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It is an exploration of the possibility of teaching law as a form of political action. Teachers should develop first year courses into systematic embodiments of their views about the present and future organization of social life. There are two different lines of objection to the proposal green and the blue critique Green critique arguments: o First year law students are committed to career patterns and lifestyles that are incompatible to any form of genuine leftism; therefore it is hard to look for converts. o Even if the students were not committed to the status quo, activism implies an engagement with the mass strata of the population capable of action that would transform the system. The target should then be a mass stratum and deprived. o To focus on law students is double betrayal as they could not change the political system and no benefits that accrue to them from political action could be deserved. o The moral qualities of the activist are simply incompatible with the nature of university teaching. Blue critique arguments: o There is no subscription to any single system. No subscription to absolutes. o It is hard to teach from scratch. o The students may not believe anyway. o Developing ways to convert students the teacher’s political ideology may not be consistent with the idea of a university. o There is no prestige (open acceptance to speaker’s ideas) Green critique claims to be too easy and an abdication of responsibility, while the blue critique, impossibly difficult and even dangerous. Actions taken by teachers do not necessarily mean desired and foreseeable results Law profession paves way to radically change the system and overturn corruption and unjust hierarchy Steps in actualizing commitment: o List alternatives in trying to create an intense form of political education. It is not true that the only meaningful opposition is underground o Abandoning grandiosity / Admitting to oneself that there our politics is theoretically impoverished. There is no grandiosity in creating an opposition. – Not expecting big reforms right away Response to the Blue Critique:
o There is something to teach: the critique of liberal, bourgeois legalism of considerable systematic quality o Creating materials is difficult since the mass of private law rules defines the capitalist system, and all of such may be used against it. o Since the critique of liberalism holds the key in ripping off the system, it can be turned into the something of crucial interest. o The critique of liberal legalism is true, and to suppress it is immoral, violation of the teacher’s responsibility to his students o No one is going to purge someone with tenure who espouses this line with an intelligent sense of it limitations. There is impotence as it is afflicted with partiality and obscurity, it is difficult to distinguish from all other forms of liberalism, and it lacks the systematic character of the critique of liberalism. o There is a lacking of the intellectual and political force to control the minds of the young. Response to Green critique o Students may be informed of the leftist way of thinking about law – don’t undermine teacher’s impact on students. Teaching them to analyze and be critical of legal doctrines that they accept; if its explicit and realistic o Complacent centrism of the students may be challenged, by reducing their political self confidence by training them to analyze legal doctrine in a way that is simultaneously correct with, useful to them, and delegitimating of the established order. First year teaching is a way to confront the students with the partial and confusing quality of the radical critique of bourgeois legalism. Isolation is a fundamental condition of intellectual existence. Denial is not the answer
HOW THE LAW SCHOOL FAILS: A POLEMIC By Dunkan Kennedy
The teachers Students have a general perception of hostility from their professors. They feel that the Socratic method is an assault. This is often concluded to be a yearning on the part of the professors to hurt the students. However, Duncan says that a professor who lectures gets across as effectively as the professor who uses the Socratic method. Most professors are unaware of the effect of their behavior towards their students. The professors act differently inside and outside the classroom; however, very few students, generally those academically successful, get to encounter the consolation in knowing the professor outside class.
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It is asserted that the professors treat each other with the same straightforwardness as they treat their student. Then again, the professor makes distinctions in the way they deal with their students, some with more hostility than others. It is also crucial for the professor, knowing that he has the power to affect the lives of students, to be aware of the meaning of his conduct in the eyes of another. The faculty’s hostility due to a change in the way the students are over time. They believe that there is an epidemic of radical student criticism of the law school and dark rumors of student rebellion. Some professors feel that they need to be tough in order to control their classes in order to restrain the students from disintegrating the discussion into irrelevance. His grim conclusion: The element of terrorism in teaching law seems to be “psychologically good” for the teacher. The students Law students are more aggressive than students in other professional disciplines due to their past academic successes or their prestige at other institutions. Two student types: The one who wants to become a lawyer: He is likely to have been successful at academic competition but he has not developed an overwhelmingly aggressive manner. He is initially eager to learn and more ready to contribute. However, he is uncertain of himself compared to the brilliant student body. This type fairly goes to class and does solid minimum of studying. He eventually loses seriousness and adopts indifference to the law school and the law. In the future, he would claim that law school teaches nothing of what is of any use in the real world. The first cost to the individual is that he is brainwashed in law school, as his head is filled with notions he barely understands. The second is that he is driven into passivity and cynicism. The one who is the in the top of the class: He is a success, which justifies whatever unpleasantness there is in law school. This kind of student operates through distinctively publicly and privately. His public life is more controlled and aggressive, often more dishonest, and less emotionally satisfying, while his private life is invested with vast quantities of intense feeling and sentimentality, idealism and protectiveness. This kind compartmentalizes because he believes that the law is cold and inhuman. His cost is that such division of life lead to the deformations in both areas. The changing “intellectual response” at Law School The problem is not that students do not know if they want to be lawyers, rather they’re not sure of what kind of people they want to become.
Radicalism and Apathy Radicals in law school are generally activists. They identify themselves in terms of their commitment to political and institutional change. They generally denounce competition and they obsess with the problems of “selling out”. Unlike the radicals, Kennedy believes that neither the distribution of power nor the content and organization of study at the law school is relevant in giving the law school its peculiar atmosphere. However, he says that the fact that radicals have had the courage to question the law school has been of great benefit as they have demonstrated that deficiencies of the institution need not be accepted. The danger for the radicals lies on their fixation on the “system”. On the other hand, it can be said that they are aware of a fundamental problem and committed to using all of their faculties to solve it the best they can. Academic and Professional Values 2 objections in desiring change in law school: the capacity to turn out highly successful professionals must not be endangered and that the current organization of the school maximizes the intellectual quality of the work done there. Improving lawyerly virtues of the student is met by the claim that academic standards are all important. The Professional Model Professional success, in the view of the protector of the status quo, is giving ones life to maintaining the efficiency and stability of a corrupt social order. For Kennedy, it is that the power to be exercised is used to improve the human quality of society. There are two kinds of success: the contribution of Yale to top policy formulation and the practitioners who contribute to the community through legal and business skills. Kennedy: the law school is justified in emphasizing professional success only to the extent that the success is beneficial to the community. The Academic Model What is absent from the law school is the feeling of intellectual tension from the confrontation of ideas in the process of growth. There is a need for the feeling of existence of problems unexplored not because no one has bothered to think about them but because the light of a new theory has only recently been turned on them. Contrary to the academic model argument, teachers virtually never treat their students as their exact intellectual equals in class. However, it a far more important objective to see to it that within their respective roles, students and teachers treat each other differently. Conclusion
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“If there is revolution in the air, it is not primarily institutional, but psychic territory which is at stake, or the whole thing is a waste of time”
acceptability are to be viewed as extra-legal considerations or values that are themselves part of the law) 2. Langdellian formalism aspired that the legal system be made complete through universal formality, and universally formal through conceptual order. A few basic top-level categories and principles formed a conceptually ordered system above a large number of bottom-level rules. Rules, ideally, hold estavlished precedents, upon which analysis could be seen to be derived from those principles. *Doubly formal system: 1st, specific rules were framed in such terms that decisions followed from them uncontroversially when they were applied to readily ascertainable facts (sought objective tests and avoided vague standards); 2nd at the next level up one could derive the rules themselves analytically from the principles. * Example: the mailbox rule, (using top-level principles) that a contract cannot be formed until there is bargained-forconsideration, which is either promise or performance (definition). In a bilateral contract case, there is no performance, and the only promise contained is contained in the offeree's acceptance (definition). But a promise requires communication of its content to its promise (analytical truth). And when the promise is by letter, the content is not communicated until the letter is received and read. Therefore, the contract is not formed until the letter is received and read. (If bottom-level principles were to be used,that the acceptance letter had to be received, read and understood, the requirement of rule-formality would not be met). *Crucial to completeness of a system that it be conceptually ordered and fundamental principles and constitutive concepts be sufficiently abstract to cover a whole range of possible cases. Bottom-level rules, which are specific, could not be available in advance to deal with all new fact situations; if the law were only a collection of specific rules it would not be complete. (Centrum ad ba ito?) *The law considers a mass of haphazardly arranged cases: a "chaos with a full index." Langdell: "Law, considered as a science, consists of certain principles or doctrines. To have such mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer..." *Omitted factor: role of acceptability in classical orthodox system. Examination of Langdell's work shows that he did not hold the view that substantial justice and interests of parties in the cases were irrelevant to the validity of the mailbox rule. Throughout his work, Langdell appealed to considerations of justice or policy. "The law adopts fictions only to promote justice, i.e., in order to prevent some injustice..."ALthough not the bulk large in the Langdellian
LANGDELL’S ORTHODOXY By Thomas Gray
Classical orthodoxy - set of ideas to be put to work from the inside by those operating institutions, not a set of ideas about those institutions reflecting an outside perspective - ideal inside theory -> would contain an accurate account of legal institutions, a method for operating them, a creed for legal professionals, and a justification of the institutions for the outsiders 1. Five criteria for analyzing legal systems A. Comprehensiveness = degree to which judges must decide all cases within their jurisdictions, comprehensive if the system provides an institutional mechanism for the unique resolution of every case B. Completeness = degree to which rules preordain a "right answer" to all possible legal questions, when its substantive norms provide a uniquely correct solution, incomplete when containing substantive gaps or inconsistencies between overlapping norms C. Formality = degree to which outcomes are determined by transparent reasoning process, formal when its outcomes are dictated by demonstrative, rationally compelling, reasons, (not a necessary reason for completeness, there is a right answer for every case, but no demonstrative reasoning to hard cases) D. Conceptual order = degree to which bottom-level rules can be traced back to relatively small number of abstract principles, which form a coherent system, one can distinguish categories that demarcate bodies of law (e.g. tort, contract, crime) from operative concepts used in principles, from which decisive rules are derived (e.g. consideration, proximate cause, malice) * completeness, formality, and conceptual order <-- values of legality which allow us to give a clear meaning to vague terms used in debates about legal theory * formalism - describes legal theories that stress the importance of rationally uncontroversial reasoning in legal decisions * conceptualism - describes legal theories that place a high value on creation or discovery of a few fundamental principles or concepts at the heart of the system E. Acceptability = normative attractiveness, fulfills the ideals and desires of those under its jurisdiction, fulfill extra-legal values (debate: WON values encompassed in
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corpus, he clearly regarded the appeal to justice or convenience (acceptability) as legitimate in at least some circumstances. * Example: the flagpole hypothesis: (unilateral contract cases, where offeror promises something in exchange for performance by the offeree rather than for a return promise). Langdell argued that there was no consideration and hence could be no contract until the performance was actually completed. Like when A offers B one hundred dollars if he will touch the top of a flagpole; B then laboriously climbs the pole and just as he was about to touch the top, A shouts, "I revoke." On Langdellian doctrine, A owes B nothing. (**Considerations of justice and convenience were only relevant insofar as they were embodied in principles that were consistent with the other fundamental rules of the system. 3. Law as science. Langdell's theory is neither Benthamite nor deductive natural law but claims to be empirical yet its practice is highly conceptual. It delivers normative judgments yet proclaims the positivist autonomy of law from morals. *Analogy between law as science and Geometry - geometric ideal pervades literature of the whole rationalist movement to create exact sciences of ethics, politics, and law; Euclidean geometry is simply an uninterpreted formal system of terms and inference rules. Euclidid's axioms not mere human constructs but indubitable physical truths which can be proved by sequences of deductive steps. The arrangement of inductively derived generalizations into a deductive system vastly extends our use of resources of experience, by spreading long and difficult chains of deductive inference. When this structure is applied to law, it helps clarify the otherwise baffling talk of observation, experiment and the like that appeared in Langdellian literature. *The universe of data was not the totality of sense experience of the physical world, but rather the restricted set of reported common law decisions. "All materials of legal science were to be found in printed books." **Circularity - failure of analogy between legal science and geometry. Geometry eventually derives authority from general trust of direct experience from the senses while legal science's authority is from precedent which follows rules and principles, but in the classical conception of legal science, these rules and principles are themselves inductively derived. TWO RESPONSES: 1. ) "Confession and avoidance" ->Admit that legal science is circular, while natural science is itself circular. 2.) Break out of the circle by finding a source of validity for judicial decisions independent of the rules and principles. **Precedent - Stare decisis as an independent source of validity. Whether a judicially decision was substantively correct, and whether it was jurisdictionally and procedurally correct. Science
sets its own jurisdiction while a judge must decide a case over which he has jurisdiction, whether or not he is satisfied that his decision is scientifically correct. The common law doctrine of stare decisis gives a decided case authoritative force with respect to future decisions in other cases. It thus provides the outside source of validity for decided cases that was necessary to save classical science of law from the vicious circularity. In law, unlike science, error, if persisted in, at some point became truth; and where that point lay could only be determined according to considerations of acceptability that were never satisfactorily formalized. (A lie told a thousand times becomes the truth, unless our sense of justice refuses to accept it.) *Tension among principles of precedent and acceptability: Langdell "if they cannot be pronounced erroneous, they must at least be deemed anomalous." The geometric structure of law's universally formal conceptual order caught in the ever-tangled skein of human affairs. **Under formalism, progress occurred when a scholar discovered a previously unrecognized principle in the appellate opinions. Under geometric analogy, legal principles should be universal and eternal; history would be simply a record of their gradual discovery. Legal doctrine as a growth extending through centuries suggests an analogy between classical legal science and evolutionary biology - and a connection between classical legal science and the historical school of jurisprudence (whose central thesis was that a nation's law is necessarily rooted in the contingent and evolving traditions and customary practices of its people.) History provides the necessary raw material - the cases on which reason operated in extracting legal principles. *** Vehicle for legal change in classical theory was legislation, but this was viewed by classical writers as haphazard and anomalous incursions into the body of common law, not fit for scientific study. **The classical system could not in the end make too much of a virtue of its flexibility without undermining its promise of determinate geometric order. 4. The special appeal of classical orthodoxy was its promise of universal formality - "every cases an easy case." A predictable system that appealed to businessmen and ascendant groups which had special needs for legal predictability and drawn to the "rule of law" concept of freedom. The dry geometry of classical legal orthodoxy had a certain paradoxical quasi-religious appeal to the educated elite as it promised a complete and universally formal system of norms and so offered determinate answers in an increasingly incomprehensible world. Conceptual jurisprudence was revered when secular science and major universities replaced the prestige and spiritual value of the church. Classical science bridged the practice of law as a profession and the
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need of the new universities for an alliance with the rich influential bar. 5. Classical orthodoxy did fall from its position of explicit dominance because of : perceived political bias as Langdellian legal science reinforced the view of common law contract and property system as a "brooding omnipresence in the sky" rather than as a contingent allocation of power and resources; and it was not readily adapted to a period of rapid social change. *Critiques - The why considerations of acceptability should not be considered in formulating bottom-level rules and in deciding individual cases to do so would allow ad hoc practical judgement, which meant abandoning legal science (which meant abandoning certainty, predictability, and accountability generally). - Impossibility of the central classical project of formal conceptual ordering (to have relatively few and consistent principles) -Once disputes are settled in a procedurally final way, they are generally left alone by the law, even if later shown to have been decided incorrectly. (Same as the force of the principle of res judicate, which has no counterpart in science). -Unresolved jurisdictional conflicts - threats to comprehensiveness - within the legal system are perceived as serious crises. -The courts are primarily dispute-setlers rather than scientific authorities. Given this practical function, is it not natural to judge their work by the practical standard which is the standard of acceptability? The values of legality must be subject to the ultimate test of acceptability but it does not mean that this is to direct the courts to decide every dispute in the most acceptable way. The boldest claims of classical orthodoxy that the number of fundamental legal doctrines is much less than is commonly supposed were empirically undermined when toward the end of the '20s, the failure of the great classical Restatement project (wherein Langdell and his followers set out to realize the claim with impressive ability and energy in writing articles and organizing cases) became obvious. *Holmes, who himself valued both conceptual order and formality, insisted on the disjunction between them when he observed that "general principles do not decide concrete cases." The actual decisions of hard cases required drawing a line, arbitrarily, on a continuum between competing concepts. Judges could establish rules in such situations by observing the clustering of decided cases and then imposing artificially sharp boundaries around the fuzzy clusters formed. These rules, though arbitrarily, could provide useful predictability if imposed uniformly by judges in later cases. *Realists: - formality itself does not always produce predictability.
In many situations decisions would be both more predictable and more acceptable if the ruling norm were a vague standard that allowed judges or juries to apply their intuitive sense of fairness case-by-case, rather than a clear rule that was sporadically and covertly evaded. - The pursuit of generality principle leads legal scientists to miss altogether lines of doctrine that were acceptable and that could produce predictable results once recognized. Special case to the mailbox rule (when does a contract accepted by mail become effective? Langdell: when received and read): Courts were frequently holding certain contracts to have been formed before the acceptance was mailed. In cases involving life insurance policies, where applicants (offerors) submitted applications subject to approval by the central office of the company, and then died after the central office approved the application but before the signed policy (the acceptance) was mailed, courts often held that the policy had gone into effect and the benefits must be paid. -->Special rule for life insurance cases, not announce by the courts because it conflicted with the orthodox "established law." but based on a sensible biases toward compensating survivors and a feeling that no injustice was done once the insurer had decided to issue the policy. 6. Even in its fall classical orthodoxy achieved a secret triumph. In their pursuit of logical order Langdell and his colleagues had actually created a new conceptual structure that effectively replaced the older Blackstonian outline of the law in the discourse of the profession. The classical scientists drew a basic line between substantive law on the one hand and the procedure and remedies on the other, with the former treated as the primary and the latter merely instrumental. Within law they public law from private, treating private as the core and public law as the peripheral anomalous hybrid of law and politics. The roles of such schemes in elementary pedagogy and indexing legal materials seem relatively trivial but categorical schemes have a power that is greatest when it is least noticed. They channel the attention of those who use them, structuring experience into the focal and the peripheral. In so doing, they influence judgement as much as the agenda. 7. Post-classical critics sought to replace classical science of legal principles with a Benthamite policy science (remember legal empiricism) but it is striking how little progress has been made toward basing law on accurate measurement of desires. The main accomplishment on behalf of this policy seems to have been that in the recent years lawyers and judges have come to invoke the comforting metaphor of "balancing" when they discuss choices that involve the conflict of immeasurable values - the choices that less comforting
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modernist discourses call "political" or "existential." Apart from balancing, legal discourse largely retains its orthodox form. A movement in legal theory that has closer links to the dream of Benthamite policy science is the school of law and economics (Leader: Posner, critique: upon closer inspection it turns out to be neo-orthodox too). The neo-orthodoxies drawn from economics and moral philosophies resemble classical legal science in their capacity to promote structured puzzle-solving of a sometimes interesting kind. But in contrast to the classical theory, they dilute the autonomy of the law by shifting research outside the law library. Apart from their conceptual ordering of the law, the classical scientists' main achievement was to articulate better than have any other Anglo-American lawyers the curious second-best utopia that animates the legalist mind.
Degree of insistence on compliance with formalities (what exceptions are permitted?) Degree of absoluteness of the sanction of nullity for failure to comply (what remedies, if any, for a person who fails to comply?)
Note: What is common is a willingness of the formalist to sacrifice substantive justice (or `equity') in the particular case.
