Is the Supreme Court Logical?
In comments to the last post regarding the recent Supreme Court school integration ruling, Dennis asked whether the "reinterpretation" of diversity to support a colorblind worldview was intentional or not. Mark Tushnet, who teaches law at Harvard, points out that the arguments used in the case were developed by a small public interest law foundation in California called the Pacific Legal Foundation. It arose several years ago with a mission to develop a libertarian heavy law movement, championing private property and capitalism.
This is just one example of how developments in legal theory and practice are usually, at their foundation, about political movments and struggle, rather than simply drawing out the logical implications of the law. Anyone who has a passing familiarity with legal realism or critical legal studies already knows this.
But it would seem that conservatives have had a better time of it in the past few decades of organizing think tanks, foundations, and intellectual groups to engage in the stuggle over the meaning of the law. Liberal groups seem only now to be recognizing this dimension of the political battle over meaning.
This has been George Lakoff's argument over the past few years and forms the basis of his argument about the need to learn how to "frame" ideas. Some worry that is line of thinking is more thought manipulation than moral politics.
Is there a role for philosophy to engage the struggle over the meaning of the law?