On October 6, 2015, Cornell Law faculty and students flocked to the MacDonald Moot Court to investigate “The Twilight of Legality.”
The talk, part of the annual Irvine Lecture series, was presented by John Gardner, FBA, a professor of jurisprudence and a fellow of University College at Oxford. Gardner was formerly a reader in legal philosophy at King's College London. Called to the Bar in 1988, he has been a bencher of the Inner Temple since 2002. He serves on the editorial boards of numerous journals including the Oxford Journal of Legal Studies, Legal Theory, Law and Philosophy, and The Journal of Moral Philosophy. His most recent book, co-edited with Luís Duarte d'Almeida and Leslie Green, is Kelsen Revisited: New Essays on the Pure Theory of Law (Oxford: Hart Publishing 2013).
For the first seven weeks of the fall 2015 term, Gardner served as the Marc and Beth Goldberg Distinguished Visiting Professor of Law at Cornell Law School. The Irvine Lecture came during the last week of his stay, and he began by thanking his colleagues and students at the Law School for being so welcoming (and for giving him a break from his children).
Gardner noted that the title of his lecture might call to mind Guantanamo Bay, extraordinary rendition, summary execution by special forces or drones, or export processing zones in places like Guatemala and the Philippines-"places where regimes that otherwise purport to govern by law remove all recourse to law in the name of getting political, military, or economic results." His focus, however, was the seemingly countervailing trend of juridification, "the proliferation of regulation by law and through law, both in terms of the volume of that kind of regulation and the way in which it is increasingly insinuated into every corner of our lives." Gardner argued that this process is real, that it is ongoing throughout the world, and that it is "the enemy of legality."
"Modern governments, with their hands increasingly tied by robber barons in the global financial industry… often try to assert their power with their feet, by kicking out at another high-profile social calling, real or imagined," Gardner said. This gesture tends to involve rafts of futile or even counterproductive legislation heaped on top of a growing burden of legislative relics. Because the body of laws has grown so cumbersome and confusing, it is impossible to follow, even for a lawyer. "Every day, I'm pretty sure, I commit a number of petty offenses," Gardner remarked. The situation, he said, places undue discretion in the hands of officials such as the police, and it makes citizens vulnerable to be ambushed by the law.
Juridification includes the expansion not only of the legal code itself but also of other sets of norms that it recognizes. In this vein, Gardner addressed contracts, particularly the take-it-or-leave-it boilerplate that users now regularly encounter on the Internet, for instance when making a purchase on Amazon. The presenting parties, he argued, want to enjoy legal recognition for the norms they've created, but they don't want to be held accountable for their own compliance to those norms in a court of law; rather, they seek to divert the grievances of other parties into the realm of private arbitration. Those who benefit from this asymmetrical model are, he said, "the biggest welfare recipients of all, for they get the most generous, unquestioning hand out from the public sector, in the form of extensive, legal support for their special way of ordering things."
Gardner further asserted that, though arbitration and dispute resolution may be viewed as a tool to increase access to justice, the trend toward private arbitration could actually be pernicious to that aim. As an example, he identified corporate contempt for the rule of law as a major force behind the "all but complete destruction" of the longstanding system of high-quality, tax-payer-funded legal aid in the United Kingdom. He observed, "Law itself is the final frontier" in the wider push for "deregulation in favor of the disciplines of the market."
Today's young lawyers "have a special, epoch-defining responsibility," Gardner said in his conclusion. "Don't let it be on your watch that-in the name of a more customer-focused, user friendly, there's-an-app-for-that dispute resolution service, even in the name of doing more and better justice-don't let it be on your watch that the twilight of legality descends and darkness begins to fall on your profession and on the many aspects of our civilization that still depend on it."
The Frank Irvine Endowed Lecture series is Cornell Law School's oldest. The series was established in 1913 by the Conkling Inn of the legal fraternity Phi Delta Phi in honor of former dean Judge Frank Irvine. Past lectures have featured such notable speakers as Nobel laureate Amartya Sen and civil liberties advocate Vincent Blasi.