Law & Philosophy Society

Law and Philosophy Society Discussion Meeting Summary October 4, 2007

dstringer — Fri, 19 Oct 2007 15:57:03 +0000

Mootz overview of the “crash course” materials

· Highlighted the major approaches and areas of study in the philosophy of law.

· Recommended referring back to the materials for more in depth information.

· Suggested an area that the materials do not cover: continental philosophy prevalent in European tradition that differs from the Anglo-American tradition.

o Continental philosophy, sometimes called analytic philosophy, often rejects the science-based approach to philosophy and relies more on concepts that affect the human experience.

§ Ex: Kant, Nietzsche

Key questions addressed on Philosopher’s Brief:

· What is the role of the philosopher according to the brief?

o Denies asking court for moral rulings but to advocate justice through fundamental principles of liberty such as the inherent right of humans to decide the circumstances of their own death without government interference.

§ Isn’t the very assertion of this right a moral claim?

· Can any society ever have a set of laws that are completely divorced from morality?

o Perhaps only if completely obeyed and never criticized or changed based on moral claims?

Suggestions for future meeting topics:

· The connection, or lack thereof, between legal rules and justice

o What happens when the law doesn’t represent a person or society’s idea of justice?

· The nature of judicial decisions in the common law system

o On what do judges rely when making decisions, and do they make law based on morality or make morality by creating law?

· The nature of humans as moral or amoral beings

o Which are we, and how does/should that nature affect legal systems?

Suggested texts for discussion:

· C.S. Lewis

· The Merchant of Venice

· Judgment at Nuremburg

Public opinion as a basis of the law?

CMC — Sun, 24 Dec 2006 23:51:34 +0000

This post represents my small attempt to address some of the many issues raised in the comments to the post entitled “Does ‘The Law’ Exist?” Please feel free to contribute your thoughts in the comments section below.

I begin with two basic presumptions:

· We no longer ground our perceptions of the law in natural law theories (i.e., there is no “The Law”); and

· If we no longer believe in natural law (and therefore, “The Law”), our conception of the law must be based on something else.

Before we get into what this “something else” might be, I want to quickly address one of the reasons why it is important that we know what the law is based on.

Unwritten vs. written law:

We expect the laws to be written so that we are “on notice” as to what our respective rights and obligations are. (But contrast our written law system with that of the UK, and even early American common law, where judicial opinions went unwritten, for want of necessity and/or resources.)

Technically speaking, common law and statutory law are written: Common law, in judicial opinions; statutory law, in the codebooks (as well as in judicial opinions). However, the law cannot be drawn so narrowly to apply to every conceivable factual scenario. For that reason, much of the law is necessarily broad, and we leave it up to judges to apply the law to specific facts. Because we don’t know how a judge will decide a particular case, this gives the law some element of uncertainty.

Whatever uncertainty we ascribe to the law may be due, at least in part, to the practice of judicial interpretation (here I bracket the separate issue of juries and unwritten law, which involves even more tenuousness than where judges are concerned). It seems to me that judicial interpretation lies at the heart of this problem of unwritten law, for how are we to know on what bases a judge has interpreted the law? Is she appealing to her personal moral values? Community values? Economics? Religion? Astrology? The voices in her head? Tea leaves? You get the picture.

The elusive “something else”:

So what is this “something else” on which the law is based? I would say judges ultimately base their decisions on our shared values, and not, say, oracle bones. If we can agree that the purpose of the law (a purpose, anyway) is to maintain order in our relations with one another, we can also agree that the law must be based upon standards on which we all agree. What society deems to be reasonable and acceptable, and therefore permissible, constitutes our shared values.

Would a judge issue an opinion that stands largely at odds with what the rest of society deems acceptable? Highly unlikely. There are many reasons for this, but some of the most basic reasons are as follows:

Judges (at least those of lower courts) will be held accountable for their decisions by higher courts. No (sensible) judge wants to be told that he was wrong. His opinion, therefore, will be based – as much as is possible – on precedent, which represents our shared values. Precedent is only overturned when our values have shifted; even then, it is really only higher courts that change precedent. We notice a shift in values through common indicators of social change, such as when issues gain public recognition, the media gives attention to the issue, momentum builds, politicians are urged to support one side or another, and sister courts begin to alter their holdings, among other indicators. The resultant changes in the law reflect changes in culture and society;
Even the U.S. Supreme Court, which is the “highest court in the land,” and whose decisions are not subject to review by any higher judicial body, is still concerned with meeting some minimal level of social acceptability. As we are commonly reminded (in law school, anyway), SCOTUS decisions set the legal floor (and state courts set the ceiling). The SCOTUS must consider what legal standard would be acceptable to all fifty state jurisdictions (and territories);
Finally, judges (and citizens, and lawyers (for the most part, unless it is in their clients’ interests to the contrary)) want the law to remain stable and predictable. Constantly revising the law does nothing to accomplish this end; upholding precedent (which, again, represents socially-acceptable standards) does.

But just because we would like the law to complement our shared values does not mean that it always does. (See, e.g., the debate between the government and the public over what constitutes torture under law.) Some judges (and I would say, to a larger extent, our legislators) are able to get away with creating legal standards that are out-of-line with what most Americans would deem acceptable.

