Rule of law and morality
whoooo26505 at yahoo.com
Wed Oct 12 08:37:14 PDT 2005
The rule of law is a langauge puzzle. It stands for two things without you necessarily seeing it. When some people appeal to it, they mean the one thing, and, halfway through the argument, it accidently comes to mean the other. If by "rule of law," you mean a legal system where textual commands from a government are what constrain and structure the decision making of its officials, then the rule of law most certainly is not a myth. If by "rule of law" you mean a self-contained system of precedents that judges must follow, then, yes, that is a myth: common law was never self-contained. Morality certainly is not a myth; the problem is simply that its justification is more "messy" than justification is in non-moral contexts. Morality is most true in its extremes and most uncertain at its margin. Indeed, some moral claims are universals; others are mere fashion.
Tom Powers <tpowers at d.umn.edu> wrote:I should resist asking this question (and almost regret it already) - but I can't help myself. If the rule of law (as something general or universal, and appealing to something above the narrow concerns of politics) is a delusion, is morality also (and for roughly the same reasons) a delusion?
This, ultimately, is what is at stake in the law/politics question - and is what bugs me about what I take to be a half-hearted (and therefore fake or at least suspicious) radicalism in the contemporary (& seemingly dominant in the social science study of law) legal realist stance (and cf., Holmes, while we're at it). The ideal of the rule of law (general, seeminlgy (if not in fact) appealing to all and for all, standing somehow above narrow interest) is one way of stating the form of many if not most moral claims. How do our legal realists deal with morality -- or is it too reducible to politics (at which point its claims are likewise "delusional")?
Or is the claim simply that law has the misfortune of being reducible to politics (and ITS suprapolitical/moral claim are a delusion) while there is a morality that is somehow not delusional and above the narrow claims of politics?
Or is it somehow obviously unfair or unjustified to jump from the radical critique of law (which is surprisingly common) to the question of morality (which I almost never see being addressed on this list)?
----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, October 11, 2005 12:13 PM
Subject: RE: getting over Bork, restoring our depleted legal capital
Like Mark, I cherish Matt Franck's contributions to this list. But I confess that I literally don't understand the reference to "judges who live by (and don't just swear by) the older understanding of an apolitical, non-ideological judiciary." I do not know whom he is referring to, unless we interpret this to mean "judges whose own self-understanding was that they were acting in the name of an impersonal law and not making 'political' or 'ideological' judgments." This notion I can understand, but then, of course, it only generates the questio of whether such a self-understanding, especially with regard to "high politics," is simply delusionary (as I most certainly do) and how, of course, we would try to persuade each other as to whether or not it is in fact a delusion..
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