THE SPIRIT OF THE LAW:

EMPATHY AS THE MORAL FACULTY

Ari Allen
Georgetown University Law Center
December 1, 2010

I. INTRODUCTORY REMARKS
If the project of the Enlightenment was to distinguish man from beast, then the
task of today is to discern man from machine. Without this distinction, man is stripped of
his humanity, and law is forever delegated as a paternalistic perpetuation of patriarchal
power structures. How then, do we overcome the status quo? How do we uproot
ourselves from the deeply entrenched conventional wisdom of the Enlightenment? How
can we view humanity on its own terms, rather than from the objectifying perspective of
reason? After all, in the words of Edmund Husserl: the same Body which serves me as
means for all my perception obstructs me in the perception of it itself.1 In other words, a
perceiver cannot perceive itself objectively without escaping its own subjectivity. The
problem is that it is then impossible to study human subjectivity from an objective
perspective.
Subjectivity can only view itself from the inside, while objectivity can only view
a subject as an object from the outside independent of mind. This is not to disparage
the Enlightenment, reason or objectivity. Rather, this is merely to say that its
epistemological approach is incomplete when it comes to understanding the
phenomenological aspects of mind. While reason and objectivity may be able examine
the brain in a reductionist and computational sense, it misses the irreducible and emergent
aspects of the human mind. Subjective states of mind feelings must be studied on
their own terms. A neural network cannot describe the experience of these subjective
states only the neural firings correlated with them (which does not always imply

1

EDMUND HUSSERL, IDEAS PERTAINING TO A PURE PHENOMENOLOGY AND TO A PHENOMENOLOGICAL

PHILOSOPHY, SECOND BOOK.

causality). Therefore, such objectivity misses the most important (and relevant) aspects
of being alive and human consciousness, self-awareness and experience.
This has important philosophical implications, and thus, implications for the
general realm of metaphysical endeavors. More particularly, it implicates how we
perceive the structure, function and purpose of law. Mainstream theories of jurisprudence
have alternated between objective (e.g., natural law, classical legal thought, formalism,
originalism, textualism, and law-and-economics) and subjective (e.g., legal realism,
critical legal studies) conceptions of the law. On the other hand, there have been attempts
to conceive the law from a middle ground an intersubjective perspective (e.g., legal
process theory). While process theory has had a significant impact on the law, it is
generally not recognized (or even known) as an influential school of thought. Legal
process theory heavily influenced jurisprudence in the 1950s and 1960s, but became less
relevant in the 1970s and 1980s as critical legal studies and the law-ands (e.g., lawand-economics, -sociology, -evolutionary biology, and-behavioral psychology).
However, after this sharp splintering of jurisprudential thought, this paper suggests a
new intersubjective approach that revives legal process theory by providing it with a
substantive core empathy. In essence, procedural substance (distinguished from
substantive process) is bolstered by recognizing the fundamental importance of empathy
in establishing an intersubjective perspective. On these strengthened grounds, legal
process theory has a clear ideal to work with. Empathy is chosen as a neutral principle
because it is the natural mental process that allows people to relate to one another in a
society. Similarly, empathic reasoning informs our sense of justice. Empathy, as we will

see, is the intersubjective mechanism by which multiple subjects can come together to
intersubjectively agree upon what thereby become objective standards.
Yet, the process-oriented intersubjective approach is so abstract (due to its general
lack of substantive ideals) that many have been unwilling to approach it, and instead refer
to it as a form of jabberwocky.2 It is the aim of this paper to renew process theory as
something substantive and graspable (without falling, once again, into the trap of
grasping at an independent objectivity that is nowhere to be found).
One may find that I have borrowed many passages from scholars that have long
(and shortly) preceded this writing this is entirely intentional. The intersubjective
approach that I am proposing depends on narratives in achieving a 360-degree view of
the many subjective perspectives available to us. Rather than a view from above (e.g.,
natural law), outside (e.g., law-and-), inside (critical legal studies) or nowhere (legal
realism) this is a view from everywhere. As Friedrich Nietzsche aptly described the
perspective of a post-Enlightenment world:
[T]here is only a perspective seeing, only a perspective
knowing; and the more affects we allow to speak about
one thing, the more eyes, different eyes, we can use to
observe one thing, the more complete will our concept of
this thing, our objectivity, be.3
Again, this 360-degree view combines the many subjective views into an
intersubjective aggregate that then constructs objectivity. Objectivity falls for the
naturalistic fallacy the way the world ought to be is a function of what the world is and
has become. Furthermore, objectivity cannot be understood a priori rather, it is

2

Gunther Teubner, How The Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law and
Society Review 727 (1989).
3
FRIEDRICH NIETZSCHE, THE GENEALOGY OF MORALS, THIRD ESSAY.

dependent on time, context and subjectivity itself. Using an important, but relatively
lengthy quote of Nietzsche once again:
The objective man is, in fact, a mirror: accustomed to
submit before everything which wishes to be known,
without any delight other than that available in knowing
and mirroring back What is still left of his person
seems to him accidental, often a matter of chance, even
more often disruptive... He readily gets himself confused
with others. He makes mistakes concerning his own needs,
and its only here that he is coarse and careless. Perhaps he
gets anxious about his health or about the pettiness and
stifling atmosphere of wife and friend or about the lack of
companions and societyindeed, he forces himself to think
about his anxieties: but its no use! His thoughts have
already wandered off to some more general example, and
tomorrow he knows as little as he knew yesterday about
how he might be helped He is cheerful, not from any
lack of need, but from a lack of fingers and handles for his
own needs. His habitual concessions concerning all things
and all experiences, the sunny and uninhibited hospitality
with which he accepts everything that runs into him His
love is forced, his hate artificial, more a tour de force, a
tiny vanity and exaggeration. He is genuine only as long as
he is permitted to be objective His mirror soul, always
smoothing itself out, no longer knows how to affirm or to
deny. He does not command, and he does not destroy
Moreover, he is no model human being. He does not go
ahead of anyone or behind. He places himself in general
too far away to have a reason to take sides between good
and evil. When people confused him for such a long time
with the philosopher, with the Caesar-like breeder and
cultural power house, they held him in much too high
honour and overlooked the most essential thing about
himhe is an instrument, something of a slave, although
certainly the most sublime form of slave, but in himself
nothing The objective man is an instrument, an
expensive, easily damaged and blunted tool for
measurement and an artful arrangement of mirrors,
something we should take care of and respect. But he is no
goal, no way out or upward, no complementary human
being in whom the rest of existence is justified, no
conclusionand even less a beginning, a procreation and
first cause. He is nothing strong, powerful, self-assured,
something which wants to be master. He is much rather
4

