An Institutional Theory of Law: Keeping Law in its Place

Vol. 9 No. 9 (September 1999) p. 382-383.

An Institutional Theory of Law: Keeping Law in its Place by Peter Morton. New York, NY: Clarendon Press, 1998. 416 pp. Cloth $90.00. ISBN 0-19-825825-9.

Reviewed by Martin Shapiro, School of Law, University of California, Berkeley.

This book is a curious mix of new and very old, conventional ideas. Law is a normative, language practice of society not the state, consisting solely of the writings of judges. Judges in a modern polity have authority only if they totally separate themselves from the rule making of legislatures and executives. Their sole task is to apply such pre-existing rules to particular cases in such a way as to do “legal justice,” that is maximize equality, which is defined as equal respect and concern for the vested rights of all individual citizens. While they must not make law, in the sense of making these rules, they have a broad discretion to declare, interpret, reformulate, amplify and transform these norms made elsewhere in order to insure such equal protection. While these external norms may have regulatory purposes, legal practice does not itself pursue regulatory or social control purposes but seeks only equal justice under these norms.

There are three quite distinct and separate realms of legal practice: criminal law, civil law and public law. The key to criminal law is punishment. The key to civil law is capitalist practice, but “the objective of participants in the legal practice is to do legal justice, not to promote capitalism or ameliorate the social consequences of . . . the market economy.” The overarching idea of civil law practice is the protection of the special position that the law confers on certain socially recognized interests and entitlements. The public law practice of a democratic polity depends on a deliberative, representative body wielding sovereignty. It is focused on “ensuring that the State acts justly towards individual citizens.” Thus this judicial practice is endowed with “an unchallengeable, inherent authority to declare the law” because “the courts are the only institutions within a democracy in which the principle of the individual worth of every citizen can be fully and consistently realized.”

Judicial review of legislation and judicial legislation are bad. They encourage judges to stray from legal justice (equal treatment for every individual under pre-existing legal rules) to substantial justice.

This book, original and idiosyncratic (I mean no disrespect by the latter word), is worthy of the distinguished Clarendon Press imprint. I have sought here to summarize it almost entirely by close paraphrase and quotation that should give readers sufficient notice of whether they should read the book. Certainly anyone interested in legal theory as such should do so.

I find this book of no use to me at all. Precisely for this reason I do not venture a criticism of it except to say that its confining of legal practice to the written words of judges, its rigid separation of courts from politics and government and its insistence that judges should not make law but should have wide and autonomous discretion to “declare” and “transform” it leave me dissatisfied. Like many such works, it will provide an activist judge who sees him or herself as a noble guardian of rights--a license to do whateve the judge pleases. That was the author’s intention.

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