Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin

Abstract

Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former.

Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy.

In this article we pay tribute to Mishkin's quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern.