[This post is meant to supplement the chapter that was discussed at LPS's November 9th meeting. However, I have added a few tangential remarks and observations that were not discussed on the 9th. I will try to tie together chapter 3 with some of our earlier discussions, and also provide a better explanation of natural law than I have so far managed to do.
Also, if you haven't already read Josh's post on Retroactivity -- one of the topics discussed in chapter 3 -- please do. Josh, FJM, and Thomas did a great job exploring this topic in the comments section. Please feel free to continue adding to the discussion.]
We say a lot of things about the law: We say that it is a means of obtaining justice; that it is is the harbinger of truth; that it represents our shared moral perspective as a society. But do we really believe these things?
The title of this post is the title for chapter 3 of Smith’s Law’s Quandary. This question was posed in chapter 1 as well, but there, the issue was whether our talk of “the law” is just words. Is there any weight behind what we call “the law,” or is our idle babble just a means to an end (the end being our interest in obtaining some favorable outcome from the courts)?
Chapter 3 sets out an interesting example of what Smith means when he asks whether the law exists. Smith asks his readers to imagine that a friend visits from an alien culture; assume her name is Tess. She asks you to show her the law, and so you bring her to a law school, a courthouse, a law library, a law firm, the legislature, and a public defender’s office. At the end of it all, you ask Tess what she thinks about the law, and she tells you that she is disappointed that she never got to see “the law.”
What’s the problem with Tess’s disappointment? According to Smith, it’s that Tess has adopted a misconception about what the law is. To us, the law is all of the things that Tess was shown — a conglomerate of institutions and practices, if you will. But Tess has made a categorical mistake, meaning, she assumes that the law exists independently of these institutions and practices. What Tess wants is something more concrete, and that, we cannot give to her. The law may exist, but only in the abstract.
To give us a sense of how the law might exist in this ethereal state, Smith draws an analogy between the law and God. A person who believes in God would say that God “really exists,” while an atheist, who does not believe in God, might only say that God is “at best an imaginary or perhaps metaphorical character employed by certain” religions. (p. 44). Applying this analogy to the law, then, you’ll see that we’re presented with a bit of a conundrum: Either the law “really exists,” or it is only imaginary, employed for some purpose.
To offer my own analogy, think of the Law as Santa Claus (with apologies to non-believiers and believiers alike). [Note: If any young children are reading this blog...1) Are you sure your parents would approve of you reading my drivel?, and 2) Please avert your eyes now.]
We all *know* that there’s no such thing as Santa Claus, and yet, we act as though he truly exists, if for no other reason than for the sake of the children. Our mythical St. Nick (and wife, elves, and reindeer) is used not only for entertainment, but to persuade Christian children to behave, to not fight with their siblings, to get on Santa’s “Good” list. For parents, this myth serves its purpose: It incentivizes children to maintain self-discipline. Likewise, children are also incentivized, for their ultimate reward will be the receipt of gifts, rather than coal.
Reconnecting this analogy to Law, the lines might be drawn thusly:
Santa Claus = Law
Parents = Members of the legal profession
Children = Society
The incentives we have — as members of the legal profession — to perpetuate our mythical figure, “The Law,” are many. Perhaps one of our justifications is that we have, as a society, conditioned ourselves to believe in the Law. Our entire legal system is premised upon a belief in, and reverence for, Law. This belief, in turn, stems from the natural law tradition. Natural law, generally speaking, presupposes that there exist objective and discoverable principles on which to base the law; these principles are discoverable in nature; it is our nature, as human beings, to use reason and intellect; and finally, as rational beings, we can use reason and intellect to discover the principles on which the law is based – we can discover natural law.
This natural law tradition is echoed in everyday legal practice. Judges don’t just decide, they reason; constitutions don’t just lay down the law, they posit self-evident truths. Just as surely as a plate of cookies will be left out for Santa, so will court opinions continue to memorialize our devotion to The Law. But are these empty recitals? This, in effect, is Law’s Quandary. When you boil it down, our game of make-believe is nothing more than legal fiction: We don’t really believe that the Law exists, but we make-believe that it does.
