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Author: Oliver Moore
Date: 20090415
The Role of the Judge in Holmes, Hart, Emerson, and Cavell
The Role of the Judge in Holmes, Hart, Emerson, and Cavell
Oliver Wendell Holmes famously wrote that "[t]he life of the law has not been logic: it has been experience" (Holmes 1). This opposing of experience to logic expresses a tension between law, characterised by its system of constrained logical reasoning, on one hand, and society, characterised by its constantly developing but never fully comprehensible needs and norms, on the other. Each of these two entities moulds and even generates the other, and they grow in tandem. At their intersection stands the figure of the judge, committed to both worlds but strictly accountable to no one. Through the concrete task of applying legal rules (received from history or newly created in his time) to litigious cases (points of social tension as informed by law), the judge manages the interaction between law and society through which each evolves. Furthermore, the person of the judge serves as both the point of origin and the springboard of each successive innovation, which, in time, becomes the universal social and legal standard as this process of evolution carries on.
The "paradox of form and substance"
Holmes's account of the activity of the judge emerges from a broader discussion of "[t]he life of the law" (Holmes 1). Holmes lays out a theory of the "growth" of the law (Holmes 35; Holmes habitually speaks of the 'growth' of the law; see also 73), characterised by a tension between historical legal forms and present social needs. A society, for Holmes, receives legal rules that are passed down by history from earlier generations and nations, stretching back to "primitive times" (Holmes 37). The tension between historically-received rules and the needs (which Holmes calls "legislative" concerns [Holmes 35]) of the society which inherits them results in the "paradox of form and substance in the development of law" (Holmes 35). Holmes presents a great deal of empirical evidence to show that, as society changes and develops, the substance of legal rules changes according to the evolving policy, or legislative, goals of the society, but that the form of legal rules lags in its development, changing more slowly. In the result, Holmes observes contemporary social aims fit into sometimes remarkably ancient forms.
The "substance" of a legal rule is, in a word, its "reasons" (Holmes 36). In other words, "substance" is the aim of that social policy which supplies both the rule's raison d'etre and its hoped-for effect. The "form" of a legal rule, on the other hand, is the scope and manner of its applicability to the material and social world. Holmes's substance/form distinction can also be thought of as one between ends and means in that the substance corresponds to an end of social policy, while the form corresponds to the means by which some specific social facts, rather than others, are manipulated in the furtherance of that end. In a well-calibrated rule, form and substance stand in a rational relation to each other, and, assuming the rule is obeyed, the means are effective in bringing about the end. With time, however, legislative aims, which are grounded in social needs, shift, and a gap opens between form and substance as the rationality of their relationship breaks down.
This breakdown in the rationality of the substance/form relationship is the result of differing dynamics governing the evolution of rules' substance and form. Developments in the latter are guided by something akin to formal logic (which Holmes in any case calls "logic" [Holmes 1]), while developments in the former are guided by social need and historical change (what Holmes calls "experience" [Holmes 1]). The governing logic by which the form of rules is allowed to change would appear to be formal both in the sense of being syllogistical and in the sense of being official, or authoritatively sanctioned. We may observe this union of syllogism and authority when Holmes writes: "In form [the law's] growth is logical. The official theory is that each new decision follows syllogistically from existing precedents" (Holmes 35). Cavell expresses a similar idea when he writes: "In reaching his decision, the judge is obliged ... to provide arguments of an institutionally recognizable character; and the point of such argument is to allow, if possible, a natural extension of the body of law" (Cavell 12). Here, institutional recognisability corresponds to the element of official sanction, while the requirement that extension of the law should be "natural" refers to the idea that development must stand in a relationship of continuity to what came before; this relationship of continuity is closely comparable to Holmes's syllogism.
While Holmes sees the development of legal forms residing in a more rarified realm, the substance of legal rules keeps more closely apace with social reality and is properly seen, not as mathematical, but as sociological, or, in Holmes's term, legislative: "On the other hand, in substance the growth of the law is legislative" (Holmes 35).
Rule-renovation
The judge stands at the centre of Holmes's view of this evolutive process as the figure whose handling and guiding of rules results in the law's "continuous growth" (Holmes 37). For Holmes, it is the judge who finds "new reasons" (Holmes 36) for rules which have become hollow over the passage of time. "The old form receives a new content" (Holmes 5). I shall refer to this activity as renovation. In renovating rules, the judge adapts old rules to new social aims.
