Just Interpretations: Law Between Ethics and Politics.

Mossoff, Adam

ROSENFELD, Michael. Just Interpretations: Law Between Ethics and Politics. Berkeley: University of California Press, 1998. xii + 296 pp. Cloth, $45.00--Anyone familiar with twentieth century legal philosophy will easily concede Michael Rosenfeld's opening claim that "the practice of legal interpretation has been mired in a deep and persistent crisis" (p. 13). The source of this crisis is the critical dissolution of the practice of law into mere politics, that is, the unfettered, Hobbesian quest for power within society. In response, legal philosophers have advanced various conceptions of law that are conceptually or normatively distinct from either amoral politics or controversial ethical norms. Rosenfeld's Just Interpretations provides the reader with a broad-ranging survey of the source and nature of the crisis at hand, and what he considers to be the best solution available to the pluralistic, democratic polity of our post-modern age--the substantive, normative principle of "comprehensive pluralism."

In fact, one of the principal values of Just Interpretations is Rosenfeld's extensive, critical analysis of the recent, diverse work on the issue of legal interpretation. He adeptly presents the critical challenge of deconstructionism, and the apparent disintegration of legal interpretation into mere (political) interpretation. Although the critical challenge to law reaches farther back than deconstructionism--to the Legal Realists in the twenties and thirties--his cogent exegesis of the nature and implications of the deconstructionist project is quite illuminating.

Rosenfeld then discusses, and ultimately rejects, the various theoretical attempts to differentiate law from ethics and politics. He explicates both Stanley Fish's and Ernest Weinrib's "new legal formalism," Niklas Luhmann's conception of legal autopoiesis, and Jurgen Habermas's discourse-theoretical approach to proceduralism. Finally, he elucidates Richard Posner's Law and Economics and Richard Rorty's "neopragmatism," two theories based on legal pragmatism. There are also brief references to the work of John Pawls and Ronald Dworkin, and, adding some historical perspective to the contemporary debate, he discusses some of the ideas of Oliver W. Holmes, John S. Mill, Jean-Jacques Rousseau, Thomas Hobbes, and even Adam Smith. All in all, Rosenfeld has produced a well-rounded survey of the controversy over legal interpretation within contemporary jurisprudence.

However, Rosenfeld does not simply review the field of legal philosophy. He directly engages each conception of law, and actively enters into the discourse with his own analyses. He argues that formalism, for instance, only masks substantive and controversial ethical norms smuggled into these theories. Also, he argues that the theses of Luhmann and Habermas ultimately fall prey to the threat of either becoming "morally arbitrary" or requiring the introduction of extralegal (ethical) norms. Thus, although Rosenfeld finds certain concepts and methodologies within the aforementioned conceptions of law useful in his own project, he concludes that any attempt to bracket off law from the norms and values of politics and ethics is an impossible task.

In illustrating this crucial critical theme, Rosenfeld discusses interesting, up-to-date political and legal controversies. The questions surrounding the adjudication of "hate speech" laws are used to expose within legal pragmatism underlying normative choices concerning the nature of practical consequences. The debate over abortion--with its unique metaphysical, normative, and political quandaries--is another counter-example which arises often in Rosenfeld's critical analyses. He also returns to abortion in his positive exposition of comprehensive pluralism, acknowledging that "comprehensive pluralism cannot resolve the conflict over abortion, but it can reduce the tensions that surround it" (p. 274). It is refreshing to read a philosopher directly confronting a difficult case in expounding his own thesis.

Unfortunately, it is impossible within a brief review to do justice to Rosenfeld's conception of comprehensive pluralism as a counterfactual ideal for just legal interpretation. Nonetheless, the project represented by his slogan "pluralism as norm is best for pluralism in fact" (p. 200) is quite unique and provocative. The fact that he believes that law must take into account the political and ethical norms of our pluralist polity is appealing to one's postmodern intuitions. Overall, Rosenfeld's book, particularly with respect to his critical survey of the discourse to date, is an interesting contribution to the raging debate over legal interpretation.

--Adam Mossoff, University of Chicago Law School.