The most glamorous and even glorious moments in a legal system come
when a high court recognizes an abstract principle involving, for
example, human liberty or equality. Indeed, Americans, and not a
few non-Americans, have been greatly stirred--and divided--by the
opinions of the Supreme Court, especially in the area of race
relations, where the Court has tried to revolutionize American
society. But these stirring decisions are aberrations, says Cass R.
Sunstein, and perhaps thankfully so. In Legal Reasoning and
Political Conflict, Sunstein, one of America's best known
commentators on our legal system, offers a bold, new thesis about
how the law should work in America, arguing that the courts best
enable people to live together, despite their diversity, by
resolving particular cases without taking sides in broader, more
abstract conflicts.
Sunstein offers a close analysis of the way the law can mediate
disputes in a diverse society, examining how the law works in
practical terms, and showing that, to arrive at workable, practical
solutions, judges must avoid broad, abstract reasoning. Why? For
one thing, critics and adversaries who would never agree on
fundamental ideals are often willing to accept the concrete details
of a particular decision. Likewise, a plea bargain for someone
caught exceeding the speed limit need not--indeed, must not--delve
into sweeping issues of government regulation and personal liberty.
Thus judges purposely limit the scope of their decisions to avoid
reopening large-scale controversies. Sunstein calls such actions
incompletely theorized agreements. In identifying them as the core
feature of legal reasoning--and as a central part of constitutional
thinking in America, South Africa, and Eastern Europe-- he takes
issue with advocates of comprehensive theories and systemization,
from Robert Bork (who champions the original understanding of the
Constitution) to Jeremy Bentham, the father of utilitarianism, and
Ronald Dworkin, who defends an ambitious role for courts in the
elaboration of rights. Equally important, Sunstein goes on to argue
that it is the living practice of the nation's citizens that truly
makes law. For example, he cites Griswold v. Connecticut, a
groundbreaking case in which the Supreme Court struck down
Connecticut's restrictions on the use of contraceptives by married
couples--a law that was no longer enforced by prosecutors. In
overturning the legislation, the Court invoked the abstract right
of privacy; the author asserts that the justices should have
appealed to the narrower principle that citizens need not comply
with laws that lack real enforcement. By avoiding large-scale
issues and values, such a decision could have led to a different
outcome in Bowers v. Hardwick, the decision that upheld Georgia's
rarely prosecuted ban on sodomy. And by pointing to the need for
flexibility over time and circumstances, Sunstein offers a novel
understanding of the old ideal of the rule of law.
Legal reasoning can seem impenetrable, mysterious, baroque. This
book helps dissolve the mystery. Whether discussing the
interpretation of the Constitution or the spell cast by the
revolutionary Warren Court, Cass Sunstein writes with grace and
power, offering a striking and original vision of the role of the
law in a diverse society. In his flexible, practical approach to
legal reasoning, he moves the debate over fundamental values and
principles out of the courts and back to its rightful place in a
democratic state: the legislatures elected by the people.
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