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The Erosion of Legal Principles in the Creation of Legal Policies

Authors: Virginia Black;

The Erosion of Legal Principles in the Creation of Legal Policies

Abstract

There is a tendency on the part of well-meaning people to rectify inequities in social life. In a democratic society, some seek to change the laws so that those who have been at a social and economic disadvantage may enjoy an enforceably favored status. The purpose of this paper is to show how certain special edicts that impose discriminatory restrictions on the formerly undiscriminated against, so that the disadvantaged may be raised to a par, create new inequities themselves and hurt those they are meant to help. I will try to show that such discriminatory edicts, sometimes called instruments of "reverse discrimination" or "preferential treatment," are counterproductive -and confuse causes with effects. Instead of helping equalize persons in economic status-their professed object-they congeal and rigidify classes. Legal efforts to reduce the range of economic or educational differences impose their opposite, a class structure even more difficult to eradicate and one whose most obvious historic parallel is feudalism, a system American law was designed to eliminate. More and more, I believe, we exhibit in this country the immoral and unjust institutions of feudalism, and much of it is due to certain unintelligent types of legislative acts. The specific conceptual and moral conflict we shall be concerned with is the displacement in law of individual justice, wherein a designated person is held responsible for wrongs which can be laid to him, by the introduction of its opposite: collective edicts wherein an entire group is held corporately and legally responsible for past wrongs (or for current unwanted social effects) impossible to lay to any determinate individuals. A prototype is found in current legislation which proposes that certain groups, at a disadvantage in their social achievements, ought in law to be extended preferential and hence discriminatory treatment in order to compensate them for wrongs reputedly suffered at the hands of others more fortunate. The disadvantaged groups I especially have in mind are defined by their color (black) or by their sex (female), although other groups are also shown to be underrepresented on the statistical graphs that correlate population quotas with

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
5
Average
Average
Average
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