Even if we don’t believe in Santa Claus or The Law, some might argue that our pretend-belief still serves a noble purpose: Our legal system depends on our legal patriotism. The legal system (which, arguably, functions fairly well) is based upon natural law principles, and although we no longer cast our allegiances to natural law, if we were to suddenly tear down the foundations of our legal system, we would be left with little faith in The Law. The law would, essentially, be transformed from a stone castle to a shack on stilts.
For myself, I’m not sure that the results would be so dire. Let’s say, purely for argument’s sake, that I don’t believe that the law is some discoverable truth. Let’s say, instead, that I believe that law merely exists to perpetuate social order and justice, in a society that would otherwise be lost in anarchy. So what? The only thing that changes is what I think and say about natural law (namely, that it’s bunk). Society continues to function just as it did ten seconds ago. Why? Because the law is a set of rules that we tacitly agree to follow in order that we don’t devolve into chaos. Even if there’s no law to be “discovered,” we can at least agree, a la social contract theory, to act in accordance with a set of mutually-agreed-upon rules and principles.
(From here, you’ll probably want me to tell you what these “mutually-agreed-upon rules and principles” are based on. My response would be, the same thing our current laws are based on: our shared moral tradition. I hope you’ll forgive me if I don’t delve into this issue in more detail here, as it’s very late, I’m very tired, and this post is already very long. Rain check?)
Well now I feel kind of silly, because I’ve essentially responded to my original comment in the first post on this blog, wherein I wondered aloud, even if we admit that we don’t believe in the Law, would anything change? My answer here: No.
CMC
12 responses so far ↓
josh // 26 November 2006 at 8:56 pm
for this little inquiry i assume there is no belief in “the law.”
from an anthropological/sociological perspective, i wonder if there would be a change if society (or the masses if you prefer) actually thought about the law. i assume (perhaps incorrectly) that many people today assume that politicians and judges create the law and thus there is no “the law.” based on this, i’m not sure anything would change, as i don’t think this realization would be any bit earth-shattering to most.
however, if people take the opposite view, i wonder if there wouldn’t be change. i’m not sure exactly how people would become certain they were wrong, but if they did, i think some might feel empowered.
what i’m really pondering here is the likelihood of something like a rebellion (sorry, i was watching something on the history of rome on the history channel yesterday). i think this might only happen if peoples’ views go from believing in “the law” to not believing in it. i could imagine a situation where people feel like their moral values are better than the laws in place, and thus seek a change. since there is no “the law” they might feel more justified in acting to make the change.
ok, well i’ve sort of lost my train of thought and there’s probably something i should be reading for tomorrow.
CMC // 26 November 2006 at 10:49 pm
Josh,
Exactly. These are some of the things that I was considering when I came up with my hypothetical (though, as you can see, I opted not to delve into them there). Let’s see if I can address what you’ve said.
Do people assume that the law is *made*, rather than *found*?
Tricky question. In so far as statutes and the like are concerned, sure, I think it’s easier to assume that the law is made. Who really believes that a group of 100 legislators are all truly capable of “discovering” the law (leaving questions of intellect aside)? If the general populous is every bit a skeptic as I am, then they probably assume that the law is made, not found, by legislators. Moreover, it’s generally assumed that when you toss a bunch of politicians in a room and tell them to draft a bill, they’re going to make concessions and generally engage in logrolling, because … that’s just what politicians do. If we open the door and peek into the room, I don’t think we’ll find politicians arguing the finer nuances of jurisprudential theory. Rather, they’ll be strategizing and scheming to gain the most for their constituency (or their pockets, if you really want to play the cynic). They’re not discovering the law; they’re fashioning rules that satisfy their interests. How’s that for a charitable view of politics?
But wait! What about judges and their role in the creation/discovery of law? This is a point we keep coming back to; FJM referred to it in his second comment in the Retroactivity post. I’m talking about the judicial interpretation of common law (the common law being judge-made law, as it existed when people still believed in natural law principles). What does the average Joe think about what we call the “common law”? Does he think of it as the Law (capital “L”), or is it merely law (lowercase “L”)?
If I assume that common law = Law, and then somebody tells me that, actually, common law = law, do I lose all faith in this institution? I can tell you one thing, I probably won’t start rioting. But what I might do is try to find some other way of justifying the law. I.e., I’ll try to find a new foundation on which to base the law. That new foundation might consist of any one of a number of justifications: the law is based on our shared moral tradition, the law is based on a set of mutually-agreed-upon rules that help to structure society and social interactions, etc. So the law isn’t as high and mighty as I thought it was, but that’s OK, because it was created to give structure and authority to society, and that’s a good enough reason to abide by the law.
