JUST INTERPRETATIONS: LAW BETWEEN ETHICS AND POLITICS by Michel Rosenfeld. Berkeley: University of California Press, 1998. 308 pages. Cloth. $45.00. ISBN 0-520-21097-2.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College. E-Mail: Ronald.Kahn@Oberlin.edu.
 

Rosenfeld explores "whether the crisis in interpretation that confronts the postmodern polity can be overcome and whether it is possible to construct a path leading to just interpretations--in the sense of interpretations comporting with justice--after the demise of naturalism and the inadequacy and loss of legitimacy of positivism." (7). Part I of the book assesses the theoretical implications of the current crisis of interpretation, emphasizing the investigation of the key conditions that would have to be met to solve the crisis. In so doing, Rosenfeld focuses on the nexus between deconstruction and this crisis in interpretation. He emphasizes the limitations of Dworkin's theory of law viewed as ensuring "integrity with its process-based approach" and Jacques Derrida's brand of deconstruction as "paving the way for its solution." (7) Rosenfeld finds Stanley Fish's "bare neoformalism" and Ernest Weinrib's "Aristotelo-Kantian neoformalism" to be "ill suited to lead us past the crisis of interpretation." Rosenfeld concludes Part I by arguing that the "solution to the crisis of interpretation requires pursuing comprehensive justice while realizing that imperfect justice is the most that can be hoped for." (8)

In Part II, Rosenfeld considers ways of "sidestepping the crisis in interpretation by dealing with the gap between justice according to law and justice beyond law." (8) He views Niklas Luhmann's autopoietic theory of law as circular and self-referential. He is also critical of Jurgen Habermas's procedural paradigm of law as it emerges in the context of discourse theory. He argues that "neither Luhmann or Habermas succeeds in putting an end to interpretation." (8) Finally, Rosenfeld finds that pragmatism, with its shift in focus from ends to means, as evidenced in the common elements of the theories of Richard Posner and Richard Rorty, also fails to result in the end of interpretation.

Part III is very interesting. Rosenfeld attempts the very difficult task of providing an alternative theory for coping with the crisis in interpretation. He does so by acknowledging the inevitability of partial interpretations, the constraints of imperfect justice, and the impossibility of fully surmounting the split between self and other. Using an approach called "counterfactual reconstruction," Rosenfeld's alternative theory is based on the premise that the best possible solution to the crisis of interpretation is turning the "inescapable pluralism of the postmodern polity into the guiding normative principles." (8) Comprehensive pluralism is a "substantive version of pluralism capable of harnessing the conflicts among competing conceptions of the good in the quest to narrow the gap between self and other and individual and community." Rosenfeld argues, "By means of counterfactual reconstruction, comprehensive pluralism can enlist partial subjects, imperfect justice and open-ended law to frame just interpretations that may be partial and time-bound but that need not be arbitrary or merely reducible to parochial ethics or politics."(9) Rosenfeld emphasizes that comprehensive pluralism is superior to "its principle postmetaphysical rivals, namely, liberalism, republicanism, and communitarianism" in part because it offers a "cogent and defensible division of labor between law, ethics, and politics." (9).

Rosenfeld argues that he rejects the inter-subjective agreement of the interpretive community as a standard for what constitutes justice because of the real possibility of the subordination of views within the community. This is especially so given that on many issues there is no consensus on the purpose of law. For example, he argues that to select the wealth maximization value premise as found in the law and economics approach to law or to select the substantive values which are embedded in Dworkin's theory of legal interpretation is to choose among many different and conflicting normative principles. However, to choose either violates the central premise of pluralism that citizens respect the possibility that quite different values of the good exist in society.

Rosenfeld has set out for himself an important and quite difficult scholarly objective. By defining the relationship between law, ethics, and politics he seeks an overall normative theory, really a method, through which law acts to help society meet its most difficult problems. He defines law as the process of bridging the gap between self and other. He also defines it as a way to confront the problems caused by the attacks on foundational values by deconstructionists, such as the legal realists and social scientists who believed in non-Euclideanism and scientific naturalist principles in studying law and courts (see Purcell 1973 and Kahn 1994). Rosenfeld seeks a theory which he hopes legal scholars, philosophers, and political scientists can live with as a way to explain how law and the legal system meets problems created by change in the social, economic, political, and cultural settings. He is also seeking a theory that might be useful in nations of quite different levels of political and value fragmentation. He clearly argues that the American legal system can incorporate deconstructionist insights as part of an internal process of making just interpretations. Rosenfeld also argues that if one relies on his theory then the primary value of respect for diverse viewpoints and the problem of full participation in mediating the self with the other can be met. Rosenfeld wishes to offer a way to explain how political, economic, and social changes in society can meld with the ethics of the self, through the legal and political process, to allow wider societal problems to be met.

