FW: Walter Murphy on LAW AND POLITICS

[Sanford Levinson]

Walter sent me this message and has consented to my forwarding it to the
lists:

________________________________

From: Walter F. Murphy [mailto:wmurphy37 at comcast.net] 
Sent: Sunday, December 11, 2005 1:06 PM
To: Sanford Levinson
Subject: Re: LAW AND POLITICS



	Sandy:
	 
	Re separation of law and politics
	 
	As Camus noted, one of the chief tasks of intellectuals is "to
clarify definitions in order to disintoxicate minds."   In the debates
regarding law and politics, scholars have often failed to perform this
duty.  We tend to accept shallow, journalistic, conceptions of
"politics" as partisanship or even petty jobbery rather than to use
either a classic definition of politics, Aristotle's for example, as
"the master art," whose purpose is to allow citizens to pursue [more]
noble lives, or some version of Easton's definition of politics as being
concerned with the authoritative allocation of values for a society.  
	 
	If we use a variant of either of these definitions, "law" is a
subset of politics, typically laden with values and influencing as well
as being shaped by a society's general norms.  At the same time it may
be influenced by partisan and personal factors.  Law is thus emintently
"political," both in the sense of being, on the one hand, a means
through which society (really those who govern society) establishes its
values and allocates costs and benefits among citizens and, on the other
hand, being itself a product of (or at least reflecting) previous values
and allocations of costs and benefits.
	 
	Obviously, as do other forms of politics, law and legal
decisions (I assume this debate restricts "legal" to "judicial"), may
also partake of partisanship, as the Supreme Court so transparently
demonstrated in Bush v. Gore (2004), perhaps even of expectations of
group, family, or personal gain.   Nevertheless, we, as political
scienttists, have a professional obligation not to use the term politics
in a loose, shallow, way and, more positively, to try to understand law
as playing several important roles in determining how a society
operates, how it does (or does not) help its citizens lead more noble
lives or how it helps determine that society's values and allocates
costs and benefits.  
	 
	When or if our scholarship leads us to conclude that
partisanship or group, family, or personal gain influenced a
legal/judicial decision, we have an obligation to speak (or write) out;
but we can hardly criticize a decision because it influences immediate
public policy or society's long range goals and aspirations.  Neither
can we criticize a judge for taking these elements into account, though
me criticize him or her for erroneous (or even immoral) judgments.  And,
if we know anything at all about any society, we'll realize that these
values and allocations are likely to be hotly contested.  In the
abstract, they are also likely to be intellectually contestable, which
is not to say that being contestable means that we cannot make reasoned
judgments about their worth or lack thereof.  
	 
	We should expect disagreement about the "correctness" of any
decision, judicial or otherwise, and it is certainly legitimate for us
to try to use a variety of methods to account for differences among
decision makers.  It is also legitimate for us to try to evaluate how
any given decision affects or reflects competing values (and allocations
of costs and benefits) as well as to argue which of these should take
precedence.  
	 
	Indeed, it seems to me that we categorize judicial decisions as
more or less significant because of their immediate and long range
impacts on society and we criticize or praise them for their impact --
the "things" about which politics is inevitably concerned.  Any public
official, including judges, who did not try to understand the larger
consequences of his or decisions would, indeed, be either less than
intelligent or less than responsible.
	 
	Peace,
	 
	 
	WFM
	 
	 
	 

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