LEGAL FORMALISM By Duncan Kennedy
“Legal formalism” - Contested concept, rather than a well-established term with a clear meaning 1. Primitive formalism – the practice of deciding disputes through devices such as oracles and trial by battle, regarded as `irrational.' 2. Ancient Roman and medieval English system of `formulary justice' or `strict law' a. A claimant could get redress through the legal system only by fitting his case into a closed class of `actions.' b. No overarching principles were available to deal with cases that fell outside the class, but within generally held ideas of moral responsibility. 3. Modern law – movement beyond both primitive formalism and formulary justice, but had to find a way to preserve some of the virtues of the earlier systems Formalism as a Descriptive Category 1. “Formality” as a dimension along which we compare legal regimes as “more or less formal” a. Procedurally formalist – makes the success of a substantive legal claim depend on following procedural rules b. Transactionally formalist – requires specific formalities for transactions such as contracts or marriages c. Administratively formalist – surrounds the exercise of state power with procedural and transactional formalities. d. Rule formalism – general preference for rules over standards. Dimensions
Formalism as a range of techniques of legal interpretation - based on the meaning of norms, and - refusing reference to the norms' purposes, the general policies underlying the legal order, or the extrajuristic preferences of the interpreter. a. Textual interpretive formalism – decides by identifying a valid norm applicable to the case and then applying it by parsing the meanings of the words that compose it. b. Textual formalism – literalist to the extent that it refuses to vary meaning according to context, and originalist to the extent that it finds meaning only through the context at the time of enactment c. Conceptual interpretive formalism – `constructs' general principles thought necessary if the legal system is to be understood as coherent. It uses the principles to resolve uncertainty about the meaning of extant valid norms, and applies the principles according to their meaning to fill apparent gaps d. Precedential interpretive formalism – interprets according to the meaning of norms derived as the holdings of prior cases Note: Gaplessness requires the interpreter to apply in every case, according to their meanings, the legal norms he or she can derive textually, conceptually, or through precedent. Reference to purposes and policies are categorically forbidden
Formalism as theories that purport to derive particular rules of law, from a small group of internally consistent abstract principles and concepts (e.g., corrective justice, fault) understood as morally binding on legal actors
Formalism as a Critical Category
LEGAL METHOD - HILBAY
Mainstream – law as having a strong internal structural coherence based on the two traits of `individualism' and commitment to legal interpretive formalism. These traits combined in `the will theory.’ 2. Sociological jurists - advocated interpretation on the basis of `scientifically' established social desiderata, as well as or instead of according to meaning - version of Will Theory that the private law rules were well understood as a set of rational derivations from the notion that government should help individuals realize their wills, restrained only as necessary to permit others to do the same. - presupposed consensus in favor of the goal of individual selfrealization justified by a specific, will-based, and deductive interpretation of the interrelationship of the dozens or hundreds of relatively concrete norms of the extant national legal orders, and of the legislative and adjudicative institutions that generated and applied the norms - critiqued Mainstream Will Theory > individualist premises of the will theory in the name of `social law' > methodology widespread abuse of deduction, meaning that jurists habitually offered deductive justifications for interpretations that were in fact logically underdetermined falsely assumed the possibility of constructing the legal order in such a way that it would be gapless in fact, and therefore susceptible to exclusively meaning-based interpretation. 3. New Legal Theoretic Avant-Garde - including both the American legal realists and Kelsenian neopositivists on the Continent a. `policy analysis'- process of reconciling or balancing diverse legal desiderata on the basis of information about the social context; - critiqued as `social conceptualism' or `policy formalism,' because it selected policies arbitrarily, underestimated the conflicts among them, and offered no defense of balancing as a rationally determinate procedure. b. civil libertarianism - critique: abuse of deduction from personal rights - critiqued sociologists on the ground c. that its proponents confused facts from values, scientific versus normative judgments. d. that the social purposes or functions the sociological jurists used to base their rational derivations of legal rules were either vague or conflicted, so that the claim to a scientific
method was no more than a screen for a new form of politically progressive natural law 4. Modern Legal Theory - Modern legal theory (with the exception of natural law theorists) is antiformalist, in the sense of denying the possibility of strictly meaning based gaplessness. - Positivism affirms that discretion in adjudication is inevitable, while limiting it to the `penumbra' or to the area inside the `frame' provided by the norm in question American Legal Theory - American legal theory is antipositivist, and affirms gaplessness, but on the basis of policy, purpose, rights, or principles, rather than on the basis of textual, conceptual, or precedential formalism formalism The Common law world - critique of precedential interpretive formalism a. that policy argument is always necessary in order to determine the relevance of a precedent for a new case b. that common law theory, if it is to be coherent, must authorize the creation of an exception to a precedentially established rule in any case where an exception would serve the policies animating the system as a whole On the Continent (I have no idea what “Continent”) - rhetorical and hermeneutic theories of legal interpretation assert that outcomes are always relative to horizons, no matter how superficially deductive (and then reground interpretation in the supposedly shared horizon of liberal faith) Postmodern Theorists - Skeptical theories gain support from comparative law scholarship showing diametrically opposed interpretations of identical code provisions, and identical case law derived from contradictory code provisions.
Formalism as a Category in the Sociology of Law 1. Law as essential building block - The role of formalism, in this context, means that the general theory represents law as having a gapless, meaning-based internal structure, responsive to outside imperatives of some kind. - In fact, according to the critics, the contradictory internal structure of Western legal systems leaves adjudicators and other legal administrators great discretion in the interpretation of norms.
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- It follows that neither the legitimacy of the legal order, nor its content, nor the effects of legal institutions, can be inferred from the external imperatives the theorist imagines animate them. 2. Law as the weak link in the general sociological construction.
The summary I made for Lessig's article was much too long. There are more important things for you to do with your time, so I'm just posting these reviews and summaries I found on the net. They're far shorter and anyway you only need the general idea with Hilbay. The details aren't important.
Sociologies that include law as one of the elements in an integrated representation of society Sociologies that take law as their (very) object, bringing to bear on it the variety of instruments of sociological investigation - A logically formal rational system–is a collection of norms that are internally consistent and that officials apply to particular fact situations according to textual and conceptual formalism premised on gaplessness, - Interpretation is the `logical analysis of meaning.' Despite the superficial resemblance, this ideal type is not just Will Theory under another name, because a. not intrinsically associated with either the concept or the social reality of individual freedom b. contingent product of Continental legal history, rather than implicit in a larger normative conception.
THERE IS NO TEXTUALIST POSITION By Stanley Fish
The intentionalist position is not a method, it is simply the right answer to the question (what is the meaning of a text?) It does not tell you what to do; it just tells you what you are doing. **Distinction between sentence meaning and speaker’s meaning, between the meaning an utterance has by virtue of the lexical items and syntactic structures that make it up, and the meaning a speaker may have intended but not achieved - is possible because they are distinguishable entities, and they can come apart. When they do, one can say that the words, literally construed, say one thing, but the speaker’s purpose is to say something else. One can choose between the two – it is an act of choice made available because it is possible to distinguish between the two. Ex: red) 1. Beat the red light. Break the law to make it to an appointment on time? 2. Beat the red light because of a medical emergency? 3. Simply giving directions? 4. Just wanted to flout authority and take minor risks? Finally interpreted as: “After the light turns green, go straight and don’t make any turns.” Arguments: Here, the words “Go through the light” are attached to an assumption of an intention because they cannot be heard apart from an intention within which they were uttered. The text is not independent; it is an entirely derivative entity. Once one construes words, the instant one hears sounds as words and treats them as language, they acquire meaning. Purpose will have already been put in place – to give directions, to give orders, to urge haste, to urge outlaw behavior – in the light of which the sounds become words and acquire sense. The specification or assumption of intention therefore comes first; the fact of a text with meaning comes second. Spoken: “Go through the light.” Assumptions: (at an intersection with a stoplight turned
Matters for investigation a. how an order claiming these types of legal rationality operates through officials at the level of practice, how state law interacts with other normative orders, and what effects are plausibly linked to a type b. whether it is ever plausible, given the critique of gaplessness and the ever-present possibility of the abuse of deduction, that a legal order operates in practice in a way usefully described as logically formal rationality. c. the legal/bureaucratic mode of legitimation no longer relies on the claim of logically formal rationality, but rather on a complex mixture of claims of local meaning-based closure, claims of policy rationality (substantively rational, in Weber's terminology), and claims of democratic procedural legitimacy. These have not precluded a `legitimation crisis.' Conclusion - Descriptively formal law – both formal rule systems and formal techniques of interpretation – involves the morally delicate refusal to respond to the call for justice in the particular case, for reasons that may be good or bad according to the circumstances. - Formal law is part of the drama of governance, the trivial or murderous drama of breaking eggs to make omelettes.
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Text alone, no matter how long and dense, can never yield meaning, whereas intention, whether assumed, discovered, or revealed, can always alter a meaning that had previously been in place; not because what had been said has been trumped by what was intended, but because one understanding of what was intended has been dislodged by another. It is therefore not a matter of choosing between what was said and what was meant but rather between specifications of what was meant. **In the arena of legal interpretation, Justice Antonin Scalia declared: Ours is a government of laws - of texts written down - not men, and therefore it would simply be undemocratic “to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” It is what is “said” not what is “intended” that is the object of our “inquiry.” “Men may intend what they will; but it is only the laws that they enact which bind us. Words are material and available for inspection, intentions are not, and because they are not, they provide an insufficient constraint on judges who might be tempted to rewrite the law in the guise of interpreting it. **It is simply a matter of choice between something materially available (text) and something absent and speculative (the intention of its author) Intention cannot be separated from meaning or thought of in conflict with it. If there were no intention, not only would there not be a meaning; there would be no reason to seek one. Again, it is not choosing between what was said and what was meant but really which of the possible meanings. In the matter of choosing between an utterance (text) and what is intended, first, for there to even be a choice, any choice, there must be distinguishable entities to choose between. There must be a textual meaning – a meaning a sentence has as its property – which one could either adhere to or depart from; for only then could this textual meaning be chosen or chosen against. But words alone, without an animating intention, do not have power, do not have semantic shape, and are not yet language; they do not have any textual meaning that one could readily adhere to or depart from, in order for it to be chosen or chosen against. **Textualists do not inquire what the legislature meant; only what the statute means One who does not want to know about intention does not want to know about meaning. They do not simply go together; they are inseparable from one another. **The “pluralist” or “synthetic” textualist approach: Meaning can be decoded by looking to the combination of lexical items and grammatical structures, with a little help, in the case of ambiguity or obscurity, from legislative history or judicial precedent
Lexical items and grammatical structures will yield no meaning – will not even be seen as lexical items and grammatical structures - until they are seen as having been produced by some intentional agent. A text that seems obvious is a text for which an intentional context has already been assumed. In short, the text has no independence; it is an entirely derivative entity – something else must be in place before it can emerge as text and being merely derivative, it therefore cannot be the source of location or meaning. There can be no middle position in which text is a partial source of meaning because one cannot anchor a method in a nonentity, in a notion – the text - that can neither produce nor constrain anything. **Concession to Intentionalism’s appeal: A. Maximizing intentionalism - searching for a texts meaning because it neglects the direct costs and opportunity costs of searching further afield for evidence of legislative intentions. B. Optimizing intentionalism - employing a stopping rule: declining to search further afield if expected benefits of further search are less than the costs, therefore providing justification for considering less than all probative information bearing on legislative intentions. Both views represent a choice between interpreting and doing something else (a cost/benefit analysis). Choosing in the direction of either will force one to now be asking the question “what can we do with the text?” as opposed to “what does this text mean?” which leaves open a space where an “interpreter” (no longer one) is free to determine how best to reach a conclusion that reflects his/her policy preferences or a way of legitimizing his/her desires. There are instances when the search of meaning is either too difficult or subversive that insisting on it would be perverse making stopping rules necessary. Stopping rules are not rules of interpretation however, they are rules that tell you when the effort to interpret should cease (because of reasons stated) and something else should take over, nevertheless, acknowledging such obstacles to the specification of meaning does not change the fact that the answer to the question “what does a text mean?” is that a text means what its author intends it to mean. C. The interpreters or readers decide principle: the meaning taken to be as how it is understood by the community The assumption in the readers decide principle is that people have decided to “go beyond” whatever the author may have intended whether in search of the actual authorial intention or just in exercise of their right to go beyond it. However, this is an interpretative game wherein there are no rules, it is that of coming up with a reading that best serves one’s present purposes and needs and hence, it provides no possibility of coming up with an answer to the question “what does a text mean?” **Objections to intentionalism:
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A. Epistemological objection: because evidence of intention is often equivocal, incomplete or obscure, it is difficult to offer convincing justification for the claim that the a certain interpretation corresponds to an author’s actual intention This is not an objection to the thesis that a text means what its author intends, it is a complaint that determining exactly what that intention is may prove difficult. What intentionalism is involved with is in answering the question “What must be the case – what must we presuppose – if notions like agreement, disagreement, error, correction and revision – are to make any sense?” not in answering “What is going on in the interpreter’s mind?” – a question that would require research into brain waves, cognitive processes, institutional practices and much more. B. Non-existence objection: In the case of groups like legislatures, individuals within the majority have different aims and intentions in mind. How should individual intentions be combined to form a group intention that is plausibly the intention behind the legislation? This question confuses intention with motive; while different legislators have different motives for signing on to a piece of legislation, they could collectively form the intention to put the legislation on the books. C. Indeterminacy objection: When one person has different intentions Authors often have several intentions at the same time. But this may be when an author may have in mind specific examples of the application of a clause and a general aim. Such an author would not have two intentions, but one: the application of the general aim. Conclusion There is only one coherent answer to the question “what does a text mean?” It cannot mean what its readers take it to mean, for then the interpretive game would have no rules (and no possibility of victory). Nor can it mean what the words alone man because the absent the assumption of intention, the words alone do not mean anything. Nor does it mean what the dictionary tells us because it only gives us a record of the intentions previous speakers have had when using a word, a record of possibly and multiple meanings absent any way of specifying which the right one is. Nor does a text mean what is specified by the conventions of the day because conventions do not have intentions and they do not author texts. Nor does it mean what the ordinary or ideal or reasonable interpreter would mean by the words because none of those authored the text either, and declaring any of them the author by fiat would amount to rewriting, not interpreting. There is only one candidate left and one answer to the question: a text means what its author intends.
By Larry Alexander and Saikrishna Prakash
Introduction On the one hand, Full Blooded Intentionalists consider all available evidence of the actual author’s intended meaning. He might exclude certain evidence of intent on grounds of general unreliability, but he nonetheless would allow consideration of all reliable evidence of authorial intent. This is the “wholeheartedly faithful agent” position. On the other hand, Intention Free Textualists (I.F. Textualists) who espouse that texts can be interpreted without any reference, express or implied, to the meaning intended by the author of the text. The dispute between Textualists and Intentionalists boil down to whether interpreters should look to the intentions of actual authors or hypothetical ones, and when, if we are to look to actual intent, policy considerations such as rule of law concerns should lead us to ignore certain evidence of that intent. Part 1: The Conceptual Impossibility of Intention Free Textualism (I.F. Textualism) I.F. textualism is a conceptual impossibility. One cannot interpret texts without reference to the intentions of some author. Argument 1: Texts Cannot Declare the Language in Which They are Written > Words in text mean different things across languages, e.g. canard in English means a lie; in French, a duck. It can also mean different things within the language, e.g. chips can mean potato chips, poker chips, microchips. > If we are unaware of or indifferent to the author’s usual tongue (and likely intentions), we may imagine what we would have meant had we spoken the term, imagining ourselves as the authors. Argument 2: Texts Cannot Declare That They Are Texts > One cannot look at the marks on a page and understand those marks to be a text (that is, a meaningful writing) without assuming that an author, real or hypothetical, made those marks intending to convey a meaning by them. Argument 3: Meaning Cannot be Autonomous From Intent – One Must Always Identify an Author > If text has no intent, there is no meaning; they would be mere marks. > “Texts” without authors and intended meanings are not texts; and texts with intended meanings are texts only with respect to the intended meanings. > a marking on the floor as follows: c – a – t can mean a “domestic tabby cat,” “any feline”, “jazz musician,” or simply markings for the contours of patches of a vegetable garden, depending on what the author intended it to mean. Argument 4: Texts Can Have “Deviant” Meanings Because Those Meanings Are Intended
IS THAT ENGLISH YOU’RE SPEAKING?
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> How did “cat” come to mean jazz musician? Because it was used by some people with the intent that it be understood as referring to a jazz musician. And the word “cat” meant jazz musician the very first time it was used with such an intention, even before it was listed as a definition in the dictionary. Argument 5: Unexplained Exceptions to I.F. Textualism: The Use of Context, the Avoidance of Literal Absurdities, and Casualness Regarding Punctuation > On The Use of Context Textualists admit that texts must be read in context. The additional contextual information is, unsurprisingly, information that provides evidence of the intent of the actual author. The commonplace truth that all understandings of texts are contextual just demonstrates that all texts, as text, acquire their meaning from the presumed intentions of their authors. > On the Avoidance of Literal Absurdities (Absurdity Doctrine) This is a way that textualists bring authorial intentions thorough the backdoor. For to say that some reading is absurd and therefore ought to be rejected is to say nothing more than that the author of the text could not have intended such a reading. > On Casualness Regarding Punctuation (Scrivener’s Error Doctrine) To speak of errors, mistakes, or of a “legislature that obviously misspoke” is to have a baseline of legislative intent, for it is only against that baseline that it is possible to speak of legislative misspeaking. But then again, so far as the IF textualist is concerned, there can be no “errors” in statutory text. The text results from clashes of interests, and it is whatever it is, warts and all. So if the text says “emission testing of carps,” it means emission testing of fish. Part 2: The Real Issues in Interpretation If I.F. Textualism is an impossibility because one must always have recourse to some author, real or otherwise, what other positions could textualists be advocating? Position 1: Textualism as Rule of Law Restricted Intentionalism > The interpreter should seek out authorial intent, but in doing so should refuse to consider certain kinds of evidence thereof, even if reliable, using a set of norms, for example, rule of law as justification for the same. > Critique: Because evidence is excluded, especially so when it is reliable the interpreter will end up in a situation in which the authoritative meaning of the law is different from what the interpreter knows was the meaning intended by the lawmakers. There is a gap between what the interpreter knows the lawmakers actually intended and what, per the norms (e.g. rule of law), the interpreter will deem them to have intended. Position 2: Textualism as Man on the Street Interpretation > Interpreting legal texts as would a sample of average members of the public provided a certain context.
> Advantage: Rule of law benefit in that the average citizen is given clear notice of what the law means > Critique 1: Let us take the extremes. Providing almost no context except that the authors were English speakers – this wouldn’t be different from simply getting the dictionary meaning of the text. On the other hand, providing them with additional contexts, their readings might: a. converge with the authoritative interpreter’s (e.g the judge’s), in which case, why poll from the sample? b. vary from one person to the next, in which case, there will be no authoritative meaning. > Critique 2: If polling a sample will yield Critique 1, then why not ask one median member of the public instead of several? The problem then arises as to who is the “median” member of the public, which is an indeterminate concept considering that there is an indefinite number of dimensions on which one can identify a “median” member of the public. Position 3: The Idealized Reader > Textualists have recourse to the construct of an idealized contemporaneous (with the statute’s enactment) reader – interpreting language by asking how “a skilled, objectively reasonable user of words” would have understood the text, or “as any ordinary Member of Congress would have read them,” and also considering the context of the statute and taking into account background legal convention. In sum, the idealized reader is a lawyer. > Critique: Supplying the idealized reader the “context” of the statute is but a backdoor means of reintroducing the author’s intent. When asked to interpret something, the idealized reader will seek the actual author’s intent as a source of meaning. In creating this construct of idealized reader to generate an ”objective” meaning, textualists have instead just created an abstraction that merely filters authorial intention. Moreover, even if the textualist forbids the idealized reader from seeking the intent of the actual author, the idealized reader will still have to search for some intent. If we are correct that one must envision an author whenever attempting to make sense of text (indeed, to even identify it as such), the idealized reader will have to imagine a hypothetical author/s. > Note: The benefit of this approach is that with the selection of one hypothetical author even though it was a multi-member body that created the text, it becomes much more likely that every statute has a meaning. After all, the more authors a text has, the more likely it is that there is no shared intent as to the meaning of the text. > Critique of “Note”: Precluded as the idealized reader is from looking to all the evidence of actual authorial intent, the idealized reader may conclude that a text has two or more meanings that are equally supported by the evidence to which he is restricted. There is no deeper metaphysical fact, like intent, of which these multiple meanings are merely evidence. Position 4: The Idealized Author
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> Legal text should be interpreted to mean what they would have meant had they been authored by this single idealized lawmaker rather than by the one or several actual lawmakers. > Critique: In order to yield interpretations, we need to specify the attributes of the idealized author. This will lead in effect to the reauthoring of the law by the interpreter. Conclusion Everybody, textualist or otherwise, looks beyond the four corners of statue to discern its meaning. These “extratextual” factors are legitimate for the reason that a statue is not simply (or even primarily) its text but is principally its meaning. The text is just a means of conveying meaning. The extratextual factors illuminate a statute’s meaning; and therefore, though they are extratextual, they are not “extrastatutory.” An intentionalist may choose to exclude some evidence about authorial intentions on the theory that the evidence may be more prejudicial than probative or may be prone to manipulation. Hence, textualists of Position 1 may be correct in concluding that one ought not examine, for example, legislative history in finding statutory meaning. They would be correct for the wrong reasons. They would be correct not because intent (including legislative history) is irrelevant to statutory meaning, but because legislative history might be an unreliable indicator of authorial meaning. Appendix 1: Textualism and the Faithful Agent Premise Textualists have claimed that textualism “starts from the faithful agent premise – that a federal court is responsible for accurately deciphering and implementing the legislature’s commands.” However, “textualists believe that when a statutory text is clear, that is the end of the matter.” Textualists acknowledge that Congress has the right to place a set of marks on a page. But they forbid Congress form selecting the meaning of those marks. Instead, the meanings of those marks are supposed to be fixed according to a set of rules that are (relatively) independent of Congress, interpreted on the basis solely of the text independent of intention. Should Congress intend secondary or nonstandard meanings, it may well have its will thwarted; for the reasonable reader, if so constructed, may generate an objectified meaning that ignores Congress’ intended secondary or tertiary meanings. Whatever the merits of textualism, it does not strike us as a theory where the interpreter acts as a faithful agent of Congress. Appendix 2: The Lawmaker’s Intended Meaning Versus the Lawmaker’s Intended Goals Legal texts not only have intended meanings; legal texts are meant to achieve certain goals. But the goals they are meant to achieve are not the same thing as the meanings they are intended to convey. There are two types of mistakes a lawmaker makes: lapses in expression (as to meaning) pertaining to mistakes in conveyance when words are ill chosen, vis-à-vis lapses in foresight (as to goal) pertaining to mistakes of fact that leads one to think that with a specific law s/he might
achieve a specific goal. Intentionalists do not advocate departing from the intended meaning whenever the interpreter concludes the lawmaker made a mistake regarding what that meaning would accomplish or how well that meaning serves the lawmaker’s values. In my understanding, the Judiciary as intentionalists advocate honoring the intent of the law as it is but do not question the wisdom (of the Legislature) as to why such law has been passed.