merely a delicate, finely blown mobile pot for forms, which

must first wait for some content and meaning or other, in
order to give himself a shape consistent with itusually a
man without form and content, a selfless man.4
This quote is the fundamental inspiration that leads me to the intersubjective
approach. Again: the more eyes, different eyes, we can use to observe one thing, the
more complete will our concept of this thing, our objectivity, be.5 The remainder of
this paper will reveal the view of some of these eyes, but more importantly, it will
explore the consequences of viewing and shaping a worldview based on intersubjectivity.
In order to do this, we must first overcome the postmodern angst the Cartesian
anxiety that represents Nietzsches predicted conclusion to the Enlightenment (the last
man). In order to do this, we return to our original theme: how do we discern man from
machine? The clear answer is to regain what we lost when we distinguished man from
beast: instinct, passion and feeling. We separate ourselves from both beast and machine
by being a parallel processor. Not only do we feel, but we also reason. Not only do we
reason, but we also feel. It is not that I think, therefore I am. Rather: I am, therefore I
think; I am, therefore I feel; I am, therefore I am! The only proof of existence under this
view is experience itself. Existentialism reflects the anxious ends resulting from this
Cartesian and Enlightenment perspective. Experientialism embraces the grand
importance of the Enlightenment perspective, but also transcends it by embracing
everything that came before it, and developing toward all that can come from it.
However, at present, we still live in the context of the Enlightenment, and have not found
our way out of the postmodern abyss it has created:

4
5

FRIEDRICH NIETZSCHE, BEYOND GOOD AND EVIL, PART VI.

Nietzsche, supra note 3.

Feeling is denied recognition and legitimacy under the

guise of the rationality of the Rule of Law. Incorporating
experiential understanding of persons or groups into an
ideological system based on a reductionist concept of
reason, a system that at times seems to have a fetish for
predictability and control under the Rule of Law, raises
terrifying specters of destabilization, chaos, and anarchy.
Accordingly, the emotional, physical, and experiential
aspects of being human have by and large been banished
from the better legal neighborhoods and from explicit
recognition in legal discourse (although they sometimes get
smuggled in as facts' in briefs and opinions). Ironically,
while emotion may generate laws via politics, once those
laws meet whatever criteria are necessary to constitute
legitimacy in a system, they are cleansed of emotion under
this vision of the Rule of Law. The law becomes not merely
a human institution affecting real people, but rather The
Law.6
It is important to recognize this cleansing of emotion and its consequential
stripping of humanity when studying the law. Without this recognition, we are left with
an impoverish view of the law, and have little hope of progressing toward something
more palatable something more human. In other words:
The ideological structures of legal discourse and cognition
block affective and phenomenological argument: The
normal discourse of law disallows the language of
emotion and experience. The avoidance of emotion, affect,
and experiential understanding reflects an impoverished
view of reason and understandingone that focuses on
cognition in its most reductionist sense. This impoverished
view stems from a belief that reason and emotion are
separate, that reason can and must restrain emotion, that
law-as-reason can and must order, rationalize, and
control.7

6
7

Lynne Henderson, Legality and Empathy, 85 Mich. L. Rev. 1574, 1575 (1987).
Henderson, supra note 6, at 1575-6.

It is important to remember that this is not a typical analysis of a specific laws or

policies. Rather, this is a historically-situated thought experiment in trying to push the
debate further in questioning whether or not we are asking the right questions, and what
marvels exist in the blind spots of our conventional wisdom. On that note, let us begin
exploring, chronologically, the many perspectives that have been endowed to the law.
We will then conclude with a new perspective that aims to transcend these perspectives
by embracing them all.
II. CLASSICAL LEGAL THOUGHT
Classical legal thought relied on the notion that the common law was not manmade in the ordinary sense; the judges uncovered the law (or found it); they did not
make it, or tamper with it as it was found.8 According to Christopher Columbus
Langdell, a pioneer of legal education as Dean of Harvard Law School in the 1850s, law
was essentially a science. Heavily influenced by Euclidean geometry and biological
taxonomy, Langdells approach to law was characteristically formalistic. Once the basic
premises of an area of law were established, further ratiocination was all that was
required to exhaustively describe the law.9 In this sense, the law was simply a product
of a process of historical development in which the latent logic of the common law had
gradually unfolded as its rules were refined and conflicts among them resolved.10 From
this perspective, hard cases, or cases that did not easily fit within the classifications of the
law, must be rejected as mistakes.11 Therefore, the geometry of the law also performed
a normative function description and evaluation were without distinction, and legal

8

ANTHONY KROMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION, 19 (1993).
Id.
10
Id. at 21.
11
Id. at 23.
9

evaluation was merely a process of looking to previous legal descriptions. This

naturalistic fallacy, in which is and ought are collapsed, lies at the core of classical
legal thought.
However, there were certain virtues to this jurisprudential approach. Formalism
provided an objective lens through which decisions could be made, independent of a
potentially misguided, incompetent, wicked, [or] power-hungry decisionmaker.12
Furthermore, deference to so-called natural rights protected our nations valued
individualism with a baseline namely, rights to life, liberty, and property, which would
require further ratiocination. In combination, formalistic process and naturalistic
substance provided the certainty, stability and predictability of law that classical legal
thinkers valued.
This school of thought was clearly influenced by a fear of regressing toward
tyranny a fear that the law would overtake the freedoms that were liberated by our
nations founding. In short, this reflected a cautious aversion to the expansion of the
states police powers. In the 19th century, Christopher Tiedman, an American jurist,
reflected that [t]he police power of the government is shown to be confined to the
detailed enforcement of the legal maxim, sic utere tuo, ut alienum non laedas.13 This
libertarian conception of freedom, coercion and the role of government reflected the
normative values at the core of classical legal thought. Formalistic decisionmaking
(inextricably intertwined with literalism)14 was the method by which these normative
values would be protected from overzealous decisionmakers. Thus, formalistic

12

Frederick Schauer, Formalism, 97 YALE L. J. 509, 543 (1988).

CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATIONS OF THE POLICE POWER IN THE UNITED
STATES, vi-viii (1886) (use your own property in such a manner as not injure that of another).
14
Schauer, supra note 5, at 538.
13

jurisprudence is valuable in that it narrow[s] the decisional opportunities and the

decisional range of a certain class of decisionmakers, in order to restrict misguided,
incompetent, wicked, power-hungry, or simply mistaken decisionmakers whose own
sense of the good might diverge from that of the system they serve.15
However, both formalism and natural rights receive various legitimate criticisms.
Formalism, in essence, gives up some of the possibility of improvement in exchange for
guarding against some of the possibility of disaster, and doom[s] decisionmaking to
mediocrity by mandating the inaccessibility of excellence.16 Similarly, rules based on
natural rights mask the reality that rules of language reflect a range of political, social,
and cultural factors that are hardly a priori.17 Thus, in combination, formalism and
natural rights disguise a choice in the language of definitional inexorability [that]
obscures that choice and thus obstructs questions of who it was made by and whether it
could have been made differently.18 Consequently, Frederick Schauer notes that this
view takes that vice to be one of deception, either of oneself or of others.19
Classical legal thought reveals its thought process in a variety of early American
legal decisions. However, one case in particular, Lochner v. New York,20 stands out as a
watershed example of such reasoning perhaps due to the fact that it arose in contrast to
the rise of legal realism, on the cusp of waging a harsh critique against such decisions.
Lochner also represents a foundational example in the history of interpreting due process
claims. Lochner challenged a statute passed by the New York state legislature which

15

Id. at 543-44.
Id. at 539.
17
Id. at 524.
18
Id. at 513-14.
19
Id. at 513-14.
20
Lochner v. New York, 198 U.S. 45 (1905).
16

would limit the number of hours a baker could be required to work. Due process was
invoked because Lochner, the owner of a bakery, contended that the law deprived him of
his liberty of contract without due process of law. Justice Peckham, writing for the
majority, agreed:
The general right to make a contract in relation to his
business is part of the liberty of the individual protected by
the 14th Amendment of the Federal Constitution. Under
that provision no state can deprive any person of life,
liberty, or property without due process of law. The right
to purchase or to sell labor is part of the liberty protected by
this amendment, unless there are circumstances which
exclude the right.21
Of course, Justice Peckham went on to consider the circumstances which
exclude the right, namely, the somewhat vaguely termed police powers, the exact
description and limitation of which have not been attempted by the courts.22 And so,
without description and limitation, Justice Peckham went on to make the attempt himself.
However, classical legal thought was clearly evident in his decision:
The question whether this act is valid as a labor law, pure
and simple, may be dismissed in a few words. There is no
reasonable ground for interfering with the liberty of person
or the right of free contract, by determining the hours of
labor, in the occupation of a baker. There is no contention
that bakers as a class are not equal in intelligence and
capacity to men in other trades or manual occupations, or
that they are not able to assert their rights and care for
themselves without the protecting arm of the state,
interfering with their independence of judgment and of
action. They are in no sense, wards of the state.23
In this dismissal, Justice Peckham established a minimalist interpretation of police

21

Id. at 54.
Id. at 53.
23
Id. at 57.
22

10

power, and so limited the state from interfering with the right of free contract with
practically no consideration of arguments that supported [t]hose powers [relating] to the
safety, health, morals, and general welfare of the public.24 While explicitly recognizing
the existence of such police powers, Justice Peckham decided that in this instance (and
thus, in most), police power should be intensely restricted the right of free contract
was a natural right protected by substantive due process from the encroachment of
government intervention and police powers. Effectively, Justice Peckham believed that
substantive due process limitations on police powers would prevent natural rights from
slipping down a slope toward excessive regulation, or even tyranny, because [it] might
be safely affirmed that almost all occupations more or less affect health.25 Justice
Peckham elaborated:
Not only the hours of employees, but the hours of
employers could be regulated, and doctors, lawyers,
scientists, all professional men, as well as athletes and
artisans, could be forbidden to fatigue their brains and
bodies by prolonged hours of exercise, lest the fighting
strength of the state be impaired. We mention these
extreme cases because the contention is extreme.26
However, Justice Peckham relied on the common understanding [that] the trade
of a baker has never been regarded as an unhealthy one to justify his deference to the
liberty of contract over police powers that protect public welfare.27 The derivation of
this common understanding is not mentioned in his opinion. Instead, Justice Peckahm
used these few words, the common understanding, to dismiss a debate about whether
such an understanding was actually common or supported. The one-sided nature of the

24

Id. at 53.
Id. at 59.
26
Id. at 57.
27
Id. at 58.
25

11

opinion reveals that it is also markedly formalistic, naturalistic, politically libertarian, and
economically laissez-faire. Justice Peckham however, disguise[s] a choice in the
language of definitional inexorability [that] obscures that choice and thus obstructs
questions of who it was made by and whether it could have been made differently.28
In dissent, Justices Holmes and Harlan exposed this deceptive linguistic choice as
an ideological opinion under the guise of formalistic reasoning. Justice Holmes noted
that:
This case is decided upon an economic theory which a
large part of the country does not entertain. If it were a
question whether I agreed with that theory, I should desire
to study it further and long before making up my mind.
But do not conceive that to be my duty, because I strongly
believe that my agreement or disagreement has nothing to
do with the right of a majority to embody their opinions in
law.29
In anticipation of the legal realism Justice Holmes would soon represent, his
dissent recognized that a Constitution is not intended to embody a particular economic
theory It is made for people of fundamentally differing views.30 Further striking
against classical legal thought, and foreshadowing legal realism, Justice Holmes
proclaimed: General propositions do not decide concrete cases.31 With a tone of irony,
he then succinctly stated the foundation of legal realism: Every opinion tends to become
a law.32 It is this notion that led Justice Holmes to caution against these deceptive
arguments especially when they are based primarily on political or economic ideology.

28

Schauer, supra note 5, at 513-14.

Lochner, 198 U.S. at 75 (Holmes, J., dissenting).
30
Id. at 76 (Holmes J., dissenting).
31
Id. (Holmes, J., dissenting).
32
Id. (Holmes, J., dissenting).
29

12

Justice Harlan on the other hand, went on to actually evaluate the case from the
perspective Justice Holmes supported by referencing contemporary social science
literature on the matter of health and labor.33 Rather than relying on a common
understanding with no source, Justice Harlan investigated the contemporary research on
the issue. In contrast, Justice Holmes pointed out that Justice Peckhams opinion is
merely an enactment of Mr. Herbert Spencers Social Statics34 a treatise which would
later be relied upon (through Nazi eugenics and beyond) to degrade the very rights Justice
Peckham claimed to protect. Accordingly, Justice Peckham essentially advocated
protecting the liberty of contract as the legitimate libertarian role of government in
preventing physical coercion. Justice Peckham remained blind however to the economic
coercion present in all contracting unequal bargaining power will result in coerced
agreements. Bakers had no choice but to accept their employers contractual stipulations
otherwise, they would likely soon be unemployed. Devoid of this empathic
understanding, Justice Peckham decided that legal coercion (labor regulation) is not an
appropriate use of government power, because he turns a blind eye to the economic
coercion inherent in the carte blanche liberty of contract that he championed. This
blind spot in laissez faire reasoning is the underlying substantive flaw of classical legal
thought presented in cases of due process: granting freedom to one implies permitting the
coercion of another. However, considering Justice Peckhams view of labor as a
commodity, it is unsurprising that he defends the liberty of the employer to purchase or
sell labor35 against the life and liberty of the laborer. Labor was mere property. Thus,

33

Id. at 79 (Harlan, J., dissenting).