The judge's position
"But hitherto this process [of renovation] has been largely unconscious" (Holmes 36), or in any case "rarely mention[ed], and always with an apology" (Holmes 35). This felt need to apologize arises from the judge's loyalty to the legal system, with its officially-sanctioned logic, discussed above. Yet the judge also feels a loyalty to society's needs, broadly put. An attempt to identify more precisely that which drives the judge to negotiate a compromise with official legal logic might well lead us to the legal concept of equity, to a more psychological notion like empathy, or, in Holmes's terms, to simple "good sense": "And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content" (Holmes 36).
The judge stands at the critical juncture between the legal system, with its logic, on the one hand, and society, with its ever-evolving norms and needs, on the other. Whereas the lawyer is answerable to his client, and the legislator is answerable to his constituents, the judge is answerable to no one at all, yet he is loyal both to the law (as a system) and to the good of society. In the figure of the judge is combined autonomy from any master (this is the essence and the purport of judicial independence) and loyalty to both law and society. Because of this dual loyalty, the judge is bound to carry on the development of rules along the two tracks of form (required by his loyalty to law) and substance (required by his loyalty to society); and in so doing, his independence places him in a position to heed Emerson's counsel: "Insist on yourself; never imitate. Your own gift you can present every moment with the cumulative force of a whole life's cultivation" (Emerson 166).
Formalism and indeterminacy
Hart's discussion of formalism constitutes an examination of the law's evolutive process from closer in. While Holmes observes an historical arc, Hart's attention is directed towards individual judgments, which in their hundreds and thousands compose Holmes's arc. This change of perspective also renders more plausible Holmes's contention that judges have remained "largely unconscious" of the evolutive process in which they participate. "[T]here is a limit, inherent in the nature of language, to the guidance that general language can provide" (Hart 123) (endnote 1), because while a general statement is clearly applicable to certain obvious "plain cases," there will always also appear "fact-situations ... which possess only some of the features of the plain cases but others which they lack" (Hart 123). Having based himself on these straightforward assertions, Hart reveals the elements of "discretion" and of "choice" (Hart 124) which subsist in each judicial act of applying a rule to a case. Hart's argument is that we understand the sense of a general rule, such as a "rule prohibiting the use of vehicles in the park" (to take his example, at 124) by imagining uncontroversial cases in which it would apply. Few would disagree that this rule applies to motor-cars, for example, but the very uncontroversial nature of this example conceals the fact that it is nonetheless actively supplied by the reader, in his attempt to give the rule sense. The example of the motor-car is not explicitly contained within the general statement of the rule; rather, it has been inserted there by a decision on the part of the reader. But the active nature of this insertion is camouflaged by the social agreement which supports it. Motor-cars occupy such a place in our social conventions that the motor-car example almost seems to propose itself, and the actual person who does propose it melts into the crowd. This effacement of the individual is objectively real to the extent that another member of this society truly would have said the same and could accurately have predicted that which this, or any other, individual has said. This effacement is also lived subjectively to the extent that the individual person in question does not feel himself to have counted, to have stood, for anything.
Similarly, a judge deciding the case of a man having driven a car into the park might feel himself to be exercising no agency or individuality, to be doing nothing creative or original, not even really to be making a decision at all, when he subsumes the man's case under the rule. He may well think of his task as that of merely completing a simple syllogism (endnote 2) which any other rational person would have completed in the same way. But, as Hart wishes to show by this discussion, the uncontroversial, and superficially mechanical, nature of this sort of decision must not lead us to believe that all judging can or should proceed mechanically. The contention that it can and should is "the vice known to legal theory as formalism" (Hart 126).
The mechanical character of uncontroversial judgment is superficial, because it rests, as we have seen, on that judgment's uncontroversiality, which itself is a mere symptom, a mere indicator, of underlying social conditions and conventions. The realisation of the fact that these conventions are fluid, that our minds have not always been nor will always be effortlessly drawn to the motor-car as an example of a vehicle, is sufficient to reveal that spontaneous completion of syllogisms in which the judge himself appears to stand for nothing explains very little of judging, and thus very little of law's evolution and growth. We may easily go further, and point out that mechanicity of judgment is similarly unstable from one fact-situation to another over time.