This is an unfortunate tragedy in our legal system; what is fortunate, however, is that we have in place several corrective measures that may be invoked to set right these divergent legal standards (e.g., appealing lower-court decisions to higher courts, seeking review by the SCOTUS, seeking corrective measures through legislation or ballot initiatives, etc.). For the most part, though – and forgive my idealism, as the world has so far failed to jade me – our judges can and do render opinions that are widely accepted, and any incongruent legal opinions are eventually set straight.

So how do we measure these social values?

Surveying public opinion:

If it is true that judges do base their opinions, at least in part, on shared values, then do we have some way of measuring what those values are? It is difficult to conjecture what people truly think without actually testing our hypotheses. However, the remedy suggested by Ben – surveying public opinion – could become rather costly, in terms of both time and money (among other things). Imagine if we had to survey public opinion for every area of the law (or, heaven forbid, every case!).

Even if we were to measure public sentiment regarding only the *most important* issues, 1) how do we decide which issues are of greatest import?, 2) who makes that decision?, and 3) to what extent do we survey the public (i.e., how large a sampling, will this sampling be surveyed multiple times to ensure consistency, etc.)? Questions of research design aside, and practically speaking, I think something like this would inevitably forestall the enactment of any important legislation (although it certainly would prove a boon to Zogby and other pollsters).

Unfortunately, I have no solution to offer. How do we gauge public opinion and public values? My only response would be that I don’t think our shared values are so vascillating that we can’t gauge them with a fair amount of accuracy. I already listed a number of ways in which to gauge public sentiment above. Should we require that judges undertake to conduct an even more extensive analysis of the Public Opinion of The Moment? I don’t think so.

Legislators and public opinion/values:
(Going off-topic just a bit…) I admit, you caught me red-handed in paying lip service to politicians. (But compare my first comment to this post.) You’re right that politicians are motivated by concerns additional to simply pleasing their constituents (lobbyists being quite a festering sore on the American political institution).

However, I wouldn’t completely disregard the effects that a dissatisfied constituency can have on a politician’s tenure. See, e.g., U.S. Senate Election 2006 (wherein no incumbent Democrat was voted out of office, but six Republican incumbents were defeated by Democrat challengers). The phenomenon of incumbency advantage isn’t necessarily due to a politically-unaware constituency.

Consider other potential causes for tenured incumbents: The incumbent enjoys greater name-recognition than challengers; she belongs to the “right” political party; she has more political capital by virtue of having served in office for so long; she has more financing available to her; and, she simply has more experience in office (which appeals to her politically-aware constituency). To assume that incumbents stay in office solely on account of a disinterested public would be a failure of imagination. Determining the precise breakdown of politicians’ incentives in appeasing public sentiment versus special interest/lobby groups, however, may require additional study, rather than mere speculation.

In any event, I don’t think we can completely disregard the fact that politicians are held accountable by voters. That being said, I still maintain that legislators would be ill-advised to pass laws that fail to conform with their constituents’ ideology.

Upcoming Philosophy Symposia

CMC — Mon, 04 Dec 2006 12:57:51 +0000

Winter break is fast-approaching (!!!), so I thought I’d publicize information about a few upcoming symposia and conferences, in case you want to play philosopher over the break. Please check the websites to make sure that the events are open to the public.

If you come across any other events that you’d like to see added to the list, feel free to e-mail me (cmc426@psu.edu), or post them in the comments section.

Thursday, December 7
Harvard University (MA)
ELIZABETH KISS
“Righting Wrongs: The Promise and Peril of Transitional Justice”
Edmond J. Safra Foundation Center for Ethics Public Lecture Series

Thursday, December 7
Clark University (MA)
Matt Evans (NYU)
“Plato’s Anti-Hedonism”
commentary by Verity Harte (Yale)

Thursday, December 7
Yale University (CT)
Dan Garber
LEIBNIZ ON CAUSATION
4 PM, 104 Connecticut Hall
Sponsored by the Society for Early Modern Philosophy at Yale

Friday, January 12, 2007
University of Pittsburgh (PA)
Tom Ricketts (University of Pittsburgh)
“From Tolerance to Reciprocal Containment“
Location TBA, 3:30 p.m.

Thursday, January 18, 2007
UC Berkeley (CA)
Daryl Levinson (Harvard Law School)
“Personified Government and Constitutional Morality”
GALA Seminar
Faculty Lounge, 336 Boalt Hall — 4 pm

Wednesday, January 24, 2007
Boston University (MA)
JEFFREY MEHLMAN
“Feeling Good Being Bad: French Perspectives on the Nature of Evil”
Institute for Philosophy and Religion

Thursday, January 25, 2007
Yale University (CT)
Kenneth Winkler
TOPIC TO BE ANNOUNCED
4 PM, 104 Connecticut Hall
Sponsored by the Society for Early Modern Philosophy at Yale

Thursday, February 8, 2007
UC Berkeley (CA)
Amy M. Adler (New York University Law School)
“Against Moral Rights (In the Visual Arts)”
GALA Seminar
Faculty Lounge, 336 Boalt Hall — 4 pm

Thursday, February 8, 2007
Yale University (CT)
Martha Bolton
TOPIC TO BE ANNOUNCED
4 PM, 104 Connecticut Hall
Sponsored by the Society for Early Modern Philosophy at Yale

Does “the Law” Exist?

