Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics (original) (raw)

2010, Calif. L. Rev. Circuit

Abstract

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The paper explores the intricate relationship between law and politics, particularly through the lens of Philip P. Frickey's advocacy for a legal culture that embraces the complex interplay between judicial craft and political context. It discusses the limitations of legal formalism and presents the avoidance canon as a judicial tool that reflects this interdependence, highlighting its role in navigating constitutional questions while maintaining core democratic values. Ultimately, it argues that the rule of law and judicial practices are dynamic constructs shaped by social and political contexts.

Key takeaways

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1. Judicial statesmanship can enhance the social legitimacy and effectiveness of law within its political context.
2. Frickey's argument supports the need for judges to consider political consequences in their decision-making.
3. The legal process school struggles with incorporating irreconcilable political disagreements into its framework.
4. Politics and law serve as distinct yet interdependent practices for managing social agreement and disagreement.
5. Wechsler's notion of 'neutral principles' inadequately captures the complex interplay of law and political realities.

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FAQs

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What explains the relationship between judicial statesmanship and political legitimacy?add

The research illustrates that judicial statesmanship can enhance political legitimacy by aligning legal decisions with public values, as seen in the Warren Court's protection of free speech during McCarthyism.

How did Tocqueville's views on judicial roles influence contemporary legal theory?add

Tocqueville posited that judges must act as statesmen, navigating public opinion, a notion that continues to shape debates on judicial decision-making in modern constitutional law.

What methodology critiques Wechsler's concept of 'neutral principles' in law?add

The paper challenges Wechsler’s dichotomy of reason versus arbitrary fiat, arguing that law inherently intertwines with politics, thus questioning the feasibility of neutral, non-consequentialist legal reasoning.

When do courts typically engage in judicial statesmanship during decision-making?add

Courts showcase judicial statesmanship when fundamental social agreements are threatened, as demonstrated by pivotal cases like Planned Parenthood v. Casey, which underscore the importance of maintaining societal legitimacy.

What implications does the interdependence of law and politics have for judicial practice?add

The interdependence suggests that judges must consider ongoing societal disagreements in their rulings, balancing legal craft with the broader political context to enhance the legitimacy of legal institutions.