Ideology, Propaganda and Legal Discourse in the Argument Culture
Rule of Law, legal discourse, law as power, law and propaganda, law and ideology, legal truth, law and religion, Natural Law and Hobbes, law as fiction, law as noncumulative knowledge
The issues at the heart of America's social conflicts are being forced into the choices made by the legal system. Abortion, race, gender, sexuality, marriage and religion are all heated issues around which there is profound disagreement. The cultural conflict these issues generate has produced a vacuum of reasoned, evidence-based discourse in virtually any area of importance. It is difficult to imagine a more intensely contested set of issues than the nature of the family, the right to terminate life or its potentiality either through capital punishment or abortion, and the requirement of sharing power and opportunity in a racist and sexist society. Nor should that be surprising. The "hot button" issues of gender and sexuality challenge centuries of assumptions about what it means to be a man, woman or parent. Resentment, fear, distrust of motives and anger are inevitable whether the challenge represents the accusation of hypocritical failure to apply the existing terms of the social contract fairly, as with race and feminism, or a demand that the terms themselves be modified and redefined, as with matters of sexual preference and gay marriage. Rather than reasoned discussion we have devolved our legal discourse into ideology and propaganda aimed at gaining control of the institutions and languages of law and power.
David R. Barnhizer, Ideology, Propaganda and Legal Discourse in the Argument Culture, SSRN Cleveland-Marshall Legal Studies Paper No. 07-141 (March 2007)