as i mentioned at our meeting last night, i initially had some trouble reconciling retroactive application of court opinions with the notion that there is not some objective thing that is “the law.” on it’s face, it seems as though for a retroactive application to be appropriate, there must have been something that is “the law” that existed at the time the parties acted that should have dictated the manner in which they acted.
but i don’t think this is a necessary conclusion. one (i’m sure there are more) possibility is that the law is flowing. perhaps it is everchanging and one aspect of law includes some sort of reasonable expectation component to it. cases often spring up where there appear to be gaps in the law (be it statutory or common law) and the courts must nevertheless decide the issue. often, they will use precedent and/or statutory language to determine what “the law” is in the instance. but where “the law” is not in black and white, how does a court “find” it?
i think regardless of whether you think the law is “found” or “made” by the judge, retroactivity can be applied. if it’s found the case seems easier, since the law always existed, and simply needed to be applied to the facts. but even where law is “made” retroactivity seems to comport with (at least my) notions of fairness as long as there is some rational reasonable expectation that could be drawn by the parties at the time they acted.
a perfect example is the one professor mootz brought up last night about parenting. you can’t sit a kid down and list off a million rules and either 1) expect them to remember them all or 2) cover every situation. but we still think it’s ok to reprimand kids when they do something wrong. part of this is to teach them so they won’t make a similar mistake in the future, but part is because by piecing together the elements of what they did, they should have reasonably expected that some part of their action went against the parent’s wishes.
i’ve only scratched the surface, but it seems to me that to reconcile retroactive application and the lack of an objective thing known as “the law” there must be on some level an element of expectation.
josh
15 responses so far ↓
fjm3 // 11 November 2006 at 12:06 am
I think that the parenting example is just one example of an ongoing activity, or practice, that has coherence beyond the immediacy of the moment of decision without having recourse to some grand design that exists outside of the practice. Parents, like judges, believe that there is recourse to something outside their immediate frustration, but it may only be an ongoing practice rather than something more. God is dead, and so is Dr. Spock and the law. But we stumble along with religion, parenting and legal practice with a sense that we are not acting in bad faith or just making it up as we go along. In my mind, this doesn’t really mean the death of God or law (although the individual named Dr. Spock has certainly passed), but a more mature understanding of how we can participate in the divine and in the law.
CMC // 13 November 2006 at 1:32 am
Josh,
I’m *mostly* in agreement with you, that even if “the law” didn’t recognize a particular crime prior to one’s actions, certainly our shared morality would have alerted us to the fact that we “ought” to act in a particular way.
However, I hesitate to completely agree with you, because if a person can reasonably expect to be punished for a particular action, how do we explain the void-for-vagueness doctrine?
Let me elaborate:
The void-for-vagueness doctrine (as you may recall from crim law … or maybe not
) prohibits legislatures from issuing vague laws. The laws must be clear enough so that a person of ordinary intelligence can understand and anticipate them. Essentially, people must be put “on notice” as to the actions for which they might be punished. If the law is found too vague, it is a violation of due process; if the law is uncertain, then it is not law.
However, if a person of ordinary intelligence cannot anticipate the law, or what he “ought” to do, then this certainly throws into question whether he could reasonably anticipate punishment for his actions.
And if he lacks any reasonable expectation, this then begs the question: If you cannot anticipate the law, does it even exist? If it did not exist when you committed a crime, can we justify applying a previously-non-existent law to the crime?
To these last two questions, in the interest of fairness, I would say no. If it’s neither illegal nor immoral for me to free monkeys from the zoo, and I go and free those monkeys, it wouldn’t be fair for me to then be put in prison for having released (er, rescued?) the monkeys.
To respond to my own assertions (and feel free to challenge what I’ve written), one could say that the void-for-vagueness doctrine is really just a problem of limited language. Our failure to properly draft a law does not mean that the law doesn’t actually exist. So, if the law had been written with more specificity, *then* a person of ordinary intelligence surely could have understood it.
As for myself, I’m not so sure about this. If “the law” is more than just words, then it doesn’t (or shouldn’t) matter what we write on paper or in the code books. It wouldn’t matter that a law was drafted improperly, because the law is more than just words on paper…
…or is it?
(I apologize if I cause you to doubt the existence of “the law” again.)
Thomas // 13 November 2006 at 2:14 pm
Since I have not read the Smith book, my comments will be about the post and subsequent comments rather than Smith’s own view. To see what a problem retroactivity really poses, consider CMC’s following question:
“Can we justify applying a previously non-existent law to the crime?”
Wording the question this way makes it sound as if the issue is whether we can punish someone for having committed some crime x at time t even though there was no statute that prohibited x-ing at t.
