Law & Society Blog

In his latest post, Bloomfield correctly observes the lack of genuine legal substance in the contemporary American legal discourse. The reason for that, I submit, is that unlike civil lawyers, common lawyers are second order observers of the legal discourse, not first order observers. In other words, the lawyer, unlike the judge, is not a participant in the normative legal discourse, rather, he or she provides the source materials (facts and cases) to the judge, who will then engage in the legal discourse proper, that is, a phase-shifted discussion with prior judicial authority. In this sense, Holmes’ prophecy definition of the law is entirely accurate, because as lawyers, we cannot participate in the legal discourse. The court observes the law, and the lawyers observe the court. The court is a first order observer, and the lawyers are second order observers. That puts the lawyers in the exact same epistemic position as sociologists, philosophers, or economists, which explains the phenomenon and the possibility of outsourcing substance: from a second order observer’s point of view, there are no genuinely legal arguments.

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