The Lawlessness in Our Courts

Authors

Susan P. KoniakFollow

Document Type

Article

Publication Date

7-2004

Publisher

Association of Trial Lawyers of America

Language

en-US

Abstract

Some exercises of state power are not worthy of the name of “law.” Calling something “law” does not automatically legitimize it, but it does coat it with a veneer of legitimacy. Law, in other words, connotes right. The notion of legitimacy is deeply embedded in the word “law” by our culture, our history, and our use of language. Thus, for a state—indeed, for any group—to claim that its exercise of power is lawful is neither an empty claim nor a mere tautology. It is a claim that the state (or other group) has not merely the might to act, but the right to act. “Law” not only privileges certain exercises of state power, but it also privileges certain claims of right. Legal claims elevate moral claims from the “ought” to the “must.” Only the law speaks in “or else” terms. Morality and philosophy ordinarily speak in gentler tones, asking for acceptance rather than demanding it.

Comments

Reprinted from Susan Koniak, "The Lawlessness in Our Courts," 28 Stetson Law Review 281 (1998).

Recommended Citation

Susan P. Koniak, The Lawlessness in Our Courts , in 2 ATLA Annual Convention Reference Material 2153 (2004).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2245