Law and Experience

Abstract “Experience” in two senses is relevant to law’s operations. First, it encompasses the novel sets of circumstances to which those who work within legal systems seek to make apt responses. Secondly, it denotes a repository of practical guidance that finds expression in legal systems. These two senses of “experience” bring into focus the fact that legal systems are contexts in which the past (practical guidance that accumulates along extended timelines) collides into a present where we regularly encounter contingencies that, in their novelty, put societies under practical pressure and may even give rise to existential threats. But legal systems are also contexts in which ideals exert a powerful influence and encourage the idea of movement towards an end-state in which just social relations exist on an enduring basis. However, the contingencies that regularly buffet societies lend plausibility to the view that these ideals are unattainable. This is a state of affairs to which this essay seeks to make a response that, while deflationary, is constructive. To this end it presents an account of the state as a ship that sits on a sea of contingency. More particularly, it examines a range of considerations that are relevant to the work done by those who seek to keep such a vessel afloat. These considerations include John Rawls’s distinction between ideal and non-ideal political theory and Oliver Wendell Holmes’s account of his approach to judging (to which he applied the neologism “bettabilitarianism”). These considerations also include two virtues (attentiveness to contingency and “negative capability” in the sense indicated by John Keats) and a faculty to which Isaiah Berlin applied the label “the sense of reality”. This essay also argues that ideals will continue to have a prominent place in legal systems that operate in ways that reflect the influence of non-ideal political theory.