TYRANNOSAURUS TEXT AND THE DOCTRINAL SLIP: PP1017 AND THE PROBLEMATICS OF EXECUTIVE LEGISLATION By Florin Hilbay
FLORIN’S OBJECTIVE IN THIS ARTICLE: By showing the doctrinal and interpretive mistakes of the Supreme Court in the decision of David vs. Arroyo, he hopes to promote a dialogue on the tools of judicial decisionmaking that inform the decision itself.
I. THE DOCTRINAL SLIP Argument No 1. The distinction between facial and applied challenges that the Court used in scrutinizing PP 1017 is founded on the separation of powers principle that relies on a conceptual distinction between rule-making and rule-execution. It derives strength from the institutional play between the Court as interpreter of the Constitution, and the Congress, as the body with authority to legislate on matters affecting the guarantees in the Bill of Rights. Because presidential authority is only marginally implicated in the analysis of the need for careful drawing of statutes and their compliance with constitutional principles—the salient feature of facial analysis—then the application of this kind of scrutiny to presidential proclamation (an altogether different species of policy) is inappropriate.1 Facial invalidation is a slap on the legislature, while as applied invalidation is a slap on some arresting officer. In both instances, high-level executive officials are invisible to the reach of the doctrines. Argument No. 2. The Court should not have uncritically applied doctrines in the case. Doctrines do not come out of a judicial toolbox ready for use in every apparently similar occasion. Doctrines are always situated temporally and spatially.
1 COMMENT: Hilbay is too verbose. His argument is really simple: Facial and applied challenges applies only to congressional enactments and not to presidential proclamations. Hence, the doctrinal slip.
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Overbreadth doctrine for instance, is a product of politics of judges in the United States as particularly shown in the Warren Court’s attitude towards facial invalidation. The doctrinal debate was and still is part of the larger political debate over the role of the US Supreme Court in enforcing its views on the Constitution and its relationship with both federal and state legislatures. II. THE TYRANNY OF TEXT Hilbay attributes the doctrinal slip partly on the Court’s penchant for privileging the textual interpretation over intentionalist interpretation. Argument No. 1 The intent behind PP 1017 can easily be identified considering that the President was the single author of the proclamation. The interpretive issue therefore that should be determinative of the constitutional argument in David is not difficulty of linking text with intention but of the manipulation of text to suppress an otherwise illicit intention already bare to the public sight.2 Argument No. 2 Textualism as an ideology of reading applied to PP1017 made the Court conclude that there is nothing in its text that allowed the constitutional violations that actually occurred despite the vulgarity of the contradictory context that surrounded it. To look for something in the text that says police may arrest anyone who exercises her freedom of speech, and that they may invade premises of publications critical to the government, is to search for the right of abortion in the Ten Commandments. 3 The tyranny of text is the formalist search for understanding in material marks—texts—that have no presence in the absence of context, of the conditions that make them comprehensible and allow for the emergence of meaning. III. HOW THE COURT SHOULD HAVE DECIDED THE CASE Who is responsible for the Constitutional Violence? Florin’s answer: the President. Reason The reason why laws, in general, may not be declared unconstitutional on the basis of the implementer’s misdeed is that the legislature cannot be faulted for the blunders of law enforcement agencies. The Anti-Rape statute should not be invalidated just because the accused was arrested without warrant. The structure of our constitutional government limits the power of the legislature to compel the executive department to follow its intended meaning. But this is the extent to which logic may carry us.
The matter is different when the question of meaning is confined in the President. The President, as commander-in-chief and as chief executive had full control of her own text, that is, she had the constitutional authority to author—enforce—what she had intended to carry our, as she did, her purpose.4
DAVID V ARROYO SANDOVAL-GUTIERREZ; May 3, 2006
NATURE OF THE PETITION These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. THE FACTS On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. The declaration is premised military and police intelligence containing concerted efforts of Left and Right wing factions to bring down the Arroyo Government. On the same day, the President issued G. O. No. 5 implementing PP 1017 (hence, the same premise as PP1017), thus: NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
Here, Florin’s bias is shown. He contends that the intent of PP 1017 is illicit from the beginning and that this intent is known by the public. Florin admittedly, has excellent insights on judicial interpretation. However, if you notice, he doesn’t substantiate his alternative views very well (all rhetoric), which leaves the credibility of his assessment questionable. Significantly, petitioners in David v. Arroyo did not discount the factual basis of the issuances, which to mind casts serious doubt on Florin’s argument that there was such “vulgarity” of the context which surrounded the issuance of PP 1017.
In short, the President must be accountable.
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Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. ARGUMENTS OF THE GOVERNMENT In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo.5 They considered the aim to oust or assassinate the President and takeover the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. SIGNIFICANTLY, THERE WAS NO REFUTATION FROM PETITIONERS’ COUNSELS. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents’ task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to “show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms.” 6 On February 17, 2006, the authorities got hold of a document entitled “Oplan Hackle I ” which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.7 Upon the advice of her security, President
5 6 7
  
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 8  Prior to his arrest, Lt. San Juan announced through DZRH that the “Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.” On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to “disavow” any defection. The latter promptly obeyed and issued a public statement: “All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty.” On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said “it was all systems go for the planned movement against Arroyo.”9 B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio. Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio “Ka Roger” Rosal declared: “The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of
Respondents’ Comment dated March 6, 2006. Ibid. Ibid.
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex “I” of Respondents’ Consolidated Comment.
Respondents’ Consolidated Comment.
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bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it.”10 On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: “Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field.” He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.11 By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. PETITIONER’S ARGUMENTS In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of “censorship” or “prior restraint.” They also claimed that the term “emergency” refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is “absolutely no emergency” that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute “usurpation of legislative powers”; “violation of
freedom of expression” and “a declaration of martial law.” They alleged that President Arroyo “gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so.” In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 412 of Article II, (b) Sections 1,13 2,14 and 415 of Article III, (c) Section 2316 of Article VI, and (d) Section 1717 of Article XII of the Constitution. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an “arbitrary and unlawful exercise by the President of her Martial Law powers.” And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that “it amounts to an exercise by the President of emergency powers without congressional approval.” In addition, petitioners asserted that PP 1017 “goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code.”
The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.
(1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
17 Ibid. Ibid.
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In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.
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And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are “unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution.” In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the people’s right to free expression and redress of grievances. ISSUES PROCEDURAL 1) WON the moot and academic principle precludes the Court from taking cognizance of the cases 18 2) WON the petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. SUBSTANTIVE 1) WON the Supreme Court can review the factual bases of PP 1017. 2) WON PP 1017 and G.O. No. 5 are unconstitutional.\ a. Facial Challenge b. Constitutional Basis c. As Applied Challenge RATIO DECIDENDI PROCEDURAL 1. NO. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;19 second, the exceptional character of the situation and the paramount public interest is involved;20 third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and
the public;21 and fourth, the case is capable of repetition yet evading review.22 2. YES. The requirement of Locus standi which is the right of appearance in a court of justice on a given question shall be set aside by the Court whenever it is shown that the case is of transcendental importance. SUBSTANTIVE 1. YES. Notwithstanding the discretionary nature of the constitutional exercise of the President of his/her calling out of power, the Courts shall have authority to inquire into the factual basis of such exercise to determine whether it was within the constitutionally permissible limits or whether grave abuse of discretion attended its exercise. (This interpretation was based on Article VIII, section 1)23 2. A. Facial Challenge. Facial invalidation of laws (overbreadth doctrine) shall not be resorted to in the absence of clear showing that (1) the law involves the exercise of free speech; (2) that there can be no instance that the assailed law may be valid; and that (3) the Court has no other alternative remedies available. Under the void-for-vagueness doctrine, a law shall be facially invalid only if men of common intelligence must necessarily guess at its meaning and differ as to its application B. Constitutional Basis. The authority of the President to exercise his calling out power to suppress lawless violence shall not be deemed to include the power to authorize: (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, as these powers can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. The take care power of the President, which includes the power to enforce obedience of laws shall not be deemed to include calling the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. The ordinance power of the President shall not include the power to make “decrees” with the same force and effect as those issued by President Marcos.
Province of Batangas v. Romulo, supra.
BRYAN_SJ: I REFORMULATED THE ISSUE SO THAT THE RATIO DECIDENDI WILL BE RESPONSIVE TO IT. THE ORIGINAL QUESTION WAS TO THIS EFFECT: “WERE THE PETITIONS MOOT AND ACADEMIC?,” WHICH WAS ANSWERED BY THE COURT IN THE AFFIRMATIVE, ONLY TO REPUDIATE THE PRINCIPLE LATER.
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
Province of Batangas v. Romulo, supra.
Lacson v. Perez, supra.
BRYAN_SJ: PAY ATTENTION TO THE COURT’S REASONING LATER ON, WHERE THE COURT CLARIFIED THAT THE BURDEN OF PROVING THE FACTUAL BASIS, LIES IN THE PETITIONERS. THE COURT’S POWER TO INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE DECLARATION DOES NOT INCLUDE THE CREATION OF AN INDEPENDENT BODY TO INDEPENDENTLY INVESTIGATE THE FACTUAL BASIS.
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In the absence of delegated authority from Congress, the authority of the President to declare a state of emergency shall not be deemed to include the power to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. Acts of terrorism no matter how repulsive shall not be deemed to be punishable in the absence of legislation clearly defining said acts and providing specific punishments therefor. C. Applied Challenge. The Court shall not declare laws as invalid solely on the basis of their misapplication or abuse or susceptibility to abuse by the people tasked to implement them. The arrest of Randy David and other acts done by the authorities pursuant to the parts of the laws herein considered unconstitutional are also deemed unconstitutional without prejudice to the filing of necessary administrative, criminal or civil actions against specific abuses committed by authorities. REASONING OF THE COURT PROCEDURAL 1. The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;24 second, the exceptional character of the situation and the paramount public interest is involved;25 third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; 26 and fourth, the case is capable of repetition yet evading review.27 All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees.28 And lastly, respondents’ contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the
24 25 26 27
alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.29 However, they failed to take into account the Chief Justice’s very statement that an otherwise “moot” case may still be decided “provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance.” The present case falls right within this exception to the mootness rule pointed out by the Chief Justice. 2. Locus standi is defined as “a right of appearance in a court of justice on a given question.”30 In private suits, standing is governed by the “realparties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that “every action must be prosecuted or defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.”31 Succinctly put, the plaintiff’s standing is based on his own right to the relief sought. By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1 the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged “direct injury” resulting from “illegal arrest” and “unlawful search” committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. - In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
Province of Batangas v. Romulo, supra.
  
Lacson v. Perez, supra. Province of Batangas v. Romulo, supra.
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
Black’s Law Dictionary, 6th Ed. 1991, p. 941. Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
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justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. - In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,32 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,33 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,34 Basco v. Philippine Amusement and Gaming Corporation,35 and Tañada v. Tuvera,36 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. - In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.37 We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5. - In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,38 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi. - In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances
32 33 34 35 36 37 38
prevented her from pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of the issue involved, this Court may relax the standing rules. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the “liberality doctrine” on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the “transcendental importance” doctrine, a relaxation of the standing requirements for the petitioners in the “PP 1017 cases.” This Court holds that all the petitioners herein have locus standi. Incidentally, IT IS NOT PROPER TO IMPLEAD PRESIDENT ARROYO AS RESPONDENT. SETTLED IS THE DOCTRINE THAT THE PRESIDENT, DURING HIS TENURE OF OFFICE OR ACTUAL INCUMBENCY,39 MAY NOT BE SUED IN ANY CIVIL OR CRIMINAL CASE, AND THERE IS NO NEED TO PROVIDE FOR IT IN THE CONSTITUTION OR LAW. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people 40 but he may be removed from office only in the mode provided by law and that is by impeachment.41 SUBSTANTIVE 1. Review of Factual Bases
235 SCRA 506 (1994). Supra. Supra.
197 SCRA 52, 60 (1991).
From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
Supra. See NAACP v. Alabama, 357 U.S. 449 (1958).
Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Ibid., Sec. 2.
G.R. No. 141284, August 15, 2000, 338 SCRA 81.
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The Integrated Bar of the Philippines v. Zamora42 -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang vs Garcia.43 While the Court considered the President’s “callingout” power as a discretionary power solely vested in his wisdom, it stressed that “this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion.” This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only “to settle actual controversies involving rights which are legally demandable and enforceable,” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government.44 It speaks of judicial prerogative not only in terms of power but also of duty.45 As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that “judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct,” but that “the President did not act arbitrarily.” Thus, the standard laid down is not correctness, but arbitrariness. 46 In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis” and that if he fails, by way of proof, to support his assertion, then “this Court cannot undertake an independent investigation beyond the pleadings.” Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security
Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. 2. CONSTITUTIONALITY OF PP 1017 AND G.O. NO. 5 A. “Facial Challenge” Petitioners contend that PP 1017 is void on its face because of its “overbreadth.” They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a “chilling effect” to the citizens. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces” statutes in free speech cases, also known under the American Law as First Amendment cases.47 A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,48 the US Supreme Court held that “we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment” (freedom of speech). Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.” Undoubtedly, lawless violence, insurrection and rebellion are considered “harmful” and “constitutionally unprotected conduct.” Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly and only as a last resort,” and is “generally disfavored;”49 The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.50 And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Related to the “overbreadth” doctrine is the “void for vagueness doctrine” which holds that “a law is facially invalid if men of common
Supra. See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 393. 481 U.S. 739, 95 L. Ed. 2d 697 (1987). Broadrick v. Oklahoma, 413 U.S. 601 (1973). Ibid.
BRYAN_SJ: LANSANG VS. GARCIA IS RELEVANT ONLY TO THE EXTENT THAT THE COURT MAY INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE ACTION. THE SIMILARITY ENDS THERE BECAUSE LANSANG WAS SPECIFICALLY APPLIED TO MARTIAL LAW. DAVID VS. ARROYO CONCERNS THE FACTUAL BASIS FOR THE CALLING OUT POWER.
44 45 46
  
48 49 50
Cruz, Philippine Political Law, 2002 Ed., p. 247. Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756. Supra, 481-482.
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intelligence must necessarily guess at its meaning and differ as to its application.”51 It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing “on their faces” statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. B. Constitutional Basis of PP 1017 Calling-out Power The Constitution grants the President, as Commander-in-Chief, a “sequence” of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,52 the Court ruled that the only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the President’s authority to declare a “state of rebellion” (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s authority to declare a “state of rebellion” emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.
President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power. In his “Statement before the Senate Committee on Justice” on March 13, 2006, Mr. Justice Vicente V. Mendoza, 53 an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) takeover of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence. “Take Care” Power
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L24693, July 31, 1967, 20 SCRA 849 (1967). Supra.
Retired Associate Justice of the Supreme Court.
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The second provision of PP 1017 pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads: SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested,54 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, “execute its laws.” 55 In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,56 including the Philippine National Police57 under the Department of Interior and Local Government.58 Is it within the domain of President Arroyo to promulgate “decrees”? PP 1017 states in part: “to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction.” The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987), which allows her to issue executive orders, administrative orders, proclamations, memorandum orders/circulars, general or special orders. President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.59 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
56  57  58 
and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to “laws,” she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Power to Take Over The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience “to all the laws and to all decrees x x x” but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017? The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the “martial law” thinking of the 1971 Constitutional Convention.60 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over “the management, control and operation of the Manila Electric Company, the Philippine Long Distance
Section 1, Article VII of the Constitution. Section 5, Article VII of the Constitution. Section 18, Article VII of the Constitution. Section 6, Article XVI of the Constitution. See Republic Act No. 6975.
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.
Section 17, Article XIV of the 1973 Constitution reads: “In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.”
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Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency.” Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers. This is an area that needs delineation. A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. It may be pointed out that the second paragraph of the above provision refers not only to war but also to “other national emergency.” If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a “state of national emergency” pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a “state of national emergency.” The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other. 61 Considering that Section 17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.62 Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Petitioner Cacho-Olivares, et al. contends that the term “emergency” under Section 17, Article XII refers to “tsunami,” “typhoon,” “hurricane” and “similar occurrences.” This is a limited view of “emergency.” Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3)
Antieau, Constitutional Construction, 1982, p.21.
Cruz, Philippine Political Law, 1998, p. 94.
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principal heads: a) economic, b) natural disaster,63 and c) national security. “Emergency,” as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.64 This is evident in the Records of the Constitutional Commission. Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. C. “AS APPLIED CHALLENGE” Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused65 and may afford an opportunity for abuse in the manner of application.66 The validity of
The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for relief in stricken agricultural areas and in another section referred to “the present drought emergency.” The India Emergency Food Aid Act of 1951 provided for emergency shipments of food to India to meet famine conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the President certain powers in time of “public peril or disaster.” The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides. There is also a Joint Resolution of April 1937. It made “funds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra. Cruz, Philippine Political Law, 1998, p. 95. Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.67 PP 1017 is merely an invocation of the President’s calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’ constitutional rights. Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion.68 This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are “acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines.” They are internal rules issued by the executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations create no relation except between the official who issues them and the official who receives them.69 They are based on and are the product of, a relationship in which power is their source, and obedience, their object.70 For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the “necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.” Unlike the term “lawless violence” which is unarguably extant in our statutes and the Constitution, and which is invariably associated with “invasion, insurrection or rebellion,” the phrase “acts of terrorism” is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism. The absence of a law defining “acts of terrorism” may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can only
67 68 69 70
64 65 66
Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.
  
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370. De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115. Ibid.
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct 158.
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be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon. So far, the word “terrorism” appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled “Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations.” The word “terrorism” is mentioned in the following provision: “That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.” P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define “acts of terrorism.” Since there is no law defining “acts of terrorism,” it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the “acts of terrorism” portion of G.O. No. 5 is unconstitutional. VALIDITY OF SPECIFIC ACTS CONDUCTED BY AUTHORITIES PURSUANT TO PP 1017 AND G.O. NO. 5 In the Brief Account71 submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated brusquely by policemen who “held his head and tried to push him” inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 88072 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually released for insufficiency of evidence. The Constitution enunciates the general rule that no person shall be arrested without warrant. The recognized exceptions are in Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and. Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective “Oust Gloria Now” and their erroneous assumption that petitioner David was the leader of the rally. 73 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.74 But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also their right to peaceably assemble. Section 4 of Article III guarantees: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. “Assembly” means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and
An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Other Purposes.
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273. Ibid.
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present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct. On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacañang’s directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that “freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent.”75 Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure. G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribune’s offices were searched without warrant; second, the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o’ clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices. Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was “meant to show a ‘strong presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing down this government.” Director General Lomibao further stated that “if they do not follow the standards –and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’” National Telecommunications Commissioner Ronald Solis urged television
and radio networks to “cooperate” with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened. The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives. Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff76 this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum” newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. While admittedly, the Daily Tribune was not padlocked and sealed like the “Metropolitan Mail” and “We Forum” newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey.77 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti76
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553
No. L-64161, December 26, 1984, 133 SCRA 816.
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government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.78 Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible “for any purpose,” The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an integral part of this ponencia. DISPOSITION OF THE CASE WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is “necessary and appropriate actions and measures to suppress and prevent acts of lawless violence.” Considering that “acts of terrorism” have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune
offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.
THE NATURE OF THE JUDICIAL PROCESS By Benjamin Cardozo
I. INTRODUCTION. METHOD OF PHILOSOPHY • Deciding cases happens everyday - Difficult to explain the language of the law to laymen - “Brew” of judge-made law: • Source of information • Contribution of information to the decision • Precedents and whether or not they should be followed • Morals and at what point should they be considered • Logical consistency • William James – the steam of tendency is innate in man which gives coherence and direction to every thought or action • Objectively seeing things is difficult because we never see them with eyes except our own • Where does the judge find the law which embodies? - Constitution or statutes - The Constitution overrides statutes but a statute consistent with the Constitution overrides the law of judges. In this sense, judgemade law is secondary and subordinate to the law that is made by legislators. • The difficulties of interpretation arise when the legislature has had no meaning at all, when the question which is raised on the statute never occurred to it, when what he judges have to do is to guess what it would have intended in a point not present to its mind. • Tasks of system law: o To make more profound the discovery of the latent meaning of positive law o To fill the gaps which are found in every positive law in greater or less measure • The generalities of the Constitution have a content and significance which vary from age to age. Interpretation becomes more than the ascertainment if the meaning and intent of lawmakers whose collective will has been declared. • How does the judge set about his task? o Compares a case with precedents o If none, fashion law for litigants before him • The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive and it draws its generalizations from particulars.
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
Boyd v. United States, 116 U.S. 616 (1886).
