Tuesday, July 21, 2009

Henry Louis Gates's Arrest and the Meaning of Law

The recent arrest of Harvard professor Henry Louis Gates in his home on charges of disorderly conduct seems to offer an instructive case of the law's indeterminacy, the rights of citizens to resist unjust imprisonment and the command theory of law.

I'm throwing this out there as a topic of discussion that cuts across many theories of law in the hopes that we can generate several posts based on the same event. My thinking is that this would help illustrate the differences between natural law, positivism and realism generally. For instance,
  • Is this a case where the gap between the letter of the law (positive law) and its application to specific facts involving race in America come into conflict resulting in an arbitrary use of authority, as a realist might claim?
  • Is this a case, where the authority granted by positive law seems to violate demands of justice, specifically one's ability to resist an unjust law, as a natural law theorist might claim?
  • Or finally, is this simply a case of the law needing to function without moral sanction in order to maintain the integrity of legal order, as a positivist might claim?
Those are simply a cursory set of possibilities. I hope some of you will respond to, expand or offer new interpretations of this case, with a view to testing out some of the various theories of law we've begun studying in class so far. Also, I'm interested in hearing how one's perspective on the case might change depending on whether we take up the perspective of law enforcement, lawyers, judges, legislators or even the view of concerned citizens.

1 comment:

  1. I feel that there’s no way to know whether the police officer was being racist in his own mind, but his misconduct (if that’s what it was) doesn’t seem to explicitly imply any racially discriminatory attitude. It’s the professor who implied that he’s being treated badly because of his race, and therefore it just shows a bias in his own mentality. He himself thought that he’s being victimized due to his race, when there’s no actual reason to believe so. The officer’s misconduct might just be due to his incompetency.

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