Frederick Schauer

Is Legality Political?

William & Mary Law Review


Following the law just because it is the law seems surprisingly unpopular in the United States these days. Or maybe it is not just "these days." And perhaps this should not be surprising. For some time now, political figures, public officials, and legions of commentators have treated the law--formal sanctions aside--as something to be followed when it produces results perceived as desirable on first-order policy or political grounds, but as something to be disregarded or slighted when what the law demands differs from the course of action that might otherwise have been pursued for law-independent reasons. Quite often, it appears, officials and citizens alike condemn the unlawful character of policies they oppose on substantive grounds, but ignore any illegalities in the policies they favor.

Examples of this phenomenon are ubiquitous. The Bush administration seemingly treated the law as an annoying yet ultimately surmountable obstacle when the Foreign Intelligence Surveillance Act (1) interfered with what the administration believed was the valuable or even necessary warrantless domestic surveillance of American citizens, (2) but much the same attitude toward the law was embodied in the decisions by the mayors of New Paltz, New York, and San Francisco, California, to marry same-sex couples in violation of the prevailing law in those states. (3) President Bush's decision to invade Iraq was inconsistent with international law, (4) but little more or less so than President Clinton's decision to authorize military action in Kosovo. (5) And numerous other instances of what we might call "selective legality" pervade public and political life. (6) Indeed, the debate over the appropriateness of referring to people who have entered the United States in violation of existing law as "illegal immigrants," rather than as "undocumented workers," provides a nice example of the widespread tendency for people to stress any illegality in the policies they disfavor while striving to downplay it with respect to the policies they support. (7)


Frederick Schauer, Is Legality Political?, 53 William & Mary Law Review, 481–506 (2011).

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