Id. at 76 (Holmes, J., dissenting).
35
Id. at 56.
34

13

the liberty interest (or the freedom to coerce) was granted to the employer (although
Justice Peckham would attempt to disguise this preference: [o]f course the liberty of
contract relating to labor includes both parties to it).36
In short, Justice Peckham reasoned that because there is no contention that
bakers as a class are not equal in intelligence and capacity to men in other trades or
manual occupations they are [] able to assert their rights and care for themselves
without the protecting arm of the state.37 From the analysis above however, it should be
clear that Justice Peckham did not view economic bargaining power as an important
capacity worth protecting. Indeed, it was the very inequality of this economic capacity
that would leave bakers, and laborers in general, at the whim of coercive contractual
stipulations desired by their advantaged employers. In this sense, classical legal thought
utilized government to displace physical coercion into the economic arena. In contrast,
using legal coercion to protect individuals from economic coercion was viewed as
passing beyond the threshold of acceptable government intervention.
In this light, legal realism would soon reveal economic coercion as a mere form of
legal coercion namely, the libertarian form. Far from natural, such libertarian ideals
would be impossible to achieve without decisions like Lochner to protect, legitimize and
enforce them. After all, without sufficient economic power, the right of free contract
cannot be exercised.
III. LEGAL REALISM

36
37

Id. at 59.
Id. at 57.

14

Felix Cohen, perhaps one of the most outspoken legal realists of his time, wrote
that the language of legal concepts is entirely, entirely useless when we come to study,
describe, predict, and criticize legal phenomena.38 Cohen elaborated on what he termed,
transcendental nonsense39:
When the vivid fictions and metaphors of traditional
jurisprudence are thought of as reasons for decisions, rather
than poetical or mnemonic devices for formulating
decisions reached on other grounds, then the author, as well
as the reader, of the opinion or argument, is apt to forget
the social forces which mold the law and social ideals by
which the law is to be judged.40
Legal realism then, proceeds under the premise that jurisprudence, under the
influence of classical legal thought, has become merely a special branch of the science
of transcendental nonsense.41 In other words, the law should be seen for what it really is
what judges do,42 because there is no brooding omnipresence in the sky43 from
which legal concepts emanate. Rather, when we wash the law with Holmes cynical
acid,44 we recognize the vicious circle inherent in [legal] reasoning,45 which classical
legal thought sought to make the decision seem plausible, legally decent, legally right, to
make it seem, indeed legally inevitable,46 through its language of definitional
inexorability.47 This vicious circle is made apparent by many instances of legal realist
reasoning. For example: The actual value of a utilitys property, then, is a function of

38

Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812
(1935).
39
Id.
40
Id. at 812.
41
Id. at 821.
42
Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 462 (1897).
43
Id. at 463.
44
Id. at 462.
45
Id. at 464.
46
Karl N. Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1238-39 (1931).
47
Schauer, supra note 5, at 513-14.

15

the courts decision, and the courts decision cannot be based in fact upon the actual
value of the property. The value is created by the court.48 Legal realism revealed the
intrinsic indeterminacy of legal concepts. What is a reasonable person? How much
process is due? What is liberty? When does life begin? As a result, we converge to a
single conclusion: there is less possibility of accurate prediction of what courts will do
than the traditional rules would lead us to suppose.49 In other words, these majestic
terms are devoid of content without a decisionmaker casting their opinion or judgment on
the matter [t]he conception of law in flux, of moving law, and of judicial creation of
law, [t]he conception of society in flux, and in flux typically faster than the law, and
[t]he conception of law as a means to social ends and not as an end in itself.50
And so, through a process of reductio ad absurdum, realism reduced the
deductive logic of classical legal thought to a mere charade of morality dressed in formal
legal attire or as Justice Holmes wrote, you can give any conclusion a logical form.51
Moreover, morality itself was revealed as subjective, and relative. Justice Holmes also
wrote, quite eloquently:
the logical method and form flatter that longing for
certainty and for repose which is in every human mind.
But certainty generally is illusion, and repose is not the
destiny of man. Behind the logical form lies a judgment as
to the relative worth and importance of competing
legislative grounds, often an inarticulate and unconscious
judgment, it is true, and yet the very root and nerve of the
whole proceeding.52
There is a concealed, half conscious battle on the question
of legislative policy, and if any one thinks that it can be

48

Llewellyn, supra note 39, at 1240.

Id. at 1241-42.
50
Id. at 1236.
51
Holmes, supra note 35, at 466.
52
Id. at 465-66.
49

16

settled deductively, or once for all, I only can say that I

think he is theoretically wrong, and that I am certain that
his conclusion will not be accepted in practice simper
ubique et ab omnibus [everywhere and always].53
Indeed, an assumption of moral relativism was at the core of legal realism, and as
a result, a primary objective of legal realists was to dispel a confusion between morality
and law.54 In other words, legal realism sought [t]he temporary divorce of Is and Ought
for purposes of study because [t]he law is full of phraseology drawn from morals, and
by the mere force of language continually invites us to pass from one domain to the other
without perceiving it,55 and thus, constantly is making trouble in detail without
reaching the point of consciousness.56 Becoming aware of this distinction was to
enlighten the previously ignorant jurist, and to provide jurists and decisionmakers alike
with a renewed sense of confidence and duty:
I think that the judges themselves have failed adequately
to recognize their duty of weighing considerations of social
advantage. The duty is inevitable, and the result of the
often proclaimed judicial aversion to deal with such
considerations is simply to leave the very ground and
foundations of judgments inarticulate, and often
unconscious, as I have said.57
Indeed, as Felix Cohen revealed:
The ghost-world of supernatural legal entities to whom
courts delegate the moral responsibility of deciding cases
vanishes; in its place we see legal concepts as patterns of
judicial behavior, behavior which affects human lives for
better or worse and is therefore subject to moral
criticism.58

53

Id. at 467.
Id. at 459.
55
Id. at 459-60.
56
Id. at 459.
57
Id. at 467.
58
Cohen, supra note 31, at 828-29.
54

17

This thinking quickly infiltrated judicial decisions of all kinds yet again, due
process claims prove to be the most revealing. This time however, the Court would not
rely on the mere implication of the right to free contract, instead, they would take the
approach of Justice Harlans dissent in Lochner: empathize with both interests involved,
describe the dilemma involved and even reach out to non-legal materials in making a
factual determination. In United States v. Carolene Products59, a manufacturer of milk
disputed the constitutionality of a statute regulating its contents. The Court found the
statute constitutional and made its realist extra-legal reasoning apparent:
In twenty years, evidence has steadily accumulated of the
danger to the public health from the general consumption
of foods which have been stripped of elements essential to
the maintenance of health.60
Essentially, instead of relying on a hardened doctrine of laissez-faire, the Court is
asking the fundamental realist question: Are the evils to be removed by regulation
greater than those that accompany the work of regulation?61 In this way, [t]he method
of procedure [would] be to consider, appraise, and compare the evils on both sides.62
Indeed, Carolene Products carried forward the following proposition about the fallacy of
laissez-faire economic and legal reasoning:
The practical function of economic theory is merely to
prove to statesmen the wisdom of leaving such matters
alone, not to aid them in the process of interfering But a
careful scrutiny will, it is thought, reveal a fallacy in this
view, and will demonstrate that the systems advocated by
professed upholders of laissez-faire are in reality permeated
with coercive restrictions of individual freedom, and with
restrictions, moreover, out of conformity with any formula

59

United States v. Carolene Products Co., 304 U.S. 144 (1938) .

