On the dubious assumption that people still take the sanctity of American legal institutions seriously, constitutional...


THE POLITICS OF LAW: A Progressive Critique

On the dubious assumption that people still take the sanctity of American legal institutions seriously, constitutional lawyer Kairys, and 20 other ""progressive"" attorneys and scholars, set out to disabuse them: in editor Kairys' echo of Clausewitz, ""law is simply politics by other means."" Attacking the idea of legal reasoning--that there is a method, based on the proper use of precedent, for arriving at judicial decisions--Kairys argues that the wide variety of potential precedents for a particular decision means that it will really be determined by the social and political mindset of the judge, or judges. Harvard Law professor Duncan Kennedy, writing on legal education, calls legal reasoning and legal education ""nonsense."" In law school, prospective lawyers learn some techniques and rules, and that's all. He also contends--but doesn't demonstrate--that law teachers hide the program of liberal reform behind spurious reasoning that shows moderate reform policies as those which follow rationally from legal reasoning. Because ""rights discourse,"" for example, begins with isolated individuals and a presumed distinction between private and public realms, it can reach only certain limited conclusions; so rights discourse must be wholly rejected. Other traps supposedly laid by law schools include submission to authority and elitism--but one wonders how much of this analysis is tied to Harvard and its ilk. Other positions are predictable: Northeastern Law professor Karl E. Klare, surveying labor, law, argues that law helps to maintain the subjugation of workers in the workplace; W. Haywood Burns, director of the CCNY Center for Legal Education, has no difficulty showing that the law for blacks and whites differs; Nadine Taub and Elizabeth M. Schneider, both of Rutgers, assert that the public-private distinction has helped keep women in their place as well as in their homes. Other essays deal with criminology, ""Contract Law as Ideology,"" torts, and freedom of speech. What is alarming overall is that the authors, all involved in legal careers or legal scholarship, have so little regard for law--there is no search here for a rational kernel of truth. The book is at least as much self-exposure as exposÉ.

Pub Date: Oct. 28, 1982


Page Count: -

Publisher: Pantheon

Review Posted Online: N/A

Kirkus Reviews Issue: Oct. 1, 1982