Persons, Participating, and "Higher Law"

Abstract

The important general question is this: With the toothpaste already out of the tube and legal theory all around that does not support how we actually practice law, what are we to do?

Well, Holmes died, Justice Scalia et al. could resign, and, as Justice Clarence Thomas has recently volunteered in an interview that included the topic of his level of job (dis)satisfaction, he has his "motor coach" to look forward to." But what about the rest of us? After all, we need a workable legal system in order to exchange goods, receive compensation for tortious injuries, incarcerate criminals, regulate the content of peanut butter, and, of course, to ensure the freedoms both to bum the flag and "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," do we not? And, surely, it would be better not to think of what we do in the name of the law as mere fiction and fairy tale. What can take away your loved one's, your enemy's, or your own life or liberty isthere is no mistaking it-an inherently serious business. We may laugh about regulating through law the percentage of peanuts that is required before a product can be labeled "peanut butter," but Justice Kennedy probably was not laughing when he concluded that it is on account of "liberty ... in its more transcendent dimensions" that there is (now) a right in law to engage in homosexual sex. But did the Justice remember that one of the legal realists' favorite epithets for the jurisprudence they rejected is "transcendental nonsense?