I am going to talk about a topic that I have been writing on recently- legal autonomy, or more generally, disciplinary autonomy. Is it the case that we can talk coherently about something like the discipline of law or the discipline of literary criticism? And when we do talk about a discipline as having some sense of autonomy, of distinctiveness, what do we mean? What kind of distinctiveness is it? What is its source? Is it a distinctiveness that is historically achieved or does it have a more exalted origin in divinity or in "the nature of things"? These are the questions I would like to raise, and I want to start by quoting a sentence from Robert Bork's The Tempting of America. It comes in two parts. The first part of the sentence is, "Constitutional philosophies always have political results .... " The second part of the sentence reads "they should never have political intentions . . . ." Now, first of all let me say that I think that the sentence in its two parts is absolutely on the mark and will reward analysis.
What does Judge Bork mean when he says that constitutional philosophies always have political results? Well, I think he means something like the following: when as a judge or a lawyer you argue a case or craft an opinion the resources you think to employ will include a set of definitions, a number of basic distinctions, and a sense of the general point of the particular branch of law you are working in. I do not mean that these are resources you reach for; rather, they are presupposed by you and they must be in place before you begin, for in the absence of their having been presupposed, beginning would not even be possible. Bork's point, as I understand it, is that not all legal actors will begin with the same presuppositions. It is always possible for some other lawyer or judge as well credentialed as you are to have decided the questions that must be decided before you begin differently. And that difference will tell in the outcome: take two judges, set before them the same case and, with the help of equally legitimate legal materials, notions and distinctions, they will produce differing and, in some cases, opposing opinions. The results of their deliberations will vary with the assumptions within which they move; and since those assumptions are disputable, the results of their deliberations will be political. That is what "political" means: a course of action that follows from a point of origin not everyone will have chosen, where choice is necessary because no god has spoken. Since no god has pronounced on matters of constitutional philosophy, constitutional philosophies will always have political results.
Stanley Fish, On Legal Autonomy, 44 Mercer L. Rev. 737 (1993).