Sunday, June 22, 2003

Nathan Newman has a post that fits in with the conservative criticism of left/liberal legal thought. Frustrated at the anti-democratic nature of the courts, he argues in effect that there's no difference between 'high' politics and 'low'. I'm not interested in whether for the moment we should focus less attention on the courts -perhaps we should- but if that is the case then we should do so as a matter of strategy not on the principle of distrust for the courts, and that is Nathan's argument. Obviously I don't agree, since I think the game, the continual asking of the question "what is justice?" is the point of the rule of law: concentrate on the means, and let the ends take care of themselves. And if I believe in the game it's because I think that judges are not so vulgarly corrupt as to make it not worthwhile. Jack Balkin defended the formalism of argument in his qualified defense of Posner, and if I disagree, it's because I don't think he meets Balkin's requirements. Here is my earlier post on politics, and here is Jack Balkin responding to Larry Solum's criticism. Balkin's posts on Posner are more recent.

My only real interest is in rhetorical systems. Everything I write ends up returning to this. Without language -mediation- communication is impossible.
The legal process is a rhetorical system predicated on the necessity of mediation. That's why the rules take precedence over the result. In the long run, this theory goes, the results will be more just with the system then without it. Judges are an antidemocratic check on the will of the people. The people through their representatives, including the president and the congress, are a check on the power on the rhetorical/intellectual elite. Change happens slowly and in different ways and different directions. The popular definition of justice is different than the intellectual's definition, but both are fluid. Conservatives don't understand this. The basis of democracy is not liberty itself, which has no one definition, but a debate about the definition of liberty.
William Kunstler refused to say he was a radical. "Radicals don't believe in the legal system. I'm not a radical, I'm a lawyer who defends radicals."
"The system" is a system of debate, predicated not on a given conclusion but on itself. It is stabilized only by it's own continuity.
Scary isn't it?

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