Coping with Partiality: Justice, the Rule of Law, and the Role of Lawyers (original) (raw)
Related papers
Qualitative Sociology, 1985
If economics is called a "dismal science" because it is centrally concerned with the problem of allocating scarce resources, then the sociology of law ought to be dubbed "joyous" because of the abundance of law. Indeed, the expansion of law through the elaboration of individual rights, contractual relations, and the growth of administrative state institutions is much more than a reflection of changes associated with processes of modernization. Rather, law is a constituent feature of social change. Thus, although Malthus grossly overstated the view that population expands exponentially while food production expands arithmetically, his principles seem to hold with regard to the growth of law and social relations. Yet, beyond the common observation that the legalization of social life has dramatically expanded, scholars take differing evaluative standpoints and alternative methodological approaches to the analysis of law. While each of the books under review is concerned with different aspects of legal development and constitutes a valuable contribution to our knowledge and understanding of particular directions in legal change, a comparison of their central points of view and methodologies suggests both the varieties of legal scholarship and disagreements about policy alternatives. In Justice Without Law?, Jerold S. Auerbach, a historian at Wellesley College and the author of Unequal Jus rice, is primarily concerned with tracing the pattern of development of dispute settlement in American history. He demonstrates that there has always been a tension between relatively informal, community-based resolution in the United States and the resolution of disputes through litigation. Yet, the pattern of dispute settlement has become so dominated by the legal profession and litigation that efforts at nonlegal dispute resolution have tended either to become sources of unequal, inauthentic backwaters created for the convenience of the legal establishment or private enclaves of powerful interests that allow for minimal public scrutiny. While Auerbach is not an idolater of legality and is sharply critical
Reimagining the Lawyer's Duty to Uphold the Rule of Law
University of Illinois Law Review, 2023
The legal profession has long embraced the view that lawyers have an obligation to uphold the rule of law. Upon close examination, however, it seems clear that lawyers are not expected to do much to promote it. If we take the bar’s pronouncements seriously, we see that, for the most part, so long as lawyers zealously protect and pursue their clients’ interests within the bounds of the law, they are in fact fully discharging their obligation to uphold the rule of law. This Article argues that this conventional view—that mere compliance with formal legality satisfies the lawyer’s duty to uphold the rule of law—is problematic. First, this view makes the duty to uphold the rule of law superfluous, because lawyers are already obligated under the ethical rules not to violate the law. Second, this view assumes—almost as an empirical matter—that compliance with the positive law is sufficient to maintain a society that lives under the rule of law. Yet, a growing body of scholarship on “legalistic autocracies” casts doubts on that assumption. What these legalistic autocracies seem to demonstrate is that it may be possible to observe formal legality without the rule of law. This Article offers a wider, alternative account of the lawyer’s rule-of-law obligations that better comports with our strong, albeit vague, intuition that the rule of law demands far more than bare compliance with legal norms and is far more complex than what is conventionally assumed. This alternative view is grounded in the realization that “the rule of law” is a teleological notion—in other words, to be understood in terms of its point: we seek the rule of law for purposes; we enjoy it for reasons. Because of the inherent teleological character of the rule of law, no check-the-box criterion—such as compliance with formal legality—will guarantee the valued state of affairs in which law actually rules. This Article argues that the substantive value, or telos, that lies at the heart of the rule of law is the restraint of the arbitrary exercise of power, a concept that comes from the republican intellectual tradition. By taking this substantive value seriously and constructing a thicker, more substantive understanding of the rule of law around this value, we better appreciate the myriad ways in which our society falls short of that ideal, and we can better see why and how the conventional view of the lawyer’s duty to uphold the law, grounded in legalism, falls short of respecting and nurturing the rule of law.
The Zealous Advocacy of Justice in a Less than Ideal Legal World
In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire -- the moral quality of litigation would improve, as would the reputation of the bar, and likewise the justice of the law itself? But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of cli...
