David Kairys

"The Politics of Law" is a collection of essays by legal scholars from a progressive point of view, or rather a range of progressive points of view. Every major topic of law has one or two essays criticizing the current legislation and jurisprudence from a leftist perspective. Attention is paid not just to traditional injustices such as racism and access difficulties, but also more modern subjects like gay rights, feminism and the environment. So far, so good.

The essays themselves, however, are by and large very disappointing. About half of them are so general and so vaguely outline areas that may or may not be a problem that may or may not be worth addressing either inside or outside the legal scholarship, and so on, that they are largely useless to any reader but the most uninitiated. The other half tend to be thorough in their critiques, but make far too many assumptions about the nature progressive criticism should take, and often merely assert their critiques with no evidence at all. For example, whether affirmative action is to be considered good or bad from a radical progressive perspective is quite a debatable topic, but in this book it is basically assumed that the reader is an avid proponent. Same thing with constitutional jurisprudence such as Griswold vs. Connecticut and Roe vs. Wade; one can very well make a leftist argument against such creations as a "right to privacy" by emphasizing its antidemocratic constructs, but no attention is paid to this at all.

That seems to be the main problem with almost all essays in the main part of the book (Kairys' own article on free speech is a notable exception): there is a very strong presumption in favor of legal and especially judicial resolution of social problems, as opposed to for example a call for a more thorough democratization. It's probably because of the background of the contributors as law professors and radical lawyers that this top-down legal tendency is incorporated in all the criticisms, but it is not at all uncontested in radical progressive circles.

Finally, there are quite some silly mistakes and poor reasonings. Consistently misspelling Lochner as "Lockner" and implying that the 'imminent lawless action' test and the 'clear and present danger' test are the same are errors that should not be in any professional legal work. Rhonda Copelon's article explaining why the US is evil for not immediately implementing the various UN declarations' assertions such as "the right to the continuous improvement of living conditions" consists of nothing but angry assertions and makes a very amateuristic impression. The constant invocation of "the conservative Rehnquist court" as some sort of conspiracy to take away all civil rights, without any backup or argumentation whatever, is shrill and stupid.

The main virtues of this collection are the broad reach of its criticism and the last couple of essays, gathered under the header "progressive approaches to the law". These articles are more theoretical in nature and discuss the relation between progressive political views, especially radical ones, and legal systems. Particularly worthwhile is Cornel West's discussion of the role of law vis-à-vis radical leftist movements in the United States. The reader would do best to borrow this from the library to read that essay, and not to bother with the rest.… (mehr)