Tuesday, November 25, 2008

Throwing Bombs

As I read legal scholarship these days, I see many pieces analyzing doctrines, tracing historical developments, seeking adjustments to parts of rules or laws, and suggesting new "perspectives," but very few that broadly attack a law or practice as fundamentally unjust. We have many exceptional analysts and commentators, but few bomb-throwers, and those that exist often are outside the core of elite institutions.

It could be that we are fortunate enough to live in a nation without unjust laws, but I doubt that many of us would truly agree with that statement. Given that most of us would agree that there are unjust laws, why are we not more focused on attacking them? I suspect that at least two factors dampen the excitement for overarching reform within legal scholarship.

First, we do live in a society where the laws are the product of a democratic process. Thus, if we identify a law as unjust, we are suggesting either a flaw in the process or that the majority of people in our nation are not only wrong about something, but at some level that they are fundamentally, morally wrong. Understandably, we are reluctant to attack our democracy or our fellow citizens.

Second, to call a law unjust requires a position from which to determine justice as a moral position. Legal philosophers discuss this in depth, but generally not in connection to a live issue, while the rest of us are often uncomfortable with the ideas of positivism or natural law, and certainly loath to connect a contemporary debate to either.

It does seem to me that many of the worthwhile challenges to unjust law is coming from those speaking from a position of faith. It could be that this is a particular strength of ours, and one that we should consciously encourage amongst our members, while acknowledging that there will likely be divergent views about which laws are unjust and for what reason.

-- Mark Osler

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