The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview
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AUSTIN SARAT


4
GOING TO COURT: ACCESS, AUTONOMY, AND THE CONTRADICTIONS OF LIBERAL LEGALITY

AN independent judiciary, responsive to constitutional norms and solicitous of minority rights, stands at the symbolic center of those legal systems committed to liberal values. It is the institutional embodiment of liberal legality of the kind to which America is at least theoretically committed. Liberal legality traces its roots back to the classical liberalism of the mid-eighteenth century; it holds that law and politics are and should be separate, that legal judgments should be made impartially and should adhere to rules articulated and known in advance, that power should be exercised in accordance with the rule of law, that government should recognize and respect rights, and that freedom rather than equality should be the highest political value.1 At the center of liberal legality is the ideal of legal autonomy, of law above and outside politics, but also of law's openness and availability to socially and politically disadvantaged groups, to those seeking redress for injuries inflicted, protection from future harm, or vindication of their membership in the community.2 The centrality of courts in the legitimation of liberal legality depends on both their appearing to be autonomous and their accessibility. Autonomy without accessibility would produce an arid, scholastic irrelevance. Alternatively, accessibility without autonomy would collapse the distinction between law and politics on which liberalism depends. Courts that are accessible and, at the same time, can maintain the appearance of autonomy are in a critical position to vindicate liberal legality's promise of rights. They give meaning to the claim that law provides a terrain of contestation on which the powerless can hold the powerful to account by

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The Politics of Law: A Progressive Critique
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