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• • • • • • •
- What was once thought to be the exception is the rule and what was the rule is the exception. - The problem which confronts the judge is twofold: first he has to extract from the precedents the ratio decidendi and then determine the path along which the principle is to move and develop. Method of philosophy – line of logical progression Method of evolution – line of historical development Method of traditions – line of the customs of the community Method of sociology – lines of justice, morals, social welfare and the mores of the day Adherence to precedent must be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts. The judge who molds the law by the method of philosophy may be satisfying an intellectual craving for symmetry of form and substance Wesley Newcomb Hohfeld – while the analytical work is indispensable, it is not an all-sufficient one for the lawyer. The analytical tool merely paves the way for other branches of jurisprudence and that without the aid of the latter, satisfactory solutions of legal problems cannot be reached. The directive force of logic does not always exert itself along a single and unobstructed path. One principle or precedent, pushed to the limit of its logic, may point to one conclusion while another precedent may point with equal certainty to another conclusion. We go forward with logic and analogies until we reach a certain point. They follow the same lines at first then they begin to diverge and we must make a choice between them.
LECTURE II. THE METHODS OF HISTORY, TRADITION AND SOCIOLOGY • The directive force of a precedent may involve either an investigation of origins or an effort of pure reason. • History is likely to predominate over logic of pure reason. • An example is the conception of juristic or corporate personality with the long train of consequences which that conception has engendered. - Subject matter may lend itself naturally to one method as to another. - Customs or utility would be present to regulate the choice. - The judge’s personality may prove to be the controlling factor also. • An example of a field in law where there could be no progress without history would be real property. - No lawgiver meditating the code of laws would have conceived the system of feudal tenures. - History built up the system and the law that went with it.
• Another example would be the law of contract in the sense that the distinction between debt, covenant and assumpsit are merely historical. • If history and philosophy do not serve to fix the direction of a principle, custom may step in. • In England the Common Law is distinguishable into three kinds: - General customs – universal rule of the whole Kingdom and forms the Common Law - Particular customs – affect only the inhabitants of particular districts - Certain particular laws – by custom are adopted and used by some particular courts of pretty general and extensive jurisdiction. • Custom is a custom of judicial decision, not of popular action. It is doubtful whether at all stages of legal history, rules laid down by judges have not generated custom, rather than custom generated the rules. • We look to custom, not so much for the creation of new rules, but for tests and standards that are to determine how established rules shall be applied. • For example, in the absence of inconsistent statute, new classes of negotiable instruments may be created by mercantile practice. The obligations of public and private corporations may retain the quality of negotiability, despite the presence of a seal which, at a common law would destroy it. • It not so much in the making of new rules as in the application of old ones that the creative energy of custom most often manifests itself today. General standards of right and duty are established. Customs must determine whether there has been adherence or departure. • The point of contact between the method of tradition and the method of sociology: the natural and spontaneous evolutions of habit fix the limits of right and wrong. A slight extension of custom identifies it with customary morality, the prevailing standard of right conduct. Each method maintains the interaction between conduct and order. • How is it possible to choose between principles? History will give direction to the development concepts in law which have been historical growths. Logic and symmetry apply in concepts which comparative jurisprudence shows to be common to other highly developed systems. Custom tends to assert itself as the controlling force in areas where the rules may, with approximately the same convenience, be settled one way or the other. Finally, when social needs demand one settlement or the other, there is a need to be bend symmetry, ignore history and sacrifice custom in the pursuit of the other ends. • Welfare of society is the final cause of law. - Ethical considerations can be no more excluded from the administration of justice which is the end and purpose of all civil laws.
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- Logic, history and custom have their place but they will be shaped to conform with the end of the law. An English judge once said: “Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise.” There is often graeter freedom of choice in the construction of constitutions than in the ordinary statutes. Constitutions enunciate general principles which must be worked out and applied to particular conditions. There are resulting “gaps” which the method of sociology fills by putting the emphasis on social welfare. - Social welfare is a public policy, the goods of a collective body. - It is the social gain that is wrought by adherence to the standards of right conduct, which find expression in the mores of the community. The will of the State, expressed in decision and judgment is to bring about a just determination by means of the subjective sense of justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing in the community regarding transactions like those in question. The determination should be: - In harmony with the requirements of good faith in business intercourse - In harmony with the needs of practical life, unless a positive statute prevents it. Geny: Interrogate reason and conscience, to discover in our inmost nature, the very basis of justice and on the other, to address ourselves to social phenomena, to ascertain the laws of their harmony and the principles of order which they exact. Examples of an area where the method of sociology can be applicable: “No one shall be deprived of liberty without due process of law.” - Liberty is not defined and there are many questions to be answered, including whether or not the restraints that are arbitrary today may become useful and rational and therefore lawful tomorrow? - The answer to that question at present is yes but in the past, it might have been no. Events of the past (Declaration of Independence, US Revolution, Rousseau and Locke’s philosophies, etc.) have been responsible for the change in the answer. - Dicey: “The movement from individualistic liberalism to unsystematic collectivism had brought changes in the social order which carried with them the need of a new formulation of fundamental rights and duties.” The content of constitutional immunities is not constant but varies from age to age.
- Statutes are designed to meet the fugitive exigencies of the hour. - Amendment is easy as the exigencies change. The meaning, once construed, tends legitimately to stereotype itself in the form first cast. - A constitution states or ought to state not rules for the passing hour but principles for an expanding future. • New times and new manners may call for new standards and new rules. The courts are free in marking the limits of the individual’s immunities to shape their judgments in accordance with reason and justice. That does not mean that in judging the validity of statutes they are free to substitute their own ideas of reason and justice for those of the men and women whom they serve. There must be an objective standard. LESSSON III. THE METHOD OF SOCIOLOGY. THE JUDGE AS A LEGISLATOR. • The method of sociology is the arbiter between the other methods, determining in the last analysis the choice of each, weighing their competing claims, setting bounds to their pretensions, balancing and moderating and harmonizing them all. • Jhering’s conception was that the end of the law as determining the direction of its growth. This finds its instruments in the method of sociology. • Law is a historical growth for it is an expression of customary morality which develops silently and unconsciously from one age to another. • Law is also a conscious or purposed growth, for the expression of customary morality will be false unless the mind of the judge directed to the attainment of the moral end and its embodiment in legal forms. • The judge’s duty to declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance with custom. It is the customary morality of right-minded men and women which he is to enforce by his decree. • Professor Gray: “Everyone will agree that a judge is likely to share the notions of right and wrong prevalent in the community which he lives; but suppose in a case where there is nothing to guide him but the notions of right and wrong, that his notions of right and wrong differ from those of the community – which ought he to follow – his own notions or the notions of the community? • Professor Gray believes the judge should follow his own notions. • The hypothesis presented by Gray is not likely to be followed. A judge would err is he were to impose upon the community his own idiosyncrasies of conduct or belief. He would be under duty to conform to the accepted standards of the community. • The judicial process according to Cardozo: Logic and history, custom and utility and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the
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• • •
• • •
comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. Holmes: “We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.” A judge ought to shape his judgment of the law in obedience to the same aims which would be those of a legislator who was proposing to himself to regulate the question. The theory of old writers is that judges did not legislate at all. A preexisting rule was there, imbedded, if concealed in the body of the customary law. All that eh judges did was to throw off the wrappings and expose the statute to our view. From the holding that the law is never made by judges, the votaries of the Austinian analysis have been led at times to the conclusion that it is never made by anyone else. Customs no matter how firmly established, are not law, they say, until adopted by the courts. Even statutes are not law because the courts must fic their meaning. Gray: “Law is what the judges declare; that statutes, precedents, the opinions of learned experts, customs and morality are the sources of Law.” Jethro Brown: “…a statute till construed is not real law. It is only ostensible law.” Cardozo says that we must seek a conception of law which realism can accept as true. Statutes do not cease to be law because the power to fix their meaning in case of doubt or ambiguity has been confided to the courts. Obscurity of statute or of precedent or of customs or of morals or collision between some or all of them may leave the law unsettled and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function. Judges have, of course, the power, though not the right, to ignore the mandate of a statute and render judgment in despite of it. What really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the percepts of jurisprudence and those of reason and good conscience. The constant insistence that morality and justice are not has tended to breed distrust and contempt of law as something to which morality and justice are not merely alien, but hostile. “It is the function of our courts to keep the doctrines up to date with the mores by continual restatement and by giving them a continually new content. This is judicial legislation and the judge legislates at his peril. ” The power of interpretation must be lodged somewhere and the custom of the constitution has lodged it in the judges.
• In default of an applicable, the judge is to pronounce judgment according to the customary law, and in default of a custom according to the rules which he would establish if he were to assume the part of a legislator. LECTURE IV. ADHERENCE TO PRECEDENT. THE SUBCONSCIOUS ELEMENT IN THE JUDICIAL PROCESS. CONCLUSION. • In the vast majority of cases, the retrospective effect of judge-made law is felt either to involve no hardship only such hardship as is inevitable where no rule has been declared. • There has been a good deal of discussion whether the rule of adherence to precedent ought to be abandoned altogether. I think adherence to precedent should be the rule and not the exception. To these I may add that the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case and one could not lay one’s course of bricks on the secure foundation of the courses laid by others who had gone before him. • But I am ready to concede that the rule of adherence to precedent, though it ought to be abandoned, ought to be in some degree relaxed. I think that when a rule, after is has been duly tested by experience, ahs been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. • J. Wheeler (Dwy v. Connecticut): “That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly and which discards the old rule when it finds that another law represents what should be according to the established and settled judgment of society…” • Example: parol agreements are ineffective to vary or discharge a contract under seal. In days when seals counted for a good deal, there may have been some reason in this recognition of a mystical solemnity. In our day, when the perfunctory initials L.S. have replaced the heraldic devices, the law is conscious of its own absurdity when it preserves the rubrics of a vanished era. • President Roosevelt: “The chief lawmakers in our country may be, and are often, the judges, because they are the final seat of authority.” • My duty as a judge may be to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time. • The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never will these loyalties be utterly distinguished while human nature is what it is.
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• There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute. We ought not to expect more of it when embodied in the judgments of courts.
LAW AND THE MODERN MIND By Jerome Frank
The Basic Myth Lay attitude towards lawyers is a compound of contradiction: (1) respect for the impt functions of the legal profession and (2) disdain for lawyers who are seen as artists in double-dealing, masters of chicane. What’s the source of these doubts? Dean Roscoe Pound says its 12 th century clerical jealousy of the rising profession of non-clerical lawyers, an angry rivalry kept alive by other professions jealous of the lawyer’s prestige. But there may be something more: a belief that lawyers complicate the law in the interest of larger fees! However, it may not entirely be the lawyer’s fault. The law has always been, is now, and will ever continue to be, largely vague and variable; bcoz it deals w/ human relations in their most complicated aspects. Situations are bound to occur w/c were never contemplated when the original rules were made. The constant dev’t of unprecedented problems requires a legal system capable of fluidity and pliancy. In fields other than the law, there is a willingness to accept probabilities and to forego the hope of finding the absolutely certain. It is surely absurd to expect to realize even approximate certainty and predictability in law. Since legal tentativeness is inevitable and often socially desirable, it should not be considered an avoidable evil. But the public learns little or nothing of this desirability of legal tentativeness. Why? Bcoz a large part of the profession believes, and therefore encourages the laity to believe, that legal rules either are or can be made essentially immutable. Wurzel asks why there exists a longing for complete certainty on law and why a pretense that it can be attained. He finds the answer in a “social want” for a body of law w/c shall appear to be, what it can never be, an exhaustive list of commands, issued by the State, sufficient to settle every conceivable controversy w/c may arise. What is the source of this curious “social want”? But the current demand for exactness and predictability in law is incapable of satisfaction, does not arise from practical needs, and has its roots in a yearning for something unreal; what then is the source of this basic legal myth? A Partial Explanation We look at clues in the direction of childhood. The filial relation is clearly indicated as one impt unconscious determinant of the ways of man in dealing w/ all his problems, incldg the problem of his attitude towards the law. The infant strives to retain something like pre-birth serenity. Conversely, fear of the unknown, dread of chance and change, are vital
factors in the life of the child. These factors manifest themselves in a childish appetite fore complete peace, comfort, protection from the dangers of the unknown. He satisfies that craving, in large measure, through his confidence in and reliance on his incomparable, omnipotent, infallible father. Despite advancing years, most men are at times the victims of the childish desire for complete serenity and the childish fear of irreducible chance. When they find life distracting, they revert to childish longings they attempt to satisfy through “the rediscovery of the father,” through father-substitutes. Functionally, the Law apparently resembles the Father-as-Judge. The child’s Father-as-Judge was infallible. Hence, the basic legal myth that law is, or can be made, unwavering, fixed and settled. Why do men seek unreliable uncertainty in law? Bcoz they have not yet relinquished the childish need for an authoritative father and unconsciously have tried top find in the law a substitute for those attributes of firmness, sureness, certainty and infallibility ascribed in childhood to the father. The Language of the Law: Lawyers as a Profession of Rationalizers The practice of law necessitates a special technique of speech w/c may seem to the uninitiate to be indirect but w/c lawyers have discovered to be vitally necessary to the effective handling of legal concepts. When courts come up w/ differing judgments on seemingly the same set of facts, legal practitioners won’t bluntly state that they are abandoning the earlier decisions. Bcoz to have made such a bald statement would have been to make too painfully clear the fact of retroactive law-making by the court. The fact of unpredictable changes in the law would have become too disagreeably obvious. Sir Henry Maine: lawyers employ a double language: e.g. “intention of the legislature” …the purposes of the actual human beings who comprised the legislature are only to a very limited extent considered legally pertinent. The legislators whose will the courts purport to obey are unreal and undiscoverable persons. Also, “manifest” may mean that the man never really had such an intention. Wurzel: lawyers have a peculiar and distinctive verbiage w/c conceals the real nature of their reasoning processes. Lawyers do use a double language and entertain a double and inconsistent set of ideas. But all human do! Ideas and beliefs of all of us may be roughly classified as of 2 kinds: those based primarily on direct observation of objective data and those entirely or almost entirely a product of subjective factors (read: bias!). Biases have deeper roots far better concealed from consciousness. They often grow out of childish aims w/c are not relevant to our adult status. But we don’t admit these biases. We persuade ourselves that our lives are governed by Reason. We rationalize. Rationalization conceals the real foundations of our biased beliefs and enables us to maintain, side by side as it were, beliefs w/c are inherently incompatible. This process, the normal human way of avoiding recognition
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of the conflict of incompatible beliefs is not really exclusive to lawyers. But lawyers, more that most men, are compelled to reconcile incompatibles. Yet for the most part, lawyers are also supposed to seek to achieve certainty. Given the two contradictory aims of practicality and idealism, it is the former that gets served on the long run. Judicial Law-making Have judges the right and power to make law and change law? Conventional view: law is a complete body of rules. Legislatures are expressly empowered to change the law. Judges are not to make or change law but to apply it. Judicial opinions are only evidences of what the law is. Contrary minority view: judge-made law is real law. Judges make and change the law. Statutory legislation may only alter law prospectively. Jurisprudence, on the other hand, can alter the law retroactively. The myth that judges have no power to change existing law or make new law is a direct outgrowth of a subjective need for believing in a stable, approximately unalterable legal world – a child’s world. The supposed practical importance of avoiding legal retroactivity and uncertainty is much overrated, since most men act w/o regard to the legal consequences of their conduct. John Chipman Gray: the law of w/c a man has no knowledge is the same to him as if it did not exist. The factor of uncertainty in law has little bearing on practical affairs. Retroactivity and the resulting unavoidable uncertainty are not as great practical evils as they are often assumed to be. The no judge-made law doctrine is not fundamentally a response to practical needs. There is no harm in this myth. But the denial of the fact of judge-made law seems to resemble an outright benevolent lie that people should believe. It actually leads to a distrust of the judges, disrespect for their opinions. Why then do judges deceive the public? Bcoz they are themselves deceived. The doctrine of no judge-made law is not a lie, not a fiction, rather a myth – a false affirmation made w/o complete knowledge of its falsity. And this self-delusion has led to many unfortunate results. Childish dread of uncertainty and unwillingness to face legal realities produce a basic legal myth that the law is completely settled and defined. Thence springs the subsidiary myth that judges never make law. That myth, in turn, is the progenitor of a large brood of troublesome semi-myths like “contracts implied in law,” “constructive fraud,” and “malice in law.” Legal Realism What is the law? What does it mean to the average man of our times when he consults a lawyer? For any particular lay person, the law w/ respect to any particular set of facts, is a decision of the court w/ respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. Prior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person and to those facts. Such opinion is not
actually law but only a guess as to what a court will decide. Law then as to nay given situation is either (a) actual law, i.e., a specific past decision, as to that situation, or (b) probable law, i.e., a guess as to a specific future decision. Is this how lawyers customarily define the law? Not at all.
