The Senseless Law and Policy Debate
Monday, June 1, 2009 at 7:55PM
Sean Wilson in Legal Theory, e-mail discussion

(sent to law courts)


.. just a couple of small points:

1. A judge relying upon "political philosophy" to inform a legal opinion may not be a bad thing if the philosophy is considerate. We would have to explore what is meant by "political philosophy" and how admirable the decision constituence was. This might not at all be against what "law" requires.

2. The problem with the discussion is that anytime you put forth a view on this subject, you are silently declaring an allegiance of some kind to what is "not a legal opinion." In other words, you are saying something NORMATIVE (jurisprudential) about "law."  What proponents need to do is tell us that explicitly. For example, in your concern that political philosophy is used, we would need to have an example of how this violates or cheats "law" before one could continue with the critique (that says judges are doing something in Larry's second sense).

My sense is this: in American constitutionalism, there is no such thing as a non-legal opinion. There is only good and bad casuistry. This is what is not understood. What the whole thing reduces to is a form of art appreciation -- which isn't bad of course, so long as the critics are refined or esteemed or whatever. (Or so long as there is an agreed upon protocol in the art community)..

And so, politics (as in winners and loses) occurs no matter whether the casuistry is good or bad. But when it occurs with bad casuistry, it looks especially bad (as in, no longer just about winners and losers -- but cheaters). And so the problem is that we don't understand these language concepts (e.g., "ideology") very well. We don't have a considerate view of what we mean by "ideology" or "policy in a bad sense." It all only leads to either our own biases being declared (being upset that we didn't win) or to whether the art has integrity despite this. The former is an inconsiderate view, the latter is not.

There is nothing else here to find or declare.


Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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