Dr. Boyer explains that, within modern Western tradition, the law is broadly understood as science-based rather than subjective. Western law presents itself as “empirical”: it is grounded in observations about and response to specific social phenomenons or, in the court system, individual situations. Law’s reliance on observation also makes it “rational,” or rather, designed to use logic and reasoning to reach a conclusion from empirical evidence. The law imbeds its “rational” processes in a “systematic” structure that can be “reproduc[ed]” to provide congruent punishments in different cases. These features—empiricism, rationality, systematicity, and reproducibility—allow the law to present itself as “scientistic” (Boyer). Its investment in sciencism, “the principle that scientific methods can and should be applied in all fields of investigation,” means that the law eschews ambiguity, affect and interpretation as facets of applying legal language to reality (Reichman; “Scientism;” Scientistic”). However, as Dr. Boyer and the other scholars cited below explain, common understanding of the law as objective is not accurate.
Robert Cover pushes back against mainstream understanding of the law as objective in his article “Violence and the Word,” where he explains that “law is the projection of an imagined future upon reality” (Cover, “Violence and the Word,” 1604). Cover’s definition of law recognizes that creating and implementing law inherently requires individuals’ perspectives: without their viewpoints, “imagin[ing]” the future that law represents would be impossible. Cover thus points out the law’s dependence on humans’ creative endeavors. He also contends that “legal interpretation,” the process of translating pre-extant laws into action in a given case, depends on individuals’ perspectives: he writes, “legal interpretation must reflexively consider its own social organization” (1601, 1617). In other words, legal interpretation only becomes credible when the law is enforced in the way that judges interpret it (1616-17). If legal interpretations were not translated to action, the law would lose contact with “the […] deeds it authorizes,” reducing legal institutions’ credibility (1617). Judges and other legal interpreters therefore “[adjust]” their understanding of the law so that it only requires action that the rest of the judiciary system is likely to implement (1616). By explaining legal interpretation’s dependence on this social structure, Cover demonstrates that the law’s enforcement depends on society’s variable inclinations to action rather than sciencism.
Michelle Alexander also highlights the law’s intertwinement with society in Chapter Five of her book The New Jim Crow. Unlike Cover, however, Alexander focuses on the law’s effects within the United States’ criminal justice system rather than law’s sources. She explains that race-based, Jim Crow-esque discrimination remains legal against the Black and brown people if (or, all too often, when) they are labeled as felons. After that criminalization, they are subject to legal distinctions that prevent them from participating in “mainstream, white society” (Alexander 238). This discrimination happens because the law does not operate within the scientistic, unbiased sphere within which it is frequently understood. Instead, every aspect of the criminal justice system reflects discrimination against Black people. First, police can “rely on race” to round up supposed criminals (230). Prosecutors can then “load up” defendants with excessive charges that “cannot be challenged for racial bias” (230-31). These discriminatory implementations of criminal law create an overwhelmingly Black and brown prison population, demonstrating the law’s capacity for inherent bias rather than objective rationality.
Roman Polanski’s 1994 film Death and the Maiden, based on Ariel Dorfman’s 1990 play of the same name, offers a different understanding of the law than Cover and Alexander. Rather than considering the law’s basis in affect and bias, Polanski questions whether it offers justice at all vis-à-vis his presentation of Gerardo. As a lawyer and a recently selected member of the Rettig Commission, which investigated crimes under Chile’s military rule in the 1990s, Gerardo represents the law during a fraught transition period for Chile (Dorfman, Afterword; Dorfman, Death and the Maiden, 1.1; Lipsker, “Death and the Maiden”). Despite his stated commitment to seek “justice,” however, he remains largely passive throughout the film (Death and the Maiden 0:14:20). For example, none of his efforts to help Roberto come to fruition, and he cannot change Paulina’s mind about her plans to hold her own court for Roberto (Death and the Maiden). Paulina explains his passivity best: after Gerardo’s inaction in a moment of chaos, she says, “Of course he just stood there. He’s the law,” framing his lack of agency as an expected product of his relationship to legal institutions (Death and the Maiden 0:49:05). Paulina implies that, since Gerardo is bound by legal compromises and restraints, he cannot take meaningful action at all (Dorfman, Afterword). Gerardo’s characterization suggests that the law is incapable of taking meaningful action—especially action towards justice for people like Paulina, the tortured victims of unjust military rule.
And a final note on current events: right now, the Trump administration faces dozens of lawsuits because of the deportations, civil servant firings, climate policy, and other initiatives that it has enacted (Lemonides et al). Directly before his 2025 inauguration, Trump himself faced four criminal charges (O’Kurk and Merrill). His actions and his administration seem to blatantly challenge, if not violate, Constitutional and common law alike.
Yet in Ava DuVernay’s 2016 documentary 13th, Trump declares, “I am the law and order candidate” (13th, 01:22:02). His personal understanding of law seems to align with his challenges to the United States legal system. As the first 100 days of his administration demonstrate, that radical redefinition challenges not only the law itself but also many of the norms of American society. Those shifts demonstrate that—as Cover asserts in “Nomos and Narrative”—changing the very meaning of law also changes fundamental aspects of our shared world (Cover, “Nomos and Narrative”).