Of course, if there was no statute at t that prohibited x-ing, then x-ing at t was not a crime in the first place. And it would be strange indeed if we punished someone for something that was not a crime at the time. Simply stipulating that the act in question was mala in se rather than merely mala prohibita won’t help either for there is still a conceptual difference to be drawn between acts which happen to be immoral without being illegal (adultery) and those that happen to be both immoral and illegal (rape).
If rape were for some reason not prohibited by any criminal statutes at the time that P raped S, then the rape was immoral even though it was not illegal. As a result, P deserves our moral condemnation, but it is hard to see how we could consistently maintain that he did anything illegal. Simply making rape illegal after P has already raped S does not change the fact that when P raped S he did not break any laws. And if he did not break any laws, then he did not commit any crimes and if he did not commit any crimes, then he cannot be an apt target of any legal sanctions–regardless of how reprehensible his actions were.
Given that this is so, how could retroactivity accord with any basic standards or principles of fairness? Josh suggests that so long as “there is some rational reasonable expectation that could be drawn by the parties at the time they acted,” then retroactivity might be justifiable. But this is a conceptual impossibility. By definition, if there is no statute prohibiting x-ing, then as far as the law is concerned, I am allowed to x. Of course, in the event that x is immoral, I might have good reason not to x, but the prospect of criminal sanction can never be one of these reasons. Consider, for instance, a man named Bob who is considering being unfaithful to his wife. Now imagine that Bob knows that adultery is immoral even though it is not illegal. Upon further consideration, Bob decides to risk moral condemnation by being unfaithful to his wife. A few months later, the state where Bob resides passes a law that makes adultery illegal–a law that is to be enforced retroactively. Question: What theory of justice/fairness could one possibly appeal to here in order to make prosecuting, convicting, and punishing Bob for adultery? You can only convict people for crimes and Bob committed no crime.
So the “reasonable expectation” that Josh suggests could in principle justify retroactivity turns out to be a conceptual impossibility. After all, in order for someone to reasonably expect to receive a criminal sanction for x-ing, one must have reason to believe that x-ing is illegal. The mere possibility that x-ing might be made illegal in the future is not nearly enough. Moreover, that would mean that for every action I consider performing, I would not only have to consider whether it is in fact prohibited–but I would also have to consider whether it might ever be prohibited. Surely the law should never demand so much from us.
josh // 13 November 2006 at 3:40 pm
i’m trying to reconcile my belief (right or wrong as it may be, but i suppose so far this has been a major debate in our discussions) that there is no objective thing called “the law” with the concept of retroactive application of rulings.
i agree that retroactive application of things we might consider immoral but which are not explicitly illegal is unfair and unappealing, but i do not think a necessary conclusion of that is that this practice does not exist.
another possibility is the problem of conflict of laws. it is impossible for legislators to keep every section of every statute in mind when enacting new laws. this would almost certainly result in the enactment of several laws that are at odds with each other. this allows for the possibility that both actors in some case might have some legitimate legal basis for the claim that they should prevail. then, the court must weigh factors and determine who has the stronger arguments in support of their side.
but still there is the problem of which law reigns supreme. how does a judge determine which law should have more weight? is there some objective thing “the law,” or is the judge “making” law? it seems problematic if the judge is “making” law, but if there were some objective thing called “the law” it seems problematic that people would experience such confusion at times as to whether or not they violated the law.
of course, this ignores topics like the individual’s intent and a discussion on human nature, something that could be debated at length.
Thomas // 13 November 2006 at 5:39 pm
Josh,
Rather than framing the debate in such dauntingly broad terms–namely, whether ‘the law’ really exists–just focus your attention on a particular example. In the rape case I mentioned earlier, for instance, there was no particular statute that prohibited rape at the time the rape was committed. We can imagine this being true regardless of whether we think judges merely apply ‘the law’ or whether they instead ‘make law’.
Indeed, this latter issue seems irrelevant to our understanding of the problem of retroactivity. After all, even if we assume that in some sense there is no purely mechanistic application of ‘the law’–and hence judges must always engage in some statutory interpretation when considering cases–either there was a statute that prohibited rape at time t or there was no such statute. In thehypothetical I mentioned earlier, there was no such statute. Hence, no crime was committed and no legal culpability exists.
Now perhaps your question is the following: If there is no ‘the law’, then how can we say that there was not a law prohibiting rape at time t? This seems to conflate different senses of ‘law’. For even if–owing to the inherent ambiguities and vagueness of the concepts we use to codify the law–there is no monolithic and mechanistically-applied thing called ‘the law’ there are surely still laws (or legal codes). And hence the question of whether there was a law that prohibited rape at time t is dissociable from the question of whether there is something we would call ‘the law’.
