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The New Institutionalism and Normative Theory: Reply to professor Barber

Published online by Cambridge University Press:  16 December 2008

Rogers M. Smith
Rogers M. Smith
Affiliation:
Yale University
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Extract

Nowhere in political science was the “behavioral revolution” of the fifties more pervasive than in public law. Normative debates on constitutional issues were left largely to lawyers or to the dwindling number of scholars in American political thought. Recently, as Professor Sotirios Barber observes, normative inquiries have undergone a resurgence in this section of the discipline, a resurgence within which the bulk of my ongoing work rests (quite impenitently). This resurgence has many sources, one of which is a wider recognition in contemporary political science that ideas can shape political conduct and that empirical inquiries find their ultimate justification in their contributions to normative reflection.

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Forum
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Studies in American Political Development , Volume 3 , Spring 1989 , pp. 74 - 87
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Copyright © Cambridge University Press 1989

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References

1. Smith, R. M., “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 82 (03 1988): 89–108CrossRefGoogle Scholar.

2. For the similarities in our substantive values, see Barber, S. A., On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), vii, 169Google Scholar; Smith, R. M., Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985), 5, 206–07, 259Google Scholar.

3. Smith, Liberalism, 5–6, 170–71, 211–12, 220; “Political Jurisprudence,” 100, 105.

4. Compare, for example, Barber's On What the Constitution Means, with my own Liberalism. Both books advance theories of the American Constitution that present it as aspiring to create a community of rationally inquiring and self-governing citizens. But my argument rests in part on extensive analysis of the historic failures of other constitutional outlooks, while Barber indicates that he is not “particularly interested in the doctrinal history of the Supreme Court (i.e., the story of how one judicial version of the law follows another)” (8).

5. To catalog the more minor apprehensions: Barber indicates my essay professes “to report all the relevant views among modern philosophers” to “the behavioral mainstream” and proposes to “unify all approaches” in public law, thus implicitly “banishing some elements” of normative discourse. The essay in fact never purports to be a “report” on the state of moral philosophy. Its focus is on empirical, descriptive work, discussed on fifteen of the published essay's seventeen pages of text. When it speaks of “the fundamental methodological question,” causing Barber consternation, it plainly refers to descriptive studies, not methods of normative argument, as he supposes. And it claims only to unify “many,” not all, of public law's “longstanding descriptive and normative concerns.” The final two pages of the essay do address normative approaches and they do single out the contextual and historical concerns of contemporary pragmatist theories as well suited to employ this empirical agenda. But they also criticize certain relativistic tendencies in pragmatist thought in favor of some aspects of “natural law” reasoning (Smith, “Political Jurisprudence,” 105). These two pages necessarily deal briefly with normative issues, not because I see them as “less than rational,” but simply because of limited space in an essay mainly devoted to other concerns. I consider methods of normative reasoning, and many rival positions, in other writings (for example, Smith, Liberalism, 175–97, dealing with truly “conventionalist” democratic positions, neo-Aristotelian and Thomistic natural law theories, and neo-Kantian views; “Don't Look Back, Something Might Be Gaining on You: The Dilemmas of Constitutional Neoconservatives,” American Bar Foundation Research Journal 1987 [1987]: 281–309, on libertarian legal economists and proponents of a jurisprudence of original intent; “After Criticism: An Analysis of the Critical Legal Studies Movement,” in McCann, M. and Houseman, G., eds., Judging the Constitution [Boston: Little, Brown, 1989])Google Scholar.

6. Smith, 1988, “Political Jurisprudence,” 101–05. For an effort to engage in such an analysis of judicial decisions on corporate “personhood,” see Barzelay, M. and Smith, R. M., “The One Best System? A Political Analysis of Neoclassical Institutionalist Perspectives on the Modern Corporation,” in Samuels, W. J. and Miller, A. S., eds., Corporations and Society (New York: Greenwood Press, 1987)Google Scholar.

7. Barber endorses Austin Sarat's remark that under the current pluralism in public law, “questions of fact and value go together.” I see them more often going in parallel than in real communication with one another. Sarat, moreover, explicitly endorses probing the problem of legitimacy via the sorts of studies of legal ideology I advocate (as well as via Martin Shapiro's comparative work in Courts) (Sarat, Austin, “The Maturation of Political Jurisprudence,” Western Political Quarterly 36 [1984]: 557)Google Scholar.

8. Moore, Michael, “Moral Reality,” Wisconsin Law Review 82 (1982): 1104, 1127–33Google Scholar.

9. Moore, Michael S., “A Natural Law Theory of Interpretation,” Southern California Law Review 58 (1985): 301n44Google Scholar. Moore is more willing to assume that moral things have such an “organization” than that they have any discernible internal “structure.”

