Tuesday, September 28, 2010

replication of the existing social order

From Howard Zinn, "The Conspiracy of Law," in The Rule of Law (Robert Paul Wolff, ed.)
The main decisions have been made outside the courtroom, by the society and the culture that brought this combination of persons to this place at this time. But this is made explicit by the deliberate attempt of courts to limit the scope of argument and decision, thus ensuring that court decisions will have minimum effect on the direction of society. On the appeals level, including the Supreme Court, this means deciding cases on technical or narrow grounds wherever possible, postponing fundamental questions as long as possible. It has been most difficult, for instance, in cases of draft resistance, to get the Supreme Court to rule on a question far more important to society than the disposition of one resister: Is the war in Vietnam illegal?

This attitude is expressed by one of the judges in Lon Fuller's mythical case of 'The Speluncean Explorers,' when he refuses to deal with the moral complexities of a community decision to sacrifice one person so that others might live: 'The sole question before us for decision is whether these defendants did, within the meaning of NCSA Sec. 12A, willfully take the life of Roger Whetmore.'

Not so mythical are the actual cases of political protesters hauled into court on ordinary criminal charges and prevented by the judge from airing the political grounds of their actions.

1 comment:

  1. good timing, considering the fbi raids this past week.

    ReplyDelete