Rosenfeld offers fair-minded and careful critiques of theories of deconstruction. However, at the core of his theory of just interpretations is the view that the deconstructionists are correct in their attack on foundational values, at least to the point that no one definition of the good can be accepted as valid. He likes Fish's view that although legal decision-making does not lead to deterministic results, something internal to law rather than extralegal norms and processes determines juridical relationships and separates them from non-juridical ones including politics. For Rosenfeld, legal formalism is not a given; law is not simply to be "found" by well-trained jurists. Rather it is something constantly made and remade. Law is the constant process of making itself through formal internalizing of values from the ethical and political world and transforming them into legal values. However, Rosenfeld cogently argues that because Fish locates justification in the purely present act of the decision-maker his legal formalism leads to the celebration of the status quo. Rosenfeld also critiques the view that law should not be viewed as reducible to politics. Thus, for him courts do not simply follow election returns; nor do judges act like legislative policy makers when deciding cases. To support the view that law is reducible to politics for Rosenfeld is to reject the important role that moral visions do play in legal decision making. Nor is law simply based on a summing up of the morals/acts of the market. Law as practice is not reducible to politics or to any other practice. Thus, to his credit, Rosenfeld rejects an instrumental vision of legal decision-making, one in which ideas are viewed simply as arguments to support a predetermined policy want of the judge. For Rosenfeld law is self-contained; it does not overlap with other practices. Law takes in ethical and philosophical ideas such as freedom, equality, or privacy, which are invoked to determine some non-preordained outcome. The process is constitutive. Nor is the legal process as self-contained as Fish suggests. For example, equality as a value is constitutionalized in the Equal Protection Clause of the 14^th Amendment. While the legal process is autonomous of politics and markets, it does incorporate and transform material from other practices. To the extent that ethical, political, and philosophical arguments have a genuine place "within" the practice of law, the practice is not self-contained, but only to that extent.

Given these objectives and premises, two-thirds of the book constitutes criticism of major constitutional theories. The criticism is undertaken in a way to tease out the elements that are needed for a modern theory of just interpretations and to describe a way for law to mediate between ethics and politics. For example, Earnest Weinrib's "Aristotelo-Kantian formalism" is wanting because there are two unwarranted assumptions. These are that "the domain of corrective justice (damages) must preside over a regime of purely negative rights" and that "distributive justice necessarily involves respect for Kantian notions of equality and personhood."(49) For Rosenfeld, nothing in corrective justice precludes it from covering a regime of positive rights, that is, a legal system in which private legal actors are charged with positive duties towards one another. Weinrib's failure to see a wide range of possible norms that can underpin legal principles, born of changing historical context, limits the applicability of his theory to understanding the relationship of law, ethics, and politics. Weinrib also is criticized for the "unbridgeable gap that he perceives between corrective and distributive justice." (51). Rosenfeld finds that Weinrib detaches law from politics too much. The crisis of legal interpretation will not be met through the imposition of holistic theories of justice on society. Notions of formal justice are problematical, as are notions of substantive justice, because it is difficult to disentangle them from their underlying contested conceptions of the good.

Another example of Rosenfeld's use of criticism as a way to further his argument is his rigorous and well written critique of Habermas's proceduralist paradigm of law. Rosenfeld stresses that Habermas's procedural justice overemphasizes similarities rather than differences; proceduralism may be possible in the context of accepted substantive norms. However, since we lack such agreement, and political power among groups differs, procedural discourse can not be neutral as to competing conceptions of the good. The legitimacy of pure proceduralism or faith in discourse can only be achieved if there is accord over shared substantive norms. (For example, he argues that since men and women differ in their beliefs in rights as norms versus connectedness among individuals as norms, nations lack shared substantive norms.) For Rosenfeld, the Kantian bias in Habermas is the problem. Legal, moral, and political conflicts can't be solved simply by just discourse. By way of example, Rosenfeld emphasizes that Habermas's procedural discourse will not work on abortion because of value clashes among citizens and groups make dialectical compromise impossible. That is, conflict over the question of the right to abort a fetus is a counterfactual that undermines Habermas's conception of law, morals, ethics, and politics. Habermas's Proceduralism can't reconcile legal and factual equality. Since in contemporary pluralism, an ethnically diverse pluralism, there is no neutral, universally acceptable moral perspective, all legal and factual equality will be biased and thus illegitimate.

However, for Rosenfeld, Habermas's discursive paradigm based on communicative action has possibilities. If we view the individual not simply as self, but as seeking society-wide interaction, as individuals with intracommunal perspectives who seek to maximize their own advantages within the existing institutional arrangements, Habermas's discussion of different citizenship roles can be "profitably invoked in the absence of a universally applicable moral perspective." (149)

Although the criticism of the wide range of theories in Parts I and II of the book is very well-written, professional, thoughtful, and mature, the primary contribution of this book rests on Part III, titled "Substantive Commitments, Partial Interpretations, and Imperfect Justice." Rosenfeld concludes that "systems theory, discursive proceduralism, and pragmatism have all failed to justify proclaiming an end to interpretation.… [I]t now becomes imperative to return to interpretation as a last-ditch effort to determine whether the crisis of interpretation may be nonetheless overcome and whether justice according to law might be after all susceptible to reconciliation with justice."(199) Rosenfeld admits "The challenge of clearing a path to just interpretations is daunting."(199) It is daunting for the following reasons: a way must be found to bridge the gap between self and other without undermining the diversity born of the plurality of conceptions of the good; there is no workable neutral moral standpoint; it is impossible to successfully rely on pure proceduralism; and the process is contingent on changing societal context and the impracticality of completely severing law from ethics and politics.

