Note: this is the fifth of six blog posts on Orin Kerr’s essay “Line-Drawing and Legal Education.”
Thus far in this series of blog posts, we have explored the reasons why we must draw lines whenever we must formulate a new rule (“rule choice”) or apply an existing rule to new facts (“rule application”), and we have also explored the politics of line-drawing, since oftentimes the way in which a particular legal line is drawn depends on who has the power to draw that line. Here, by contrast, we will explore some “meta” objections to the standard legal and moral question, “Where would you draw the line?” Specifically, the last part of Professor Kerr’s excellent essay on line-drawing (Part V) identifies two related objections to the line-drawing metaphor. One objection is “small-mindedness” (his words, not mine); the other is moral relativism. Let’s consider the “small-mindedness” objection first. Professor Kerr puts it this way:
“[The line-drawing metaphor] frames legal decision making as a technocratic exercise. The options are reduced to various lines. A debate over values is presented as merely a choice as to which line to draw. No matter the real-world stakes of the question, reducing the search for an answer to mere line-drawing makes the issues seem technical and small. It’s as if one were at a restaurant choosing an entrée. Would you like the chicken or the fish?When you put it that way, can the choice really matter?“
In other words, instead of inviting us to ask the big questions–like is this rule consistent with justice?; is this rule consistent with our moral duties?–the line-drawing metaphor reduces difficult legal and moral questions into a purely technical or formulaic enterprise. In reply, I would ask the critics of line-drawing to consider the following possibility: maybe “small-mindedness” and “technicality” are features, not bugs? That is, by breaking down a difficult question, such as how much power should the police have to make a traffic stop, into a standard-form line-drawing exercise, we are able to make the problem more tractable and manageable–more “soluble” to borrow Sir Peter Medawar’s beautiful concept.
My reply, however, takes us to the second objection to line-drawing: moral relativism. Simply put, the line-drawing metaphor not only invites us as a technical or practical matter to draw any number of possible lines; this approach also “relativizes” each of these possible lines, or in the eloquent words of Professor Kerr:
“When professors [ask their students where would they draw the line?], they seek to accommodate different perspectives without saying which are right and which are wrong. A wide range of perspectives is deemed legitimate, and choices among them are merely a matter of perspective.”
How can we respond to this moral relativism objection? Alas, there is no all-wise, all-powerful Solomonic judge or supreme court of pedagogy who can resolve this fundamental philosophical impasse for us. Either you are moral pluralist or “pragmatist”–i.e. you acknowledge that our moral values will often collide, or you believe a wide range of answers are possible to the question, What is justice?–in which case the small-mindedness and moral relativism of line-drawing are features, not bugs, or you are a moral realist or “dogmatist”–i.e. you believe in an all-encompassing hierarchy of values, that there is a single right answer to the justice question–in which case line-drawing is a misguided, if not dangerous, approach.
Whatever your views are about this larger philosophical impasse, this discussion invites us to weigh the pros and cons of line-drawing and to consider alternatives to drawing lines, to ask whether law professors should be analyzing the problems of “rule choice” and “rule application” in in a different way. If so, how? If not, how can we resolve this impasse between classical liberal pragmatism and Platonic dogmatism? Professor Kerr concludes his paper by describing the task of line-drawing as a “platform,” a springboard for students “to debate what matters and how the law should address it.” Kerr then concludes his paper as follows:
“By offering the platform [i.e., by asking you where you would draw a particular legal or moral line], your professor may be opening the door to a wide range of perspectives. But an open door doesn’t require you to accept everything that comes through it.”
In other words, Professor Kerr, perhaps wisely, does not attempt the impossible task of reconciling or harmonizing these opposing philosophical views–pragmatism/moral relativism versus Platonic dogmatism/moral realism. Instead, he concludes his paper down to Earth, so to speak, by providing three practical pointers for law students. I will restate these tips and wrap up my review of Kerr’s essay on Monday …