Beale and Legal Fundamentalism Beale would definitely say that the decision and judgment of a court determining a particular controversy can in no sense be regarded as in itself law. Judgment of any court is too finite, too lowly, of too little real import, to be worthy the name law. Law must be uniform, general, continuous, equal, certain, pure. Law cannot change backwards and forwards a dozen times w/in a few years. Its purity is unsullied by mere decisions, whatever their practical consequence. In case of conflicting decisions given the same set of facts, the law had always been the same and the Court, in one decision or the other, had made a mistake. The law never was in doubt, only the decision was in doubt; as Beale sees it, the decision and the law are not the same, by any manner of means. Accdg to Beale, the law consists of three parts: (1) statutes, (2) rules and (3) the general body of principles accepted as the fundamental principles of jurisprudence. Law is made in part by the legislature; in part it rests upon precedents; and in great part it consists in a homogenous, scientific, and all-embracing body of principle, a philosophical system. Law must be predictable and continuous. It is essential that law be general, for w/o generality there could not be equality, and justice requires equality, and that means generality. It is impossible that a single event should be followed by 2 contradictory legal consequences, for any political society must have only one law; if two laws prevail at the same time, they might be mutually destructive. Judges can not make law, for if they did, the law might change rapidly and it must not change rapidly. These things cannot be, must not be. But they are. For Beale and his legal absolutism, real Law is superhuman. It is extraexperiential. But to mere humans, law means what the courts have decided and will decide, and not vague, “pure” generalizations. Lawyers are intensely practical men and their concern is w/ the lives and property of their clients. Why then is generality so prized by lawyers at the expense of particularity? Verbalism and Scholasticism Dean Leon Green: The possibility of developing a true science of law has been retarded bcoz lawyers have not risen above the word level. If we are to make progress in the law, we must no longer canonize words such as rights and duties. Words must surrender their sanctity. Is legal Absolutism, then, merely word-worship? Perhaps! Many abstract terms acquire an intense “emotive value”; they stimulate not intellection but
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strong feelings. They represent “emotional abstractions”. Language, in its emotive aspect, makes legal Absolutism possible. The Bealist is a wishful thinker who makes indispensable use of Word-Magic. Bealism is the verbal expression of excessive optimism, is sure to breed excessive cynicism. Another charge directed against the Bar is belated scholasticism. It is argued that lawyers have to learn to stop using abstractions as substitutes for specific events. Lawyers should reason deductively from such abstractions. Scholastic faith in the superiority of abstract terms, and slavish adherence to formal logic, has to be dispensed w/. There seems to be a parallel between the vices f formal logic (commonly associated w/ scholasticism) and the vices of legal logic. Scholasticism and Bealism are seemingly related. But we need to ask why scholasticism and verbalizing have survived in lawyerdom when they have become obsolescent (if not obsolete) in the natural sciences. Are lawyers more stupid than the scientists? Surely not. Childish Thought-ways The child is a wishful thinker who in the interest of his desires for harmony, chancelessness, security and security, builds for himself an oversimplified, over-unified, novelty-less world to conform to his desires, heedless of the lack of correspondence of this construction w/ the world of actual experience, & who is aided in contriving this world by his implicit belief in the magic efficacy of words. Misuse in modern times of scholastic logic, despite its harmful social consequences is apparently not due to the fact that nothing has a greater hold on the human mind than nonsense fortified by technicality, bcoz the more nonsensical it is, the more impervious it becomes to rational objection, the more impossible it is to amend it, and so the better it lasts. Scholasticism is w/ us today not bcoz it is consecrated by a tradition of 2000yrs, but bcoz all men now alive were once children and many of them continue to remain emotionally childish even in advanced years. Scholasticism and Platonism alike appear to be cleverly elaborated formulations of the emotional attitude of childhood, ingenious rationalizations of the world outlook of the child. To say of a man’s thinking that it is scholastic or platonistic, is to say that it is tinged w/ childish emotions. Genetics Shall we say that, if we lawyers are preponderantly absolutistic, then we are scholastic or platonistic – and therefore childish? Scarcely, for while there is unquestionably a resemblance of some sort between legal Absolutism and childish thinking, the resemblance is in illusory aims, in conscious outlook, not in intellectual processes. A central feature of the child’s mode of thinking is that it is egocentric: the child assumes that everything centers in himself and confuses the self w/ the universe. It is the child’s naïve egocentricity, his unconsciousness of self, w/c leads him to regard his own perspective as immediately objective
& absolute; w/c makes him a wishful thinker, a verbalist, a fatuous believer in an impossible chanceless world, devoid of novelty, and gratifyingly secure and harmonious. Later, the child’s egocentricity becomes derivative. It is as son of his father that the child now maintains his belief that he is the center of the world. Egocentricity becomes dependent on father-centricity. The discovery of the humanity, the fallibility, of his father is the beginning of wisdom for the child. W/ that staggering discovery comes the child’s awareness of his self. Dualisms arise, objectivity commences. But disillusionment is by no means at once complete. Substitutes for the father, substitutes that are not fallible and weak, is still sought after. Where father-substitutes have been obliterated, adult objectivity will make those thought-processes objective. Where father-substitutes have not been dissipated, the unconscious childish aims will survive and though mechanisms of childish character will continue. Since then, the Law is easily personified as a father-substitute. The subject of law evokes youthful illusory aims. Scholasticism has survived in lawyerdom bcoz the emotional attitudes of childhood have a more tenacious hold on men when their thinking is directed towards the law. The complete liberation of lawyers from the so-called tradition of scholasticism can only come through their liberation, w/ respect to law, from the emotional attitudes of the child. Word-Consciousness Counter-argument: It is not the prolongation of childish emotional attitudes but verbalism, misuse of words. In order to save time, we contract and condense language, make up words like virtue, liberty, freedom, democracy, and forget that they are merely abbreviations. The hindrance to the detection of the merely verbal character of those abstractions is due to a belief in word-magic. Word-consciousness, a perception of the true use of words, a study of the genesis of current language habits, may deliver us from primitivity in thinking by enabling us to look beyond our speech forms to the things we are talking about. Piaget: it is not the child that is molded by language; it is the language w/c is already childish. The real disease is emotional infantilism unduly prolonged. Of that disease, verbomania is merely one symptom. Even after words become a means of communicating thoughts, they continue to contain definite emotional charges, a sort of magical significance, associated w/ certain acts. Words frequently become, for the child, a substitute for action. No one needs to teach him that word-magic are excellent modes of escape from the harsh ways of actual events. If word-magic is not the cause of childish emotional attitudes, the real cure probably must be sought in whatever causes an undue prolongation of a childish emotional outlook. Verbalism will give way completely only when the childish emotional point of view is outgrown. A war on wards is to be welcomed in the province of law to assist in demolishing many a legal myth. But unaided, it will probably prove to be insufficient. The trouble w/
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legal thinking is not the mental inadequacies of lawyers but the very nature of law as a father-substitute. The lawyers on the whole are better able to fight off emotional deterrents than the laymen. Scientific Training Prof. Walter Wheeler Cook believes the way out of the legal Dark Ages is through acquainting law students w/ the logic of the natural sciences. Platonism demonstrates that the yearning for authority is insidious. It will find satisfaction at all costs; twist any material to its ends. What has certainty hunger in law done in distorting some of the philosophies w/c it ahs encountered? 18th century scientific world outlook’s purpose was to observe and understand and control the actual. The emphasis in legal science was the exact reverse: attainment of universals w/c were above and independent of experience. 19th century iconoclasm made lawyers see law as inductive: belief in a common law of w/c all precedents and decided cases are merely the evidence and exposition. Legal investigation consisted of looking into the outward manifestations – statutes & decisions – and formulating to the mind the invisible law whence they proceed. But it is far more impt that lawyers catch the spirit of the creative scientist, w/c yearns not for safety but risk, not for certainty but adventure, w/c thrives on novelty, and not on nostalgia for the absolute. Can the scientific spirit be inculcated by instruction in the ways of the scientist? It would seem not. What blocks a clearer understanding by lawyers of what they are about is not dull-mindedness, not inadequacy of educational training. It is, it seems, an emotional blocking due to the very character of law, to the facility w/ w/c the law is converted into a substitute for fatherly authority. If any lawyer can measurably prevent himself from making that substitution, his thinking about law will become realistic, experimental – adult. The Judging Process and the Judge’s Personality The judge in reaching a decision is making a judgment. Judging begins w/ a conclusion more or less vaguely formed; a man ordinarily starts w/ such a conclusion and afterwards tries to find premises w/c will substantiate it. In the case of the lawyer, he must, that is if he is to be successful, begin w/ a conclusion w/c will in sure his client’s winning the lawsuit. He then assembles the facts in such a fashion that he can work back from this result he desires to some major premise w/c he thinks the court will be willing to accept. The precedents, rules, principles and standards to w/c he will call the court’s attention constitute the premise. In theory, the judge begins w/ some rule or principle of law as his premise, applies this premise to the facts, and thus arrives at his decision. But the judge is a human being and it is safe to assume that judicial judgments, in most cases, are worked out backward from conclusions tentatively formulated. The judge usually decides by feeling and not by judgment. He passes in review all of the rules, principles, legal categories,
and concepts w/c eh may find useful, directly or by an analogy, so as to select from them those w/c in his opinion will justify his desired result. If the law consists of decisions of the judges and if those decisions are based on the judge’s hunches, then the way ion w/c the judge gets his hunches is the key to the judicial process. Whatever produces the judge’s hunches makes the law. What, then, are hunch-producers? Rules and principles of law are just one class. The political, economic, and moral prejudices of the judge may be another. And also is his affection for or animosity to some particular individual or group, due to some unique experience he has had. Or even the memories he has had. The courts too have observed that w/o any improper motives, witnesses, in forming inferences from what they have seen or held or felt, may badly misrepresent the objective facts. A witness can not mechanically reproduce the facts, but is reporting his judgment of the facts and may err in making this judgment. While the witness is in this sense a judge, the judge, in a like sense, is a witness. The judge’s determination of the facts of the case is no mechanical act. He is subject to defects in his appreciation of the testimony. The peculiar traits, disposition, biases and habits of the particular judge will, then, often determine what he decides to be the law. The law may vary w/ the personality of the judge. Justice is a very personal thing. We shall not learn how judges think until the judges are able and ready to engage in ventures of self-discovery. For a judge’s decisions are the outcome of his entire life-history: his general and legal education, family and personal associations, wealth and social position, legal and political experience, political affiliations and opinions, intellectual and temperamental traits. No one can know in advance what a judge will believe to be the “facts” of a case. It follows that a lawyer’s opinion as to the law relating to a given set of facts is a guess as to (1) what a judge thereafter will guess were the facts and (2) what the judge will consider to be the proper decision on the basis of that judge’s guess as to the facts. Lawyers are constantly looking into the motives and biases of clients and witnesses, but are still peculiarly reluctant to look into the motives and biases of judges. Mechanistic Law; Rules; Discretion; The Ideal Judge The task of the judge, if well done, is no simple one. He must balance conflicting human interests and determine w/c of several opposing individual claims the law should favor in order to promote social well-being. He must determine whether to fit a particular case into the terms of some old rules or to “legislate” by revising and adjusting the preexisting rules to the circumstances of the instant controversy. Yet majority of lawyers still deny that judges do make law. John Chipman Gray: The Law is made up of the rules for decision w/c the courts lay down; all such rules are law; rules for conduct w/c the courts do not apply is not law; the fact that courts apply rules is what makes them law; there is no mysterious entity “The Law” apart from these rules; and the judges are rather the creators, than the discoverers of the law. Judges
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derive these rules from sources: statutes, judicial precedents, opinions of experts, customs and principles of morality (and public policy). In truth, all the Law is judge-made law. Judges make law when they make or change the rules; lawmaking is legal rule-making, the promulgation by a judge of a new rule for decision. Holmes: if you want to know the law and nothing else, you must look at it as a bad man, who cares for only for the material consequences w/c such knowledge enables him to predict. The prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by law. A generalization is empty so far as it is general. Its value depends on the number of particulars w/c it calls up to the speaker and the hearer. The Law is made up not of rules for decision laid down by the courts but of the decisions themselves. All such decisions are law. The fact that courts render this decisions makes them law. And the sources of law are not only statutes, precedents, customs and the like, but the rules w/c other courts have announced when deciding cases. Bishop Hoadly: whoever has an absolute authority to translate rules into specific judgments, it is he who is truly the law-giver to all intents and purposes, and not the persons – be they legislators or other judges – who first wrote or spoke the rules. Whenever a judge decides a case he is making law. The law of any case is what the judge decides. Rules whether stated by judges or others, whether in statutes, opinions or textbooks by learned authors, are not the Law, but are only some among many of the sources to w/c judges go in making the law of the cases before them. The law consists of decisions, and not rules. Whenever a judge decides a case, he is making law. Prof. Walter Wheeler Cook: the practicing lawyer is engaged in trying to forecast future events. His task is not to find the preexisting but previously hidden meanings in these rules; it is to give them a meaning. The logical situation confronting the judge in a new case being what it is, it is obvious that he must legislate, whether he will or no. Legal rules and precedents only enable the judges to give formal justifications – rationalizations – of the conclusions at w/c they otherwise arrive. These formulas are devices for concealing rather than disclosing what the law is. To apply law mechanically usually signifies laziness, or callousness to the peculiar factors presented by the controversy. The personality of the judge is the pivotal factor. The principles of law are often only remotely related to judicial conduct. There is little hope for stability in law if our judges are the more enlightened, sensitive, intelligent members of the community, for then there will be small likelihood that all judges will react identically to a given set of circumstances or will be obtuse to the recognition of unique facts in particular legal controversies. Edmund Burke: no rational man ever did govern himself by abstractions and universals. Jerome Frank: The act of deciding is seemingly divisible into 2 parts, the determination of the facts and the determination of what rules are to be applied to those facts. But these two parts of judging can not be separated, but intertwined.
Judge Peters of Alabama (quoting Lord Camden): it cannot safely be denied that mere judicial discretion is sometimes very much interfered w/ by prejudice, w/c may be swayed and controlled by the merest trifles such as the toothache, the rheumatism, the gout, or a fit of indigestion, or even through the very means by w/c indigestion is frequently sought to be avoided. All judges exercise discretion, individualize abstract rules, make law. Those judges a\whoa re most lawless, or most swayed by the perverting influences of their emotional natures, or most dishonest, are often the very judges who use most meticulously the language of compelling mechanical logic, who elaborately wrap about themselves the pretense of merely discovering and carrying out existing rules, who sedulously avoid any indications that they individualize cases. The pretense that judges are w/o the power to exercise an immense amount of discretion and to individualize controversies, does not relieve us of those evils w/c result from the abuse of that judicial power. It actually increases the evils. The attempt to cut down the discretion of the judge, if it were successful, would remove the very creativeness w/c is the life of the law. Aristotle: legal rules are necessary general, designed to meet the average situation, but the circumstances of most actual cases are particular. Human rule-makers cannot lay down in advance rules w/c will fit all particular cases thereafter arising. Wherefore the rules of law must often be modified in their application. That w/c is equitable is just, and better than one kind of justice, not indeed better than absolute justice, but better than the error of justice w/ arises from legal generality. The law is reason unaffected by desire. Roscoe Pound: there is something in equity and discretion w/c is out of line w/ the course law should take. Equity or discretion is sometimes the anti-legal and sometimes the non-legal element in the administration of justice. Jerome Frank: what Pound calls law and what he calls non-legal can not be separated. They are so intermingled that it is not possible to divide them. The childish desire to rediscover an all-knowing strict father-judge in law leads to a demand for impossible legal inflexibility and infallibility. Thence follows assiduous efforts to make law static and therefore to reduce the power of the judge, to deny to him creativeness. These efforts are unavailing – fortunately so, since justice depends on a creative judiciary. Truth is the judge is trying to decide what is just; his judgment is a “value judgment” and most value judgments rest upon obscure antecedents. “The art of manipulating judges properly is impt, and yet does not, and rightly should not, receive the attention of law schools. The primary object of the university as a public institution can only be the advancement of our legal institutions through a dev’t of a liberal understanding or science of the law.” BUT if law students are taught law in terms of the conduct of ideal/non-existent judges, then later when those students become practitioners or judges, they are unlikely to be at their best in coping w/
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the ways of the actual judging process. The rational alternative is to accept that judges are human beings. In law schools, in law offices and law courts, there must be explicit recognition of the meaning of the phrase “human nature in law.” The study of this may not only deepen our knowledge of legal institutions but open an unworked mine of judicial wisdom. We also need to develop a more explicit technique for individualizing cases. The systematic, deliberate and openly discussed sue of the unique facts of the case will not be of much service until the judges develop the notion of law as a portion of the science of human nature. And that dev’t cannot come to fruition until the judges come to grips w/ the human nature operative in themselves. Illusory Precedents: The Future: Judicial Somnambulism Lawyers and judges purport to make large use of precedents: the conduct of judges in past cases as a means of procuring analogies for action in new cases. What the courts in fact do is to manipulate the language of former decisions. And our present use of illusory precedents makes the employment of real precedents impossible. Yntema: a decision is reached after an emotive experience in w/c principles and logic play a secondary part to describe the event w/c ahs already transpired. The impt problem is not the formulation of the rule but the ascertainment of the cases tow/c, and the extent to w/c, it applies. It is impossible to guess what the judge did experience in trying a case. Dickinson: the “personal bent of the judge” to some extent affects his decisions, but this personal bent is a factor only in the selection of new rules for unprovided cases. BUT in a profound sense the unique circumstances of almost any case make it an unprovided case where no well established rule authoritatively compels a given result. Reliance on precedents is illusory bec judges can seldom tell precisely what has been theretofore decided. A court can usually find earlier decisions w/c can be made to justify almost any conclusion. There are very few who have attained the enlightened state of awareness of their unawareness. These include Judges Holmes, Cardozo, Hand, Hucheson, Lehman and a few others. Others are still swayed by the belief that since their opinions will serve as precedents, they are obligated to look too far both backwards and forwards. They sometimes refuse to do justice in the case on trial bcoz they fear that “hard cases make bad laws,” – causing an “injustice accdg to law.” One danger in the administration of justice is that the necessities of the future and the interest of parties not before the court may be sacrificed in favor of present litigants. Judicial self-delusion and ineffectual suppression of the judge’s personality leads to the indirect, unobserved and harmful effects of his personality on judicial decisions. The desire to regulate the future is in part a desire for impossible uniformity, security and certainty, for over-simplification, fro a world regulated and controlled as a child would have it regulated and controlled. Some justices, in seeking to cover up the more obvious manifestations of this lack of legal
conformity even go as far as proposing that the courts cease writing opinions, or at least prohibit rendition of dissenting opinions. The judge at his best is an arbitrator, a sound man who strives to do justice to the parties by exercising a wise discretion w/ respect to the peculiar circumstances of the case. He does not merely find or invent some generalized rules w/c he applies to the facts presented to him. But the bench and bar usually try to conceal this arbitral function, making the labor of judges less effective. The paradox of wisdom: in so far as we become mindful that life is more dangerous that we had naively supposed in childhood, we help ourselves to approach nearer to actual security. If we relinquish that law can be mathematically made certain, if we honestly recognize the judicial process as involving unceasing adjustment and individualization, we may be able to reduce the uncertainty w/c characterizes much of our present judicial output to the extent that such uncertainty is undesirable. By abandoning an infantile hope of absolute legal certainty we may augment markedly the amount of legal certainty. It is about time to abandon judicial somnambulism. Painful Suspension We want our judges to practice reflective thinking: inquiry into the rightness of established habits, interruption of routine, selection of alternatives, detection of ambiguities, and choice of roads at the crossways. Scientists, professional doubters are devoted to breaking up tradition, courting the kind of pain involved in reflective thinking. Judges, on the other hand, especially those whose judgments are routine, honor precedent and try to avoid the pain of suspended judgment. Vaihinger on 3 stages in human dev’t: (1) Dogmatism, proper to the primitive man, trustfully assumes that whatever occurs in thought exists, that thought is infallible. (2) Negative skepticism, rather pessimistic, regards thought as an extremely defective instrument w/c falsifies reality and leads us astray. (3) True criticism, quite hard to attain, recognizes that although thought may not be in complete correspondence w/ actual reality, it may lead to ultimate practical coincidence w/ the facts of existence. One’s reaching this stage is a product not of high intellectual progress but of emotional maturity. The pain involve in suspended judgment is a product of the regressive and more infantile tendencies. W/ maturity doubt and inquiry should no longer be unpleasant, but should rather become a source of interest and satisfaction. The so-called scientific mind is the emotionally adult or mature mind. Judges have failed to see that, in a sense, all legal rules, principles, precepts, concepts, standards – all generalized statements of law – are fictions. We want judges who, viewing and employing all rules as fictions, will appreciate that as rules are fictions intended for the sake of justice, it is not to be endured that they shall work injustice in any particular case, and must be molded in furtherance of those equitable objects to promote w/c they were designed. If justice is to be capably administered, judges must be so trained that they will put a premium on their dynamic
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tendencies and struggle against the drag of childish nostalgia for the oversecure and impossibly serene – for a father-governed world. The Basic Myth and the Jury The demand for excessive legal certainty produces a violent prejudice against a recognition of the practical need for flexible adaptation and individualization of law based upon the unique facts of particular cases. Note that the function of the jury is supposed to be fact-finding. But in most jury cases, the jury determine not the “facts” but the legal rights and obligations of the parties to the suit. For the judgment of the court follows the general verdict of the jury, so that the verdict, since it produces a judgment w/c determined the respective rights and obligations, decides the law of that particular case. The general-verdict jury system developed bcoz it serves two purposes: It preserves the basic dogma in appearance and at the same time (albeit crudely and bunglingly) circumvents it in fact, to the end of permitting that pliancy and elasticity w/c is impossible accdg to the dogma, but w/c life demands. Mr. Justice Chalmers: Hard cases make bad law. But hard cases tried w/ a jury do not make bad law, for they make no law at all, as far as the findings of the jury are concerned. The principle is kept intact while the jury do justice in the particular case by not applying it. While men want the law to be father-like, aloof, stern, coldly impartial, they also want it to be flexible, understanding, humanized. Judges, in turn, do not usually admit the wide margin of discretion they employ in arriving at their decisions; and to preserve the self-delusion of legal fixity, certainty and impartiality, they hand over the determination of legal rights and liabilities to the whims of 12 men casually gathered together. Seeking to escape judge-made law, we have evolved jury-made law. The jury system means that the illusion of the existence of an inflexible body of rules ostensibly has been maintained, whereas, in fact, uniformity and inflexibility are negated. The truth is that the very judges who seem to estimate the jury as the superior triers of facts pragmatically reveal little sincerity in their jury worship. The use of fact-verdicts, while it may slightly reduce the evils of the jury system, cannot eliminate them. The jury makes the orderly administration of justice virtually impossible. The judge’s instructions have become part of an elaborate ceremonial routine. The jury lawyer is a realist, seeking a result, and he plays upon every weakness of the dozen men who will decide the fate of his client. The basic legal myth produces an intricate, technical ritual, practically useless, but the subject of endless and wasteful disputation. Codification and the Command Theory of the Law The remedy for legal uncertainty recurrently proposed by men of strong sense (Frederick the Great, Napoleon, and many others): adoption of a code, a carefully prepared body of rules sufficiently complete to settle all future controversies. But history has seen that the hope of attaining a
large measure of legal certainty by codification proved vain. It produced not certainty, but sterile logic-chopping. The gap between theory and practice is now rapidly widening. The law expounded in classroom and textbook differs more and more from that applied in the courts. Codification cannot create a body of rules w/c will exclude judicial innovation and thereby guarantee compete predictability. A code cannot be stable, it must be adaptive. Where customs are constantly changing under the pressure of a lively industrialism and commercialism, no code, however adequate for today, could possibly be sufficient for the problems of tomorrow or the day after tomorrow. Even in a relatively static society, no one can foresee all future combinations of events. The incompleteness of the code calls for judicial law-making. Such lawmaking is customarily designated judicial interpretation. But that is a false label: What the judges have to do is, not to determine what the legislature did mean on a point w/c was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present. Judicial law-making is not only an unavoidable, but a desirable and most important element of any code system. The childish belief in legal finality is not to be realized by codification. It is and will ever be based upon illusion. On the command theory of law. John Austin: Every law is a command – the command of a monarch or sovereign to persons in a state of subjection to its authority. Law proceeds from superiors and binds inferiors. Wurzel: to most laymen and lawyers, jurisprudence is a science of obedience, of submission to commands. Jerome Frank: the public is still dominated by a childish myth. Although there are gaps in the law, although the law is never complete and always provisional, although it is plain to the eye of any realistic observer that it is being made and remade constantly by the courts, the social want demands that every artifice be used to conceal these gaps. The Religious Explanation Defining religion as the belief in a universal steadfastness, in an uninterrupted connection between apparently disjunctive events, in cosmic certainty, it may be possible that man’s search for complete legal certainty is but one aspect of the religious impulse/conviction to seek for security and certainty. In primitive and ancient times law and religion were virtually one. In terms of its social origins, law is a gift of the gods. Folk-law, when law and religion were identical, contained an extraordinary minuteness and detail of crimes and their penalties such that there was no room for judicial aberration or discretion. But to say that the contemporary desire for too much definiteness and predictability in law is a survival of the earlier definition of law and religion may be too insufficient. The close and avowed relation of law to religion is a matter of the distant past. The legal profession has long been split off from priesthood.
