Benjamin TH Low

GSI: Kimberly Ruyle Hunter

Philosophy 359 paper 2

18 November 2002

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I vote not guilty. This fictional case is a powerful inquiry into the nature of law. It raises questions about what value-based approach to constitutional law is more valid than others. How far should the wording of the statute be taken literally? How much leeway can be given to its interpretation? Natural law theory or legal positivism? Original intent or purposive interpretation? I shall explain these terms and structure my paper around these issues. I will also address the nature of the contract made in this case and apply it to my defense. My view most closely aligns with that of Justice Foster’s. For example, I agree that they are indeed in the state of nature, defined by the fact that they are not within the limits of the physical enforcement of the law. No police can arrest them, no soldier can kill them. They would die anyway, so it is useless to observe the common law under these unique circumstances. It is commonsense. They are not within the reach of the arm of the law. This is like the case of a mutiny that happens on a ship out at sea in international waters, over which no law has enforcement over, at least during the time it is out at sea. In this case, the explorers have rationally concluded that if they were to follow the common law, none of them will survive, so they had to make the law as pertinent to their circumstances by making a pact. As Justice Foster argues, they had to create “…a new charter of government appropriate to the situation in which they found themselves.” I agree with Justice Foster’s premise that “…all positive law is based on the possibility of men’s coexistence…” how then is the judge supposed to treat this case if it happened in a state of nature? I propose that it is irrelevant to judge this case under the positive law. The case should not be judged at all because the basis under which the law

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is valid itself is absent in this case. Consequently, the men should be judged innocent under the positive law as an equivalent result. In answering the question whether Justice Foster’s “state of nature” argument has any role to play in judge-made law, I presume that this means to ask if judges should alter or create new meaning to the legislature in subservience to some kind of overarching natural law that purportedly rules all human conduct. This is indeed one of the issues at the heart of the debate over the nature of jurisprudence and the role of judges, which is that of using the natural law theory approach as a basis for legal theory. By definition, the role of the judge should be devoid of any political power. In Ely’s article, Hamilton’s Federalist 78 defines the role of the judiciary as having “neither force or will”, being “purseless” and “swordless”, and that “…from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them…” So what this means is that judges cannot create law, prima facie. Indeed this is rightly so. Lockean analysis states that from the state of nature arises the will of the people, which forms the legislative through the democratic process of elected officials as representatives and it is possible to incorporate by consideration of “state of nature” arguments in forming positive laws. The judge has no role in this process. So the judge cannot make laws based on “state of nature” arguments because it has already been presumably done so by the Constitution and is not his proper role. Natural law theory has an obvious and big flaw in that it is notoriously vague and unreliable as a consistent basis for formulating principles of just law. Any kind of arguments can be attributed to natural law theory, resulting in a wide spectrum of

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contradicting arguments that all call themselves natural law theory. This is demonstrated ably in Ely’s article. This contributes further to the shaky uncertainty in justifying judgemade laws under “state of nature” arguments. However, there is the fallacy that the judge is making laws in this case by seemingly contradicting the wording of the statute “Whoever shall willfully take the life of another shall be punished by death”. He is still within his proper role by interpreting the law as the law sees fit. What I mean is that of course, the law should allow for some degree of purposive interpretation. With this in mind, judges must ask themselves what is the purpose for the law in creating it and interpret the law accordingly to the case at hand. This leads us to ask: why purposive interpretation? Purposive interpretation is a morally principled case of judicial activism. It allows adherence to what one calls “the spirit of the law” rather than its letter. Adhering to the letter does not necessary make the principle neutral as can be seen whenever a law becomes a dead letter due to lack of political will of enforcement, apathy to it, circumstantial pressure or cultural bias. An example of this is how an unfair law can be made such as the case of the historical evolution of the law surrounding the rights of Native Americans, or how Reconstruction era laws designed to protect the equality of blacks were seemingly followed to when it came to plain meaning but in spirit was not. There was still widespread animosity in the South that paid lip service to the explicit wording of the law but achieved their discriminatory goals by other invidious means. Clearly, an amendment to the legislature needed to address this injustice cannot be possible without appealing to some kind of purposive intent of the law, because its plain meaning is not enough. Moral

