As one of the two editors of the Record this year, I would like to start by welcoming you all to another exciting year of school. The Record is a wonderful place to share thoughts and ideas on the law, law school, and current events and I am looking forward to working and sharing this with all of you this year.
I wanted to start the year’s Editorials Section off with some thoughts about the way we think about “the law”. More specifically – I want to counter the assumption that legal and political institutions are separate from each other and articulate an alternative: I see the law and politics as one and the same. I believe that the law and the legal structure, are simply reflections of current political forces.
For some, this may seem like an obvious statement. But I entered law school with great respect for the law as a unique institution. I saw it as a powerful force for social change, partly because it was an alternative to politics as a way of crafting structural change. When I examined issues, I spoke of the political and legal dimensions, and I know that I have never been alone in trying to maintain this distinction. Coming to terms with how mistaken and naïve my assumptions about the law had been changed the way I approached law school and the way I approached my work as a lawyer.
Time and again in law school you will be asked to learn and apply the law as if it is a neutral, apolitical, and seemingly holy institution. This is based on certain assumptions we are taught throughout our lives – We are taught to act in certain ways, because “it is right” – why? Because the law says so. We are told that if we abide by the law we are acting morally, we are not overstepping bounds and even acting in the social good. This is because we are told implicitly and explicitly that the law reflects goals and expectations of the general public.
However, when you realize that the making and the implementation of the law is a deeply political process, you see that the law will not reflect general society, but rather the most powerful group’s preferences. For, the entire process of passing a law is a deeply political process – from the time an issue is presented to Congress, to the time a law is passed, to the period when an agency drafts regulations and implements to the law. There are many case studies that reflect the law’s political dynamics. For example, the decision around what qualifies as a felony and what the sentence for the crime should be, or issues around who has access to legal counsel, who has “legal status”, or who can be held liable for externalities. These are all deeply political questions, whose outcomes are influenced by what groups have political power at the time.
As the law defines societal structures, and since t is crafted by those with political power, we see time and again that the law and legal structures tend to maintain politically powerful groups’ power. Our perspective on the law as a neutral institution can therefore be dangerous because it often involves endowing unquestioning respect for the law. This allows individuals to avoid difficult but incredibly important conversations around marginalizing effects of our legal structure and the role of lawyers in creating and maintaining structures of inequality and oppression.
I want to continue this conversation. I hope we will take the time as law students to think about political dynamics in all our legal conversations – not only Democrat/Republican dynamics, but larger dynamics of power between different communities in the United States. In questioning our assumptions about the law, I do not mean we should disregard the law, but rather that we should remain critical and take it for what it is – a reflection of the desires of those who created it. And we should realize that the law, as it is currently written, is not always in the best interests of all Americans.
We’d love to hear your thoughts. Write responses to editor@hlrecord.org.
Thank you, welcome (back) to law school, and have a wonderful start to the year.
Sima Atri (3L)
Co-Editor in Chief of the Harvard Law Record