Now, from a layperson’s perspective, that’s all well and good, but here’s something that I’ve been wondering: Regardless of what laypersons think about the law (or Law), does it matter what we, as members of the legal profession, think about the law/Law? After all, we’re the ones who perpetuate these popular conceptions about the law. We do the research, accept the presuppositions, write the briefs, make the arguments, persuade the judges….
Just how complicit are we in talking out of both sides of the mouth? To the outside world, we represent that we believe in Law, but to ourselves, we only believe in law. Is this such a heinous crime? Or are we making a mountain out of a molehill? I’m willing to bet that it’s the latter.
I’d be interested to know what you and others think about this issue, as it pertains solely to lawyers and the like.
CMC // 27 November 2006 at 11:01 am
I just wanted to add one thing to my comment:
Regarding the issue of common law and statutory law: If we already assume that statutory law is just an act of political gambling, done for the purpose of providing social order, it’s not too great a leap (I don’t think) to make the additional assumption that common law serves the same purpose.
Maybe, at one time, our theory of natural law served as a suitable justification for judicial law-making. Now, however, since we don’t really believe that law is “discovered,” or that nature/god has provided us with the divine gift of reason in order that we may “intuit” the law, natural law doesn’t serve as a sufficient justification anymore. So, we find a new justification for judicial law-making.
If you look at civil law societies (where most of the law is codified, rather than encapsulated in judicial opinions), they appear to be able to function quite well, despite the fact that they don’t rely on natural law theories to justify their reliance on the law. What’s their justification? Social order probably plays a large part. Codified law is based on widely-shared values; judges interpret those codes accordingly. The same practice attends common law decision-making, too: Judges must divine commonly-shared values held by the public, which values are based on our popular notions of morality and justice.
I think part of the problem that we have is that some of these justifications appear superficial. If, instead of saying that “X is the law because morality/justice demands it,” judges simply said, “X is the law because the public expects society to function as such,” then at the very least, we could feel reassured that judges are being honest with us about their reasons for their decisions. As it is, though, all of us – lawyers, judges, law students, academics – pander to tradition, and continue to cite to moral justifications, rather than practical ones.
Benjamin Nelson // 2 December 2006 at 12:43 pm
It seems to me that Josh and CMC are both very close to the complete answer with their comments, just in different senses.
CMC is sort of right, in the sense that the law — once properly understood as merely a nominal entity — *should* be just as awe-inspiring as any existing thing. Also, it is not necessarily the case that the threats and damages associated with the law would have lessened force upon a person, if that person were to have a revelation that the law is merely nominal (or “small-l law”, as CMC put it). For people are just as likely to take threats as seriously as “real things”.
Josh is correct, though, in the sense that there is a tangible connection between threats and reality. People tend to see the things that threaten them as representing real entities. Thus, if people understand that this nominal entity called “the law” is a threat to them, then they’ll treat it as if it were real. (For many people, ethics pollutes metaphysics — Josh Knobe and the X-Philosophers have done some recent research on that. And this effect is totally predictable, if we understand ontology in general as a partial product of faith.) But it’s not clear whether or not this connection cuts both ways. Ultimately it’s an empirical question of social psychology whether or not people would tend to downgrade their sense of awe after being confronted with the nominalistic revelation.
The question of whether or not it is right or good to present “Law” as “law” to others is, for me, quite clear. Noble lies are misinformation all the same; a democracy can only work if people are informed. If we believe in the rule of democratic law, then we must both think clearly about the nature of law, and also popularize the truth as far as possible. (There may be exceptions, because producing good consequences is the key concern to any ethical prescription. But as a rule, the above comment seems viable.)
Personally, I don’t see how there’s any excuse for legislation over commonlaw without surveying published public opinion. (Mere social surveys might help, but they can’t be the sole basis for commonlaw decisions. For if we just surveyed the private opinions of others, then we would be basing ad-hoc decisions upon unwritten law, and that isn’t a good practice so long as we value democracy, clear dissemination of laws, etc.)
