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Faculty Research Working Paper Series
Frederick Schauer
Frank Stanton Professor of the First Amendment
Ambivalence About the Law.
Schauer, Frederick. "Ambivalence About the Law." KSG Faculty Research Working Paper Series RWP07-007, February 2007.
Abstract
It is commonly thought that the United States is a highly legalistic nation, and as a result it is commonly thought as well that official disobedience of law is publicly and politically disfavored. Yet when we look at numerous contemporary and not-so-contemporary examples, we discover that public and political condemnation of officials who violate the law is so closely linked to condemnation of the underlying substance of the act that it is not clear whether breaking the law qua breaking the law is very much subject to public or political sanction at all. When officials break the law in the service of what are taken to be good ends, the violation of law is rarely taken to justify condemnation in the court of public opinion or punishment at the ballot box. And if this is so, then not only is official violation of the law not nearly as disfavored as is ordinarily supposed, but we have also created a climate of politics and public opinion that does little to discourage officials from treating the violation of law as substantially irrelevant to their policy and political decisions.
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