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One cause of the longing for excessive legal certainty in modern times is the operation of a “force” w/c acted powerfully in the past and acts powerfully now. Society is made up of persons who now are or recently have been children. There exists a close and obvious correspondence between the attitude of the young child towards his parents and that of man towards the superhuman powers w/c he personifies as God, the Divine Father. Religion, in a sense, is infinite dependence upon God. But the child does not “divinify” his parents. It can better be said that he “paternalizes” God at the moment when he ceases to regard his parents as perfect. The Father in Heaven is likely to absorb a large measure of the attributes originally ascribed by the child to his earthly father. In the same manner, the Law is “paternalized,” not “divinified.” Therefore, the continued craving for excessive legal stability is to be ascribed not to a survival of the period when law was dominated by a belief in its religious or divine origin, but to a more powerful and still operative influence, underlying both law and religion. We must seek one of the important causes of the basic legal illusion not in religion, but in undisposed of childish longings for a father-substitute, longings w/c play their part in religion as in law. The Basic Myth, and Certain Brilliant Legal Thinkers 1. Dean Roscoe Pound and the search for legal certainty . Pound says rigid rules and judicial slot-machines are to be preferred for cases relating to property and commercial or business transactions. But for cases raising problems of human conduct or the conduct of enterprise or good-faith cases, non-mechanical methods and flexible discretions may be utilized. He seems aware of the judicial realities, yet reluctant to relinquish entirely the age-old myths. He denounces the dogma of “no judge-made law” yet tries to preserve it. 2. Jhering and the kingdom of justice on Earth. Jhering believed that law should be pliant and deliberately purposive, that it should be consciously used as a means to desired social results. But although he believed that the law should deal w/ differences between individuals, he was at times apparently opposed to the individualization of controversies. There is in him a struggle between two inconsistent attitudes: a marked sensitiveness to objective reality & a powerful drive of satisfaction of purely subjective emotional needs. He defines law as the feeling of security in the State and religion as the feeling of security in God. 3. Demogue’s belief in the importance of deluding the public. This contemporary French jurist discloses the ambiguity of the phrase “legal security” and differentiates static security that favors owners of rights and emphasizes the status quo vis-à-vis dynamic security that incites to action in promoting the security of those who acquire these rights. He thoroughly is w/o illusions as to the attainability or desirability of legal certainty but he deliberately counsels against the disclosure to the layman of the contingent character of law.
4. Wurzel and the value of lay ignorance. This writer desires to see lawyers abandon antiquated assumptions as to the character and function of law, and become conscious of the mental processes w/c they employ unconsciously. But he also believes that the public appearance of a static legal universe must be preserved and that the laity must not peer behind the scenes. The lawyers are to become more sophisticated, but the laymen are to remain ignorant and deluded. 5. John Morley and the meaning of compromise. Morley’s writings on attitudes towards religion and politics show that he detested the “dual doctrine” and the reserve of intellectual cowardice dealing hypocritically w/ narrow minds in the supposed interest of peace and quietness. He says it is wise to be patient about the general acceptance of a new idea but the time has always come, and the season is never unripe, for the announcement of the fruitful idea to the general public. The first kind of compromise where the compromiser rejects the highest truth prolongs the duration of the empire of prejudice and retards the arrival of dev’t. The other kind, where the compromiser holds the highest truth courageously for his ensign and device but neither forces nor expects the whole world straight away to follow, is what he terms as a legitimate compromise. 6. The candor of Cardozo. This legal writer wants to do away w/ legal mysteries. He would have not lawyers alone, but laymen as well, learn the actualities of the judicial process. He seems to have reached adult emotional stature, able to contemplate w/o fear a public w/c shall know what he knows. Yet, he is not ready to abandon entirely the ancient dream. He laments the absence of mathematical legal exactness and authoritative commands as the evil against w/c intellect rebels.
Conclusion I. Getting Rid of the Need for Father-Authority A revised attitude towards the law wants the courts to perceive what it is they are doing and thus be enabled to address themselves consciously to doing it in the best way. Enlightened thinkers want an effective, intelligent fusion of the two competing tendencies towards stability and change; a working principle of growth; a constant revision of the law’s heritage of knowledge and thought; the frequent adaptation of the legal rules so as to relate them to the realities of contemporary social, industrial and political conditions. This is no easy task. Growing up means throwing off dependence upon external authority. It means self-reliance, the acceptance of responsibility. It means questioning calmly and dispassionately our bequests from the past, our social heritage. The fear of change is an ancient one. If we are to grow more civilized, we must arrive at a more adult attitude towards chance and change. We must distinguish between that growth towards maturity w/c produces an acceptance of danger and that childish reaction against
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fatherly authority w/c takes on the appearance of adult courage. In law, if the search for the father-judge is ended, no violent transformation need or will occur. The demand for too much change is as little based on practicality as the demand for too much rigidity. Modern civilization demands a mind free of father-governance. To remain father-governed in adult years is peculiarly the modern sin. The modern mind is a mind free of childish emotional drags, a mature mind, unopposed to change, avowedly pragmatic. Until we become thoroughly cognizant of, and cease to be controlled by, the image of the father hidden away, in the authority of the law, we shall not reach that first step in the civilized administration of justice, the recognition that man is not made for the law, but that the law is made by and for men. II. Mr. Justice Oliver Wendell Holmes, the Completely Adult Jurist His writings are a treasury of balanced judgments, a vast knowledge of legal history divorced from slavish venerations of the past. He has put away childish longings for a father-controlled world & has steadfastly urged his fellows to do likewise. Holmes’ adult illusionless surveys are an indispensable aid and an inspiration for legal realists. “The life of the law has not been logic; it ahs been experience.” Law cannot be dealt w/ as if it contained only axioms and corollaries of a book of mathematics. For him, history is valuable for the light it throws upon the present; the past gives us vocabulary and fixes the limit of our imagination, but the present has a right to govern itself as far as it can. He believes that in substance, the growth of the law is legislative and that the process of judicial law-making has largely been unconscious. He advocates a more conscious recognition of legislative function of our courts. He has abandoned legal mysticism and believes that where there is doubt, the simple tool of logic does not suffice, and even if it is disguised and unconscious, the judges are called on to exercise the sovereign prerogative of choice. He has been saying that, in effect, the Golden Rule is that there is no Golden Rule. If, like Holmes, we win free of the myth of fixed authoritarian law, having neither to accept law bcoz it comes from an authority resembling the father’s, nor to reject it for like reason, we shall, for the first time, begin to face legal problems squarely. If, like him, we realize that perfection is not possible, the legal profession will then for the first time be in a position to do its work well, w/ lawyers enjoying the pleasures of selfconfidence, self-authority, and the other benefits such an adult, mature, conscious outlook may bring.
I. Rituals • The role-playing between the judges and the judged is constitutive. • The basic dichotomy is ancient and most notably paired with another separation—the ruler and the ruled. This has been reconfigured by the present society into the rhetoric of constitutionalism in two ways: 1. Separation of Powers: has become a judicial theory of maintaining a mechanistic Newtonian balance among different public departments, not to promote efficiency, but to avoid abuses of power. 2. Due Process Clause: the deprivation of life, liberty, or property now requires the mediation of an ideal—the cold, neutral, and impartial judge.
of Judicial Function: that judging is law-application and fact-finding; that law application is about interpretation; that interpretation is a matter of applying the plain meaning of texts and that judges are detached from the active world of norm-building and are in fact objective of received knowledge. • These doctrines also give meaning to the judiciary being the “less dangerous branch” and substantiate the nature of judicial reasoning as both a matter of logic and directional. Most importantly, they have given judges an escape from the kind of responsibility political officials in a democracy are usually subjected to: accountability for one’s politics or ideological implications of one’s decisions.
for judges, once made aware of their political role, to embrace this function wholeheartedly not only because this is the way of the honest but because it is important for the judges to take responsibility for their decisions and thus place their public actions within the reach of the democratic radar. II. Performative Utterances
THE SCANDAL OF THE SPEAKING JUDGE By Florin Hilbay
Langshaw Austin’s Speech Act Theory: introduced the concept of statements that are not nonsensical, and yet are not true or false. Performative speech acts do not have truth value, and since the act of uttering the statement creates the referent, there is no external referent against which to measure the truth of the utterance. • Appropriate circumstances for the use of performatives: 1.There must exist an accepted conventional procedure having a certain conventional effect, that procedure to include the uttering of certain words by certain persons in certain circumstances; 2.The particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invoked;
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3.The procedure must be executed by all participants both correctly and completely; 4.Where, as often, the procedure is designed for use by persons having certain thoughts or feelings, or for the inauguration of certain consequential conduct on the part of any participant, then a person participation in and so invoking the procedure must in fact have those thoughts or feelings, and the participants must intend so to conduct themselves; and 5.The participants must actually so conduct themselves subsequently.
the demand for interpretive certainty is an ideal that can never be approximated. IV. Background to the Foreground • whereas before the goal was the mastery of the technical skills of applying rules, now it is understanding the normative value of each and every performance; whereas before the standard for evaluating decisions was its coherence with doctrine, now it is its relevance as political choices; whereas before judgments are infallible, now judgments are ideological statements susceptible to interrogation. • The characteristic feature of the way these ideas became entrenched is their invisibility. Judicial decisions are most wholesome when couched in impartial language, and judges’ ability to pacify public dissent has a lot to do with the apparent objectivity of their reasoned elaborations. • What is the result of the combination of colonial imposition and political ideology insofar as the courts are concerned? It is the ideological performance which has become entrenched in the rhetoric of the public and , most importantly, in the teachings of the law schools where generations of future lawyers and judges are trained to believe that the metaphors of fact-finding and lawinterpretation are actually true.
III. Judging as Performance
• The entire decision-making process is performative: decisions over
evidence or fact-finding, choice of applicable law, and conclusions of law are all performative utterances per se. Every instance in the decision-making process is an isolated moment of creation summed up by the familiar So Ordered. 1. Findings of Fact - evidence is the mode and manner of proving competent facts in judicial proceedings. - the resulting metaphor is that of a judge as finder of fact. - It assumes that the reality of facts produced by evidence exists objectively and that it is possible to know this reality through a methodology that is supposed to be faithfully adhered to by the judge. - But this is a case of theory unfit with reality because every instance in which a judge declares that “the court has established as a fact” something, what she has really done is to make a choice among multiple sets of hypothesized and hypothesizable fact situations. This choice is imaginative, and not compelled by rules. - Judges are also prone to making “common sense” conclusions and of facts presented by litigants, when they do, they engage in slippery and foundational argumentation. - The metaphorical role of fact-finding is therefore performative: the act of stating is the act of creating. 2. Conclusions of Law – related to the choice of law applicable and the conclusion arising from that choice - formalist equation of Jerome Frank: (Law) x (Fact) = Decision. 3. Mixing Facts and Law – through the parsing of texts, judges are able to re-use and modify the metaphor of finding; whereas evidence allows the judge to find facts, interpretation allows her to “find” meaning. - there is no textualist position. The role of text is not to provide meaning but to furnish a material arena for debating symbols;
Dunn makes the following pragmatic point: “Judges are liars. They routinely engage in delusion. They occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret law. It is a strange fiction, but it is a necessary one. The legitimacy of the judicial system requires that the rule of law be above the whims of the individual personalities who happen to occupy positions on the Supreme Court at any given time. Rather the rule of law must be grounded in objective analysis and immutable logic, reasoning that does not change with the changing of personnel. Otherwise, there would be no reason to accept the decisions of the Court as the governing framework for our society.” 1. Not all judges are liars. What judges should realize is that they do not work in isolation; every decision that they make alters the legal space which affect human beings all the time (judges have their own set of myths!) 2. The fiction of a judge as an interpreter and not a legislator is not necessary. To embrace the reality that law-creation is a judge’s field of play is to raise the bar of responsibility (demands accountability?) 3. Each and every judge is unique because every human being carries with her the baggage of personal history, the weight of culture, and unavoidable genetic predispositions (admits fallibility and arbitrariness of judges?)
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6.Fairness is a matter of convention. Reason can take many pathways, and equally reasonable propositions do exist. The choice among reasonable propositions is a performative utterance. 7.The governing framework for accepting decisions of judges is entirely positivist—all judicial decisions should be accepted because they have pedigree, that they can be traced to an ultimate source of authority: the Constitution (MYTH?) Conclusion • The species of responsibility of judges are different: 1.it is one thing to say that the judge’s ruling is hers; quite different to say that the judge’s ruling is decisive. 2.it is one thing to say that the judge’s decision was based on the facts and the law of the case; quite another to say that the judge’s decision was based on her interpretation, which is always creative, of the facts of the case. • When a judge decides, she isn’t disclosing a hidden, pre-existing reality. Rather, her very utterance/act contributes to the reality of the situation and in many instances, even makes it. This is the meaning of the claim that judging is political, and therefore, ideological. Judges therefore are not merely passive but active participants in the political process.
questions. All responses were anonymous. The questionnaire presented each judge with five items, each testing for the influence of one of the five cognitive illusions described below. II. RESULTS A. Anchoring When people make numerical estimates, they commonly rely on the initial value available to them. That initial value tends to “anchor” their final estimates. Anchors affect judgment by changing the standard of reference that people use when making numeric judgments. Judges were presented with a description of a serious personal injury suit in which only damages were at issue. They were randomly assigned to either an a “No Anchor” or an “Anchor” condition. Judges in the “No Anchor” condition were asked to estimate to the plaintiff for compensatory damages. Judges in the “Anchor” condition were given additional information that “the defendant has moved for the dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000.” These judges were asked to rule on the motion and to estimate the award for compensatory damages if the motion were denied. Ruling on the motion had a large effect on damage awards. The judges in the No Anchor condition indicated an average award of $1,249,000 while the judges in the Anchor condition awarded an average of $882,000. The $75,000 jurisdictional minimum anchored the damage awards. Asking the judges to rule on this frivolous motion depressed average damage awards by 29.4%. These data show how easily anchors can creep into the process and affect the way judges think about damage awards. Constraints such as damage caps or mandatory sentencing guidelines might reduce the influence that biased or irrelevant anchors have on judicial damage awards and sentences. However, they can also inappropriately skew damage awards and criminal sentences if they provide anchors that are unrelated to an appropriate sentence or damage award. B. Framing When people confront risky decisions, they categorize their decision options as potential gains or losses from a salient reference point such as the status quo. This “framing” of options influences the way people evaluate their options and affects their willingness to incur risk. People make choices designed to maintain or slightly improve the status quo, which translates into risk-averse decisions when choosing between options that appear to represent gains and risk-seeking decisions when choosing between options that appear to represent losses. Each of the judges was presented with a hypothetical description of a lawsuit. Half of the judges (“Plaintiff/Gains” Condition) reviewed the case from the plaintiff’s perspective, in which the choices involved potential gains. The other half of the judges (“Defendant/Losses”
INSIDE THE JUDICIAL MIND By Guthrie, Rachlinski and Wistrich
INTRODUCTION Empirical evidence suggests that even highly-qualified judges inevitably rely on cognitive decision-making processes that can produce systematic errors in judgment. The very nature of human thought can induce judges to make consistent and predictable mistakes in particular situations. Psychologists have learned that human beings rely on mental shortcuts, called “heuristics”, to make complex decisions. Reliance on these heuristics can create cognitive illusions that produce erroneous judgments. Even though judges are experienced, well-trained, and highly motivated decision makers, they are vulnerable to cognitive illusions.
I. THE STUDY A. Participants 167 federal magistrate judges were recruited to participate in the study, drawn from a large group attending an educational conference. B. Procedure Differing versions of a five-page questionnaire were randomly distributed, and the judges were asked to read them and respond to the
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Condition) reviewed the case from the defendant’s perspective, in which the choice involved potential losses. There was a statistically significant difference between the two groups. 39.8% of judges evaluating the case from the plaintiff’s perspective indicated that they thought the plaintiff should accept a settlement offer, but only 25% of judges evaluating the case from the defendant’s perspective indicated that they thought the defendant should offer to settle. The framing of the settlement decision affected judges in the study. From the plaintiff’s perspective, settlement seemed relatively more attractive, while from the defendant’s perspective, trial seemed relatively more attractive, even though the two perspectives presented identical economic choices. C. Hindsight Bias People overstate their own ability to have predicted the past and believe that others should have been able to predict events better than was possible. This “hindsight bias” occurs because learning an outcome causes people to update their beliefs, and then rely on these new beliefs to generate estimates of what was predictable while ignoring the change in their beliefs that learning the outcome inspired. Because courts usually evaluate events after the fact, they are vulnerable to the hindsight bias. Each of the judges was presented with a hypothetical fact pattern bases on an actual case. They were randomly assigned to one of three conditions. Each condition gave a different outcome on appeal: • “Lesser Sanction”: The court of appeals ruled that the district court abused its discretion and remanded the case for imposition of a less onerous sanction. • “Affirmed”: The court of appeals affirmed the decision. • “Vacated”: The court of appeals found that the district court abused its discretion and vacated the sanction against the plaintiff. The judges were asked to predict which of the three actions the court of appeals was most likely to have taken, regardless of the condition to which they were assigned. Knowing the outcome significantly affected judges’ assessments. When told the court of appeals had affirmed the decision, 81.5% of judges indicated they would have predicted that result. The sum of the percentage of judges in each of the three conditions who selected the outcome that they were told had occurred as “the most likely to have occurred” was 172%. It would have been 100% if learning the outcome had had no effect. Judges’ susceptibility to the hindsight bias is troubling because judges are frequently expected to suppress their knowledge of some set of facts before making decisions. D. Representativeness Heuristic
When people make categorical judgments, they tend to base their judgments on the extent to which the evidence being analyzed is representative of the category. Psychologists refer to this as the “representativeness heuristic”. Although it is useful, it can lead people to discount relevant statistical information. Excess reliance on the representativeness heuristic leads people to commit a variety of decisionmaking errors. Judges were given a paragraph-long description of a torts case based loosely on a classic English case where the plaintiff was struck by a barrel while passing by a warehouse and were asked to estimate the likelihood that the barrel that hit the plaintiff fell due to negligence of one of the workers. Overall, the judges did well. More than 40% got the correct answer, but those who did not exhibited a significant tendency to choose the highest range. In the problem that was used, the accident was unlikely to occur when the defendant was not negligent. Nevertheless, because negligence was rare, the event was still unlikely to have been caused by negligence. E. Egocentric Bias People tend to make judgments about themselves and their abilities that are “egocentric” or “self-serving”. Egocentric biases could lead judges to believe that they are better decision makers than is really the case. Judges were asked to estimate their reversal rates on appeal by placing themselves in the quartile corresponding to their respective rates. 56.1% of judges placed themselves in the lowest quartile while only 4.5% placed themselves in the highest quartile. The judges exhibited a strong egocentric bias concerning the likelihood that they would be overturned on appeal. Egocentric biases might prevent judges from maintaining an awareness of their limitations; this might work to the detriment of litigants in their courtrooms. The influence of the egocentric bias likely makes it difficult for litigants to convince federal judges that they might have been wrong. F. Cognitive Illusions in Judges & Other Decision Makers Judicial decision making, like the decision making of other experts and lay people, is influenced by the cognitive illusions tested. Judges appear to be just as susceptible as other decision makers to anchoring, hindsight bias and egocentric bias. Though still susceptible to framing and the representativeness heuristic, judges appear less susceptible than other decision makers to these effects. G. Do These Findings Apply to Judges in the Courtroom? The study shows that judges rely on cognitive processes that are likely to induce them to make systematic errors, but it does not conclusively demonstrate that judges actually make such errors in the courtroom. To the extent that the methods used in this study have identified thought processes that judges use, the conclusions apply in the courtroom. Only if increased attention and greater deliberation enable judges to abandon the heuristics that they are otherwise inclined to rely
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upon can they avoid the illusions of judgment that these heuristics produce. In the course of making decisions in the courtroom, judges certainly face more complex fact patterns, have more motivation to make good decisions, have more time to make decisions, and receive assistance from litigants, lawyers, and clerks. But unless these factors alter the fundamental ways judges think, they will not eliminate the effects of cognitive illusions. III. GENERAL DISCUSSION & IMPLICATIONS Like the rest of us, judges use heuristics that can produce systematic errors in judgment. Unlike the rest of us, however, judges’ judgments can compromise the quality of justice that the courts deliver. What can the legal system do to avoid or minimize the effects of cognitive illusions? A. Improving Judges’ Judgment Judges can make good decisions by learning to adopt multiple perspectives on the problems confronting them, restricting their use of heuristics to normatively appreciate circumstances, and distrusting inclinations that are likely to be the product of cognitive illusions. Greater experience, training and specialization should enable judges to make better decisions. B. Juries Versus Judges Reformers commonly propose that the legal system should rely more heavily on judges than juries as a means of reducing the influence of cognitive errors in the courtroom. The results of the study suggest that choosing the optimal decision maker requires a comparison of the relative strengths and weaknesses of judges and juries. Judges are likely to be better decision makers in circumstances where decision-making experience can blunt the effects of cognitive illusions. Judges are also in a better position to determine whether evidence is relevant. Judges are less likely than jurors to rely on heuristics like representativeness that can lead to erroneous evidentiary determinations. Although the results support greater reliance on judges in circumstances where experience and training can facilitate avoidance of cognitive illusions, they also identify important advantages juries have over judges. Juries consist of groups, and group deliberation might reduce some illusions of judgment. Because groups usually remember more of the relevant facts than individuals, group decision making can mitigate some of the cognitive illusions’ influence. Another important advantage of a jury trial is that it creates a mechanism for keeping potentially misleading information away from the fact finder. A judge will always know about subsequent remedial measures and statutory damage caps, whereas this information can be kept from juries. C. Legal Rules That Avoid Illusions of Judgment
The legal system might also adopt procedural, evidentiary, and even substantive rules to minimize the deleterious effects of cognitive illusions on judicial decision making. Indeed, some legal rules appear to represent an effort by judges or legislators to avoid the effects of these illusions of judgment. For example, Rule 407 of the Federal Rules of Evidence represents an adaptation to the effects of the hindsight bias by excluding from evidence subsequent remedial measures taken by the defendant. Similarly, courts often rely on ex ante standards of conduct rather than ex post determinations of “reasonableness” as a means of reducing the hindsight bias. Several legal rules also arguably reflect efforts to temper the effects of egocentric biases. The availability of multiple judicial appeals might be an effort to counteract the potentially overconfident assignment of the death penalty. Likewise, damage caps might reflect a systematic effort to temper overconfident civil verdicts. There is some danger that adopting reforms to reduce the effects of a single cognitive illusion will skew the litigation process because any single reform will fail to reduce the effects of other illusions. Furthermore, efforts to curb the effects of a single illusion might have an adverse effect on one category of litigants. Nevertheless, failing to adopt reforms that reduce the effect of cognitive illusions also skews the system and ensures that the system produces more errors than it otherwise might. CONCLUSION Despite their best efforts, judges are vulnerable to the influence of cognitive illusions. The study demonstrates that judges rely on the same cognitive decision-making process as laypersons and other experts, which leave them vulnerable to cognitive illusions that can produce poor judgments. However, judges, litigants, and legislators can take steps to minimize the effects of these cognitive illusions. Additional psychological and legal scholarship is needed to explore the various ways that the cognitive processes of legal actors can and should influence the administration of justice. A greater understanding of these cognitive processes can only improve the legal system, whereas ignorance can only undermine it.