Did I ever mention how I don’t like social contract theory? at Law & Society Blog // 2 December 2006 at 12:49 pm
[...] [I wrote the following as a reply to this post. I’ve decided to put it here, since it was a bit far from the topic at hand.] [...]
CMC // 4 December 2006 at 6:17 am
Ben,
Thanks for your comment. You bring up a number of good points, to which I’d like to try and respond.
I don’t know that it’s necessary that the law be inspiring per se, but rather, that we at least be able to attribute to it some rational purpose. Pre-Holmes, we might have said that “X is the law because reason and rationality have led us to this conclusion” (a natural law approach). But post-Holmes, if we don’t subscribe to natural law theories anymore, we need to find some other way of explaining what the law is and why we adhere to it. I think the point that I really wanted to draw out was that even if “the masses” discover that the law is not “The Law,” people will still find some other way to justify their adherence to this accumulation of social rules; humans are very adaptable creatures. I don’t foresee a collapse in the legal system.
Of course, as you’ve suggested, I make this assertion based on pure assumption; I don’t *really* know what the average person thinks about the law. This is a topic that actually came up at our last meeting. Unfortunately, I missed out on part of the discussion; perhaps other LPS members would be able to discuss that conversation more thoroughly (I’m referring to the conversation about how people view the law, their attorneys, etc.). But regarding experimental philosophy, I think you make a good point that until we canvas laypersons about their conceptions of the law, we can’t conjecture, with any certainty, as to how they might react to a paradigm shift in what we call the law.
Finally, regarding your last comment, perhaps you can explain what you mean in making the distinction between legislation and the common law. Do you mean to say that the common law cannot be based on shared public opinion, because we don’t know what that public opinion is (and there’s no reliable proof that judges base their decisions on public opinion)?
If that’s your argument, I’m not sure that I would completely agree, but I think I understand your point. For neither the common law nor legislation is based *entirely* on public opinion (or shared public values). In fact, of the two, I’d say that legislation shares a more common tie with public opinion than does common law, for a few reasons:
-Judges tend to be less attuned to public opinion (a debatable, but not illegitimate, argument);
-Legislators have every incentive to enact laws which closely reflect the interests/values of their constituents; and
-Because courts are reluctant to overturn precedent, the common law is slow to respond to current events. Consequently, courts might not be “up-to-speed” on the latest public sentiments (which may be desireable, depending on your outlook. Do we want a reactionary court system? Or is it enough to already have a knee-jerk reactive legislature? But I digress…).
That being said, though, I think that as social beings, we’re all generally aware of what the public sentiment of the day is. So, when a judge makes a decision, he’s basing it on precedent, but he’s also taking into consideration how precedence (the law) comports with modern ideals. The law (whatever that may be) is adaptable to our changing needs as a society.
Not to throw another idea into the mix, but consider the interesting modern development in the law in the use of ballot initiatives (”direct democracy,” if you will). A number of states allow voters to draft and/or vote on proposed initiatives and referenda. One would think that this type of popular law-making would surely indicate what the public sentiment is, right? After all, the people who draft and/or cast direct votes on the law are laypersons; if any law is to be based on public opinion, it’s this type of law.
But here’s where things get messy (and lawyers become defensive/self-righteous about their “profession”): How do we know that laypersons truly understand all of the legal and social implications of the initiatives that they vote on? This discussion could take any number of wild turns from here, hermeneutics being one of several tangents we could follow. In the interests of keeping it simple, though, I’ll just say this about ballot initiatives: They do appear to reflect the social values of the “masses,” and I personally believe that this type of law-making is the most accurate so far as it acts as a barometer of public opinion. However, we still don’t know for certain that each voter who voted in favor of the law understood it the same way. Who’s to say, then, that even with this mode of law-making, we are accurately gauging public opinion? Unless we survey each individual voter, can we ever be completely sure that the law is based on one common set of values? This, like our belief in “the law” itself, probably requires a bit of faith (not the religious kind, mind you).
Benjamin Nelson // 4 December 2006 at 7:03 pm
CMC,
Yeah, I’m ultimately agnostic, and think the “dethroning of law” would make a fascinating research topic for the experimental philosophers.
