The Law
by Paul Fenn

Unlike other authoritative canons such as religion or science, the law is principally distinguished by the fact that it is generally obeyed by people. Otherwise, it is largely enforced by the State. Law is the principal discourse according to which our society conducts its life. One might say that law is secular society's most fundamental language; when all else fails, we go to court. Law is the last recourse of reason, its legitimacy synonymous with peace and prosperity. Even more than the empirical sciences, law is regarded as factual and is made so by the respect it commands: its legitimacy, its own "lawfulness." For this reason, "justice" is a cornerstone of the law's legitimacy; its impartiality, consistency and integrity earn public respect and obedience, making law enforceable and, therefore, factual.

Soon after my tenure began as a senate committee director in the Massachusetts General Court, I quickly learned that legitimacy and justice are lower on the unwritten list of criteria for enactment than I had previously assumed. Higher on that list is a competing criterion that a law should produce, and should be defined by, its specific social result: less crime, job growth, a better environment, less welfare dependency, and so on. Appearing typically as criticism of "poorly designed" laws which should be replaced, this criterion signals an elevation of law to great heights of public expectation.

While the social status of every profession related to the law is currently in decline, the law itself is a very prestigious language among the general public, who faithfully assign to it the promise of a better world: the promise, that by rewriting laws with the right kinds of carrots and sticks, we can reform society. All the while, that less prestigious but essential criterion, justice, is generally neglected. While prestigious, the law is only tenuously legitimate. The tension between these competing criteria, in legislatures, courtrooms, and among the general public, has refined my interest in the law into a specific concern that I will attempt to describe.

Though influenced by attorneys and checked by judges, the law is written by politicians and their aides, endowed by this public faith in the power of law. Yet legislation is a haphazard activity compared to the production of other, less essential canons. Legislators are undisciplined even by party philosophies, which have largely collapsed into apologia for the allocation of public resources. In the main, bills in contention for passing are distinguished not by their contribution to society's laws, but by their pragmatic answer to a specific complaint. While the official rhetoric of politics remains "justice-" based, it is functionally more concerned with the production of specific outcomes, which shoulder the law's traditional role of embodying "justice." A controversial example of such a policy is affirmative action, which achieves social or historical justice by being unjust toward specific individuals. While such a policy is itself partial, inequitable and unfair to certain individuals, its result is socially just and justified.