Returning Justice to Its Private Roots
The University of Chicago Law Review, 2001
Benson has written or cowritten numerous articles and two other books on legal topics. The books are The Enterprise of Law: Justice without the State (Pacific Research Institute 1990) and The Economic Anatomy of a Drug War (Rowman & Littlefield 1994) (with David W. Rasmussen). 2 Richard A. Posner, Economic Analysis of Law ch 21-22 (Aspen 5th ed 1998) (discussing criminal procedure and law enforcement). 3 I found forty-nine references to papers written by or coauthored by Benson in the bibliography of To Serve and Protect. Since there are papers not referenced there, this bibliographic listing represents only a subset of Benson's output. 4 This is also the appropriate place to make disclaimers. I know Bruce Benson, have participated in a number of conferences with him, and have been familiar with his work for over ten years. Along with quite a few others, I read and commented on a portion of this book when it was in manuscript form. Benson also used a manuscript of mine, analyzing private provision of law in the nineteenth-century American West, as a minor source for the book.
ARTICLES: Justice in Tension: An Expression of Law and the Legal Mind James Boyd White Configuring Justice Jeanne Gaakeer To Avenge, to Forgive or to Judge? Literary Variations François Ost Speaking of the Imperfect: Law, Language and Justice Marianne Constable Justice and the Colonial Collision: Reflections on Stories of Intercultural Encounter in Law, Literature, Sculpture and Film Rebecca Johnson The Heart of Law M. Paola Mittica Having Gods, Being Greek and Getting Better: On Equity and Integrity Concerning Property an Other Posited Laws Gary Watt The Ethics of Testimony: Trauma, Body and Justice in Sarah Kofman's Autobiography Ari Hirvonen
Deconstructing the Law: The Politics of Law
1982
In recent years progressive critique of the legal enterprise has derived from two principle sources: the legal realist and Marxian traditions.1 Succinctly expressed, these traditions have rejected the law's claim to objectivity. The legal realists have argued that legal decision-making involves not formal, deductive logic but subjective choice; any legal choice made is never logically compelled.2 In the Marxian tradition the objection has been not so much that the law is imbued with values, but that the distribution of legal outcomes is skewed to particular values, particular interests; the law reflects dominant economic interests.3 Stated this simply, the views of the two critical legal traditions may be subject to as much rhetorical denunciation as affirmation. In contrast, one of the key merits of the articles collected in The Politics of Law* is that discussion is moved to a fundamentally different plane. In consonance with a growing movement in the social sciences, these es...
The Rule of Law: Pasts, Presents, and two possible Futures
The Rule of Law: Pasts, Presents, and two possible Futures. Martin Krygier Abstract The rule of law’s recent rise from parochial and controversial political and legal ideal to universal international slogan has, then, given it a great boost in brand recognition, but its now mandatory rhetorical presence has rendered increasingly murky what the concept might mean, what the phenomenon might be, and why anyone should care. This fluidity might even be part of its charm to those who deploy it, but it has a price. For the concept speaks to important and enduring issues of politics and law, not always apparent in current rule of law effusions. So this article begins in a deliberately unoriginal way, not with those effusions but with some intimations of old traditions of thought. It identifies two venerable themes, related to each other as vexed problem and putative solution, namely arbitrary exercise of power, and its institutionalized tempering. These date from well before the rule of law became an economist’s and aid worker’s cliché. They might usefully inform present conversations, which instead often proceed in ignorance of them. The article then moves to some past experiences with and without the rule of law understood this way. It then goes normative, to suggest the ideal of the rule of law is a THOROUGHLY GOOD THING, even if not every invocation or even application of it is. The penultimate section raises some normative and sociological criticisms of current discussions, to do with their inadequate treatment of ideals and of contexts. The article concludes with two suggestions about future directions: one a call for a social science that doesn’t exist, and the other a timid suggestion that it might be time to go beyond the rule of law, in order to pursue the ideals that led us to it.