COURSE IN GENERAL LINGUISTICS By Ferdinand de Saussure
Let’s sum up Saussure’s work (and influence) by the first 5 letters of his name: S- Semiology (a.k.a. Semiotics); A- Arbitrariness of the sign (and language); U- Universal vs. Individual “reality”; S- Sign, Signifier, Signified, Signification; S- Structuralism (though we won’t discuss this here) Then we can motivate ourselves by adding the last three letters I. LANGUAGE
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a. Language (langage) is a ‘system of signs that express ideas’.
b.For Saussure, it is the social side of speech. It is outside the individual. An individual cannot create or modify it by himself; it exists only by virtue of a sort of contract signed by the members of a community. c. Language makes us “human”. It creates a way for us to identify objects/people, communicate, reflect, make plans, etc. (Jonas’ contention: Other animals have a system of communication, thus they have “language”. Sarah violently objected to this) II. SEMIOLOGY, SIGN/SIGNIFIER/SIGNIFIED a. Semiology is ‘a science that studies the life of signs within society’. This science would teach us 'what signs consist of, what laws govern them'. b. The sign is made up of the signifier (or the sound image) and the signified (or the concept). The sound image is the psychological imprint of the sound, not a material/physical concept, belonging to the system. Both components of the linguistic sign are inseparable. An easy way to understand this is to think of them as being two sides of a sheet of paper - one side cannot exist without the other. c. Take note that the relationship is of sound image and concept, not a thing and a name, not of a naming process only – a collection of words for a collection of objects (the Adamic conception). This naming process assumes that ready-made ideas exist before words. Whereas Saussure says that there are no pre-existing ideas before language. Language brings into being, by describing, a world that it then knows as external. (Yes, the external ‘physical’ world may already exist, but its ‘reality’ remains nebulous until language articulates it. As pointed out in class, a small nameless part of one’s arm physically ‘exists’ but until one recognizes it and gives it a name, it doesn’t really exist, it’s ‘not there’-- it’s just a part of one’s whole arm. One is not likely to regard the small nameless part of the arm as a separate concept from the whole arm.) III. ARBITRARINESS a.The bond between the signifier and the signified is arbitrary and unmotivated. There is no natural reason why a particular sign should be attached to a particular concept. Even onomatopoeic words are just approximate imitations of certain sounds (example: Tagalog ‘tilaok’, Bisaya ‘tuktugaok’, Japanese “kukuruku, English ‘cockadoodledoo’!) b. Saussure saw language as being an ordered system of signs whose meanings are arrived at arbitrarily by a cultural
convention. There is no necessary reason why a pig should be called a pig. It doesn't look sound or smell any more like the sequence of sounds 'p-i-g'. It is only because we in our language group agree that it is called a 'pig' that that sequence of sounds refers to the animal in the real world. You and your circle of friends could agree always to refer to pigs as 'squerdlishes' if you want. As long as there is general agreement, that's no problem - until you start talking about squerdlishes to people who don't share the same convention. (This is from the Internet) c. There are many implications of signs/language being arbitrary. Since it is the case that the meanings we assign to signs are the result of conventions arrived at by the community, then it is reasonable to suppose that the values of the community will be incorporated into those signs/meanings. The users will, for example, have developed signs for those things they agree to be “important”. What passes for reality in any culture is a product of the sign systems of that culture. This would make 'reality' ‘encoded’. The process of decoding signs is socially and culturally conditioned. Usually, it is the dominant culture that dictates the meaning and the value of the sign. Sign systems can be systems of domination/oppression. IV. UNIVERSAL vs INDIVIDUAL REALITY a. Saussure challenged the idea that there exists a “universal” reality. Individuals and different communities divide up the world differently. To explain this, Saussure uses the word bœuf as an example. He cites the fact that the English language has different words for the animal and the meat product: Ox and beef, while in French, bœuf is used to refer to both concepts. A perception of difference between the two concepts is absent from the French vocabulary. In Saussure's view, particular words are born out of a particular society’s needs, rather than out of a need to label a preexisting set of concepts. (“Slicing” things depends on our “social reality”/ culture. Like we have different names for rice = palay, bigas, kanin. While for the the Americans, its just rice. For a fisherman, his fishnets have different parts and each part has a name, but for us non-fisherfolk, it’s just a fishnet.)
FIRE, METAPHOR AND THE CONSTITUTIONAL MYTHMAKING By Robert Tsai
• This article accepts that metaphor helps us to comprehend a court’s decision. At the same time, it contends that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but also
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promotes acceptance of interpretive prerogative and creates sustainable constitutional subcultures, with their attendant myths, counter- narratives, hero figures and villains, and sacred mantras. It links citizens to governing institutions, and bridges diverse communities of interest. • To illustrate these themes, the article examines the appearance of fire- inspired legal sayings in the Courts free- expression rulings over time, drawing on the work of anthropologists, legal theorists, and cognitive linguists. Introduction Constitutional myth- making – is a process whereby potent metaphors, symbols, scripts, and mantras are constructed and disseminated by individuals and institutions to create legal meaning. Its raw materials consist of legal lore and doctrinal infrastructure, as well as folk belief systems and ordinary experiences. Tracing the evolution of fire hones our perspective of law and culture in three respects.  Analysis of these recurring linguistic- cultural tools reveals why firebased language is uniquely effective in influencing constitutional actors.  Observing the formation of a free speech ethos in intimate fashion allows us to gain valuable insight into how metaphor can cement or dissolve existing doctrine across time.  Once attention is refocused on the fire’s integral role in shaping our free speech belief system, we should arrive at a better appreciation for the relationship between constitutional language and institutional selfconception. In this instance, fire has left its mark by serving as a ready implement of bureaucratic influence and by reflecting the Supreme Court’s rise to the apex of the socio- legal order. Part I: Language And Its Discontents This part lays out, on the one hand, the skeptical view of metaphor shared by traditional legal scholars, and on the other, the enthusiastic embrace of metaphor by the law-as-language movement. [a] To the formalist, metaphor seemed impossible to pin down, entirely unpredictable. To the legal realist bent on uncovering the social policies exerting a “gravitational field upon any rule or precedent” and nudging the law in those general directions, metaphor appeared to be just another distraction. Note: This deeply held understanding of metaphoric communication as a distasteful habit from which jurists must be weaned has been forcefully challenged in recent years by theorists and empiricists who recognize law as a close cousin of ordinary language. [b] The linguist and anthropologist find metaphor to be a building block in the communicative process. They tell us that at the basic level, metaphors allow human beings to understand one phenomenon in relationship to
another to illuminate some salient details while shading others. In doing so, they order our social world by weaving new events into stock scenes and everyday occurrences. • Negotiating a line between these 2 perspectives, this part makes the case for an understanding of metaphor that is essential to the constitutional myth-making process. • Metaphor is then understood as a rhetorical device that mediates the relationships between citizens and governing institutions.\ It might be fruitful to think of constitutional law as a species of performance art, and less as ordinary language or literature and more. This view has 3 benefits:  Theater best captures the multivocal nature of law, both in terms of the sophisticated and simple audiences involved, and in the multiplicity of institutional roles that make up the American form of selfgovernment.  This modality underscores the fundamentally public nature of law, which strives to ascertain and disseminate shared socio- legal values.  The theater analogy appropriately treats text as one source among many, like a screenplay or musical score, rather than as the entirety of the process that is law. beginning and end of law. Instead it serves as a crucial network of signals and connections. Through customary practice punctuated by moments of improvisation, language cues legal actors to play particular roles, sets the parameters for doctrinal possibilities, and facilitates social cooperation. • Unlike ordinary speech, which is often enlisted in the service of tidy resolutions here and now, law is in a perpetual state of dramatization. Note: The next 3 parts of the article are organized into 3 “metaphorical fields,” where historical events, value systems and rhetorical strategy have converged to produce distinct thematic structure in the development of the language of fire. These 3 discrete eras or metaphorical field are: [a] 1919 until World War II, [b] the transitional period in the decade following WWII, and [c] the late 1950s to the present Part II: The Early Modern Cases: Fire Becomes Modular
• In a performative model of higher law-making, language is not the
is the period from 1919 until World War II. It discusses the composition of fire metaphors and legal sayings which were introduced into the cultural soil at that time. The fire-as-expression motif was given life in 3 decisions addressing the extent which the First Amendment protected Socialist views: Schneck v. United Sates, Frohwerk v. United States, and Gitlow v. New York. • The metaphor “falsely shouting fire in a crowded place” has come to serve a dual function:  the image acts as a prototype for
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unprotected expression, and  it broadly operates as a mantra of udicial influence, inviting acceptance as interpretive choices. Important point: During this period, the metaphor assigned the state the role of firefighter who extinguishes the sparks of revolution, motivated by a desire to protect the public safety. The Court enabled and applauded the state’s aggressive suppression of speech, acting as the firefighter’s loyal assistant. The metaphor cast the defendant-speaker in the part of the hated arsonist, who was duly blamed for unleashing the dire threat of the constitutional order. • The entire metaphorical structure of judicial discourse served to underscore the Court’s inclination to treat the speaker’s words not as expression, but more like an act of inchoate revolution interrupted by vigilant authorities. Illustration: Arsonist-speaker threatens the legal order ---> State attempts to extinguish the fire through regulatory suppression ---> Court endorses the action ---> Constitutional equilibrium is restored • Once unleashed in law, fire-based language provided grist for the creation of new signs and images in speech culture.
transformative metaphors available to a new generation of Americans. • The assembly metaphor captures the legal principle that thinking people will not be presumed to rush violence or illegal activity at the drop of an inflammatory word. More importantly, it introduced inventive images, counter-scripts, and categories of meaning to a new generation of constitutional actors.
but no fire: The absence of fire heralded fundamental changes in speech culture. The Justices began to lose interest in patrolling the boundaries of illegal advocacy but trained their attention on establishing bounds of obscenity and the degree of state control of public fora. Part IV: The Court As Firefighter: Flipping The Script • This is the period from the late 1950s to the present. This part examines the Court’s reconfiguration of the legend of fire in the last generation so as to spin a new web of meaning, one that has expanded the realm of protected expression even as it has enhanced the role of judiciary in American life. In our own era, it is speech regulation rather than inflammatory expression that threatens to set our constitutional order ablaze. Important point: The despised role of arsonist, previously played by the citizen-speaker on the street, is ably filled by the state. The leading role of firefighter, once acted by the state, is now performed by the Court itself. Advocates, judges, and intellectuals have contributed to the dissemination of the new legal myth of fire.
Part III: The Post- War Interregnum: Transitions • This is the transitional period in the decade following World War II. In the immediate post-war years, the internal structure of the fire metaphor remained largely intact, re-invigorated by memories of conflict. Important point: The Court harnessed the fire metaphor to enable a national anti-communism policy. Later, the Justices started to experiment by stirring race into the combustible mixture as a method of legitimating judicial noninterference in the other forms of speech regulation. [a] As members of the national leadership, the Justices seized the opportunity to apply the lessons of war, nationalism and racial hatred to the home front. External threat subsided during this transitional period. But once the governing metaphorical field relaxed its grip and public attention turned inward for a time, fear of internal divisions of another kind – involving race and ethnicity – crept through public imagination. [b] In the meantime, a latent image of the people assembled out of doors began to dominate the Justices’ post war free speech jurisprudence. The emerging framework of crowd control facilitated the battle of metaphoric embodiments of the people. This is the metaphor of the assembly unleashed. • Peaceful resistance against unjust laws in the streets and the courts not only revolutionized substantive constitutional commitments, entirely reversing the presumption that speech out of doors was a threat to public order, but also irreversibly altered the
• The roast pig incantation
[a] points that a challenged law is overly broad or otherwise poorly suited to the state’s interest, or that a law cannot be saved by the government’s salutary motives alone; and, [b] inaugurated a new linguistic field in free speech culture, as fire was harnessed to advance expressive liberty. a pig stands for the benign purpose of government, while the metaphorical house – so often used to represent law – signifies our constitutional order, inadvertently set ablaze through the actions of well-intentioned officials. We shake our heads at the foolishness displayed by the state’s position and we are thankful that the Court stands ready to put the world right. Illustration: Regulation-as-fire threatens the constitutional order ---> Direct conflict arises between the Court and another state actor ---> judicial authority is dispensed to meet the threat ---> Invalidating the state action repairs the breach. Part V: Warring Metaphors Over Time This part tackles 3 topics in closing the article.
• “Burning down the house to roast the pig” ---> The act of roasting
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 It offers explanations for the ascendancy of the marketplace and the decline of fire as the dominant constitutional metaphor • 3 factors that fueled the marketplace ascendant: [a] the market metaphors message of hands off libertarianism, [b] periods of prosperity and economic stagnation helped keep the language on the tip of every constitutional actor’s tongue, and [c] its resonance with American ideals • Fire’s renewal in free speech culture illustrates both the patterned quality of constitutional language and the ingenuity with which legal rules and metaphors can be re-imagined. To this day, the Court continues to prefer the negative characteristics of fire—its fearinspiring nature and its tendency to consume everything in its path.  It strives to deepen our understanding of metaphor as an indispensable link between legal mythology and popular culture.  The discussion suggests that we should be watchful of metaphors that reinforce the jurists’ view of themselves as the primary guardians of the legal order. • Metaphor has splayed a major part in this profound shift in the Justices’ own institutional outlook, just as it has deeply influenced how ordinary Americans perceive the Court’s labors. Whether as the metaphoric market regulator, fire-fighter, or referee, the Court has built an arsenal of images, metaphors, and story lines with which to patrol its sphere of influence
LAW AND LITERATURE By Richard Posner
• Atheoretical-system of education in the Philippines -absence of theoretical study in the Philippines Theoretical work-started with literary critics i.e. Marxist theories, feminism • Texts i.e. Bible, Constitution, Statutes-have intrinsic meaning-if this is so, then there is little room for theoretical work or theorizing text. • Text-surface, superstructures, ideological bias, racial bias, gender bias, efficiency. • If texts in law are closed-textured, then there is no room for theoretical work. But this is not the case. Stare decisis becomes strong source of constraint only of they are consistent which isn’t the case. There is therefore space for theoretical work. • Status of text-has space for interpretation (metaphorical interpretation). The question is where do you end? • If you allow space in the Constitution, then when do you stop? • The debate therefore should be the degree of open-texturedness rather than whether or not it’s open-textured Law and Literature
• “judicial activists” need not apologize for reading things into the Constitution that do not seem to be there-this is the nature of “interpretation”-“construction” • Literary scholars deal with complex texts-many are old and temporal remoteness makes original meaning the only authentic meaning difficult to recover • Concepts that are outside of time and space and distinct from the perceptions out of which they have been made • Person A concept (signified)—Signifier (words, sound, etc.)-noisePerson B concept (signifier) • Signifier-signified-link is a matter of convention-not universal • Problem is there are different languages and sometimes a language lacks a signifier for a particular signified • Translation is often problematic—signify other concepts in our culture—we overdetermine their conceptual message • There are impediments to perfect conceptual transfer or “intersubjectivity” as corruptions-can be overcome normally • Properties of signifiers that impede communications-arbitrary and culture-bound rather than logical or natural • Literature-devices that call attention to the signifier • Literature-not concerned with conveying concepts in the most economical manner possible than deconstruction • Work of literature-doing something more than conveying to the reader a paraphrasable meaning conceived in the author’s mind • Deconstruction-denies the inherent logical or metaphysical priority of authors or concept over the medium of communication. It doesn’t appear to deny the intelligibility of communicative discourse and hence the possibility that statutory and constitutional provisions really could communicate the commands of their authors • Law is discretionary and therefore political • Dworkin hails the legislator as the unacknowledged poet of the world • Posner-intentionalist when it comes to reading statutes and the Constitution but a New Critic when it comes to reading works of literature • “Intentionalist” literary critic-way to understand a work of literature is to try to reconstruct the author’s intentions-the meaning he assigned to it • “New Critic”-assign a coherent and satisfying meaning to the words • Critical Legal Scholars-deconstruct legal texts-followed Postmodernist approach to literature and therefore the literary deconstructionists’ counterparts to law • New Critic-thought that very little in the way of context was necessary to make literature intelligible • New Critic-you don’t need to know the circumstances
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• Multiple interpretation of the same work at the same time may be an equilibrium state for the literary marketplace whereas they would be a source of profound disequilibrium in law • Interesting aspect in law-judges’ opinion-a combination of law and literature • Which interpretive approach should we then apply?
BLINK By Malcolm Gladwell
Thesis Statement People have the ability to unconsciously think without consciously thinking. We could arrive at decisions, resolutions, and judgments without thinking too much and it is likely to be as good as when we consciously think deeply. Definition • Thin-slicing refers to the ability of our unconscious to find patterns in situations and behavior based on very narrow slices of experience. • Adaptive Unconscious- A crucial brain activity that keeps humans able to function by silently processing daily stimulus. An individual is unaware of such brain process thus making it to a great extent uncontrollable. • “Warren Harding Error”- Thin-slicing in a superficial level and giving too much emphasis on the snap judgment. Summary The book is a combination of scientific studies (Implicit Association Test), historical accounts (Warren Harding), social happenings (discrimination), notable trends (Coke v Pepsi), and simple day to day observations regarding the creation of snap-judgments otherwise known as thin-slicing. It demystifies us from the idea that for people to come up with there judgments regarding just about anything there is the factor of time and careful investigation. The book gives us evidences that point to the idea that we are indeed able to rely on our own adaptive unconscious and that we are capable at arriving on a decision that is accurate. There is a possible problem however as there is an also likely chance that our way of thinking would be impaired by day to day bombardment of stimulus. The Warren Harding Error lets us stop from thinking beyond what we already figured. It keeps us away from weighing the need to look beyond what we thin-slice. It is crucial therefore for us not to over emphasize our snap judgment by knowing when to apply such
judgments. Pivotal or crucial moments still require thinking twice and doubting and thin-slicing may be placed in a back seat. Along this line, we should also remember that stereotyping is also a tool for thin-slicing. It is then important for us to consciously be able to look beyond our stereotyped ideas. While it may be unconsciously done, our knowledge of our disposition would bring it out in the conscious level. Finally, it should also be noted that at times there is a need for the isolation of our criteria for judgment. The unconscious is able to seep through the creation of the judgment although it is not in line with the true nature of our decision (you may hate Gloria not because of her national policies but because she is short). In this situations there is a need to focus on what really should be considered. Application in Law The book’s application to law is, although not apparent, its application to the (following the realist perspective) that Law is governed by human features (i.e. flaws and strengths). Specifically when we are dealing with judges or juries who are able to thin-slice without them knowing it. It is value neutral yet it never takes away the fact that it could work for or against anyone thus reasonability and equality really does not exist. What is crucial at this point is that we accept that people indeed thin-slice and that we really are able to come up with a sound judgment regardless of the length of time that we think and whoever we are.
