What is the role and function of the law in contemporary progressive politics? Do legal institutions represent crucial terrain on which significant social change can take place? If so, how? In what ways? How can progressive lawyers remain relatively true to their moral convictions and political goals?
In this Article I shall attempt to respond to these urgent questions.I will try to carve out a vital democratic space left between the Scylla of upbeat liberalism that harbors excessive hopes for the law and the Charybdis of downbeat leftism that promotes exorbitant doubts about the law. My argument rests upon three basic claims. First, the fundamental forms of social misery in American society neither can be adequately addressed nor substantially transformed within the context of existing legal apparatus structures. Serious and committed work within this circumscribed context, however, remains indispensable if progressive politics is to have any future at all. Second, this crucial work will be primarily defensive unless significant extra-parliamentary social motion brings power and pressure to bear on the prevailing status quo. Social motion and movements presuppose either grass roots citizen participation in credible progressive projects or rebellious acts of desperation that threaten the social order. Third, progressive legal practitioners confront the difficult task of linking their defensive work within the legal system to possible social motion and movements that attempt fundamentally to transform American society.
Any argument regarding the role of law in progressive politics must begin with two sobering facts about past and present American history.First, American society is disproportionately shaped by the outlooks,interests, and aims of the business community, especially corporate America. The extraordinary influence of corporate capital on our government and its legal institutions makes it difficult even to imagine a free and democratic society with publicly accountable mechanisms that alleviate the vast disparities in resources, wealth, and income. Those who focus on forms of social misery-like hunger, poverty, and homelessness-must think in epochal, not apocalyptic, terms.
The Role of Law in Progressive Politics,
43 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss6/8