Fairness and Justice: Law in the Service of Equality, Charles M. Haar and Daniel Wm. Fessler (Simon & Schuster: $9.95). This fascinating book doesn't succeed in persuading us to accept its final recommendations in entirety, but through often brilliant discussion it gets us thinking about the most crucial issues underlying modern American law. Today's federal courts, the authors convincingly argue, are so entangled in a legalistic mire that they no longer can be counted on to guarantee equal and adequate public services, such as education, health care and housing. For one, the federal courts won't even consider substantive issues of discrimination until arduous tests of jurisdiction are met and then a host of other technical issues not directly related to "justice" or "injustice" are considered. Sidetracking ethical issues is, of course, precisely the point of "legal positivism," a school of thought particularly prominent in the United States that tries to serve the cause of justice not by following vague, value-laden concepts like "good" or "bad," but by understanding a logically interdependent system of laws, such as federal statutes.
But statute law is too convoluted to "serve justice," the authors contend. As an alternative, they offer "common law"--based on custom and usage, common law is "the judicial distillation of collective experience." In an interesting survey of common law decisions in the United States and Britain from 1400 AD to the present, the authors show an overwhelming consensus that equal, adequate and nondiscriminatory services must be provided to all. Statute law, the authors imply, is comparatively spineless. The authors are less successful in showing that common law can best be practiced in the state courts. Federal judges are appointed for life, after all, while state judges are elected and thus more vulnerable to overt public pressure.