Formalism, the theoretical urge to elevate mechanicity of judgment to the status of a value, is not without its justifications. Primary among these is the widely accepted requirement that like cases should be treated alike and that the law ought to be predictable. Indeed, formalism would appear positively salutary from within the context of a society governed by an idiosyncratic autocrat. But in countries where legality reigns, we enjoy the possibility of further expanding our analyses. The formalistic push for logical application of rules precludes the possibility of Holmsian renovation of the substance of rules.
According to Hart, the flaws of formalism rest upon a misunderstanding of the "human predicament" (Hart 125). For him, "two connected handicaps," which are essential to this human predicament, ensure that uncertainty in judging may never be done away with altogether. The first of these handicaps "is our relative ignorance of fact," and the second "is our relative indeterminacy of aim" (Hart 125). Hart explains the connection between the two thus: "until we have put the general aim [of a legal rule] into conjunction with those cases which we did not, or perhaps could not, initially envisage ... our aim is, in this direction, indeterminate" (Hart 126). The second handicap thus appears as a consequence of the first. "When we are bold enough to frame some general rule of conduct" (Hart 125) in the service of some social aim, our first handicap places a limit, a priori, on the certainty of that aim, which can extend no further than our powers of prediction, and indeed does extend no further than the actual set of predictions in accordance with which the rule is formulated. Unpredicted cases will eventually arise to throw the determinacy of the rule's aim (its substance, to use Holmes's term) into doubt. This is a kind of case whose judicial decision must necessarily consist to some degree in rule-renovation, for regardless of the nature of the judge's decision, it cannot but modify the aim, the reason, the substance, of the rule.(endnote 3) This follows from the fact that subsuming a case under a rule whose original substance had not predicted that case modifies that substance.
Hart enriches his conception of the role of social aims in judging when he writes: "In some legal systems at some periods it may be that too much is sacrificed to certainty, and that judicial interpretation of statutes or of precedent is too formal and so fails to respond to the similarities and differences between cases which are visible only when they are considered in the light of social aims" (Hart 127). Whereas above, Hart describes the situation in which an unpredicted case brings out the indeterminacy latent in our aims, here we see that our aims sometimes serve to bring out, or render significant, factual aspects of cases which we might otherwise have passed over.(endnote 4) Hart's idea that judicial appreciation of the facts of a case is, or at least should be, tailored to give effect to prevalent social aims also resonates with Holmes's theory of judicial rule-renovation: it is precisely because judges, as "able and experienced men," in their loyalty to society's needs and aims, carry forth their "good sense" (Holmes 36) into their judgments that rules received from history are renovated in the service of the law's "continuous growth" (Holmes 37).
The plain case
Above, I dealt briefly with the reason for which the act of judging the application of a rule in a thoroughly uncontroversial case, which Hart calls a plain case, appears mechanical
(straightforwardly syllogistical) in nature. The lack of controversy, or the thick "agreement in judgments as to the applicability of the classifying terms" (Hart 123), gives the plain-case judgment an outward appearance of mechanicity insofar as observers of the judge may confidently predict the result of his judgment. This same confidence is experienced by the judge himself as ease of judgment: in such cases his job is undemanding. And so in plain cases, the act of judging resembles very closely a mechanical act, which is to say an unthinking act. However, this unthinking quality can only ever remain a deceptive appearance. For it would be imprecise to say that judgment in plain cases requires less thought; rather, it requires less thought on the part of the judge. The broader the social agreement which is brought to bear upon an instance of rule-application, the easier is the work of the judge; this is because the shared social opinion is performing the judge's task for him. "It is easy in the world to live after the world's opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude" (Emerson 150). The judge, given his combination of independence and loyalty which I have noted above, enjoys a special opportunity to live up to the loftiness of Emerson's counsel. In deciding the plain case, this would mean something as ostensibly insignificant as maintaining a clear-minded awareness of the true ground of the apparently mechanical decision. By understanding the social grounding of his decision in the plain case, the judge retains "the independence of solitude," though he may indeed act in accordance with the crowd, for this awareness places a mental, or moral, barrier between the "world's opinion" and his own, even when they coincide.
