[A]ll fields of specialized knowledge or practice like law . . . depend on their internal perspective. The internal discourse of a field represents the language in which the insiders to the field explain or persuade other insiders. In law, the internal perspective may use concepts like precedent, analogy, or doctrine to explain or justify an outcome that a historian might ascribe, for example, to the power of the groups being represented by the parties. So one should not have been surprised to realize that the externalist perspective of [Horwitz’s The] Transformation [of American Law 1780-1860] cheered most historians and brought criticism from the lawyers. But the passionate tone of the criticism uncovered another dimension that did come as a surprise–the extent to which many legal scholars were still deeply invested in a picture of law as the expression of neutral principles.Morton J. Horwitz, 28 Law & Social Inquiry 1157, 1158 (2003).
I had supposed that the lessons of legal realism had seeped into the consciousness of the legal academy. Still, it was becoming increasingly apparent to me that so much of the legitimacy of legal discourse continued to depend on assuming a sharp separation between law and politics. Most conceptions of the rule of law have been built on the possibility of identifying a clear line between the two. Thus, much of legal scholarship is perennially threatened by an external perspective that is skeptical of the claimed boundaries between law and politics.
I know that in many, many quarters the legitimacy of legal discourse still did depend on assuming a sharp separation between law and politics when Horwitz wrote this in 2003.
But does it still today?
Who today defends the notion that the language of the law alone determines outcomes?
Who today would gladly die on Plain Meaning Hill or Laugh-Test Field?
Who would stake it all on the notion that there are some interpretations of the law so obvious to every American as to make them binding?
As with all disillusionments, the sky has not fallen.
Or has it?