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progress is only possible this way, when the judiciary brings out into play the purpose behind the wording of the statute. A possible counter argument goes along the line of Bork’s theory of original intent: “that a judge is to apply the Constitution according to the principles intended by those who ratified the document.” A supporting argument for this is Bork’s concept of neutral principles: “… courts must choose principles which they are willing to apply neutrally…” to all cases independent of “any particular group or political position”, as a safeguard against political judging. I agree that judges cannot evaluate the law, that is, no political judging, because it is not their role, but they can interpret it. Bork’s theory has some problems. First of all, it is false to say that any kind of viewpoint is truly neutral in any ontological sense. Bork’s justification of original intent as a constitutional approach via neutral principles is not really neutral at all when one questions the basis of that neutrality. It is a well-known fact that it is often the norm than the exception that the political affiliation of chief justice nominated by the president is aligned with the political ideology of the president’s party. How then is it possible to be neutral? If the legislature itself is not politically neutral, will the political results of judicial ruling be neutral? Bork does not deny this but argues that the intent itself is not political. (Macedo) Is there really a difference? In addressing Justice Keen’s legal positivist argument, in the wording of the statute, some level of generality and vagueness is inevitable, which requires some degree of loose interpretation. It is precisely this freedom that allows judges to interpret the law. A famous example of this is how a few words in the first Amendment: “…abridging the freedom of speech…” can invite so much controversy and interpretation. In fact, the

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wording itself invites judges to interpret each case in its own light. Is then no other way but purposive interpretation possible? Plain meaning or Justice Keen’s legal positive argument weakens when one considers the fact that the statute cannot enumerate every single possible case for judicial treatment, like this unique case of the Speluncean explorers. There will always be precedent cases challenging the relevance of the plain meaning of the statute. For example, this is notable in the case of legal theory surrounding technological issues. It is not that our moral understanding fails to keep up with the changes but the law, but the wording of the statute itself. Justice Keen’s distinction between purpose and scope can lead to absurdity because it is still a strict reading of the statute without reference to some large overriding purpose of some moral end. A proper reading of scope is defining the boundary over matters which the law has jurisdiction over, for example, the scope of state authority over an individual’s private sphere and liberties. This has to take into account the weighing of the importance conflicting purposes, such as state interest over an individual’s. An example of this is in the area of public education where the purpose of education overrides the individual liberty of free speech when it conflicts with this purpose. Original intent and legal positivism are forms of judicial conservatism. Their justification based on neutral principles “does not by itself tell us anything useful about the appropriate content of those principles or how the court should derive the values they embody.” (Ely) Law can be said to the public expression or understanding of what is right and wrong and is the enforcement of morality. This is evidenced by a sense of outrage

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expressed against the viciousness of any crime by the public. Legal positivism is a form of moral skepticism that does not impose on the judges the necessity of promoting morally just outcomes or preventing moral injustice. This does not make sense if the law represents morality, or at least some notion of it. This leads us to ask what leads to this kind of moral sensibility. Is it the moral majority? Is it democratic consensus? Public opinion can be capricious and inaccurate as any moral indicator, as history has shown. If majority rule were to be established as de facto law, then minority rights will be trampled upon, which violates the principle of democracy upon which the Constitution lies. Therein lies the difficulty in Justice Handy’s championing of the wishes of the people. In his words, “men are ruled, not by words on paper or by abstract theories, but by other men.” Judicial ruling catering to public sentiment or to mere practical efficiencies can actually be undemocratic. Justice Handy’s legal pragmatism, as well as purposive interpretation, treats the law as a means to some moral ends, not as an end in itself. Legal positivism does the opposite. Both the former admittedly do not claim any justification on a basis of neutral principles which is alright considering the fact that neutrality is an impossible goal anyway, so it is more agreeable to have a greater flexibility in interpreting constitutional law rather than a rigidly legalistic way in order for any kind of progress to occur. However, I do agree with that a law should not be strictly adhered to if it leads to moral and legal absurdity. Ten men have already died to save the four explorers and to then condemn the four explorers to death after the rescue does indeed sound absurd at face value. Laws governing human affairs are sometimes instituted so as to promote