Though this barrier of consciousness may appear to be almost nominal in the plain case, it is of great importance even there, for without it, the judge would lapse into the sort of conformity so reviled by Emerson. A conformist judge, one who unconsciously and uncritically allowed his thoughts to be governed by the opinion of others and who thus sinned against the sacredness of the integrity of his own mind (Emerson 148), would, to borrow Emerson's topical metaphor, be more like a lawyer than a judge. "He is a retained attorney, and these airs of the bench are the emptiest affectation" (Emerson 150). It is always a personal failing for one to dismiss "that gleam of light which flashes across his mind from within" (Emerson 145), but in the judge it is also a professional failing: a conformist judge would be no judge at all. Conformism, in the judge as in another, debases and cheapens one's very being in the world; it diminishes one's very human existence: "Whoso would be a man, must be a nonconformist" (Emerson 148). On this point, Emerson's understanding of conformity connects to legal formalism in that both concepts share a tendency towards the effacement of the judge's self, manhood, distinct being. Formalism might be said to represent conformity treated as a judicial virtue. While to the Emersonian way of thinking the plain case brings the judge to the brink of conformity (a fault from which he must protect himself by retaining a minimal critical consciousness of his own individuality and choice), formalism would see as auspicious the tendency of the plain case to bureaucratize the judge, reducing him to little more than a completor of syllogisms. The task of formalist theory, then, is to extend this supposedly favourable mode of decision outwards from plain cases to more controversial ones. "One way of doing this is to freeze the meaning of the rule so that its general terms must have the same meaning in every case where its application is in question. To secure this we may fasten on certain features present in the plain case and insist that these are both necessary and sufficient to bring anything which has them within the scope of the rule, whatever other features it may have or lack, and whatever may be the social consequences of applying the rule in this way" (Hart 126). In Hart's expression of formalism, the self is effaced, by active choice, for the attainment of a specific end (neutrality in judgment). In conformism per Emerson, the self is effaced when it is allowed to melt easily into the predominant opinion, and Emerson imagines no justification for allowing this to happen.(endnote 5)
The hard case
A judge who allowed himself to slip into conformism may well still decide the plain case as would a true judge, but his flaw would reveal itself in the hard case. The conformist judge would shrink before the task of resolving the indeterminacy of such a case. He would cast about in search of some standard, some rule, other than the one whose failure the hard case embodies, something to decide in his place.(endnote 6) But in such a case, "the answer cannot simply refer to rules" (Cavell 303); rather, such a decision is governed by an 'ought' logic. "'Ought', unlike 'must', implies that there is an alternative course you may take, may take responsibility for" (Cavell 309). As Cavell's reference to responsibility here implies, the resources for making such a judgment are to be found within distinctiveness of the judge's selfhood. The decision cannot be supported by the rule which has become indeterminate; therefore the judge must proffer himself as the ground for his decision; he must stand for it. This necessary element of judging is precluded by conformism, as it is by formalism: the effaced self is precisely the self which stands for nothing. It should now become apparent that conformism and formalism pose similar sorts of problems for the evolution of law, that neither type of self-effacing judge would provide the resources necessary for the law to grow in Holmes's sense.
For Hart, the formalist judge fails to give effect to social aims, and the conformist judge, given the meaninglessness of conforming to anything so abstract as the aim of an entire society, can hardly do better. Part of what it means that the judge stands for his decision in resolving indeterminacy of social aim is that he invents, rather than conforms to, the social good. In this sense, his loyalty to the social good takes on some of the qualities of leadership. To paraphrase Cavell: what the judge says must be decided is not defined by the social aim, for there is no such social aim until he makes it one, makes it his (Cavell 309). But to flesh out this argument I must address Cavell's discussion of forms of life and statements of initiation.
Forms of life, statements of initiation, and 'outerances'
In a discussion of what it means to teach and learn language, Cavell considers the question: "What do we teach or tell a child when we point to a pumpkin and say, 'Pumpkin'? Do we tell him what a pumpkin is or what the word 'pumpkin' means?" (Cavell 170). Cavell rejects both these possible interpretations as failing adequately to portray what it means to teach a child language, for each presupposes a level of linguistic knowledge which the child in the example does not yet possess: the second interpretation, for example, presupposes the ability to ask for a meaning (Cavell 170). And asking for a meaning is an example of what Wittgenstein calls a "form of life" (Wittgenstein s.241). Cavell therefore recasts the issue in terms of initiation: "We initiate [children], into the relevant forms of life held in language and gathered around the objects and persons of our world" (Cavell 178). Forms of life are areas of "human convention" (Cavell 168), certain human "practice[s]" (Cavell 309), in the sense that these conventions and practices are "constitutive of significant speech and activity" (Cavell 168). To initiate a child (or, less commonly, an adult) into a form of life, is thus into expand his or her world: "cities and mayors will not exist in [a child's] world until long after pumpkins and kittens do" (Cavell 172). As forms of life are constitutive of linguistic significance, it would be counterintuitive to the point of inconceivability to teach a child about cities and mayors before pumpkins and kittens, because the forms of life which gather around kittens and pumpkins are presupposed by, and nested in, the forms of life that gather around cities and mayors. As a child matures, his "world grows" (Cavell 177) in an unarbitrary manner to comprise more and increasingly complex forms of life, and "forms of life ... grow language" (Cavell 170). "And to imagine a language means to imagine a life-form" (Wittgenstein s.19).