Of course, the case I presented is to be contrasted with a case which involves a borderline case of rape. For instance, imagine that a 30 year old male has what appears to be consensual sexual intercourse with a 20 year old woman who happens to have a sub-70 IQ. Does this woman’s cognitive limitations undermine her ability to properly consent to sexual intercourse? If so, should we say that she was raped even though in some important respects the intercourse was not contrary to her wishes? This is the kind of question that arises with respect to the void-for-vagueness doctrine CMC mentioned before. After all, the language in which statutes are framed is often vague, thereby making it difficult sometimes to know whether one’s actions are prohibited by the law. But these borderline cases are to be contrasted with straightforward cases where it is clear that an agent has performed the action prohibited by the law.
OK, now I feel like I am rambling. I will have to think more about this and post a follow-up comment later. For now, let it suffice to say that the issue of retroactivity is very timely given the recent retroactive legislation passed by Congress with respect to responsibility for war crimes. Interestingly, this case is an inverted example with respect to the types of retroactivity we have been discussing for rather than making someone legally culpable for something that was not a crime when it was committed, this legislation immunizes people from being help responsible for behavior that was explicitly forbidden by the criminal law.
josh // 13 November 2006 at 6:15 pm
Thomas,
my apologies. my latest comment talked past your first comment. one talking point we discussed at our last meeting from smith’s “law’s quandary” was whether there is an objective thing called “the law,” and in the chapter smith laid out one question (among many) of whether our (the united states’) retroactive application of laws implied that we have a belief in an objective “the law,” since, as you pointed out above, some sense of fairness seems to dictate that one cannot be guilty of a crime for an act against which there is no law.
depending how you phrase it, this could seem problematic:
1) if there is a “law”, we may apply the law retroactively
2) we do punish retroactively
3) therefore, there is a law
this argument is obviously fallacious since the premises do not demand the conclusion.
now consider:
1) if we apply laws retroactively, then there must be an objective “the law”
2) we do apply laws retroactively
3) therefore, there must an objective “the law”
this follows logically, but my post and previous comments were an attempt to more closely examine the first premise. perhaps you can help.
Thomas // 13 November 2006 at 7:24 pm
Josh,
No worries. I suppose it depends on what Smith means by “objective” in this context. It is an objective matter of fact that Pennsylvania currently has a statute that criminalizes rape. Indeed, if there is any doubt concerning this fact, all one needs to do is look at the PA Criminal Code to see whether such a prohibition has been codified.
This type of objectivity is clearly not what’s at stake with respect to the issue you are raising concerning retroactivity. Rather, it seems that you (or Smith?) are interested in a different kind of objectivity–namely, whether there is an objectively correct answer to questions concerning the applicability of particular statutes to particular cases. So that even if we agree that there is–as an objective matter of fact–a statutue prohibiting rape, it is still an open question whether it applies in any given case. Is this what you had in mind?
If so, your worry could be expressed in the following way: Does the retroactive application of a law require that the law in question can be mechanistically and formalistically applied? The answer to this question seems to me to be ‘no’. All retroactivity requires is that we impose a legal sanction on someone for doing something that was not legally prohibited at the time it was done but which was made illegal at some later date. For this to be possible, it makes no difference whether or not the law in question can be mechanistically applied. After all, we can imagine two different scenarios involving retroactivity–one of which involves a statute that can be mechanistically applied and another which involves a statute which must be interpreted instead.
In short, it is the first premise of your argument that is problematic. For it simply does not follow from the fact that a law can be applied retroactively that the law can be mechanistically applied. All that is required is that (a) at the time P x-ed, x-ing was not illegal, (b) at some later date x-ing became illegal, and (c) we now impose criminal sanctions on P for x-ing despite the fact that at the time he x-ed, x-ing was not legal.
That is just what retroactivity in the law is. And for this state of affairs to be possible, it makes no difference whether the law can be mechanistically applied or whether it must always be interpreted.
D0es this seem right to you or am I missing your point? I suppose it would help if I had (a) read the salient chapters from Smith’s book , and (b) attended the last meeting of the LPS.
josh // 13 November 2006 at 7:47 pm
yes, that is more on point.
also, as i read it, smith’s concept of “the law” is objective in the same manner as “courage” can be seen as an objective concept to some of the ancient greek philosophers. it’s something we’re working on defining, and for these purposes is a concept beyond just statutes and the common law.
Thomas // 13 November 2006 at 7:52 pm
Josh,
Sorry I had to spill so much cyber-ink to finally get what you were after. I hope at least some of what I said is helpful (or at least coherent!). I look forward to attending future meetings of the group. Arguing about the nature and limitations of the law is always stimulating–plus, it’s a great way to put off other more pressing responsibilities!
P.S. How many people normally show up for the meetings?
josh // 13 November 2006 at 8:55 pm
there were 18 people on the last email list, but meetings have ranged from about 5-10…normally a very fine number for good conversation.
