Soifer explores the role of groups in American law and society in his new book, Law and the Company We Keep (Harvard University Press). He believes that the American legal system cannot realistically erect a wall between individuals and the associations that help shape them, and should not try.
"Groups are terribly important in our lives and they are crucial parts of our individual identities," he said. "The dichotomy between groups and individuals is overstated, if not false; the two are inseparable.
"We all belong to numerous groups, both those joined by choice - political parties, for example - and those we are part of whether we like it or not, such as ethnic groups." These affiliations, individually and collectively, help determine an individual's attitudes and actions, he maintains.
"This topic is at the cutting edge of both our society's problems and legal theory," according to Soifer, "and this book is intended as a balanced guide to how to think about it clearly. The quest for social justice is crucial and it often comes back round to the company we keep."
The book deals with heated current issues, such as racial identity and representation on juries, and uses history and literature in an American-studies approach to the subject. Through numerous examples, the book illustrates how the legal system traditionally has bent its individual accountability standard when convenient.
"We like to think we do not practice guilt by association, but we have done so through law for a long time," he said. The federal government, for example, has been dealing with Native Americans as a group, usually unfairly, for hundreds of years. When labor unions were targeted in the early part of this century, membership alone was enough to bring convictions for individuals accused of crimes other members had committed. During World War II, Japanese heritage produced confinement for thousands of Americans in government camps.
On the other hand, Soifer notes, some groups have benefited from legal protections. The constitutional amendment and statutes of the Reconstruction era, for instance, recognized groups and singled out African-Americans for special treatment by creating affirmative action through the Freedman's Bureau and other mechanisms. "Unfortunately," according to Soifer, "the courts participated actively in eviscerating the nation's legal promise to the former slaves and their allies."
Groups continue to be a factor in American law, Soifer maintains. Current debates over racially based reapportionment of congressional districts "basically are about what group you belong to," he said, and attempts to apply individual-rights analysis to the debate are futile.
In an attempt to put all individuals on a level playing field, judges often try too hard to ignore their own group affiliations, and the affiliations of those who stand before them, Soifer said.
"The courts are not neutral and thinking about groups helps us understand that," Soifer said. "Judges ought not strive to float entirely free of community, but should remain aware of where they're grounded and be able to be comfortable with the paradox of detachment and empathy."
When Solomon contemplated paradox, he subordinated evenhandedness in favor of pre-existing, on-going relationships, Soifer points out in the book. "A number of our leading judges today appear to relish Solomonic judicial power to go it alone, yet proclaim that their actions are actually compelled by judicial restraint," he writes. Judges "seek to insulate themselves and their decisions from the need to wrestle with morality."
Soifer suggests that some groups might enjoy a special status in the law akin to that afforded the press under the First Amendment. These associations, he maintains, deserve particular legal sensitivity some of the time.
"Like the press, groups should not be absolutely protected, but there should be a presumption in their favor." Such a presumption, he said, would reflect the reality and vulnerability of groups and communal commitments in American society.
"Our law is inevitably and inextricably bound together with our nation's civic, public and political life. Law would be both more realistic and more just if we did not strain so hard to ignore our varied group cultures and contexts," Soifer writes. "Our communities help establish who we are alone and together."
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