So What Is Actually A Good Law? (plus Cheers for Kindle)
In her Introduction to NORMATIVE JURISPRUDENCE, Robin West challenges us with this:
With only a few exceptions, the major practitioners of our dominant contemporary jurisprudential movements do not ask what justice requires of law, what makes a good law good or what makes a bad law bad, or what the good is that law can, or should, accomplish, against which we might judge particular laws or legal regimes. . . . Even more clearly, we do not often ask what it is about social life that seemingly requires address by or recompense from the law, or how a good law might respond to a social ill in a desirable fashion, or how a bad law, or no law, might do so poorly. We do not often ask whether we have insufficient law to address ills of private or social life, or how we would know that, if it is true.
Thankfully, Robin’s book presents us with a roadmap for beginning to engage in such a conversation (if we agree that such a conversation is important, which I wholeheartedly do). And I celebrate the fact that Concurring Opinions is hosting this week-long blog exchange for those of us who have been salivating for a book of this kind to explore the ideas that Robin has put forward.
For my opening post, I want to make the following two points:
1) This is the FIRST of Robin’s books that is available on Kindle! YAY!!! If you go to Amazon (or click on Normative Jurisprudence above – which will take you to Amazon), you will see that the hardcopy sells for $90; the soft cover for $25; and the Kindle edition for the wonderful price of $14.99. (And as all of us who are devotees of Kindle on our iPads know – you can make the font LARGER for us late middle-age folks.)
OK, right there — I say we are on better grounds for achieving a normative jurisprudence – hopefully, by more people being able to buy the book that can provide us with a road map for having the conversation that can lead to such a jurisprudence.
2) My second point is that I agree with Robin that law (and lawyers and law professors and legal institutions) all have something unique to contribute to the conversation about what is normatively good and bad for our society.
Brian Bix concludes his first post with the following:
I join Robin in celebrating those people who have been able to construct theories that have played key roles in legal and social reform, and I join her also in encouraging those among current academics who have the potential to be the next Bentham or MacKinnon to work towards that goal. However, I remain doubtful that law professors are generally, by their nature or usual skill set, those best placed to be at the forefront of reform movements.
But I don’t think the real question here is whether law professors need to be at the forefront of reform movements. Rather, I think the question is whether law (as understood, taught and espoused by lawyers, law professors, legal institutions etc.) has something to say about what – normatively – those reform movements SHOULD BE.
On that issue, I hope our posts – as well as comments on each other’s posts and comments from other readers – will help move the conversation forward. In that regard, I want to second this comment from Heidi Feldman:
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement?
I agree that the real question is whether we can come to an agreement on what is a good or a bad law – and in particular, “whether we have insufficient law to address the ills of private or social life.” As someone whose professional life has been devoted to helping Congress and state legislatures pass what I believe are “good” laws, I love the idea of a jurisprudence that pushes us to articulate how we come to the conclusion that something is a good law, and as importantly — how we come to the conclusion that the absence of law is bad.
Here’s to the conversation!