With support from the University of Richmond

History News Network

History News Network puts current events into historical perspective. Subscribe to our newsletter for new perspectives on the ways history continues to resonate in the present. Explore our archive of thousands of original op-eds and curated stories from around the web. Join us to learn more about the past, now.

Law's Force, Law's Farce

We are living in a moment of legal shock. A highly politicized far-right court is rapidly undoing a half century and more of jurisprudence. In the space of a single week in June, the Supreme Court effectively outlawed gun regulation, eviscerated environmental protection laws, gave schools the right to institute Christian prayer, repudiated one of the historic foundations of Native American sovereignty, and declared that women have no greater right to life than fetuses. We knew it was coming, but not quite like this.

That week, messages tore across social media with the constant refrain: “What is to be done?” The responses were by turns angry, revolutionary, utopian, escapist. “We’ll fight them with everything we’ve got!” said one. “We’ll blow up the Supreme Court!” said another. “We’ll all move to Australia!” (a singularly unhelpful idea, but fortunately no one ever actually moves to Australia).

Not so long ago, law seemed to be the force that could achieve what politics couldn’t. The Supreme Court outlawed segregation, established a right to reproductive privacy, required that police inform criminal suspects of their rights, and more. As the Court moved rightward in the 1980s, those on the left came to feel that law was not their friend. Yet legal radicalism remained a kind of promise. Revolution in the courts might still someday sweep away precedent, making way for true equality. Meanwhile, one could work on deconstructing law, in order to shake loose its foundations.

But these days, it is hard to feel enthusiasm for shaking foundations, sweeping away precedent, or deconstructing the house of law. For, now, law seems to be deconstructing itself. And there has been no court more radical than the current one.

Since the initial shock in June, a certain grim legal pragmatism has set in. After Dobbs v. Jackson Women’s Health Organization (the decision that overturned Roe v. Wade), maybe all we can do is slow down legislation banning abortion. After New York State Rifle & Pistol Association v. Bruen (which created a constitutional right to brandish a gun in public), maybe all we can do is slip in a background check and hope for fewer mass shootings.

Maybe with patience we can slowly chip away at the edges of these decisions, in all their violence. Not merely a depressing prospect, but actually a tragic one, if one thinks about the consequences. Even those of satiric bent may be disinclined to laugh.

Perhaps chipping away at bad laws is more useful in the long run than grand visions of justice. If a background check saves a single life, that is surely better than vague preaching. But revolutions, even the bad ones, have a way of making one think. So, while we undertake whatever patchwork legal redress is possible, it may be worthwhile to also step back and look at just how strange our legal universe can be—and then to imagine a different one.

This is what The Cabinet of Imaginary Laws proposes to do. The collection of 34 short essays and stories came together under the shadow of Trump’s Supreme Court appointments and Boris Johnson’s right-wing premiership in the UK. In their dialogue “Prelude,” the iconoclastic legal scholars Peter Goodrich and Thanos Zartaloudis describe the contributors as a group of “anarchists,” “jurists,” “druids,” “musicians, architects, poets,” “bicyclists and other ambulators, sober and stoned.” Together, they would “experiment with law”: “tar together [its] force and [its] farce” to produce a “wild jurisprudence” (as Goodrich explains in his signature baroque style),—a set of “dystopic, heterotopic, protreptic and proleptic poems and treatises” dedicated to “reverie and renewal.”

Read entire article at Public Books