In the spirit of our dual mission to “present both the failures of law and the possibility of using that same law” for liberatory ends and commitment to “challeng[e] the nature of legal discourse” and “revalu[e] voices which have been suppressed or silenced,” the Journal of Law & Liberation asked Yale Law School faculty and system-impacted legal advocates to respond to the question: Is Law and Liberation an Oxymoron?
The following are some of the answers we received:
Baher Azmy
Law and liberation is an oxymoron. Lawyering and liberation is not.
Law is not a neutral or natural expression of justice; it is an expression of power. In a nation built upon and scaffolded by the power of capitalist exploitation of law and labor, white supremacy, and heteronormative patriarchy, law has thus historically functioned to protect insiders who benefit from this default power dynamic through a set of rules; those rules, subject to rare exception, are designed to organize, regulate and control persons, particularly those outsiders who stray from constructed normative behaviors, appearance or class, enforced by the latent violence of the state. Indeed, as scholars have increasingly observed, and as recent Supreme Court jurisprudence demonstrates, politically privileged insiders see law as contributing to their own sense of exultation or liberation, specifically through the legal exclusion or repression of disenfranchised outsiders.
As radical lawyer and Center for Constitutional Rights’ co-founder William Kuntsler observed:
I suspect that more people have gone to their deaths through a legal system than through all the illegalities in the history of man: six million people in Europe during the Third Reich. Legal. Sacco and Vanzetti. Legal. The thousands of great trials throughout the South where Black men were condemned to death. All legal. Jesus. Legal. Socrates. Legal. All tyrants learn it is better to do this thing through some semblance of legality than to do it without that pretense.
As a practical matter, law has no neutral liberatory promise.
Asserting this premise in a law school context is not meant as a provocation; nor does it recommend nihilism. It merely suggests a strategic – and liberatory – approach to lawyering inside politically distorted social systems. It means that lawyers committed to liberation cannot prioritize shaping legal doctrine or the pursuit of rights-recognition for its own seemingly salutary sake. Generations of critical legal theorists have demonstrated rights are contingent on politics and not the other way around and are thus not durable sources of protection for marginalized communities. Liberatory lawyering must center strategies around shifting power, not changing legal doctrine. A victory in a court of law will not bring meaningful liberation; only the political success of social or political movements can.
The power-shifting strategy of lawyering has two interrelated strands. One is to use litigation to destabilize power narratives that lazily justify state repression, exclusion, or violence by rendering them false, pretextual, or motivated by irrational animus. The other is to use lawyering to build the power of mobilized movement or community actors through a variety of methodologies, including clearing legal obstacles to organizing, honoring a community’s agency and expertise, and elevating the lived experiences of those most harmed by injustice (a practice lawyers looking for the “perfect plaintiff” for law reform-focused impact litigation rarely undertake).
In this vision of liberatory lawyering the means of lawyering can mean as much as – or often more – than any legally-obtained ends. It offers prominence for strategies of lawyering that include: lawyering for political critique by opening up the courtroom to contest, through narrative, evidence building, and community organizing, the morality and legitimacy of state practice; lawyering for recognition by claiming an entitlement to have rights, vulnerable communities assert their human dignity in forums that are obligated to see and honor such constituencies’ claims to protection from important normative values like equality or procedural fairness; and lawyering for resistance by refusing to accede to totalizing and dehumanizing narratives of the state and instead asserting our humanity’s rejection of leviathan state power in a way that, as Muneer Ahmad explains, ultimately “makes us human.” And when we are seen as equal humans, we have a path toward liberation.
In reflecting upon these modes of lawyering, I think of cases I have been involved in, that reflect the highest liberatory aspirations. I think of my CCR colleague, Rachel Meeropol, and her Supreme Court argument in Ziglar v. Abbasi, which challenged post-9/11 discriminatory round-ups and brutalization of Muslims in New York and New Jersey. Staging a form of an intergenerational liberatory narrative, Rachel – the grandchild of Julius and Ethel Rosenberg, who the Attorney General executed in a prior moral panic implicating Communism and American Jews – fought (ultimately unsuccessfully) in the nation’s highest Court to hold a new Attorney General accountable for abuses implicating a new disfavored minority for a new moral panic. I think of the brave Black and Latino New Yorkers like David Floyd and David Ourlicht, who took on what the mayor called the “eighth largest army in the world” – the NYPD – through organizing, litigation, and struggle to condemn the NYPD’s widespread practice of “stop and frisk” as racist, illegitimate and unconstitutional. I think of the Muslim American plaintiffs, like Farhaj Hassan and Imam Deen Shereef, who filed suit to defend their communities against a blatantly discriminatory NYPD surveillance program in the form of collective action, solidarity, and love. I think of CCR client Tarek Ba Odah, a Guantanamo detainee, shivering and frail at 76 pounds from a principled eight-year hunger strike in refusal to relent to his captor’s illegitimate claim to his detention and by insisting his lawyers fight for him on his terms in the courts and the media, ultimately shamed and prevailed over the largest military in the world to grant him his freedom. I think of Jo and Joy Banner, who lead the Descendant’s Project and expression of joy and love for their Wallace, Louisiana community to resist, through community organizing and litigation, to disrupt the endless cycle of petrochemical exploitation of their land, including land of their enslaved ancestors; the Descendants’ expression of love for the struggle of their ancestors, through legal and political action is liberatory.