Regard common law: it’s not my intent to suggest that common law *cannot* be based upon public opinion. Rather, I just think that common law ought to be based on more than the gut intuition of a judge about what the public thinks and feels. Everyone uses the rhetoric of “I think ordinary people think that…” and “Most folks would say” or “It’s common sense that…”, but it’s a rare and serious person who pauses and asks, “What do people really think, and how do I know?”. This is just to say that some kind of empirical/sociological research is needed for serious legislative issues.
I’m not being harsh, I don’t think. I would say the same thing about myself, or about anyone — citizen, judge, philosopher, lawyer, or legislator. I mean, what do I know about how my neighbor feels about, I don’t know, abortion (say)? Or about what my city feels? Or my nation? At best, short of a survey of popular media, I might get familiar with certain patterns of behavior that I run into in my everyday life, and that’s fine so long as we’re just talking about people in my everyday life. But that may or may not generalize to a greater society. Perhaps my social circles are closed, and this gives me a slanted view of what is normal and what isn’t; or perhaps my informal reasonings are defective; or perhaps I’m one of those people who delude themselves into thinking that everyone believes whatever I believe, because it’s just easier to live life that way.
Also, I think that mere opinion surveys (phrased as in, “Should x be legal?”, etc.) would miss the mark as well, because asking people about their private opinions is not a legitimate basis for making a decision over commonlaw. I say this because all laws ought to be public, transparent, and published. All other things equal, if it turns out that everyone privately thinks that it should be illegal to grow turnips, but none of them are willing to themselves engage in the socialization work, reprimanding, etc. that goes along with the enforcement of a norm, then we simply must dismiss the popular opinion as being, not a commonlaw, but a fad, and (at best) an unwritten law. And as you mentioned, the institutional reluctance to overturn precedent would eliminate legalization of fads. The two factors (”survey published data only” & “stick to precedent”) together seem ultimately the best guard against unwritten law, and in favor of full publicity of law.
But in all instances, justifiable authority is through merit, not mere trust. That’s why I take a kind of skeptical attitude toward judicial opinion of commonlaw. However, for the same reason, I would also dispute your comment that “legislators have every incentive to enact laws which closely reflect the interests/values of their constituents”. Legislators have some incentives, true; but they also have counter-incentives, from lobbyists for instance. It would be more true to say that freshman legislators have great incentives to enact laws which both reflect the values and capture the attention of the voting bloc of their constituency. Elder statesmen usually just get the benefit of the doubt from an easily bored public, as evidenced by sky-high retention rates for incumbants; values-voting doesn’t matter when your constituency isn’t paying attention to the issue (or its significance is either unintelligible or uncommunicated to them); other political pressures, i.e., from your party whip or from lobbyists, give legislators reason to sway; and, as a rule, no politician can be expected to care about the non-voting bloc of their constituency, simply because the apathetic have zero political capital in a democracy.
Anyway, we might have faith in the basis for our epistemic and ethical standards, but that doesn’t give us the freedom to fly by faith in direct worldly judgments.
CMC // 11 December 2006 at 2:51 pm
Ben,
My apologies for the delayed response; I’ve been studying for (and taking) exams – thrilling! – so my response time here is a bit slower than usual.
If you don’t mind, I’m going to write a response to your comment in a post. I tried to draft a succinct comment in reply, but it ended up being rather long because there are a few issues that I want to incorporate that you hadn’t specifically brought up, but which I feel are still pertinent to this discussion.
I’ll provide a link from that post to this one so that readers can follow the chronology.
Benjamin Nelson // 15 December 2006 at 2:01 pm
CMC,
No prob. Exams come first. Looking forward to your thoughts.
CMC // 24 December 2006 at 7:38 pm
Ben (et al.),
My apologies for the inexcusably-delayed response. I have finally (finally!) posted a response as a full post. I am grateful for your patience.
One of these days, I will learn how to write well enough to write concisely. Until then, I hope you’ll forgive me for having spilled so much ink on this topic.
I look forward to any future discussion anyone might have to offer on this or other subjects.
Henry Ward // 25 February 2008 at 1:52 pm
Question: I understand that Public Law no longer exists but that it was replaced in the 1930’s by Public Policy! Is that fictional or am I delusional and if this was the case about Public Law being replaced by Public Policy, when did this occur? Thank you..
freak out // 5 February 2009 at 4:52 pm
you are a wierd man and i know where you live