10. Moore, “Moral Reality,” 1143, 1146, 1150.

11. And see another of Barber's sources, Austin Sarat: “an individual's sense of entitlement to enjoy certain experiences and be free from others as well as his or her response to injustice is shaped by the prevailing ideology” (“Maturation,” 557).

12. To list some minor points that will be clarified sub silentio: my criticism of “ideal” theory was aimed not at “moral realism” but at reliance on hypothetical “ideal” situations, like John Rawls's original position, Bruce Ackerman's spaceship, and Jurgen Habermas's “ideal speech” situation (the term “ideal theory” is Rawls's; as noted below, I do find value in his distinguishable notion of “reflective equilibrium”). Some sorts of “realists” endorse similar criticisms of “ideal theory.” See, for example, Shapiro, I., The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), chaps. 4–6Google Scholar. I said we should not “simply” do normative theory only to stress that we should do both normative and descriptive work. While I did refer to persons' moral theories as “their own” and to their principles as “commitments,” so does Michael Moore (Moore, “Moral Reality,” 1063–64, 1113, 1124, 1150, 1155n213; “Natural Law,” 287). By terming moral beliefs matters of faith I did not imply they were subrational, merely that they were not matters of certain knowledge, a point Moore and Barber concede. Barber's assertions on Dred Scott reflect again his inaccurate reading of my methodological comments on descriptive work as prescriptions for normative evaluations.

13. Smith, Liberalism, 213. Barber quotes the “social standards” phrase (albeit as “community standards”) while omitting the reference to “political institutions.” The original sentence reads, in full: “Thus, political institutions should, through democratic processes, elicit and enforce prevailing social standards of what constitutes minimally rational, deliberative conduct and of what preserves the ability to engage in it.”

14. Barber, S. A., “Review,” Political Theory 15 (1987)CrossRefGoogle Scholar. My “rational liberty” theory still permits meaningful judicial review because, if the question of whether conduct can be termed important to “rational liberty” is genuinely controversial in a given society, the legislature must accept a heavy burden of proof: it must give compelling reasons as to why restraints on that conduct preserve basic liberties more than they violate them (Smith, Liberalism, 213, 229–30, 236, 239, 250–51).

15. Michael Moore contends that his realism “weakens, but does not eliminate, the democratic arguments against a judge who ignores conventional morals… in adjudication.” He also views Ronald Dworkin, whom Barber repeatedly cites to support his own position, as a “deep conventionalist”; unlike Barber, Moore thinks such “conventionalists” can support judicial activism with some “fancy footwork” (Moore, “Moral Reality,” 1155n215; Moore, “Natural Law,” 299n35, 179n181, 391–92, 395–96). Also see Brubaker's, Stanley “realist” defense of judicial self-restraint in “Republican Government and Judicial Restraint,” Review of Politics 49 (1987): 570–72CrossRefGoogle Scholar, and Barber's reply at 573.

16. For appeals to our presuppositions, see in addition to Barber's essay, Moore, “Moral Reality,” 1103; and discussion below.

17. Plato, The Republic, Bk. 1; Aristotle, The Politics, Bks. 3 and 4; Moore, “Moral Reality,” 1139; Barber, Constitution, 8.

18. Smith, Liberalism, 205, 211, 220. Barber ignores this argument, the foundation of my position.

19. Ibid., 200, 206–07, 216, 220.

20. Smith, “Political Jurisprudence,” 105.

21. Moore, “Natural Law,” 333–34, 397.

22. Smith, Liberalism, 207–08, 211–12.

23. Smith, Liberalism, 212–13, 226. Recall, too, that even Socrates found it proper in all but the most exceptional cases to obey the laws of his democracy.

24. Moore, “Moral Reality,” 1098n75; 1098 1131; “Natural Law,” 312.

25. Moore, “Moral Reality,” 1108, 1112–13, 1143, 1150; “Natural Law,” 312.

26. Moore, “Moral Reality,” 1090, 1090n61, 1151–52.

27. Barber, seemingly unlike Moore, believes such aspirations express a suspicious affection for peace.

28. Moore, “Natural Law,” 312. Quine, after all, leaves little room for confidence in any straightforward “correspondence” theory of truth. See Quine, W. V. O., From a Logical Point of View (Cambridge: Harvard University Press, 1961), 20, 37–46Google Scholar.

29. Moore, “Moral Reality,” 1124–25 (emphasis added); 1145–46, 1152–53.

30. Moore, “Moral Reality,” 1077, 1080n43, 1111; “Natural Law,” 311, 334, 341, 397.

31. I agree, too, that without appeal to certain knowledge of timeless moral truths, it is hard to define just why we find a set of reasons compelling. But that problem equally plagues Moore's realism, since he disavows all claims to certain knowledge and similarly describes us as acting on the basis of principles that we judge to have the most persuasive reasons on their side.

32. Moore, “Moral Reality,” 1064.

33. Ibid., 1149.