Cavell's discussion of how children learn language sheds light upon the judicial function through his concept of initiation, and particularly of "statements of initiation" (Cavell 179). In the child-rearing context, Cavell gives the following example of such a statement: "When I say 'I love my love' the child learns the meaning of the word 'love' and what love is. That (what you do) will be love in the child's world; and if it is mixed with resentment and intimidation, then love is a mixture of resentment and intimidation" (Cavell 177). By that statement, the parent initiates the child into the form of life called loving, and all the meaning carried by the parent's invocation of the word 'love' is derived from and rests upon the expression or display of himself which the parent has made. The parent in this instance stands for love. When teaching 'pumpkin,' the parent points at a pumpkin, but when teaching (initiating into) love (or trust, or authority, to take Cavell's other examples) the parent effectively points at himself.
Setting aside child-rearing, Cavell treats philosophical statements such as "'When we say . . . we are implying . . . ' or 'We wouldn't call that (say) "recounting"'" (Cavell 179) as statements of initiation as well: the speaker of such statements "is not claiming something as true of the world, for which he is prepared to offer a basis - such statements are not synthetic; he is claiming something as true of himself (of his 'world', I keep wanting to say) for which he is offering himself, the details of his feelings and conduct, as authority" (Cavell 179). An essential characteristic of such statements is that they engage the speaker's responsibility in a special way; they do so in much the same way, Cavell notes, in which our responsibility is engaged by the making of a promise. "Such declarations cannot be countered by evidence because they are not supported by evidence" (Cavell 179); instead, they are supported by the authority, and by the attendant responsibility, which comes from the speaker offering himself as support. There is a relation to be noted here to JL Austin's discussion of performative statements, which can be neither true nor false (see Austin, How to do things with Words; 6). A statement of initiation is "an utterance (outerance) of oneself" (Cavell 180).
'Outerances,' as I shall continue to call them, do not fail for reasons of falsely depicting the world, but for falsely depicting the speaker's world. An outerance "is countered not by saying that a fact about the world is otherwise than you supposed, but by showing that your world is otherwise than you see. When you are wrong here, you are not in fact mistaken but in soul muddled" (Cavell 180).
Emerson's self-reliant man is paradigmatically in soul unmuddled. The man who "learn[s] to detect and watch that gleam of light that flashes across his mind from within" clearly sees his own world, and so his outerances are successful. Emerson describes the greatest possible success in this sense when he writes: "Speak your latent conviction, and it shall be the universal sense; for the inmost in due time becomes the outmost" (Emerson 145). In Cavell's terms, Emerson is saying that philosophical statements of initiation confidently spoken by a man in soul unmuddled will in time initiate the entire world into a sense which initially only his own world can support. Both the formalist and the conformist judge are, however, in soul muddled. By passing judgment in hard cases over and above the illusion that his selfhood can remain disengaged, the muddled judge nonetheless decides cases and expresses his outerances. And to the extent that his judgments are original (as they must be if they are to resolve indeterminacy), they will act as statements of initiation, renovating rules around which new forms of life are bound to gather. But if his outerances are false representations of his world, or perhaps representations of a false world, one which is not his, then the resulting forms of life will amount to a kind of lie. And so the muddled judge, in his muddledness, creates worlds "in the dark" (Hart 126), his only steady guiding principle being the avoidance of the responsibility which nonetheless redounds upon him." A man must consider what a game of blind-man's-buff is this game of conformity" (Emerson 150). "[U]nder all these screens I have difficulty to detect the precise man you are" (Emerson 150).
