Abstract
In the USA, courts are publicly defined by their distance from politics. Politics is said to be a matter of interest, competition, and compromise. Law, by contrast, is said to be a matter of principle and impartial reason. This distinction between courts and politics, though common, is also commonly doubted – and this raises difficult questions. How can the courts at once be in politics yet not be of politics? If the judiciary is mired in politics, how can one be sure that all the talk of law is not just mummery designed to disguise the pursuit of partisan interests? In one sense, an ambivalent public understanding of the courts and suspicions of judicial hypocrisy pose a threat to judicial and democratic legitimacy. Yet, in another sense, public ambivalence and suspected hypocrisy may actually open up space for the exercise of legal power. I illustrate and critique the enabling capacities of ambivalence and hypocrisy by drawing an analogy to common courtesy.
Highlights
For scholars of law, the study of culture carries the promise of discovery
Just as the ambivalent public meaning of legal realism does not give us direct information about actual judicial motivation, the courtesy analogy does not prove that legal actors are devoted followers of Miss Manners nor does it prove that the judicial process is driven by willfully hypocritical participants
My examination of legal realism’s public meaning begins in the winter of 2003. It was that the New York Times announced the triumph of legal realism, ‘‘the jurisprudential philosophy that calls for a frank acknowledgement of the role politics and other real-world factors play in judicial decision-making.’’8
Summary
The study of culture carries the promise of discovery. Those who have taken the cultural turn find a new world of legal relations open before them, stretching beyond the realm of judges, lawyers, and litigants. Less obvious sense, public suspicions of judicial hypocrisy are important because they may be constitutive of, rather than detrimental to, the prevailing legal order. I use Miss Manners’ rendering of courtesy to draw an analogy with the public understanding of legal realism and to explore the idea that popular suspicions of judicial hypocrisy may be part of a distinct form of dispute management. Just as the ambivalent public meaning of legal realism does not give us direct information about actual judicial motivation, the courtesy analogy does not prove that legal actors are devoted followers of Miss Manners nor does it prove that the judicial process is driven by willfully hypocritical participants. I elaborate each of these propositions and discuss the empirical evidence that lends them support
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