Understanding the Law's Role in a Democracy

In his new book, Miami Law Professor Kunal Parker argues that 19th century Americans had quite different views about the role of common-law judges from those we hold today.

By UM News 10-10-2011

Unlike elected representatives, common-law judges are not directly accountable to the electorate. These days, some people see common-law judges as engaging in social engineering, which might be considered an encroachment on democratic principles.

But this was not how 19th century Americans saw things, according to Parker, whose new book, Common Law, History, and Democracy in America, 1790-1900: Legal Thought Before Modernism, is the subject of a panel discussion on Oct. 17 at 5:30 p.m. in the Faculty Lounge./p>

"Far from law being seen in opposition to democracy, it was possible to argue that law – specifically, the common law – did a better job than democracy of guiding America along history's path," Parker explains.

Parker – who teaches American legal history, property, estates and trusts, and immigration and nationality law – began working on the book in 2003 as part of his doctoral dissertation in the Department of History at Princeton University, which he successfully defended in 2007. For Parker, the book arose out of questions about the relationship between democracy, history and the law, and how they intersect.

Specifically, he was interested in examining how we place law in history, what role history might play in thinking about law, and what the implications might be for understanding the law's role in a democracy.

Parker says he wanted to discover how people in the past might have viewed the relationship between history and law, "as a way of understanding how it might be possible to understand law's role in democracy from different perspectives."

Panelists for the Oct. 17 event are to include Vice Dean Patrick O. Gudridge; Shai Lavi, a senior lecturer and the director of the Minerva Center for Human Rights at the Tel Aviv Faculty of Law; Frank Palmeri, Professor of English at the University of Miami; and Dorothy Ross, an Arthur O. Lovejoy Professor Emerita of History at Johns Hopkins University and a Senior Scholar at the Woodrow Wilson International Center for Scholars. Parker plans to respond to the panelists' comments.

Parker has begun work on his next book, a history of immigration and citizenship law in America. He plans to examine the changes in the nation's immigration and citizenship regimes from the American Revolution until today.