Q & A with Douglas Edlin- author of Judges and Unjust Laws

By: kris bishop | Date: January 28, 2009
Q & A with Douglas Edlin- author of Judges and Unjust Laws

In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. Edlin is Associate Professor of Political Science at Dickinson College.


Is suspending habeas corpus at Guantanamo Bay just?

UM Press: If you could name one goal you have for this book, what would it be?


Douglas Edlin: To start people thinking that unjust laws don’t just create a moral vs. legal problem for judges and to focus attention on the genuine historical and theoretical bases for judicial review in the US and the UK.

UM Press: What was the catalyst that drove you to write this book?

Edlin: I first encountered this problem – what are a judge’s legal options when faced with an unjust law? – as an undergraduate and it kept nagging at me until I went back to grad school (after practicing law for a while) and wrote the book to try to address this problem in a more satisfying way (at least for me).

UM Press: What does this common law dilemma and controversy mean to the every day citizen?

Edlin: Ultimately, this dilemma relates to the ability of courts to ensure that our government acts in accordance with our laws. Recent steps taken by our government in the war on terrorism, and the responses of several U. S. courts to these steps, are directly relevant to the argument of the book.


UM Press: Why does it matter that judges must choose between moral and legal obligations?

Edlin: It matters because if judges act only out of a moral obligation, some people might say that they are no longer acting as legal officials. If judges act out of a legal obligation, then their actions remain within their judicial responsibility and authority.

UM Press: Where do you see this all playing into the future of law?

Edlin: We see some of it playing out right before our eyes. Judicial decisions about the availability of habeas corpus, for example, for people held at Guantanamo Bay, contain discussions of the meaning of that right constitutionally and at common law. And these discussions, sometimes explicitly and sometimes implicitly, address the role and authority of the courts in a manner that touches directly on the analysis in the book.

UM Press: Will these issues be addressed under the new administration?

Edlin: They already are. President Obama’s executive orders eliminating secret prisons, coercive interrogation practices, and (in the future) the Guantanamo detention facility itself are examples of his belief that our existing constitutional and legal principles are sufficient to address the threat of terrorism (and that these principles are, at least in his view, inconsistent with the existence of prisons, practices and facilities of this sort).

For more about Judges and Unjust Laws, visit: /isbn/9780472034154

Also, check out George Thomas' (author of the Supreme Court on Trial) blog post!

Read the Constitutional Law Prof's Blog and their excerpt about Judges and Unjust Laws.