Id. at 148.
61
Cohen, supra note 31, at 830.
62
Carolene, 304 U.S., at 152.
60

18

of equal opportunity or of preserving the equal rights of

others. Some sort of coercive restrictions of individuals, it
is believed, is absolutely unavoidable, and cannot be made
to conform to any Spencerian formula.63
The simple fact that Congress relied on extra-legal and social scientific materials
was enough for the Court to determine that due process was not violated. This reflected a
belief that due process involved processing all of the relevant factual information of the
age. The majority opinion noted, [t]he Filled Milk Act was adopted by Congress after
committee hearings, in the course of which eminent scientists and health experts
testified.64 This was evidence of due process, and weighed against the
unconstitutionality argument. Regulation could be used to protect public health and
interstate commerce, and such protections could only be afforded by recognizing the
intrinsic inequalities of society liberty and security could not be afforded without
equality and property. Rather, a doctrine of the positive contents of rights,65 was
necessary to protect, and provide, substantive liberty to all. As a result, the majority
opinion of Carolene Products would take this matter to issue and would provide the most
important footnote in legal history footnote 4:
prejudice against discrete and insular minorities may be
a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry.66
This footnote would inspire and spur an entire line of jurisprudential thought on
the functioning of the Courts in maintaining the protections afforded under the
Constitution most importantly, due process of law and equal protection under the laws.

63

Id. at 153.
Id. at 147.
65
Cohen, supra note 31, at 829.
66
Carolene, 340 U.S., at 152 n.4.
64

19

Essentially, a tiered system of judicial review would afford different levels of process to
different deprivations, and different circumstances. The recognition that due process
refers to the need for judicial review of process to determine if what was due was
actually afforded. It also inherently recognizes that due is a variable in this legal
equation, and so, with different levels of judicial inquiry are required in the implication of
different rights and interests. Specifically, it was committed to protecting more strongly,
rights that implicate the participation in the political process the essential ingredient of
democracy. This would foreshadow (and perhaps inspire) the great contributions of legal
process theory to be discussed in the final section of this note.
Legal realism however, cast a shadow over the entire province of the law. The
crisis of legitimacy that followed from the rise of legal realism was particularly
contentious during the 1930s. Confronted with a massive economic depression, and the
rise of fascism around the world, many jurists argued that the ideas associated with legal
realism and ethical relativism, by themselves, would lead naturally and inevitably away
from traditional democracy to a ruthless totalitarianism.67 Rather than viewing the
realist shift as one which rejected the legal enforcement of Spencerian Social Darwinism,
many critics viewed it as a free-for-all in which such fascist policies could naturally arise
or if not fascist, surely socialist or communist. As one scholar attempted to frame it:
Democracy versus the Absolute State means Natural Law versus Realism.68 As such,
the belief was that the pragmatism of legal realism led directly to the doctrine that

67

Cohen, supra note 31, at 831.

Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in
a Democratic Society, 30 GEO. L.J. 493, 533 (1942).

68

20

might makes right.69 Notably, Lon Fuller remarked, the realist view approaches
perilously close to the proposition that the law is the way everyone behaves.70 In other
words, legal realism separated the is from the ought and then tossed the ought aside
without regard. Consequently, Fuller warned:
the notion that the law lies in the meanings of particular
individuals in particular situations can offer no definition
criterion of positivism, and no assurance against a
relativistic subjectivism in which the distinction between
what is and what ought to be is lost.71
In other words, legal realism had exposed jurisprudence as a fraud and as a
result, has threatened its own jurisprudence with collapse. Separating is from ought
might destroy the ought, and inevitably, destroy the renewed distinction between them
as well.
Yet, of legal realism, Justice Holmes even realized: We are only at the beginning
of a philosophical reaction.72 As such, we must remember the timeless ideal that the
reaction of legal realism sought to reinvigorate: belief in hope, change and progress.
Without a specific ought, legal realism was without ground, but if the search for new
oughts were stimulated, legal realism would serve its purpose. It sought to empower us
with the notion that every generation has the power to better its world even in the face
of the threat that some may abuse that power to worsen it. The folly and malevolence of
the few should not discourage the passion, compassion and action of the many. Again,
Justice Holmes wrote with profundity:

69

EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM & THE
PROBLEM OF VALUE, 168 (1973).
70
LON FULLER, THE LAW IN QUEST OF ITSELF, 55 (1940).
71
Id. at 56.
72
Holmes, supra note 35, at 467.

21

For the incompetent, it sometimes is true, as has been said,

that an interest in general ideas means an absence of
particular knowledge But the weak and foolish must be
left to their folly. The danger is that the able and practical
minded should look with indifference or distrust upon ideas
the connection of which with their business is remote.73
IV. LAW-AND-ECONOMICS AND CRITICAL LEGAL STUDIES
In this section, I will offer only a brief summary of the law-and-economics and
critical legal studies perspectives on jurisprudence. As I will attempt to show, these
schools of thought are recapitulations (with the same flaws) of their underlying classical
and realist legal roots.
From the very beginnings of legal realism, economics was eager to assert its
dominance as the lens of reason and objectivity in the otherwise overly subjective social
sciences. Based in utilitarian thought, coming from the likes of Jeremy Bentham, the
slogan could be: the most good for the most people. However, law and economics
would have its own subjectivities to deal with. For instance, what is good? Who is it
good for? How much before its no longer good, and it becomes too much? Law and
economics struggles with an inability to quantify the importance of the varying intensities
of human preferences, ideals and values. More rudimentarily, it struggles with
identifying these preferences in the first place. It also places an unsupported amount of
emphasis on the value of efficiency. Certainly efficiency can lead us toward some
pursuits of happiness, but there are plenty of scenarios in which efficiency plays no role
at all. In others, efficiency gone awry and unchecked could result in an ultra-efficient
totalitarianism certainly not my pursuit of happiness. No, law and economics is rather

73

Id. at 477-78.

