Philosophical Change in the Shadow of the Law

Womandamus is a new contributor to FP. They have some expertise in law and philosophy, but this series will not offer legal advice or counsel.

It is a well-known idea that people “bargain in the shadow of the law.” In other words, we take all kinds of legal information and facts about the legal system into account when we go through our lives, whether we are deciding to take a plea deal, run a red light, or make a billion dollar deal. Yet we also bargain in the shadow of what we perceive the law to be, rather than what it is. This is unsurprising since (1) most ordinary people are in no position to know what the law is and (2) even most lawyers are not in such a position. Law school does not teach anyone the law because it cannot do so. Rather, it teaches people to “think like lawyers” because the law may turn out to be one thing or another, depending on a whole host of contingencies.

This uncertainty, paired with the extreme coercive power of the law, can make it hard—even scary—to conform our actions to the law or know what the legal effect of our actions might be. This uncertainty and fear has the potential to stand in the way of real change even where everyone generally agrees that some change would be desirable. Philosophy has some problems, as you all know, that are increasingly involving the legal system head on. At least some of these problems are widely-recognized, and many philosophers are aching for some change. However, the shadow of the law looms menacingly over their efforts, whether this is reasonable or not.

Fears about defamation suits, concerns about due process, confidentiality requirements, complaints about Title IX, and other legal actions may be more or less warranted, more or less reasonable, but they often have the effect of discouraging people from pursuing change in philosophy, particularly in a public way. Philosophers and graduate students may fear coming forward or naming their colleagues lest they be sued for defamation or in violation of a confidentiality agreement with their University. Even if a case ultimately ends in a quick dismissal, it is still costly and exhausting to be on the receiving end. Many non-lawyers (and, I would venture, especially philosophers, who tend to be privileged and are less likely to be the target of heavy policing) will never have an interaction with the legal system beyond paying parking tickets and doing jury duty, so the fear of being involved in a lawsuit in any capacity can be crippling.

As the profession continues to grapple with issues relating to climate, it will increasingly confront the law. In a series of future posts, I would like to offer some analysis of legal issues that the profession has already confronted in some form or another: retaliation, defamation, settlements, due process, Title IX in general, and other topics that might improve legal literacy among philosophers. These posts will focus on the U.S. context, but Canada and the U.K. may be similar. It is important to remember that the answer to any legal question will always depend, in part, on what jurisdiction you are in. While I can’t offer legal advice, I do hope to clear up some general misconceptions about the law in a way philosophers can understand. If you have topics you would like to see addressed, please leave a comment, and I’ll try to get to them.

 

6 thoughts on “Philosophical Change in the Shadow of the Law

  1. One kind of lawsuit that philosophers may sometimes face — at least I did — are lawsuits from students charged with academic offenses. And one issue that you might address is the prudence of allowing the university to handle your legal defense rather than hiring your own lawyer in such circumstances. In my own case, the university was a co-defendant — charged with negligence in the hiring, training, and supervision of me, the dean, and one of my colleagues — and so I allowed them to handle my defense in order to avoid having to pay my own legal fees. It took 7 years before the case was finally dismissed and, after the deposition was finished, the university did not see fit to keep me informed of the progress of the suit. And I was never fully confident that if push came to shove they wouldn’t throw me under the bus (even though the student was pretty clearly guilty of what s/he had been charged with). In my case everything turned out fine and it didn’t cost me anything more than a little bit of time (and a fair bit of stress at the start). But I wonder if there is something you might say in general about handling things in the way I did.

  2. This is fantastic! Would particularly like to hear your thoughts on the grey areas of internal university “investigations.”

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