Tyler Rose Clemons (St. John’s University School of Law and NYU School of Law) has posted The Jurisprudence of Humanity on SSRN. Here is the abstract:
This Essay argues that much of the Roberts Court’s jurisprudence reflects a form of what Albert Camus called nihilism: the willingness to justify human suffering in the name of a supposedly higher Good. Drawing on Camus’s critique of ideological violence and the Hart–Fuller debate over the relationship between law and morality, the Essay contends that contemporary appeals to “lawfulness,” the rule of law, federalism, and judicial restraint often function as chosen Goods that excuse or obscure the human costs of judicial decisionmaking. Examining cases including Dobbs v. Jackson Women’s Health Organization, Rucho v. Common Cause, and Students for Fair Admissions v. Harvard, the Essay argues that the Roberts Court increasingly minimizes, rationalizes, or affirmatively embraces significant human suffering in service of a substantive political project disguised as legal necessity. In response, the Essay rejects lawfulness as an end in itself and proposes a “jurisprudence of humanity,” grounded in the principle that the ultimate purpose of law is to facilitate human flourishing. Under this approach, legal decisionmakers must take the human consequences of their rulings seriously and justify any resulting harms by reference to present human well-being rather than abstract notions of legal fidelity.
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