Practicing Law and Philosophy
Sales Date: January 31, 1998
328 Pages, 6.00 x 9.00 in
- Published: January 1998
Many people submit to the law simply because they believe that the institutions administering it are just. But what if a law itself is unjust? The duty to obey law presupposes that laws are both consistent and just; because they aren't always, appeals to a higher political morality are sometimes necessary if justice is to be served.
Justifying Judgment reconsiders the relationship between legal and political philosophy to show that the former is incomplete without the latter. Taking the problem of how to solve difficult cases as his point of departure, Vincent Samar demonstrates the inherent incompleteness of conventional theories of law in order to examine the meaning of justice in a democratic society. He reviews the current state of legal and political theory and then sets forth a metatheory for law which would enable judges to decide such cases by drawing upon competing theories of jurisprudence as the case’s level of abstraction demands.
Samar challenges the current wisdom that social morality can resolve every legal conflict by questioning the very principle of our submission to law. He re-examines some difficult cases from American history—Dred Scott, Brown v. Board of Education, Roe v. Wade, Romer v. Evans—in order to demonstrate the difficulties inherent in the law and to show that no single theory of law will always preserve the balance between individual and collective justice.
Every day, judges face difficult cases for which the law provides no firm precedents, and sometimes is even contradictory. Samar’s work seeks to put justice back into law by encouraging law schools—and even the practice—to train future judges to consider a much wider approach to legal decision making. In different cases, judges would no longer confine themselves to an internal analysis of the legal materials. Instead, the could appeal to the best ethical theory of politics to meet the intellectual challenges involved in both clarifying concepts and justifying rights. By challenging conventional views of the law, the book shows that our legal system could become more just as it becomes becomes more consistent.
"In this important and well-written book, Vincent Samar rethinks the relationships between legal and political philosophy in constitutional interpretation. His understanding of the existing literature is always intelligent and his arguments well made. He brings the reader ably into contact with some of the most engaging and absorbing issues of American public life."—David A. J. Richards, author of Foundations of American Constitutionalism
"Samar’s understanding of the connections among moral, political, and legal philosophy vividly exposes the weaknesses of much of the contemporary literature. Students, teachers, and legal practitioners will find this a useful and rewarding work."—Raymond Belliotti, author of Justifying Law
1. Sources of Law
2. The Duty to Obey Law
4. Virtual Law
5. Real Law
6. Difficult Cases
7. Legal Education