts of the law is nonexistent can profit greatly from the descriptive aspects of the book. It is, for instance, quite true that judges disagree both about the interpretation of legal rules and the "rules" of legal interpretation; and it is also true, as a practical matter, that law is often much more rhetorical in its emphasis than demonstrative, more about persuasion than the discovery of "truth." Hutchinson's book sheds light on these and other aspects of law simply as an empirical matter. In short, then, IT'S ALL IN THE GAME is a significant contribution to the philosophy of law and one that will well repay a careful reading.