Richard Weisberg - „Legal Reasoning's Inherent Flexibility as a Risk to Affirmative Cultural Stability“


Across most cultures, one norm regarding law is generally accepted: its predictability. Even in totalitarian states, and certainly as we move towards liberal democracies, law is thought to prescribe identifiable modes of behavior, some acceptable and others subject to civil or criminal punishment. The predictability of law is thought to derive from written codes and/or judge-made declarations, but people also become aware of predictable deviations from "law on the books", so that (for example) the presence of constitutional-level protective norms in places like the former Soviet Union or in contemporary China, readily yields in public perception to predictable patterns of law enforcement that directly violate those norms. In more democratically oriented cultures, people ascertain that some laws are simply not enforced ("desuetude") or mean something different from their "textual" sense (you can drive at 70 miles per hour where the sign says "Limit: 55 mph", etc). Thus, at some cost, predictability is maintained.

Cyclically, however, challenges are mounted − either internally (through "autopoiesis") or externally (through, say, civil disobedience) − to the norm of legal predictability. Since World War II, such attacks have branded "positivism" as the source of much wrongdoing in Hitler's Europe and have deduced that a knee-jerk allegiance to laws of whatever kind brings about awful harm when those laws, albeit predictably applied, are morally wrong. Similarly, in the United States, the great judicial reversal of Jim Crow laws that occurred in BROWN vs. BOARD OF EDUCATION was lauded as an example of judicial departure from "predictability" − neither the text nor the history of the "equal protection clause" mandated the outcome, yet precisely the unpredictability of the Court's methods was thought of as admirable, given the required outcome of ending apartheid in America. Academic discourse until perhaps BUSH vs GORE largely although along a spectrum of discourse embraced the move from predictable judicial behavior in the service of doubtful or even repugnant ends. Critical Legal Studies overtly made the claim that predictability was itself a doubtful notion, and that all meanings (legal and otherwise) are indeterminate, this being itself an exaggerated outgrowth of the "realist" movement a few decades earlier.

This paper re-captures legal predictability as a laudable norm. It does not re-create the positive-natural law dichotomies of the immediate post-war period except in demonstrating at some length that the enormity of legal harm in Hitler's Europe occurred because of judges' felt liberation from, and not enslavement to, legal norms. Here, my examples are Nazi courts themselves, and developments in Vichy France and in the occupied Channel Islands. Instead the paper adopts the principle of "flexiphobia" − a neologism indicating the extreme risks of excessive textual flexibility -- and applies it to three American Supreme Court decisions (PLESSY vs FERGUSON (1896), which was over-ruled by BROWN, SCHENCK (1919) and HELLER (2008), as well as to "landlord-tenant" cases from Vichy France and the recent "Esra" decision (2007) from the German High Court.

A conclusion emerges that: 1) law does yield predictable results, that 2) flawed but basically sound legal systems do better by preserving interpretive predictability while permitting change through intense political struggle (racial equality, gender, reproductive and sexual rights, environmental protection) largely working within the system and 3) in totalitarian environments, the very predictability of law eventually encourages recourse to expanded jurisdictional authority (international courts, acting with predicability) or outright revolution.

Prof. Dr. Richard H. Weisberg

Floersheimer Professor of Constitutional Law, Cardozo Law School, Yeshiva University


Richard H. Weisberg first studied comparative literature and French at Brandeis University in Boston, and obtained his Ph.D. in philosophy at Cornell University in 1970. He then worked as assistant professor at the University of Chicago, obtaining his J.D. at Columbia Law School in 1974. Since 1977, he is Walter Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City. Over the course of the past years, Weisberg has taught as guest professor inter alia in Los Angeles, Jerusalem and Vancouver. His research interests lie in the area of Law and Literature, as well as in constitutional and property law. Furthermore, he has intensively studied the Vichy regime and its anti-Semitic legal rhetoric and legislation.

Weisberg is a White House appointee to the Commission on the Preservation of America’s Heritage Abroad. He further has helped litigate successfully in American federal courts on behalf of Holocaust survivors and seeking rights and compensation. He is the founding director at Cordozo of the Program on Holocaust/Human Rights Studies and the Floersheimer Center for the Study of Constitutional Democracy and is regarded as a pioneer of the worldwide Law and Literature movement. In 2008, Richard H. Weisberg was honored by French President Nicolas Sarkozy with the Ordre national de la Légion d’honneur. He was, inter alia, fellow at the John Simon Guggenheim Memorial Foundation as well as the Rockefeller Foundation and, since 1988, is editor of the journal Cardozo Studies in Law and Literature.

Alongside numerous papers, his most important publications include “The Failure of the Word: The Protagonist as Lawyer in Modern Fiction" (1984), "When Lawyers Write" (1987) as well as "Poethics, And Other Strategies of Law and Literature" (1992) and "Vichy Law and the Holocaust in France", published in 1996.