22

another useful tool, based in the logical, rational and powerful laws of mathematics. It
certainly proves useful in areas such as property and corporations (among others), but in
the laws of torts, constitutionality and crime (among others), it should probably play a
more subdued role (although it does have contributions to offer). The point is this: law
and economics is useful, after all it is based in utilitarian thought but it is not a tool
meant to serve as a jurisprudential ideology at least if our personal dignity and
humanity is to play any role in its own future. Indeed, this statement by Justice Holmes
provides a view of such human degradation and commoditization:
On the other hand, the economic value even of a life to the
community can be estimated, and no recovery, it may be
said, ought to go beyond that amount.74
However, law-and-economics was foreshadowed, if not encompassed within legal
realism. Justice Holmes noted at the outset of legal realist thought:
For the rational study of the law the black-letter man may
be the man of the present, but the man of the future is the
man of statistics and the master of economics.75
Unlike legal realism however, law-and-economics claimed a sense of objectivity,
even in the face of the underlying subjectivity proclaimed by legal realism. Again,
economics was easer to assert its dominance as the lens of objectivity previously
occupied by classical legal thought. It was able to do so because legal realism
destabilized such objectivity, allowing new schools to claim the crown. Felix Cohen
noted this future struggle amongst many schools connecting law and something else: It
becomes the part of discretion, in law schools aware of such advances, to admit that legal

74
75

Id.
Id. at 469.

23

science necessarily involves us in psychology, economics and political theory.76

However, as Morris Cohen warned, specifically against law-and-economics:
It is certainly a shallow philosophy which would make
human welfare synonymous with the indiscriminate
production and consumption of material goods This
profound human need of controlling and moderating our
consumptive demands cannot be left to those whose
dominant interest is to stimulate such demands.77
As a result, critical legal studies were an analogous reaction to law-andeconomics, as legal realism was to classical legal thought. It sought to maintain human
dignity in the face of law-and-economics by considering a multitude of human
perspectives on different issues. Unfortunately, from critical race theory to feminism, the
school offered no coherent view. Subjectively pluralistic, it offered interesting views on
the law, certainly useful in busting up new attempts at asserting determinacy in the law,
but utterly incomplete. This was a jurisprudence of splintering a direct result of its
attachment to the indeterminacy of the law. Consequently, it would not provide much
substance to battle the overly substantive law-and-economic calculationism. Rather,
critical legal studies would need to be utilized within the realm of a larger school of
thought one that could tie these critical loose ends together. It will be argued in the
following section that although emerging prior to critical legal studies, legal process
theory could provide a new home for the scattering of useful recognitions provided by
critical legal studies. Legal process theory could also balance such recognitions with the
tools of law-and-economics. Indeed, legal process theory believed in a careful

76
77

Cohen, supra note 31, at 830.

Id.

24

methodology, like law-and-economics, but also an evolving mutability, as provided by

critical legal studies.
V. LEGAL PROCESS THEORY AND THE FUTURE OF JURISPRUDENCE
On this basis, it is argued that none of these schools of thought offers a
comprehensive and coherent view of the law as an organic system of jurisprudence
governed as an ongoing process. Justice Holmes noted:
The development of our law has gone on for nearly a
thousand years, like the development of a plant, each
generation taking the inevitable next step, mind, like
matter, simply obeying a law of spontaneous growth. It is
perfectly natural and right that it should have been so.78
However, legal process theory attempted to offer a middle way through the
conflict between classical and realist legal thought in the mid-20th century. The impact of
the legal process school of thought is widespread and lasting, but it hardly gains the
acknowledgement it deserves. As a result, its jurisprudential evolution remains stalled,
and has found little momentum since its initial formulation. Overcoming this
jurisprudential stagnation is the aim of the remainder of this paper.
Unlike classical legal thought, in which is and ought were indistinguishable, and
unlike legal realism, in which is and ought are distinguished, but not connected, legal
process theory focused rather on how is becomes ought rather than distinguishing or
collapsing them. One scholar noted:
Yet the is is not really an is but a special kind of
ought a statement that, for the reasons just reviewed, a
decision which is the duly arrive at result of a duly
established procedure for making decisions of that kind
ought to be accepted as binding upon the whole society

78

Holmes, supra note 35, at 467.

25

unless and until it has been duly changed.79

Legal process theory then, views this is/ought as a dynamic the future is is the
ought distinguished, but interdependent and connected. Indeed, judges neither found
law in the old-fashioned sense nor made it in the sense of the Realists; they reasoned
toward it and then articulated their reasoning processes.80
As such, legal process theory proceeded under the premise that:
Realists had observed that judges made law rather than
merely found it, they had failed sufficiently to explore the
implications of that observation. In their rush to show that
judges were human beings the Realists had unduly
minimized the place of institutional constraints in judicial
decision-making.81
The point that the legal realists missed was that the process of reasoning itself
constrained judicial decisions: They had failed to grant due respect to the fact that a
judges use of these devices was itself constrained by the expectations of others.82 As
such, a new set of questions about judicial decision-making emerged, revolving around
the reasoning of opinions. Had the courts adequately articulated reasons for its result?
What assumptions lay behind the reasoning process?83 These were the important
questions and it seems, the fundamental question of justice and the primary object of
democracy.
The legal process scholars relied on the principle of institutional settlement, and
inquired about institutional competence in providing a solid ground for a theory that

79

HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND
APPLICATION OF LAW, at 4-5 (1958).
80
G. Edward White, The Evolution Of Reasoned Elaboration: Jurisprudential Criticism And Social
Change, 59 VA. L. REV. 279, 289 (1973).
81
Id.
82
Id. at 285.
83
Id.

26

trailed the footsteps of the groundlessness of legal realism. After all: Knowledge about
law, it seems, is easier to acquire and retain, and more readily accessible for effective use,
if it can be related to a coherent and intelligible view of the legal system as a whole.84
Unlike legal realism, however, legal process theory was
concerned with the study of law as an ongoing,
functioning, purposive process and, in particular, with the
study of the various institutions, both official and private,
through which the process is carried on. The objective is a
better understanding of law generally rather than of any
particular field of law.85
The law was not simply what judges do, but rather, similarly to the reasoning in
Carolene Products:
different procedures and personnel of different
qualifications invariably prove to be appropriate for
deciding different kinds of questions Thus, a system of
institutionalized procedures is developed. An organized
society is one which has an interconnected system of
procedures adequate, or claiming to be adequate, to deal
with every kind of question affecting the groups internal
relations, and every kind of question affecting its external
relations with the group can establish competence to deal
with.86
The protection of adequate and due processes were thus the intersubjectively
agreed upon objectives of the law:
The constitutive arrangements serve to establish and to
govern the operation of regularly working that is,
institutionalized procedures for the settlement of
questions of group concern. These institutionalized
procedures and the constitutive arrangements establishing
and governing them are obviously more fundamental than
the substantive arrangements in the structure of a society, if
not in the realization of its ultimate aims, since they are at

84

Holmes, supra note 35, at 467.

