Boston University School of Law

The Legal Entrenchment of Illegality


David Lyons

Boston University School of Law Working Paper 07-21
Reprinted in David Lyons, CONFRONTING INJUSTICE: Moral History and Political Theory (Oxford University Press, May, 2013)

Abstract

This paper concerns systematic practices by public officials that are clearly unlawful, not hidden from view, and tolerated for many years.  Such a “legal entrenchment of illegality” characterized America’s Jim Crow period, from the 1890s to the 1960s, especially in the former slave states, where the rape, assault and murder of African Americans, police brutality, procedural bias, and anti-black pogroms were tolerated or engaged in by officials. The related cynicism of officials is illustrated by a review of Supreme Court decisions that undermined the legal framework for the post-Civil War “reconstruction” of the former slave states.  This paper also shows how the legal entrenchment of illegality required officials to embrace an incoherent and unstable set of attitudes towards law, which was incompatible with Hart’s legal theory as originally presented, but was compatible with its final form.

Keywords

Malfeasance, nonfeasance, racism, Jim Crow, the rule of law, Hart’s legal theory

 

This paper is no longer downloadable from this website.

Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

 

Suggested Citation:

Presented to the July 2007 conference on “The Legacy of H.L.A. Hart:  Legal, Political, and Moral Philosophy.”  A revised version will be included in a volume of papers from the conference re-printed in David Lyons, CONFRONTING INJUSTICE: Moral History and Political Theory by Oxford University Press, May, 2013.

David Lyons Contact Information

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Email address: dbl@bu.edu

Office Phone: (617) 353-3135

SOCIAL SCIENCE RESEARCH NETWORK