Yishai Blank (Tel Aviv University – Buchmann Faculty of Law) has posted The Reenchantment of Law (Cornell Law Review, Vol. 96, p. 633, 2011) on SSRN. Here is the abstract:
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The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.
Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation – and the possibility of objective and legitimate adjudication – is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
And from the paper:
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In the context of the legal field, disenchantment therefore means, first of all, the growing detachment of law from religion, both in law- making and in adjudication (which Weber calls “lawfinding”).33 Al- though in law the process of disenchantment took place over many centuries, this Essay concerns developments that happened after the nineteenth century—when this process reached its peak, at least in continental Europe.34 Positivism is the theory that most clearly manifests this idea: law is not developed through divine revelation nor is it revealed by an oracle or any other prophetic form.35 And the gradual process of disenchantment further rejected even natural law theory, according to which law is the unfolding of “reason.”36 Rather, what gives law legitimacy is that a formally authorized entity enacts it.37 And law collapses into politics because it is understood as the pragmatic compromise between competing groups and interests.38 Adjudication, too, is disenchanted: the application of the laws—legis- latively postulated—is not performed by “wise men” whose authority stems from their charisma or ability to execute religious rites such as the ordeal or trial by fire. Rather, it is a rational operation performed by judges whose authority derives from a clear and positive authorization.39
Initially, disenchantment produces three important conse- quences in the legal field: the divinely revealed laws lose their power and legitimacy; divinely authorized traditional authorities (such as the king) lose their legitimate power to give commands;40 and divinely authorized judges lose their legitimacy to adjudicate concrete disputes and to apply the laws.41 As the processes of rationalization and bureaucratization continued, however, all previous forms of lawmak- ing and lawfinding (adjudication), including natural law, lost their le- gitimating force, and formal legal rationality took over. This school, known in the United States as “classical legal thought,” assumes that the application of norms in concrete cases is completed through a logical deduction of specific norms in light of the entire legal system.42
And from a bit later:
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Over the past few decades, we have witnessed the resurgence of “virtue” in political theory as well as in legal theory.101 Writers from the right, left, and center—often associated with Catholic thought— have begun arguing that our legal order needs to be responsive to and advance the inculcation of various personal virtues.102 Such theories aim to bring back “character” (not the real or concrete character but the ideal character) into legal discussions103 and to offer “a substan- tive conception of the human good or flourishing . . . [and] to answer the questions ‘What sort of person should I be?’ and ‘How will a par- ticular course of action guide me toward or away from becoming that sort of person?’”104 Virtue-centered jurisprudence hence asks how can the law help in making citizens virtuous.105 Although much of the writing in this vein relies on Aristotle and the Greeks,106 this group does not include only neo-Aristotelians. As Martha Nussbaum notes, virtue theorists should not be seen as offering a third position which opposes both Kantianism and utilitarianism, since both Kant and the British utilitarians were in fact deeply concerned with virtue and de- veloped a theory of it.107 When I refer to legal-virtue theorists, there- fore, I do not mean to exclude some scholars who are actually interested in Kant’s or Hegel’s theory of virtue (such as Weinrib,108 Brudner,109 or Ripstein110). Although earlier discourse on virtue was a predominantly—and almost exclusively—religious (Catholic) project and was therefore mostly the business of expressly religious scholars and published in religious-oriented law reviews, such discourse has recently penetrated mainstream academic discussions in doctrinal fields such as property law, environmental issues, contracts, torts, and criminal law.111The current quest for virtue in law occupies a special oppositional spot vis-a`-vis the disenchanted vision of the legal domain, as an action is made virtuous not due to its conformity to rules or principles; rather, “[a]n action is virtuous because it is the sort of action a virtu- ous person undertakes . . . . The category of virtuous conduct . . . goes well beyond the range of behavior that mechanical rules can ade- quately describe and calls for the skillful exercise of judgment guided by practical wisdom.”112
I will now explain on what account virtue theory is reenchanting law, but before that I would like to clarify that, as with my analysis of contemporary formalism, it is not my intention to point to the errors of, or problems with, virtue theory in law. Indeed, I expect that more and more jurisprudential attention will be given to examining the pros and cons of such approach and that scholarly works will be dedi- cated to working out the ways in which virtue should and could (or should not and could not) occupy a larger space in the law. My aim, therefore, is to show that virtue theory and the responses it might pro- voke displace the realist debates regarding law’s indeterminacy and power with questions that belong to a reenchanted legal realm. Such questions and responses include—rather than exclude—metaphysical and idealist pondering about issues of character, the human, and the good.
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The first reenchanting element is, thus, that virtue theories are overtly and explicitly seeking legal meaning and substantive content of norms by recourse to a transcendental domain—a metaphysical idea about the “well-lived life” or what “human flourishing” might mean.113 Needless to say, if the law is always geared toward such goals, and if judges and other actors are expected to act in a manner that reflects this almost-religious meaning, our law has once again been infused with cosmic and transcendental meaning.
Highly recommended. I am highly skeptical, however, of the notion that virtue jurisprudence is committed to "cosmic" or "transcendental" meaning. Of course, it is possible to combine an aretaic approach to legal theory with religious premises–but this is also true of any normative theory. An important version of virute ethics (perhaps the "main line" of contemporary aretaic moral philosophy) is committed to a thoroughgoing naturalism (e.g., Foot and Thompson). The claim that "human flourishing" as an idea is committed to a "transcendental domain" is underargued in the paper–indeed, there is no argument at all, simply a statement of the conclusion. The accompanying footnote 113 similarly offers no support for this claim. But this is a fascinating paper. Download it while its hot!