The Theory of Legal Characters

The purpose of this session is to present a theoretical protocol aiming at theorizing what lawyers do, when they do law. Here is why it might be interesting: for decades, we took for granted that jurists just “spoke the law.” This was good news: the law, thanks to the continuous efforts of legal science to systematize it in a coherent manner, was rational after all. Yet, legal realism has been there along the way, raising along the way ideas of partial or absolute indeterminacy, associated or not with a thesis of the predetermination of law by sociological or ideological factors. Finally, post-realist approaches convinced us that jurists do not just “speak the law.” Better said, if “the law” is what jurists say, and if what they say cannot be known until it is said, the jurists do not “speak the law” at all. From there, understanding that the legal material was only a small part of the story, legal theory—once only busy with ontologies of norms—went to study legal actors’ behaviors.

If it is true that the law is not a set of norms, but the actor’s behaviors, students trained the old way may find themselves in a difficult spot: how do you describe, explain, understand a “behavior”? Which tools to mobilize for that? Most of the time, the answer is to formalize these behaviors with economic models, whether classical or behavioral, in search of a high degree of certainty. But this approach comes at the cost of excluding actors’ motivations from the analysis. Therefore, it fails to explain why the jurists felt constrained to do what they did and the precise way they did it. And if, as Foucault says, acts of “interpretation and formalization have become the two main forms of analysis of our time,” only focusing on the second can hardly be satisfactory.

In the paper I will circulate for this seminar, I am suggesting another path to smoother, less formal accounts of the legal actor’s behavior. On such path, one soon encounters the metaphor of “personae” or “characters.” The Theory of Legal Characters aims at taking this metaphor seriously and understands the legal character as both an idealized self-presentation that the actor performs for her audience and as a role model of professional behavior, which can also be interpreted as a dimension of her psyche. I believe this approach may offer a useful theoretical protocol to understand what the law is, that is what the lawyers do, when they do law.