Fuller, supra note 61, at 56.
86
Hart, supra note 72, at 4.
85

27

once the source of the substantive arrangements and the

indispensable means of making them work effectively.87
In this sense, legal process theory recognized the inherent intersubjectivity of the
law, and of reality itself something that made it both objective and subjective, in certain
aspects. In other words, objective realities were those shared and agreed on by subjective
perspectives:
The starting point of the response which human beings
seem invariably to make to the basic conditions of human
existence is to recognize the fact of their interdependence
with other human beings and the community of interest
which grows out of it.88
Consequently, legal process theory sought to define institutional settlement on
procedural grounds, rather than the substantive due process protections of the right to
free contract championed by classical legal thought. Legal process theory offered an
alternative:
To leave decision of these questions to the play of raw
force would defeat the purpose. The alternative to
disintegrating resort to violence is the establishment of
regularized and peaceable methods of decision. The
principle of institutional settlement expresses the judgment
that decision which are the duly arrived at result of duly
establish procedures of this kind ought to be accepted as
binding upon the whole society unless and until they are
duly changed.89
More important however than defining how intersubjective agreement was settled
upon, legal process theorys primary contribution to legal thought was probably in
defining how agreements were reasoned. Indeed, reasoned elaboration was the holy
grail of legal process theory:

87

Id. at 3-4.
Id. at 2.
89
Id. at 4.
88

28

The articulation process was the vehicle through which a

judges professional competence was revealed. A judge
who failed to give reasons for his decisions did not meet his
obligation to allow the public to evaluate the manner in
which he was performing his office. Secondly, articulation
of the reasoning process in opinions highlighted the
difference between a society, such as America, where law
allegedly attempted to conform to public notions of
reasonableness and fairness, and totalitarian regimes where
law was synonymous with the fiats of officials.90
Due process cases in particular required such attention to reasoned elaboration.
Indeed, as Felix Cohen noted:
Legal reasoning carries a peculiar freight of human hopes
and human suffering in the realm where the phrase due
process of law serves as a text for judicial review of social
legislation. Here, at least, one might hope that a decent
respect to the opinions of mankind would lead courts to
formulate with some clarity their own conception of what it
is that they are doing.91
This is where I shall inject a new principle of thought into the legal process
school, namely: empathic consideration. One may at first believe that empathic
consideration is opposed to legal process championed neutral principles, but as we
shall see, empathy is merely an engaged extension of neutrality rather than focusing on
principles that are neutral, it focuses on everything (facts, principles, interests, etc.), so as
to neutralize everything else. Neutral principles did not deny the possibility of empathy:
Neutrality for Wechsler did not mean that judges should
refrain altogether from taking positions on social issues:
they were, in fact, fated to condemn or condone the
activities of the other branches of government. He did,
however, imply that judges were required to support their
choices by a type of reasoned explanation, which
involved reaching judgment on analysis and reasons

90
91

White, supra note 73, at 285-86.

Cohen, supra note 31, at 830.

29

transcending the immediate result.92

As an example, Wechsler would have held that decisions like Brown v. Board of
Education93 are flawed because they do not extend themselves, through reasoned
elaboration, to the broader universe of legal decisions: The Court did not declare [in
Brown], as many wish it had, that the fourteenth amendment forbids all racial lines in
legislation.94 Indeed, the Court instead handed down a decision in which the separatebut-equal formula was not overruled in form but was held to have no place in public
education on the ground that segregated schools are inherently unequal.95
Why is empathy important? Justice Holmes wrote:
I cannot but believe that if the training of lawyers led them
habitually to consider more definitely and explicitly the
social advantage on which the rule they lay down must be
justified, they sometimes would hesitate where now they
are confident, and see that really there were taking side
upon debatable and often burning questions.96
In other words, empathy allows us to step into the shoes of another, take different
perspectives on a matter and understand the full range of interests involved offering a
360-degree view of the matter at hand, rather than a disinterested view from above.
Carolene Products sought to empathize with voices that were often drowned out,
primarily because they were voices that were drowned out:
prejudice against discrete and insular minorities may be
a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a

92

Id. at 832.
Brown v. Board of Education, 347 U.S. 483 (1954).
94
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, at 31.
95
Id. at 32.
96
Holmes, supra note 35, at 468.
93

30

correspondingly more searching judicial inquiry.97

the meaning of terms such as due process of law and
equal protection of the laws changed. In place of the
older judicial technique of undertaking an even-handed
weighing, in equal protection cases, of the legitimacy of the
states interest in making a discriminatory classification
and the right allegedly invaded by that classification, the
Warren Court substituted an approach which elevated
certain rights (such as voting) by declaring that they were
too fundamental to be burdened or conditioned.98
Other cases such as Goldberg v. Kelly99 and Mathews v. Eldridge100 would
attempt to extend due process, empathically, toward understanding other types of
deprivations as well namely, welfare rights and entitlements in the administrative
bureaucratic state. Indeed:
Many of the Warren Courts most controversial decisions
concerned criminal procedure or other questions of what
judicial or administrative process is due before serious
consequences may be visited upon individuals processoriented decisions in the most ordinary sense. But a
concern with process in a broader sense with the process
by which the laws that govern society are made animated
its other decisions as well.101
Slowly, due process was becoming more applicable and more inclusive
throughout the entire province of the law. Indeed, without noticing it, reasoned
elaboration was hinting at a requirement for empathic understanding in judicial decisions,
and thus intrinsically incorporated the view that social progress entails greater inclusivity
under the law:
The phrase demanded, first, that judges give reasons for
their decisions; second, that the reasons be set forth in a

97

Carolene, 304 U.S., at 152 n.4.

Wechsler, supra note 87, at 33.
99
Goldberg v. Kelly, 397 U.S. 254 (1970).
100
Mathews v. Eldridge, 424 U.S. 319 (1976).
101
Wechsler, supra note 87, at 34.
98

31

detailed and coherent manner; third, that they exemplify

what Hart called the maturing of collective thought; and
fourth, that the Court adequately demonstrate that its
decisions, in the area of constitutional law, were vehicles
for the expression of the ultimate social preferences of
contemporary society.102
Thus, as a whole, legal process theory offered the most coherent view of the law
yet: as an organic process rather than a fixed set of values. However, legal process theory
failed to see that even neutral principles were subject to process the accepted definition
of neutrality would itself change and come to accept the promotion of greater and greater
social inclusivity within the law. Wechsler came close to this realization in his analysis
of Brown, without actually writing the opinion:
But if the freedom of association is denied by segregation,
integration forces an association upon those for whom it is
unpleasant or repugnant Given a situation where the state
must practically choose between denying the association to
those individuals who wish it or imposing it on those who
would avoid it, is there a basis in neutral principles for
holding that the Constitution demands that the claims for
association should prevail? I should like to think there is,
but I confess that I have not yet written the opinion.103
In essence, the addition of empathic consideration to reasoned elaboration
accounts for the fact that society advances toward greater association, even in the face of
some who would prefer to avoid it. Process theory strengthened by such an opinion as a
substantive value to identify with could go a long way in assuring the process of progress
itself. Indeed, such decisions are:
certainly interventionist decisions, but the
interventionism was fueled not by a desire on the part of
the Court to vindicate particular substantive values it had
determined were important or fundamental, but rather by a

102
103

White, supra note 73, at 291.