STRAIGHT TALK AND THE PHILOSOPHY OF POSSIBILITY By Florin Hilbay
• My concern implicates an aspect of being broader than just what kind of gender I have, or think I have, or think I ought to have. It seems to me that that at a higher level of generality, differences in gender collapse and converge towards an appreciable commonality… we are all human bodies that can communicate. This point of convergence is where a shared community becomes a possibility, where theorizing moves from imagination to the politics of transformation
Issue: the autonomy of the individual in a society imbued with dominant and domineering signs – cultural marks that commandeer and simultaneously create the appearance of freedom. My inability to transcend the commands of culture has infused doubts about my freedom to many any choice. If my perceptions (culture etc.) is constructed prior to myself, given and not made, where goes my freedom?
NATURAL LAW • There are terms that constrain and direct my ability to make choices that I cannot make because they are outside the range of choices that are
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possible for me – one is natural law. It furnishes powerful categories that assign gender to the body and pathologize deviations from such fixed categories – males and females with a taste for the same sex • The powerful effect of this conceptual scheme is the production of a mandatory binarism, referred to by Adrienne Rich as compulsory heterosexuality, that universalizes gender by confining it in some notion of gender confinement and erasure of the possibilities of personhood that serves as motive power for this internal mechanism of constraint • Natural law exists in the minds of lots of human beings. Usually, this is all that matters. But who says what natural law is? If you say the hearts and minds of people, it shall invite contradiction as it would be tantamount to saying that the problems of the world are solvable by common sense. To say that it is an institution like the church, it is submitting your personhood, your existence to the dictates of an institution of humans like you, whose meanings are close to discourse as they purport to be infallible CULTURE • CULTURE is a more inclusive approximation of the internal mechanism • The universe of signs that inhabit animates and inanimates is the cultural space that generates the kinds of meanings that function as tools of communication and, therefore, construction • Human body is a hub that reads the code of culture, making intelligible signs and at the same time contributing to the creation of the code itself. The code of culture then is open-source dynamic, situated and opaque. As such, culture is a broader term that encompasses all those external influences that carve out human consciousness and define our preferences • While society provides me with the range of choices and a definition of those specific choices, my decision to pick or not to pick is selfattributable, but with regard my inability to choose a partner of the same sex, it is the conditions of culture that prevent me from even considering such choice. My inability is not simply a refusal, but a blindness… • While ignorance to this reality is bliss, there is a sense in which blissful ignorance and human agency are incompatible. Bliss and ignorance makes life livable but knowledge of this pierces the bubble and floods me with the thought of living a less than conscious existence, impervious to discourse • Progressive gender advocacy and queer theory are more concerned about issues of justice and human rights. So when there is talk about marriage, homophobia and other discriminations, the thrust is towards an ideal of justice that is more tolerant, inclusive, if not embracive. It has an aspect of freedom, as it is a claim to freedom by some from the exclusion of others. But this freedom is not only for the other: but freedom in a general sense, even us who consider ourselves straight PHILOSOPHY OF POSSIBILITY
essence for the purpose of gender is to set a boundary, a limitation to what would constitute a body human in the eyes of the law and society • For example, when the FC defines marriages as a special contract of permanent union between a man and a woman, when bathrooms are distinguished for men and women etc., these definitions and categorizations are not value-neutral but paradigm-dependent. As such the world-view they promulgate is very-limiting • This is not to say that one is capable of embracing the complexity of concrete social reality, but we argue insofar as the paradigm is a source of illegitimate power of some over the others, as it constrains everyone's ability to author their lives • For example, homosexuals are not allowed to marry and those that are allowed to marry are tied to each other til their bodies expire, and pop culture feeds and sells people with a notion of heterosexuality and gender without explicating it
• It present an extent of limitation of our ability to create ourselves
• The goal of freedom is furthered by articulation, by bringing into discourse and conscripting to the demands of language the relevance of cultural signs in the emergence of human consciousness. If our body is hub altered by culture, then we should start worrying about regulations, norms and symbols that get entrenched and claim permanent status – as such, marriage is not a simple validation of an intimate relationship, it is an ENTRENCHMENT OF A PARADIGM OF GENDER • This game of heterosexuality is played out in multiple arenas, deployed and entrenched in viral form, in public and private spheres that feed on each other in a constant two-way dynamic • The effect of the combination of private and public ordering is a scheme of categorizing the body through an essentialism that effectively dictates the possible and the not-possible – the policing of the sex: the necessity of regulating sex through useful and public discourses. • Gender has been labeled through the sexual organs, what was contingent before is now naturalized, made inherent and thus, a worldview was born
method of labeling is very powerful as those with sticky utterances are the ones who control the language game of gender and as such, they dictate the truth about human sexuality. We must realize that truth is a function of the way language is used and manipulated and it sensitizes us to the importance of words/signs and what they signify • As such, words are also a matter of freedom – they we can calibrate words and defines possible and not possible, and ultimately, what we are and who we are. This extent of linguistic confinement is the extent of human freedom; we are creatures of our language, slaves to our own words
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does not precede description. The concept of humanity, human, humane etc. is possible only through some form of description. Without language we cannot describe ourselves and the we and I do no rise up to the level of possible. Human being or the humanity of being is created by the knife of language that slices and differentiates our bodies from all other phenomena. With language, existence and possibility become available; through language, we become subjects In this view we discover how oppressive certain structures are – the language of marriage is unjust become it confines intimates relationships within the hegemony of heterosexuality The notion of gender then is an institutional narrative attached to I. it operates as an ideology of viewing bodies and normalizing them through channels of heterosexuality. When it creates it prevents bodies from moving from possibility to possibility, from engaging in more meaningful acts of authorship. But freedom is possible only if we can detach ourselves from these insti. Narratives from the limitations of the very language that makes possibilities possible. The possibility of freedom is actualized only in that very instance when that imagined possibility is co-opted by the structures of our language. The road to freedom is in inhabiting the language we seek to transform The linguistic deficiency of labeling people who are neither men or women becomes a source of power and oppression of those we call queer, strange and anomalous and when it is settled, it gets enforced, consciously and unconsciously in the public and private spheres. We must then identify those institutions that have appropriated the language of gender and problematize their acquisition, thereby highlighting the tenuousness of their hold over the architecture if our language
• Language then is soft, porous, malleable, and plastic; and it is because of these qualities that the movement from possibility to possibility becomes a reality • This space of uncertainty lying in the interstices of language, in the margins of textualized body, is the location of freedom
OFFENSIVE NUISANCES By Joel Feinberg
Disclaimers: The Relative Triviality of Offense The term offense could be subdivided into two conditions – subjective and objective. “Offense” in the strict sense of ordinary language specifies a subjective condition – the offending act must be taken by the offended person to wrong him whether in fact it does or not. On the other hand, offense in the sense of offense principle specifies an objective condition – the unpleasant mental state must be caused by conduct that really is wrongful. In offense principle, it is necessary that there be a wrong, but not that the victim feel wronged. The principle asserts that the prevention of offensive conduct is properly the state’s business. However, the author emphasized that offense, in highly restricted version of the offense principle, is surely a less serious thing than harm. Therefore, it follows that the law should not treat offenses as if they were serious, by and large as harms. It should not, for example, attempt to control offensiveness by the criminal law when other modes of regulation can do the job as efficiently as efficiently and economically (i.e. norms, market, and architecture). The Model of Nuisance Law In the Anglo-American Law, the term nuisance refers to two quite different sorts of wrongs: a miscellany of minor criminal offenses bearing the label of “public nuisance” or “common nuisance,” and a tort called “private nuisance.” Private nuisances inconvenience specific individuals in the possession of their right, whereas public nuisances inconvenience random assortments of people (“the public”) in the exercise of rights common to all citizens. Since practically all human activities interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms, it is unavoidable that balancing of interest be done by the legislature. In doing such, a variety of factors must be considered. 1. The seriousness of the inconvenience depends on
GENDER UNDER ERASURE • The contingency of language and the concepts within it should inform us about the suppleness of categories, and that they only emerge in discourse. • The politics of gender is the politics of acting out desires as the very source of meaning and identity. If desire is the fountainhead of meaning, the fuel that allows the body to move from possibility to possibility, then all of us must be cautious about the layers of the rhetoric of confinement embedded in discourse • As such, words such as man, woman and queer are mere linguistic combinations and by themselves have no sense, only contingent and non-essential • These concepts thus come under erasure, not erased, as Derrida says, but de-concretized, softened and undermined. This includes the concept of I, self, and identity as well. • The recognition of this possibility is the very instance of transformation.
The extent, duration, and character of the interference. (Illustration: There is no nuisance from an occasional unpleasant odor in the community but a constant and unrelieved stench would be “substantial interference” and may amount to a nuisance.
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The social value of the use that plaintiff makes of his land. (Illustration: Between the right of a person to a good sleep during the night may be favored against the right of another person to enjoy large and raucous parties during the night.) c. The extent to which the plaintiff can, without undue burden or hardship, avoid the offense by taking precautions against it. (Illustration: The plaintiff cannot plausibly complain, for example, that occasional smoke from his neighbor’s land has entered his own home, when he has neglected to close the windows through which the smoke enters. The reasonableness of the defendant’s conduct depends on The social value of its ultimate purpose (Illustration: The inconvenience of the noise produced by a factory could be tolerated for general god but a noisy dog will have little social value and therefore relief from it will be justified. b. The motive of the defendant (innocent or spiteful) c. Whether the defendant, by taking reasonable steps, can avoid or reduce the inconvenience to the plaintiff without undue burden or inconvenience to himself. The interest of the community or the public at large. (Illustration: A householder who takes up residence in a manufacturing district cannot complain, as a plaintiff in a private nuisance suit, of the noise, dust, or vibration.
The Relation between Offense and Privacy Privacy refers to that of a privileged territory or domain in which an individual person has the exclusive authority of determining whether another may enter, and if so, when and for how long, and under what conditions. The individual person’s will alone reigns supreme over them. Since offense conduct could sometimes intrude the privacy of one’s person, it is necessary that drawing boundaries between private domains of persons, and between the private domain of any given person and the public world be done.
PATERNALISM By Gerald Dworkin
Paternalism is the interference with a person’s liberty of action justified with reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced. “Pure” cases are those wherein only the person benefited loses freedom. In “impure” cases, others lose freedom, too (e.g., limiting cigarette sales/advertising). It may be that impure paternalism requires arguments or reasons of a stronger kind in order to be justified, since there are persons losing a portion of their liberty and they do not even have the solace of having it be done “in their own interest.” Paternalism then will always involve limitations on the liberty of some individuals in their own interest but it may also extend to interferences with the liberty of parties whose interests are not in question. It is difficult to find "pure" cases. For example, prohibiting smoking makes no sense unless we also prohibit the sale of tobacco products, and this prohibition limits the freedom of smokers and of non-smokers (who supply the tobacco). A law prohibiting suicide is an example of pure paternalism. Another situation that is similar to paternalism, but different, is collective limitations in order to gain a collective good (e.g., laws created through consent of the governed that prohibit working more than a certain number of hours). We consent to these, but must coordinate our behavior to reap the benefit. Mill’s principle bans paternalism – but he makes exceptions for almost everything else. (Mill will only allow restriction on freedom of person A in order to prevent harm or to positively benefit person B, but NOT to prevent A from harming A). Mill assumes that each person is (1) the best judge of their own life, and (2) each person is more concerned about themselves than others are. Therefore, attempts to judge on behalf of others will have worse consequences than letting people judge for themselves. It is interesting to note that Mill himself was aware of some of the limitations on the doctrine that the individual is the best judge of his own interests. In his discussion of government intervention in general (even where the intervention does not interfere with liberty but provides alternative institutions to those of the market) after making claims which are parallel to those just discussed, for example, “People understand their
Note: The author is suggesting that the offense principle will have to be mediated by balancing tests similar to those already employed in the law of nuisance. A Ride on the Bus/ The Modes and Meaning of “Offense” Kinds of Offense: A. Affronts to Senses - all cases where the gratingly unpleasant experience derives entirely from its sound, color, or odor. B. Disgust and Revulsion C. Shock to Moral, Religious, or Patriotic Sensibilities D. Shame, Embarrassment (including vicious embarrassment), and Anxiety - shame is “a painful emotion caused by consciousness of guilt, shortcoming, or impropriety in one’s own behavior or position, or in the behavior or position of a closely associated person or group.” E. Annoyance, Boredom, Frustration F. Fear, Resentment, Humiliation, Anger (from empty threats, insults, mockery, flaunting, or taunting)
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own business and their own interests better, and care for them more, than the government does, or can be expected to do,” he goes on to an intelligent discussion of the “very large and conspicuous exceptions to the maxim that “Most persons take a juster and more intelligent view of their own interest, and of the means of promoting it that can either be prescribed to them by a general enactment of the legislature, or pointed out in the particular case by a public functionary.” Thus there are things of which the utility does not consist in ministering to inclinations, nor in serving the daily uses of life, and the want of which is the least felt where the need is greatest. This is peculiarly true of those things which are chiefly useful as tending to raise the character of human beings. A second exception to the doctrine that individuals are the best judges of their own interest is when an individual attempts to decide irrevocably now what will be best for his interest at some future and distant time. The presumption in favor of individual judgment is only legitimate, where the judgment is grounded on actual, and especially on present, personal experience, and not suffered to be reversed even after experience has condemned it. The outcome of these exceptions is that Mill does not declare that there should never be government interference with the economy but rather that “in every instance, the burden of making out a strong case should be thrown not on those who resist but those who recommend government interference. Letting alone, in short, should be the general practice: every departure from it, unless required by some great good, is a certain evil. Dworkin argues that paternalism should be allowed in some cases, and sometimes it is our duty. The question is when. Thus, paternalism is justified only to preserve a wider range of freedom for the individual in question. Consider children: parent has duty to do what the child would want if the child were the adult. Clear cases with children: prevention of all kinds of harm, and also unpleasant activities that create later benefits, e.g., we send children to school even when they do not want to go. The standard here has to be one of [impartial] rationality: “we would be most likely to consent to paternalism in those instances in which it preserves and enhances for the individual his ability to rationally consider and carry out his own decisions” With adults, paternalism is rational when it restricts freedom in order to prevent “far reaching, potentially dangerous, irreversible” harm, or secure a future good. 1. The adult does not know the risks/benefits 2. The adult knows, but has “weakness of will” a. psychological or social pressure b. irrational discounting of danger due to short vs. long term consequences In all cases of paternalistic legislation there must be a heavy and clear burden of proof placed on the authorities to demonstrate the exact
nature of the harmful effects (or beneficial consequences) to be avoided (or achieved) and the probability of their occurrence. The burden of proof here is twofold—what lawyers distinguish as the burden of going forward and the burden of persuasion. That the authorities have the burden of going forward means that it is up to them to raise the question and bring forward evidence of the evils to be avoided. Unlike the case of new drugs, where the manufacturer must produce some evidence that the drug has been tested and found not harmful, no citizen has to show with respect to self-regarding conduct that it is not harmful or promotes his best interest. In addition, the nature and cogency of the evidence for the harmfulness of the course of action must be set at a high level. To paraphrase a formulation of the burden of proof for criminal proceedings—better two men ruin themselves than one man be unjustly deprived of liberty. Finally, a principle of the least restricting alternative is suggested. If there is an alternative way of accomplishing the desired end without restricting liberty although it may involve great expense, inconvenience, et cetera, the society must adopt it.
FREE CULTURE By Lawrence Lessig
Summary In the preface of Free Culture, Lessig compares the book with a previous book of his, Code and Other Laws of Cyberspace, which propounded that software has the effect of law. Free Culture's message is different, Lessig writes, because it is "about the consequence of the Internet to a part of our tradition that is much more fundamental, and, as hard as this is for a geek-wanna-be to admit, much more important." Professor Lessig analyzes the tension that exists between the concepts of piracy and property in the intellectual property realm in the context of what he calls the present "depressingly compromised process of making law" that has been captured in most nations by multinational corporations that are interested in the accumulation of capital and not the free exchange of ideas. The book also chronicles his prosecution of the Eldred v. Ashcroft case and his attempt to develop the Eldred Act also known as the Public Domain Enhancement Act or the Copyright Deregulation Act. Lessig concludes his book by suggestion that as society evolves into an information society there is a choice to be made to decide if that society is to be free or feudal in nature. In his afterword he suggests that free software pioneer Richard Stallman and the Free Software Foundation model of making content available is not against the capitalist approach that has allowed such corporate models as Westlaw and LexisNexis to have subscribers to pay for materials that are essentially in the public domain but with underlying licenses like those created by his organization Creative Commons.
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He also argues for the creation of shorter renewable periods of copyright and a limitation on derivative rights, such as limiting a publisher's ability to stop the publication of copies of an author's book on the internet for non-commercial purposes or create a compulsory licensing scheme to ensure that creators obtain direct royalties for their works based upon their usage statistics and some kind of taxation scheme such as suggested by professor William Fisher of Harvard Law School  that is similar to a longstanding proposal of Richard Stallman. When an author is as publicly active as Lawrence Lessig, and when a book comes with a supporting web site, an author’s blog, and surrounded by previous and subsequent discussions of many of its themes and proposals, the reviewer can find it difficult to know where to start. Anybody with more than a passing interest in political, legal and ethical issues arising from new media development is likely to be familiar in some way with Lessig. Scientific American named him as one of its Top 50 Visionaries. A colleague and I included him in our ‘top twenty’ (18, as it turned out) analysts of the information society in a briefing requested by the Information Society Commission, an advisory body to the Irish government. Lessig is a widely respected commentator, an advocate and activist (“a cultural warrior”), as well as an academic. His frequently cited blog has had leading Democrats, judges, politicians and professors, as invited contributors. His web site carries the badges of the campaigns with which he is prominently associated, chief among them Creative Commons (chair: Lawrence Lessig), a licensing agency that presents a kind of ‘third way’ between traditional copyright and free-for-all. Lessig acknowledges the uncertainties that attend this discussion. He steers between the condemnations and the celebrations of Napster downloading and other such challenges to copyright protection. He warns against the dangers of a polarized debate. He distinguishes in nuanced ways between the rights of authors, publishers and re-publishers. But he is very certain that the current trends in copyright law are damaging to culture and to democracy. Over the 300 pages of this book, the reader is being persuaded to accept a definition of the copyright problem to which Creative Commons is one, if not the, answer. ‘Free Culture’ has itself been published through the Creative Commons licensing procedure, which means that it can be downloaded from the web, subject to certain terms. Lessig stacks up many fascinating cases and illustrations and compelling arguments to persuade readers of the validity and urgency of his concluding set of recommendations. He invokes American traditions, represented by the United States constitution and Walt Disney’s creativity, to buttress his case. Although the heart of the book is in the detail of law, Lessig as an advocate presents his argument as one about culture and creativity. For this reader, this scaffolding is the least persuasive aspect of the book. The use Lessig makes of “free” (as in “free culture”), of “culture” and of “creativity” is highly tendentious. Here, “culture” refers to the entertainment industries and its products. “Creativity” refers to production
in those industries, as evidenced in the strange notion of the “volume of creativity”. “Free” is the opposite of “non-free”, although the reference to “free-culture licenses”, as provided by Creative Commons, expresses the irony – of which Lessig seems hardly aware - of freedom having to be licensed. What this book’s usage of “culture” leaves out could fill several more books. That may well be Lessig’s intention, as a prolific author. He makes only passing mention of the scandal surrounding the control of rights in scholarly publishing with which he is actively engaged through Public Library of Science. He leaves out of view the arguments about journalists’ copyright and “open source” journalism, although these chime with those he does pursue. And he gives scant attention to cross-cultural difference, except perhaps to reveal a disquieting lack of interest in European norms and values. Lessig’s critique of the drift of US copyright law is that it is approaching European standards. However, he does not stop to reflect why Europe is as it is (not singular, for a start) and fails to notice the contradiction in his citing of the (European) British Broadcasting Corporation as an exemplar of best practice in archive access. Lessig’s primary references are those of a constitutional lawyer – the fundamental law of he United States and the judgments of the Supreme Court. A significant part of this book is the self-critical account of how he pursued a case through to the Supreme Court, in support of a New Hampshire citizen who was being obstructed in his efforts to build a public archive of literature in the public domain. Goliath slew David, and, in this book, David’s defender is licking his wounds, pointing out how he failed adequately to demonstrate the harms caused by the “extraordinary land grab” that is going on. Much of the detail in these chapters, in the historical examples of copyright claims and in the accounts of industry lobbying of Congress is intriguing, and appalling. Lessig demonstrates through myriad examples how controls on creative expression are becoming both broader and tighter. He reports almost casually on the way policy-makers and legislators are in the thrall of big-industry interests. He describes the growing power of ever-larger media conglomerates, though he turns a blind eye to dominant Disney, whose early achievements served to support his case on the necessary role of “piracy” in cultural production. He presents a valuable model of evolving relations between Norms, Law, Market and Architecture (technology). Lessig believes strongly in the potential of the Internet to facilitate a shared culture. In blogs, he sees unfettered public discourse at work. In the instantaneous republication that is going on continuously on the Net, he sees cultural democracy in practice. Formalities are needed to protect such activity, but less regulation, and, above all, fewer lawyers. In these conditions, Lessig believes, a free culture can be reclaimed from the landgrabbers. Just how we get there, or just how the tide is to be turned, is not so clear.
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