Rosenfeld makes an argument for what he calls comprehensive pluralism as a way towards just interpretations and to meet the challenges listed above. Comprehensive pluralism has the following components: it is understood in substantive normative terms; it must adhere respectfully to a multiplicity of diverse conceptions of the good; and it must be able to deal with conflicts among the conceptions of the good. To fulfill these objectives, Rosenfeld argues that one value must stand out as different and above all others. That value is that pluralism is a good or what the author calls "pluralism as a norm." This norm requires that all conflicts in society must be handled in a way that is designed to enhance pluralism. Comprehensive pluralism, whose central norm in pluralism, Rosenfeld argues, "affords the `best' possible means to deal with conflicts within a society that is in fact pluralistic, consistent with an ethic of reconciliation between the self and other and with an eye to minimizing the violence inflicted on the self or the other. This thesis ... can be encapsulated in the slogan pluralism as norm is best for pluralism in fact." (200)

Rosenfeld argues, "Legal interpretation cannot avoid reliance on substantive normative commitments, and that precludes genuine neutrality as between competing conceptions of the good."(200) He also admits that his theory, whose primary objective is to secure just interpretations, precludes genuine neutrality as between competing conceptions of the good. However, he argues for pluralism as norm as an admittedly non-neutral conception of the good because it is based on a different conception of the good than all others. It is different in the fact that all other concepts of the good require normative pluralism for their survival. Rosenfeld views comprehensive pluralism as fostering peaceful coexistence among as many conceptions of the good that are possible. However, these different conceptions of the good are only to be allowed in law to the extent that they don't interfere with respect for different conceptions of the good. Pluralism, tolerance and diversity are all supported by comprehensive pluralism. Rosenfeld emphasizes that comprehensive pluralism's principle aim is to negotiate the tension between what he calls first-order norms, which are definitions of the good in the various conceptions of the good, with what he calls the second-order norms of normative pluralism "without thereby compromising the latter, all the while remaining as inclusive as possible with respect to the former." (201) Rosenfeld admits that the promotion of normative pluralism can limit first-order norms or the good. However, he sees comprehensive pluralism as distinguishable and better than Kantian visions such as those of Habermas and Rawls because it demands a split between calls for justice predicated on first-order norms and legitimate endeavors through which to dispense justice, which must look to respect for second-order pluralist norms. Comprehensive pluralism unleashes an inevitable but ultimately unresolvable dialectic between first-and second-order norms. Rosenfeld views this dialectic as not reducible to "mere relativism" and markedly different from theories based on Rawls's "overlapping consensus." (201) He also sees individual pluralism as protected by communal pluralism and vice versa. However, choices will have to be made between furthering communal pluralism at the expense of individualistic pluralism and vice versa. He hopes that the presence of individuals with affiliations in a number of distinct groups which may be in conflict with each other will reduce the possibility that communal and individual pluralism will be destructive of each other.

Also, the split between self and other is seen as not necessarily fixed or permanent; it is multiple, fragile, and context dependent. The split should be viewed in relational terms --as a consequence of alliances and divisions prone to shift over time and likely to intensify and abort depending on the political climate or particular issues involved. Rosenfeld notes, "[w]ithin this framework interests loom as flexible, adaptable, and transformable." (205) Interests, such as those of women, can force one to maximize one's advantage in existing institutional arrangements and to seek new arrangements.

Rosenfeld also emphasizes that the dialectic within comprehensive pluralism is not as susceptible to a charge of relativism because it rejects any theory of the good that has normative premises that violate normative pluralism. For example, the objective he seeks is equality and neutrality among first order norms as long as second order norms of pluralism are not violated. Thus, religions that depend for their survival on radical intolerance, that is, religions that require conversion of the infidel, have no place under comprehensive pluralism. Such religions can only be allowed if they pose no threats to other religions. Not all conceptions of the good are permitted. Change in first order norms result in a constant rethinking of whether second order respect for pluralism norms are violated.

The ultimate good is deemed the reconciliation of self and other in the least coercive and least confining way possible. The strongest case for comprehensive pluralism is that it leads to the desired reconciliation of self and other. Rosenfeld views it as bridging most of the divides one associated with politics that are pluralistic. He writes, "Inasmuch as self and other are conceived as cutting across individual and communal divides, as somewhat malleable and prone to evolve, and as capable of simultaneously expressing complex identities and multiple alliances, the traditional oppositions between the individual and the group and between liberals and communitarian