The Legal Entrenchment of Illegality
Boston Univ. School of Law Working Paper No. 07-21
Reprinted in David Lyons, CONFRONTING INJUSTICE: Moral History and Political Theory (Oxford University Press, May 2013)
This paper concerns systematic practices by public officials that are clearly unlawful, not hidden from view, and tolerated for many years. Such a “legal entrenchment of illegality” characterized America’s Jim Crow period, from the 1890s to the 1960s, especially in the former slave states, where the rape, assault and murder of African Americans, police brutality, procedural bias, and anti-black pogroms were tolerated or engaged in by officials. The related cynicism of officials is illustrated by a review of Supreme Court decisions that undermined the legal framework for the post-Civil War “reconstruction” of the former slave states. This paper also shows how the legal entrenchment of illegality required officials to embrace an incoherent and unstable set of attitudes towards law, which was incompatible with Hart’s legal theory as originally presented, but was compatible with its final form.
Keywords: Malfeasance, nonfeasance, racism, Jim Crow, the rule of law, Hart’s legal theory
JEL Classification: K10, K42
Date posted: September 18, 2007 ; Last revised: May 2, 2013