Law Professors and Political Scientists: Observations on the Law/Politics Distinction in the Guinier/Rosenberg Debate

Abstract

Political scientists used to task law professors with naivety and idealism. They charged that legal scholars were beguiled by the fantasy that law was autonomous from politics. Political scientists believed that law was instead merely the continuation of politics by other means. The idea of a rule of law, the idea that the unique grammar of law might discipline political stratagem, was dismissed as the opiate of a self-serving legal profession. Lani Guinier's concept of demosprudence would seem immune from this longstanding political science critique. At the core of Guinier's concept of demosprudence is the idea that law gains its legitimacy through democratic responsiveness. Guinier does not imagine law as categorically distinct from ordinary politics; she sees it instead as a medium for the conduct of such politics. Guinier envisions law and politics as continuously in dialogue. Law inspires and provokes the claims of politically engaged agents, as it simultaneously emerges from these claims. That is why Guinier praises judges who "engage dialogically with nonjudicial actors and ... encourage them to act democratically."' That is why she "focuses on the relationship between the lawmaking power of legal elites and the equally important, though often undervalued, power of social movements or mobilized constituencies to make, interpret, and change law."'