And ultimately, there is the possibility where lawyering, love, and liberation intersect. Josh Aiken, YLS ’24, a former student in my civil rights course, offered this moving reflection on the power of lawyering for love:
Love is making room for people to define what freedom entails and honoring the expertise of those practiced in moving through the world as if their loved ones’ lives depended on it (because, ultimately, they do). Liberation, it seems, might be how we love and love and love and find that loving is success without [courtroom] victory, and the will to struggle reminds us that we are worth loving again.
Dominique Morgan
At the heart of the discourse on social justice and reform lies a provocative question: Is law and liberation an oxymoron? This inquiry delves into the complex relationship between legal frameworks and the pursuit of freedom, especially for those at the margins of society. My journey—as a Black trans woman, a formerly incarcerated individual, an abolitionist, and a philanthropist—offers a unique lens through which to examine this intricate dynamic. It reveals a fundamental truth: the law, with its dual capacity for oppression and emancipation, is a construct shaped by human hands and, consequently, reflects our collective flaws and virtues.
The skepticism surrounding the liberatory potential of legal systems is well-founded. History is replete with instances where the law has been an instrument of injustice, enforcing policies that marginalize and disenfranchise. Marginalized communities, including Black, trans, and formerly incarcerated people, have often found themselves on the receiving end of laws that do little to protect them, instead reinforcing the barriers that keep them from full participation in society. These experiences highlight the stark contradictions within the legal system—a system purportedly designed to ensure order and safety.
Yet, the narrative is not wholly grim. Laws have also served as pivotal tools for social transformation. Civil rights legislation, anti-discrimination statutes, and legal affirmations of LGBTQ+ rights demonstrate the power of legal frameworks to challenge the status quo and carve pathways toward greater equality. However, these legislative victories underscore a critical caveat: liberation is not solely a matter of legal recognition. It encompasses economic, social, and cultural dimensions that laws alone cannot address. The implementation and aftermath of such legislation reveal persistent gaps—unintended consequences, incomplete solutions, and systemic resistance—that underscore the limitations of relying exclusively on legal reforms for true liberation.
For example, the Civil Rights Act of 1964, despite its monumental importance, could not dismantle systemic racism or the economic disparities that disproportionately affect Black Americans. Similarly, the Prison Rape Elimination Act (PREA), while aiming to protect incarcerated individuals from sexual violence, has inadvertently placed transgender and queer inmates in situations that exacerbate their vulnerability. These instances illustrate the complex interplay between law and liberation, highlighting how legal measures can simultaneously advance and hinder the quest for justice.
The challenges continue after the passage of progressive legislation. Backlash, resistance, and implementation gaps frequently follow, undermining the laws’ intended benefits. Moreover, the static nature of legal frameworks often fails to adapt to evolving societal needs, leaving new or unrecognized issues unaddressed. This rigidity can perpetuate inequalities, eroding public trust and entrenching systemic injustices.
Samuel Moyn
Law has mostly served domination and oppression and much more rarely emancipation and liberation. This doesn’t mean law is anything in particular; it does mean that law is a social practice that reflects and a tool that presupposes the distribution of authority and power (both non-violent and violent, and both structural and superficial) of its time and place. It has always been this way for as long as law has existed. All societies to date have been organized around the domination and oppression of some over others, and law has normally served the goal of institutionalizing and protecting that subordination. That modern times have begun to lift the yoke of subjugation (sometimes literally) thanks to new ideas and movements doesn’t mean that law’s age-old function ever changed radically. But it did change somewhat. The same is true of how law is studied and taught. Mostly, that takes place, even today, in order to legitimate and rationalize domination and oppression, producing those who will join in. But like law itself, in law study and teaching, there is now a much more consequential and visible struggle than before to demystify how law does its work or even to reclaim it as an emancipatory instrument. We are, clearly, only in the early days of that transformation. That it is possible at all does not exonerate law for the oppressive functions it has performed. It does mean that it is another terrain of struggle – though far from the only one or even the most important – for those who hope that freedom and equality of all will involve much more than those words have implied so far.
Gerald Torres
I am not sure what I would say, but let me just quote one of my teachers, Grant Gilmore:
“When we think of our own or of any other legal system, the beginning of wisdom lies in the recognition that the body of law, at any time or place, is an unstable mass in precarious equilibrium. . . . Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed.”
Lyle May
A “civil” execution (i.e., State-sanctioned murder) is as likely as a defendant receiving due process from a federal court that values the finality of the jury’s verdict over correctness. The premeditated and deliberate killing of incapacitated prisoners after they have spent years under the prolonged threat of death can never be “civil.” Nor is due process really possible if the guilt or innocence determined at the trial level is treated as a “decisive and portentous event” (Wainwright v. Sykes, 1977).
In our society, the law has so circumscribed life that some rights are no longer guaranteed. This is especially true when bodily autonomy for women is a matter of debate for elected officials when the right to vote is treated as a privilege easily revoked, when education isn’t a right at all, and when the prohibition against slavery comes with an exception embedded in 21st-century America. Under this system, can there ever be such a thing as “ordered liberty,” or beneath that burden of control, do we fail to see how the law creates a Carceral State where freedom is a fevered dream?
Ask the oppressed, who fear that their rights will be eroded by the next onslaught of populist rhetoric, what it means to awaken beneath the smothering weight of the law. Ask the innocent whether pursuing liberation within the construct of a constitutional claim should simultaneously be chained by the “limits of human fallibility” after the full weight of Society’s resources ” have been used to imprison them (Herrara v. Collins, 1993).
If a “civil” execution is a mask covering a condemned person’s face as nitrogen gas is forced into their lungs until death arrives, then the throes of agony and jerking against the gurney straps is the law killing liberty. That is a system from which we all must be delivered.