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Item Details
Title: LEGAL REASONING AND POLITICAL CONFLICT
By: Cass R. Sunstein
Format: Hardback

List price: £23.00


We currently do not stock this item, please contact the publisher directly for further information.

ISBN 10: 0195100824
ISBN 13: 9780195100822
Publisher: OXFORD UNIVERSITY PRESS INC
Pub. date: 1 May, 1996
Pages: 240
Description: Legal reasoning can seem impenetrable, mysterious, baroque. This book dissolves the mystery. Cass R. Sunstein argues that fundamental issues are for the public, not for courts. When legal reasoning operates at its best, judges understand that citizens of a free nation legitimately disagree on basic principles. Judges try to resolve particular cases without taking sides on large-scale social controversies. The result is a bold new conception of law and legalreasoning.
Synopsis: 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, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law works 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 mediates disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must by necessity avoid broad, abstract reasoning. Why?For one thing, 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 a core principle of legal reasoning, 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. 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. 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 bold new 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.
Publication: US
Imprint: Oxford University Press Inc
Returns: Returnable
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