CMC — Sun, 26 Nov 2006 06:36:53 +0000

[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

retroactivity

joshbarns — Fri, 10 Nov 2006 20:41:34 +0000

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

Just Words?

CMC — Fri, 03 Nov 2006 05:44:31 +0000

In Steven Smith’s first chapter of Law’s Quandary, entitled “Just Words?,” he asks, rather pointedly, what is “the law”? To expound this question further, we could ask whether our talk about the law matches our ontological perception of the law. Put more loquaciously, we talk the talk, but can we walk the walk? (Ontology, which might also be loosely called metaphysics, is the study of being and existence. We use language to describe what “exists.” When we speak of objects or concepts, we presume that they actually exist.) So, for lawyers, the question becomes, is our talk of the law “just words,” or does the law truly exist? Do we really believe in the law, or do we just pretend that we do? These questions served as the launching point for LPS’s discussion on Thursday, October 26th.

The language employed in legal discourse is dynamic; we can persuade judges to accept one of a number of competing views by using compelling, logically-structured legal arguments. What is particularly confounding, so far as law and ontology are concerned, is that the language of the law may be manipulated so as to result in conflicting judicial opinions. As Smith puts it, “[t]here is (or isn’t) a right to abortion. The law does (or doesn’t) give a remedy for the infliction of emotional distress.” (p. 19). In the spirit of ontological exploration, then, we ask, does the law exist? If not, why do we still act as though it does? Is legal discourse nothing but nonsensical talk, or is there substance to what we call “the law”? In Smith’s own words, “can we actually give an account connecting that discourse to reality–that is, to our ontological catalogues that set forth what we believe to be real?” (p. 19).

Supposing that it is true — that we give lip service to what we call “the law,” but don’t actually believe in it — Smith posits that all is not lost. We may not be able to give an account of what the law is, but perhaps we believe in it on at least a fundamental level. If nothing else, we should acknowledge the disconnect between belief and reality, and ‘fess up to our ontological charades.

LPS members examined the questions raised in chapters one and two of Law’s Quandary, and expanded upon those preliminary questions by tying into the discussion their own experiences and perceptions about law and ontology.

A brief overview of the discussion follows after the “jump” (click on the link to continue reading).

Oliver Wendell Holmes once observed that “[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified…” (Southern Pacific Co. v. Jensen (1917)). He predicted that we would one day reach the point where our words and reality could harmoniously co-exist. As Holmes pointed out in 1897, in The Path of the Law:

We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years . . . Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. . . . It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. . . . a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.

His suggestion is that we move beyond the historical bases of law, and ask ourselves what are the ends of law. In doing so, we will form a more honest construction of what the law is, or ought to be.

In practice, we treat the law as though its foundations rest upon an indestructible bedrock of truth, or moral imperative. If this is true, how do we explain 150-page court opinions? If the law is a discoverable principle, why do we need to cut down a tree to provide textual justification for the judicial outcome?

We might consider drawing a comparison between the law and religion, to wit: “Law” is our “God,” and judges, our priests. To continue with this analogy, if the Ten Commandments are accepted as the word of God, without the need for further justification, why can we not also accept the Law for what it is? In other words, if we truly believed in “the law,” we would not require 150 pages of justification and legal reasoning to support the court’s opinion; we would take it as the truth.

However, the fact that we expect judicial opinions to be supported by precedent indicates that perhaps we don’t truly believe in the law. Perhaps legal reasoning provides a comforting reassurance that we can accept the court’s opinion as the law (even if we don’t really believe in the law). But this begs the question: If we don’t believe in the law, why don’t we admit to it? What purpose is served by pretending to believe in something that isn’t there?

Our reliance on precedence raises another question: If “Law” exists, why do we need precedents? We ought to be able to appeal directly to the law, rather than to other cases. Indeed, in the English legal system, judges interpret the law, which is codified. In contrast, we have only recently begun to codify our laws (that is, “recently” relative to civil law countries). Comparative law gives us a unique view into how we approach what we call “the law,” and what kind of meaning we give to it. If different countries adopt different laws as to the same issue, which country is correct? Does this undermine what we call “law”?

Our varied approaches to the law indicate that perhaps law is nothing more than a moral code that we have established for ourselves, based upon objective moral principles, customary practices, history, and societal expectations. Law is a reflection of “patterns of everyday life,” as one LPS member put it. Because the law is/might be based on patterns of everyday life, we might also say that the law is like the Euphrates — an ever-changing river (as another member suggested).

Just as Holmes pointed out in 1897, we have been engaged in the development of the law for nearly 1,000 years. Although we have not yet “discovered” the law, it may be that the law really is nothing more than a process of discovery. If this is true, Smith would suggest that we ought to call it for what it is.

Please feel free to share your comments, questions, and ideas in the comments section.

Colleen