The origin of law is a vital question for society, and the preservation of a widely accepted source of authority is necessary for a political order to persist. This issue was recently brought into the public’s view via the interaction between Donald Trump and Chief Justice John Roberts. After Trump attacked several judges, Roberts made a rare public statement that judges aren’t “Obama’s,” “Bush’s,” “Clinton’s” or anyone else’s. Instead, he said, there are only independent judges. Trump responded by claiming that political bias in favor of Democrats is the reason for the judgments being made against his administration.
All of this raises important questions. Is a nonbiased view of the law possible? If so, what factors should judges consider when making decisions? How much should cultural differences change legal rights? What about concern for groups disadvantaged by class, race, gender, etc.? In comments on the Trump/Roberts interaction, several legal scholars claimed that our legal system is biased along partisan lines, others claimed that there is no bias, and even others said there is bias but that it is not partisan in nature. All agreed that a nonbiased and independent judiciary, inasmuch as such a thing is possible, should still be our goal. It is a good thing, then, that we have many philosophers studying this topic. Here are some recent papers they’ve published which can help us answer these tough legal questions.
- Ian Hunter, “Public Law and the Limits of Philosophy: German Idealism and the Religious Constitution,” Critical Inquiry, Spring 2018.
- David Frydrych, “Down the Methodological Rabbit Hole,” Crítica, 2017.
- Michael Rosenfeld, “Philosophy in Law? A Legal-Philosophical Inquiry,” Ratio Juris, March 2014.
- Fred McElrea, “Law and Philosophy,” Otago Law Review, 2015.
- William Bülow, “The New Philosophy of the Criminal Law,” Journal of Applied Philosophy, May 2017.
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