If the prime purpose of the rule of law is to rule off-limits to certain deep ideas of the right or goo, how can change occur?
In the rule of law, high- level theories happen to have been taken to be too hubristic or sectarian, yet they are what is needed to implement drastic change at some point or another in a society. Civil War, the Women's right Movement, and the Civil Rights Movement are abstract ideas that fight for more than just one ideal cause although one cause may seem to be high lighted. They are not very favorable in law and yet they have helped define and ratify certain aspects of our constitution. If these rules of law were made more general and less confusing all these abstract ideas would not have to be floating around in our society to gain recognition.
Do you think our country purposely enforce these rules of law to put a veil of silence over our society? Why or why not?
I think a choice must be made in order for the will of a society or particular minority to be heard. "Freedom and equality for all" progressed first to abolish slavery, then women were considered the next part of this idea and notion of equality, followed by the standard that regardless of one's ethnicity a person should be treated equal. A veil of silence seems necessary at times in order for progress to occur. It may take time, but it will happen as cases and opinions are eventually heard in contrast to particular rulings, which will inevitably lead towards these higher and more abstract theories. Radical change which can correspond to high-level theories, had they been implemented, are limited by rule of law. This is in the interest that it will not completely shake the foundations of society, thus throwing things horribly out of balance. Unfortunately there can be negative outcomes to such procedure, if change is not taken within the legal system in time. Also this is a democratic republic not a true democracy, so maybe this is why we can't be fully heard. Only partially heard, which also has its downsides.
ReplyDeleteI was intrigued by the part of one of our readings this week when it said that it is was not the job of lawyers to discuss or defend abstract or high theories such as the notion of equality. I beg to differ with this statement. Indeed at times for the sake of practicality we must avoid high level theories in order to arrive at conclusions in certain cases. However at some point especially within legal discourses, abstract moral principles must be discussed in order to revise, reinterpret, or rewrite laws that promote genuine liberty and equal opportunities.
ReplyDeleteI think on point of Sunstein's incomplete theorizing was to emphasize that compromise is necessary for polarizing and controversial concepts, and by incompletely theorizing, we can agree on certain aspects of law without having to align our philosophies. Incrementally progressing from point A to point B is suits the conservative nature of law much better than going from point A to point C, only realizing later that the law should indeed reflect point B.
ReplyDeleteI agree with Dom, incompletely theorizing is meant for us to almost agree to disagree on many issues that we face. It is much easier to agree on a very basic aspect of an issue, than to agree on the higher abstractions that are behind the law. A good example of this is the ratification of the 13th amendment.
ReplyDeleteWithout understanding what abstractions entail we cannot completely formulate laws because we do not have definitive content. On a base level,we cannot understand higher abstractions with out agree on a base idea like freedom. In other words, we must establish a common premise before we proceed to implement laws in liberal democratic societies.
ReplyDeleteI don't really understand your point, Helena. Are you critiquing Sunstein's theory of incompletely theorized agreements, May's moral minimalism, or something else?
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