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).

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.

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.

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.

P.S. How many people normally show up for the meetings?

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.

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.

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.