"Law and Democracy in the Empire of Force:" Conference

March 31, 2007Duke Law News

An upcoming conference co-chaired by Duke Law Professor H. Jefferson Powell, will examine apparent changes in the public world, particularly with respect to the fundamental character of law and democracy.

“Law and Democracy in the Empire of Force” stems from a sense, shared by Powell and his co-chair, Professor James Boyd White of the University of Michigan School of Law, where the conference will be held, that drastic changes in the public sphere can be seen everywhere: in judicial opinions, the nature of law practice and law teaching, international relations and diplomacy, legal scholarship, congressional deliberations, the way news is reported, representations of law and politics in popular culture, and even the practice of philosophy. A dozen scholars from a variety of disciplines – including Duke Assistant Professor of Law Jedediah Purdy – will present their individual perspectives on specific aspects of law and democracy, with the conference taking the form of an extended conversation among its participants.

“The impetus for this conference comes from the surface sense that things seem off kilter, but we want to go past the perennial complaint that the world is, somehow, ‘fallen,’” Powell says. “A primary purpose of the conference is to test this proposition that the world is changing quickly.”

In addition to moderating the conference, Powell will present an address entitled “Law as a Tool: The Consequences for American Government,” informed by his service as deputy U.S. solicitor general during the Clinton administration. Powell says there seems to have been a shift in the way executive branch lawyers and officials think about their duties under the law, in a way that cannot be explained by simplistic accusations of partisanship and political polarization.

“Traditionally, executive branch lawyers have felt a kind of twofold tension between conflicting obligations – to provide legal advice to the immediate ‘client,’ the executive branch, on one hand, and to act as the law officers of the government, on the other.

“I think it was possible, up until fairly recently, for those two things to be held together because the law has not simply been seen as a set of external rules that the executive branch lawyer is finding some way to manipulate [to advance the policy goals of his or her immediate client] but is also, in a sense, a kind of internalized ethic.” Recalling Justice Jackson’s admonition in Youngstown Sheet & Tube Co. v. Sawyer – the Steel Seizure case – that “humans have found no way to preserve liberty except to keep the executive under law,” Powell observes that if the law is viewed simply as an external tool to be manipulated to serve the executive’s purpose, “then in a sense, you don’t have much responsibility for that. If the law is also something you have internalized, then even as obligated you are to serve the executive, there’s a limit to the extent to which you can engage in manipulation.

“I think we have moved from this sort of picture of the law as internalized to a sense in which the law becomes entirely external. If that’s right, that’s quite profound and de-humanizing,” Powell says.
The phrase “the Empire of Force” in the title of the conference is taken from Simone Weil's essay on the Iliad, where she uses it to refer not only to systems of military force or violence, but to all the ways a culture invites its members to dehumanize others – abstracting away from the human – Powell says. “That may show itself in obvious, concrete and brutal ways, such as how we treat detainees, and it may show itself in very rarified offices, where people think in ways that abstract from the human.”
For more information on “Law and Democracy in the Empire of Force,” and to download registration information and a program, visit