Cavell uses the example of a parent making a promise to a child in order to illustrate the way the child learns about (is initiated into) trust (Cavell 177). The words 'I promise' also clearly constitute a performative sentence (JL Austin, Words; 9-10). It would seem that all performatives are statements of initiation, but that some statements of initiation are not performatives. Cavell's philosophical 'We' statements (Cavell 179) are examples of this latter type. Additionally, it must be noted that the initiating character of an utterance such as 'I promise' is contingent on the listener: an adult, already versed in the practice of promising, will not experience as initiation the receiving of a promise, though that promise does nonetheless engage the self of the promissor. Most outerances are thus statements of initiation only in potential, or only in form; that potential is actualised only with respect to the interlocutor whose world the statement stands to enrich.
It should now be clear that the "operative" words (see JL Austin, Words; 7, acknowledging Hart) in a judge's ruling, i.e. words such as 'I find the accused guilty,' or 'appeal dismissed,' or 'I dissent,' constitute performatives and that, to a person not acquainted with the basics of judicial procedure, they also act as a statement of initiation. Judicial procedure is generally structured by secondary rules (Hart 89-96). The initiation, in this case, would therefore be into the form of life which is gathered around the relevant secondary rules.(endnote 7) Forms of life can certainly also be said to coalesce or spring up around primary rules. Indeed, because of their obligatory nature, efficacious primary rules, which is to say rules of law that are "obeyed more often than not" (endnote 8) (Hart 100) and under which "human beings are required to do or abstain from certain actions" (Hart 78), are perhaps the plainest case of a type of object around which forms of life spring up. It is in the context of primary legal rules that the phrase 'form of life' comes most nearly to its ordinary, literal meaning. And primary rules are the kind of rules most commonly judicially renovated.
Conclusion
I am now in a position to take an overview of what I have said about judgment. Substantive evolution of legal rules occurs as judges bring old rules into conjunction with new cases, thus incrementally resolving the indeterminacy of the social aims embodied by such rules. It is in the nature of indeterminacy that its resolution requires a decision: an original and creative utterance. Such an utterance must be in the nature of a statement of initiation, because the forms of life which might support its sense do not yet exist in the world; it is in this sense that it is creative. Creation is an intrinsically human, and, what is more, individual, activity. The judgment resolving indeterminacy is an original utterance, whose sense initially rests solely upon the authority of the judge. Through the structures of law's societal control, the judgment which originated as a gleam of light in the judge's mind, as a particular insight into his world, integrates itself into the social order.
Notes
1. All parenthetical citations to Hart are to H.L.A. Hart, The Concept of Law. (Clarendon Press: Oxford, 1961).
2. The syllogism might proceed thus: (a) the use of vehicles is prohibited in the park; (b) the car this man drove into the park is a vehicle; (c) therefore this man committed a prohibited act under the rule.
3. Since litigation tends to arise in unpredictable, rather than plain cases (except for criminal prosecutions), the tendency is towards every judgment changing rules. For this reason it is worth emphasizing the distinction between Holmes's historical level of analysis and Hart's case-level analysis. I mean to draw comparisons between them, and not to trivialise the one by collapsing it into the other.
4. It is not inconceivable, then, that the advent of a new social aim may alter our patterns of thought in such a manner as to increase our predictive ability. Perhaps a more precise way of stating this idea would be to say that our social aims condition us to direct our predictive efforts in certain ways rather than in others.
5. Formalism is thus a positively theorised prescription, while conformism is more in the nature of a human failing, a lack of moral fortitude. It might be possible to see formalism (a legal or jurisprudential doctrine) as (to paraphrase, and indeed to extrapolate from, Holmes) an externalisation and objectification of conformism (a base tendency of moral life). The link between conformism and formalism would thus constitute an instance of the manner in which "the law ... by the very necessity of its nature, is continually transmuting ... moral standards into external or objective ones" (Holmes 38).
6. It is about this sort of impulse which Cavell writes: "One may, of course, refer to the rules of an institution in one's defense; the effect of that is to refuse to allow a moral question to be raised. And that is itself a moral position, for which one must accept responsibility" (Cavell 303).
7. Cavell speaks of forms of life "gathered around the objects and persons of our world" (at 178). I find it unproblematic to think of a rule as an object in this sense, though in the faint possibility that Cavell may have in mind strictly material objects, the alternate argument could be made that a rule could be directly assimilated to the concept of the form of life itself.
8. I find Hart's definition of efficacy, though I cite it here, to be overbroad and arbitrary. I would propose to define efficacy more firmly as a level of obedience sufficient that the rule may be said to contribute to the governance of society.
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