A few weeks ago, I visited Princeton, New Jersey with some friends. One of them is a Princeton University alumnus, so we spent some time wandering around campus with him while he showed us some of his old haunts. Princeton is an absolutely gorgeous campus, and the experience had me itching to go back to school. (Though I think my brother would disown me if I ever became a Tiger.)
Princeton’s politics department (what they call their political science department) is interesting because it is one of the few PhD programs in the country that has public law–the study of the relationship between citizens and the government–as a defined field of concentration. I have often thought that if I were to go back to school and get a PhD it would probably be in political science, with a focus on public law, because that’s a field that I am interested in and have already done some writing about.
I even have a sense of what I might want to write a dissertation about: performative law. What is performative law? Good question! I define it as the promulgation of laws that are not expected to have legal effect, done for some other purpose. So far, I’ve thought of three categories of performative law, though there may be more:
- Statutes that legislators know are unconstitutional, but that are nonetheless passed.
- Example: A statute banning all forms of expressive activity, at all times, from taking place in public parks.
- Statutes that legislators pass with certain “triggers,” which will only take effect if some future event happens.
- Example: A statute banning all forms of expressive activity, at all times, from taking place in public parks if the Supreme Court cases protecting peoples’ First Amendment rights in public parks are ever overturned.
- Statutes legislators pass which merely reiterate existing law.
- Example: A statute declaring that public parks are “free speech zones” in which expressive activity is protected to the full extent guaranteed by the First Amendment.
What is curious about performative law is that, even though the statutes are passed without a serious expectation that they will function as laws, they do serve some purpose. I’m sure we could think of many purposes, but it seems to me that the two primary ones are to prompt litigation or to express pleasure or displeasure with something the courts have done. To a certain extent, there are serious questions about the legitimacy of both purposes, though I think both can be defended.
I also have a lot of unanswered questions, which merit serious consideration in the future:
- To what extent is the performative law phenomenon one that is associated with a particular political party or ideology? (Discerning readers will note that the examples of performative law I provided above could, if tweaked slightly, all come from one political party. But, these are just the examples that I can come up with off the top of my head–there are probably many others!)
- To the extent performative law is illegitimate, are some forms of it more legitimate than others?
- To the extent that performative law is a bad thing, what can/should be done about it?
- My concept of performative law focuses on statutes passed by legislatures. What about regulations enacted by the executive branch or decisions rendered by the judiciary? Could they ever be considered performative?
I’m certain that political scientists and legal scholars have already thought about many of these questions, and that they have a different name for “performative law.” (Though not, I submit, a better name.) Still, it’s interesting to think about. If I were to go back to school, what would I study? Maybe I’ll have to find out.
Chauvinisms 