Thomas // 13 November 2006 at 9:56 pm
Josh,
Thanks for the info concerning the group. Thanks as well for prompting me to think more carefully about retroactivity. I look forward to meeting you at the next meeting.
josh // 13 November 2006 at 11:04 pm
thank you for the same. i was a philosophy major in undergrad and i’m very excited about this group, as i’ve been wanting to do more with philosophy lately. i’m a bit rusty, but i’m hoping to renew a lot of my knowledge in the field and explore new ideas and concepts. i’m also thinking of furthering my education in philosophy, although that might be a difficult task to undertake immediately following the completion of law school.
fjm3 // 16 November 2006 at 12:32 pm
I am a bit late to this thread, but I think that the discussion was inadvertently sidetracked by the example of criminal law. Given our (Constitutionally-informed) cautious attitude toward depriving someone of their liberty, we adopt a positivist perspective that proclaims there to be no “criminal law” that broods in the sky, but rather only a positive code that forbids specific behavior and announces punishments for violations in advance. So, criminal practice might provide an example of us believing only in laws, but not “the law.” It is important not to overstate this example, though, as there are common law crimes. Jack Kevorkian was tried under the common law at one point in his legal odyssey, although the jury refused to convict because they didn’t believe he had sufficient notice of the wrongfulness of his behavior, and had specifically relied on the absence of a criminal statute when he assisted individuals to commit suicide.
Moreover, there is significant breakdown in the positivist model when it comes to interpreting statutes. I don’t think that Josh and Thomas gave this issue its due. Interpretation is not just filling the gaps, but can take over statutes in many instances. I still remember the bizarro rape cases that I read in my first year criminal law course where despicable behavior that should be punished had to be shaped to the statutes (or vice-versa).
The real point raised by Smith is the retroactive application of common law rules. How can this be justified unless we believe that the law pre-exists its announcement by the court. The natural law justification from the early days of our legal history did this work, but nothing does this work now. That is our quandary. We should either become resolute positivists (an impossibility, I believe), or re-think natural law justifications in a manner that makes sense to contemporary (pluralistic) socieity. I think that the only option here is to regard the practice as self-justifying because it stands over and above individuals or specific moments of judgment. We may wish for more, but this will have to do.
CMC // 26 November 2006 at 2:07 am
It really is too bad that Smith leaves out his take on law and religion in this book. I’d be interested to see whether and how he re-categorizes natural law justifications so that they comport with his view on religion (or whether he uses religion to perpetuate, rather than re-categorize, natural law justifications).
At any rate, FJM, I was wondering if you could elaborate, just a little bit, the distinctions you make between resolute positivists and your own proposed option (regarding the practice itself as self-justifying).
Gracias.
fjm3 // 29 November 2006 at 8:14 pm
CMC:
A resolute positivist, I think, would say that there is nothing behind the words enacted as law, and that “the law” is just a collection of all those duly enacted (including judicially) rules. In my post I suggest that the ongoing practice of the legal system undermines this view: the “common law” process of adaptation really occurs in all fields, including constitutional, statutory and regulatory law. And it goes so deep as to require some sense of the law meaning something other than a collection of the rules duly enacted.
So, does this mean that we have something that stands above (behind?) positive law to give shape to its trajectory? I think that the most promising explanation of how “the law” operates may be to find this role in the ongoing practice taken as a whole. Dworkin is the most popular proponent of the idea that there is a “right answer” to legal problems, based on principles of fit, coherence, etc. I think that this is a little idealistic, but maybe the practice of law as a whole delimits the field of discussion sufficiently to permit guidance without necessarily delivering a right answer, and that it is this guidance the justifies retroactive application of common law rulings. It is not the case that the newly announced rule existed prior to the case in some way, but that given the overall arc of legal practice it was reasonable for the parties to have expected this development. I think that this explains why courts sometimes make their rulings prospective only.
The trouble is that many folks find it circular to say that a particular moment in the practice is justified by the practice as a whole, rather than something outside of the practice. But there is a philosophical basis for this claim, if one looks to some of the American pragmatists, Wittgenstein, rhetorical theorists, etc.
Maybe there is a “middle way” to answer our current quandary: we will never find “the law” as an absolute guarantor, but there is something other than random expressions of power by legal actors in the practice of law writ large, and that this is sufficient to play the role of “the law.”
Perhaps as we delve more into the book we can see if this is a possibility left open by Smith.
Interesting, Justice Scalia wrote a short review of Smith’s book in which he essentially says (in my view), “God is the only entity that can resolve the quandary, why doesn’t Smith just say so.” I don’t know what Smith believes, but I don’t think that our choice is between traditional conceptions of God or an unresolvable quandary (and I would emphasize that if the “middle way” doesn’t require the traditional conception of God, neither does it disprove or discredit such a belief system, and so it doesn’t undermine the religious faith that many persons in the world hold dear).