Monday, July 09, 2007

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?

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At 10:42 PM , Blogger Dennis said...

Heck yeah there's a role for Philosophy - what is the basis of law, anyway? Values - which are pretty fair game for philosophical analysis and debate.

And for that matter, it's not like the existing U.S. law or U.S. law at founding of the nation was value-free anyway. In that sense, the law, like all other social institutions, is a site of struggle (as noted in your previous post). We just like to pretend the law is somehow immune or above all of that. I think movement conservatives don't hold that pretense anymore, not even a little bit. They're not afraid to commit to changing the law for political gain, nor are they afraid of being explicit about it.

Is this a good thing? In terms of its effect on the law, no. The recent Supreme Court term proved that. If this leads to a public or social reevaluation of the role of law and a more frank and explicit conversation, then maybe there's an upside. But I doubt that will happen.

At 10:43 PM , Anonymous Anonymous said...

Is it true that values are the basis of law? Maybe if we stipulate and define values pretty widely. Here are two points that make me skeptical. First, there are plenty of values that seem to play no role in law and plenty of laws that that are clearly value-irrelevant. For example, most instances of lying are irrelevant to law, but we still value honesty. Likewise with reciprocity, kindness, etc. And I would call many of those technical laws that nobody knows about unconcerned with values.

Second, while it is clear that social values can and do play a large role in determining changes in laws, that does not warrant a jump to calling them the basis. Reader excercise: think of an agent of change that does not serve as the foundation of the thing changed. Here's one: weather can change the structure of a house, but cement is still the foundation.

I'm generally ignorant about many things regarding law and the philosophy of law, but I can't help but think that utility ultimately plays a central role in determining which laws we adopt. Like simple, traditional property laws or laws about violence. People just don't want their stuff unreasonably stolen nor their bodies harmed. So we could call such wishes values, but I think that that would be defining values perhaps wider than desired. I could be overlooking many things though.

Lastly, I like philosophy of mind, and I think that it might be interesting to see if the relations (supervenient, causal, identity, etc.) that hold between minds, physical events, and mental events mirror those that hold between laws, utility, and values respectively. I bet they would come close.


At 4:44 AM , Blogger Joseph Orosco said...

Galen: there is an old body of theory, generally known as natural law theory, that considers moral values to be at the center of law ( or, I should say, thinks that values ought to be at the center of law). Aquinas is the most articulate ancient source of this, but there are modern propnonets as well who usually subscribe to some form of moral realism.

Its true that there are a lot of laws that seem "value neutral" and its certainly not the case that legal=moral.

But think about even traffic laws. Whether we drive on the right or left hand side doesn't seem to be morally relevant. But the idea of a traffic law to regulate behavior in automobiles seems to contribute to a well functioning society (think how stop signs at four way stops are about recognition of others and reciprocity). As a body of rules, they might add up to a "good" society. Fairness is a moral value and one that we hope our law embodies to some extent in the way it regulates our actions toward one another.


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