Developing the habit of critiquing the law – or legal nihilism?

We often ask students to consider the role of law and policy in shaping society and providing a means for solving problems. But what problems has the law ever solved?

Posing that question to students, what do they come up with? Certainly, the legal system provides a way for disputes between individual persons or entities to be resolved, one way or another. The rules of the system say that the dispute is over.

But what about overarching, systemic, societal problems? I’m thinking about residential segregation at the moment, and the resulting disparities in wealth accumulation, educational quality, and employment opportunity, just to name a few. Discriminatory housing policies were once implemented and enforced by law; then they were prohibited. Particularly where a good share of the responsibility for the development of a given problem can be directly traced to prior law, have legal reforms ever resulted in solving that problem? Is this a question that can be posed in some manner to students, as a means of developing the habit of critiquing and improving the law?

3 Responses

  1. How you answer that question might depend on your time frame. I remember one of my clinical professors arguing for the relevance of legal reform and against the idea that “you can’t legislate morality” by pointing to The Voting Rights Act of 1965. A lot of the reforms of the civil rights era that might have seemed very heartening in the 1980s have since been gutted by Supreme Court decisions, lack of enforcement, and many many other factors. Look at Ferguson, MO for examples.

  2. I think students have to be exposed to two discrete things to really understand these complexities. Those two things are genuine legal change in the modern era–Loving v. Virginia, the repeal of “Don’t Ask, Don’t Tell” and the Fair Housing Act you allude to. The second thing is less comfortable to face as a teacher and a learner, which is what your piece is about–social justice change is slow, amorphous, and often heartbreaking. Yet it is real and tangible. I’m thinking again of Loving v. Virginia–it is literally illegal, and actionable, for police to raid the home of a mixed race couple and criminally sanction them as the Virginia authorities did to the Lovings. That is true in every state, not just Virginia today. Of course racial injustice persists . . . prayers for Ferguson . . . yet we have more tools now to fight it than we did then, and we have an infrastrucure of civil rights law supporting our fight. The VAWA is another example. Domestic violence persists, yes, and as a DV advocate and teacher I sometimes want to throw up my hands in futility. But I think back to pre-1984 when we had absolutely no mandated law enforcement training on DV, no civil protective orders in many states, and a culture that normalized it. Is our current culture that is too ashamed of it to publicly recognize it “better”? Well, it’s far from perfect. But I’ll take it over the patriarchal “he’s the boss” norm I grew up with, not in my own home but in my community and my psychic reality–and I will certainly take it over the Blackstone-ian “Rule of Thumb” days. We can never give up but we can smile once in a while at progress, and remind our students how precious it is.

  3. There’s another way of expressing the issue – one particularly acute for criminal law. Given Governments always want to make new laws – often without proper research – how to we ensure that laws properly target genuine problems and do so with the least possibility of causing new ones? This leaves the desire to solve problems more in the realm of public policy, and the role of lawyers as making sure policymakers don’t do it in entirely ham-fisted ways.

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