Wechsler, supra note 87, at 34.

32

desire to ensure that the political process which is where

such values are properly identified, weighed, and
accommodated was open to those of all viewpoints on
something of an equal basis.104
Carolene Products provided us with one such decision:
I have suggested that both Carolene Products themes are
concerned with participation: they ask us to focus not on
whether this or that substantive value is unusually
important or fundamental, but rather on whether the
opportunity to participate either in the political processes
by which values are appropriately identified and
accommodated, or in the accommodation those processes
have reached, has been unduly constricted.105
The beauty of process as a substantive value (procedural substance as opposed
to substantive process) may have been best summarized by John Hart Ely: unlike an
approach geared to the judicial imposition of fundamental values, the representationreinforcing orientation is entirely supportive of, the American system of representative
democracy.106 Of course, this is entirely consistent with the purposive (as opposed to
the formalist, or functional) approach.107 When the purpose is defined as preserving the
ideals of democratic participation, we recognize that elected representatives are the best
reflectors of conventional values, and that the judiciary should devot[e] itself instead to
policing the mechanisms by which the system seeks to ensure that our elected
representatives will actually represent.108 Indeed:
there may be an illusion of circularity here: my
approach is more consistent with representative democracy
because thats the way it was planned. But of course it

104

JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW, 74 (1980).
Id. at 77.
106
Id. at 101-02.
107
The purposive approach can be seen as a third-way between formal and functional approaches. The
purposive approach would hold that function is the purpose of form, and reproducing that form is the
purpose of function e.g., structural coupling.
108
Ely, supra note 97, at 102.
105

33

isnt any more circular than setting out to build an airplane

and ending up with something that flies.109
This is the nature of purposivism it balances the flexibility of the functional
approach, with a certain level of direction, as is so forcefully provided by formalism.
More recently, we have seen attempts to inject this purposive and empathic
jurisprudential approach into the Supreme Court itself. In appointing Justice Sotomayor
to the Supreme Court, President Obama himself set empathy as a criterion for a judicial
candidate. Unfortunately, his adversaries are not as well versed in the English language,
and confuse empathy with sympathy, and thus associated his call for bench-empathy
as a call for socialism. However, such name-calling and jurisprudential attacks are
nothing new to the presence of progressive legal concepts. Indeed, at the outset of legal
realism, Justice Holmes noted:
When socialism first began to be talked about, the
comfortable classes of the community were a good deal
frightened. I suspect that this fear has influenced judicial
action both here and in England, yet it is certain that is not
a conscious factor in the decision to which I refer.110
Similarly, and around the same time, Morris Cohen noted:
because law has become more interested in defending
property against attacks by socialists, the doctrine of
natural rights has remained in the negative state and has
never developed into a doctrine of the positive contents of
rights.111
Indeed, such scare tactics and name-calling is business as usual in jurisprudential
evolution. However, if they can provide any use at all, perhaps such allegations provide
us with a benchmark. Perhaps the screaming of socialist! in the streets merely provides

109

Id.
Holmes, supra note 35, at 468.
111
Id. at 470.
110

34

evidence that progress is being made, and that socialism as a concept is sorely
misunderstood. As our society becomes more inclusive it becomes more democratic, but
it also becomes more socialized. These two concepts are not mutually exclusive as many
would like to suggest. And certainly, empathy is not the culprit that will destroy
democracy. On the contrary, empathy is the foundation of a moral democracy: the ability
of people to come together and come to mutual understandings. Without such ability,
democracy, let alone government, could not function. Hopefully, like legal process
theory, these procedures and their accompanying doctrines and practices will come to be
seen as the most significant and enduring part of the whole legal system, because they are
the matrix of everything else.112 Empathy is procedural substance and it is the growth
principle by which the law proceeds and progresses toward greater and greater
substantive value. Empathy is "the ideal toward which [the law] tends."
VI. CONCLUDING THOUGHTS
Equal protection under the law is the substantive foundation of due process
requirements. Unsurprisingly, Congress included both of these ideals, procedural and
substantive, when drafting the 14th Amendment to the Constitution. Unfortunately
however, the deeper meaning of the interdependence between these two ideals remains
largely explored. The question: How much process is due? resembles other legal
attempts at objectivity, such as What is a reasonable person? Utilizing such
transcendental nonsense is useful in providing legal discourse with standards of
terminology, but is confounded when it begins to believe in itself independent of context

112

White, supra note 73, at 287.

35

or intersubjective agreement. These two nonsense questions will be explored extensively

in this note, in an attempt to make sense of them.
In essence, due process is a guarantee of an individuals right to be heard which
casts dual legal principles: an opportunity to elaborate ones own position and an
obligation to take that elaboration into account when making a decision that may deprive
someone of life, liberty or property. In this sense, due process promotes empathy within
the law. Due process provides for the necessity of understanding different (and often,
minority) perspectives on contentious issues before they are written off as unreasonable
and irrelevant a natural human reaction to novel and unfamiliar situations. In order to
compensate for this natural human tendency toward biasing ones own perspective, due
process reminds the law to be mindful of the shifting and evolving nature of neutral
principles. In this recognition, neutral principles become more than mere transcendental
nonsense they become dynamic ideals dependent upon shifting societal norms and
intersubjective agreement. Legal process theory calls this the principle of institutional
settlement. And so, the 14th Amendment is really a reflection of the middle way between
textual and realist perspectives on the law. It maintains neutral principles as the evolving
substance of law, encourages reasoned elaboration as the process by which these
principles evolve, and concludes that the principles are finally determined by institutional
settlement, or intersubjective agreement (which maintains the rule of law). In this way,
legal process theory and the 14th amendment are both reflections of a middle way
approach to jurisprudence. Rather than as a revelation of objective law, or a projection of

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subjective policymaking, the law arises as an intersubjective and ongoing conversation

due process.113

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The concept of due process can be traced back to the Magna Carta the foundation of what has
become modern constitutionalism. It is interesting to note that from this perspective, we have come full
circle and returned to the fundamental ideal upon which our current intellectual movement was founded
upon. This is an undeniably intuitive conclusion.

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