The Politics of Law - Introduction and Contents
THE POLITICS OF LAW, David Kairys, ed., 3rd ed., Basic Books, 1998
25 Pages Posted: 8 Nov 2005
In "The Politics of Law, A Progressive Critique", now in its third edition, over 30 scholars from many disciplines and law practitioners develop a range of progressive approaches to the nature, social role, and functioning of the law primarily by focusing on particular issues and fields of law, rather than by discussing law only abstractly. This introduction to the third edition explores what 'government by law, not people' means for democracy and society if there are not legally required rules and results in particular cases, especially in a country like the U.S. that turns over such a broad range of decisions and issues to courts and judges. The law serves to limit the scope of democracy and to depoliticize - removing vital issues from the public agenda, casting things as they are as achieved without the need for any human agency, and providing apparent legitimacy to existing social and power relations. Public debate about courts and law is usually consumed by complaints about judicial activism from those who hold moral or political views not, or no longer, held by a majority on the Supreme Court. A closer look at judicial restraint and activism reveals patterns and generalizations that have more to do with substantive goals than judicial means. There are only two periods in our history characterized by sustained judicial protection of a progressive version of civil or human rights, from about 1937 to 1944 and 1961 to 1973, and they correspond to periods of sustained progressive political power led by powerful mass movements. Many or perhaps most of the significant and lasting civil rights were established, even in the judicially active 1960s, by Congress, rather than, as conventional wisdom would have it, by the Supreme Court. Nor have the courts provided much protection for groups and individuals facing repression. We should step out of the cyclic and essentially meaningless debates about judicial restraint and address the now decades-long expansion of judicial and executive power and the fractured political and electoral process that have contributed significantly to an American crisis of democracy.
Keywords: Jurisprudence, judicial restraint, legal reasoning, legal decision making, legitimacy, civil rights, constitutional law, democracy
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