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efficiency by following a set of commonly agreed rules. However, this practicality itself can be undermined in many circumstances if a strict adherence to the rules is followed, as in the case of bureaucracy, which expends wasteful energy. A strict legalistic reading of the rules will undermine its purpose in this example. The rules have to evolve in order to accommodate unforeseen circumstances and to govern unique cases. This will not be possible without some appeal to its purported intent. Justice Foster’s self defense argument is a valid one to be applied to this case. They killed in self defense because it is a situation of “either you or me, and better you than me” to put it crudely. However, it is more like “better one than many” which is even more acceptable. As he mentions, accepting this argument “cannot be reconciled with the words of the statute, but only with its purpose.” In this case, the purpose of the law precludes killing in self defense as murder. Other purposes of law such as its deterrence value, as “an orderly outlet for the instinctive human demand for retribution and for the rehabilitation of the wrongdoer” (Justice Tatting) Even accepting Tatting’s argument that purposes may be varied and conflicting, none of the purposes he mentions will be violated by ruling the defendants innocent in this particular case. This interpretation of self defense argument is also supported in prior case of Commonwealth v. Parry, which means that this is supported by precedent. In refuting another unnecessary confusion brought up by Justice Tatting with his example of the bread stealer, the stealer had other lawful means of obtaining bread. It is his laziness and neglect that is being punished. The Speluncean explorers had no alternative means of survival. Their intention is not to kill per se, but to survive. The killing is not “willful”. Thus, it is even possible to arrive at the same conclusion of not

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guilty with a strict reading of the plain meaning of the statute because the “willful” requirement is not met. Another concern of Justice Tatting’s is how purposes can be equally elusive, multifold and controversial, than other means of legal interpretation. However, I argue that purposes are often broad and more commonly agreed upon and easier to decide than original intent. Hence, they can provide a sound moral basis for legal interpretation. The purpose of any law should be clear from the outset as far as possible and an overriding clause of this purpose should be worded into the Constitution in order to resolve ambiguity when it comes to constitutional interpretation in open ended provisions or unique cases such as this one that seemingly contradicts the law on a superficial basis. Addressing another contention of Justice Tatting’s about the definition of “willful” as it applies to a definition of the act of murder, he says that “repel(ling) an aggressive threat to (one’s) own life” is not “willful” because it is a “response to an impulse deeply ingrained in human nature.” Is not this response an instinct for survival, one of the means by which is to kill in self protection? This instinct for survival overrides all other moral concerns and mitigates in favor of the defendants. It is this purpose then that the law recognizes. A strict legalistic approach will obscure this larger moral forest for the trees of the words. The definition of “willful” as deliberate is insufficient in this case because what is deliberate in Justice Tatting’s sense is merely an application of the capability of rational thought to reach a best solution to the situation. The resounding claim of “judicial reform” or judicial usurpation of political functions by the opposition, also mentioned in Justice Keen’s opinion, that this means allowing the judges to impose their own values on the case, leading to an undemocratic

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process of law, is often stated. This is the danger that Chief Justice Truepenny wanted to avoid by appealing to the executive to vindicate the men because there was apparently some conflict with his own values “as a private citizen”, even more broadly of some kind of public moral justice. As stated in Ely’s article, this apparent threat to democratic principles is often overrated. Indeed, the court can be a powerful influence in the running of the country, even somewhat immune to the formal checks laid on it. Legislative challenge to its constitutional interpretation has historically been fraught with much doubt, laying force to the notion of an independent judiciary doing best when left alone. The court has also historically been often conservative on matter of the constitution, thus making constitution amendment more difficult even where it is needed, as in the deplorable state of civil rights before the eponymous movement. Ely says that this cry of anti-democratic judicial activism is ensconced in a language of destruction that is unwarranted because “… (the Court) understands that if it gets too rambunctious – if it too regularly exercises what the public will understand are properly political functions – those (formal) checks will be invoked.” Historically too, American public opinion has been in line with the course of judicial constitutional review and the public has come to even expect, to some degree, that the court will intervene on their behalf on some unfair constitutional practice. The generality of purposive interpretation allows judges to maneuver within this framework and to avoid gross obvious moral violations by sticking strictly to the wording. Even if “all moral talk represent only personal value choices and arbitrary preferences” (Macedo), there can still be some general rules that can govern purposive interpretation that respects the moral claims of democracy as an overriding moral

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concern, because “the defense of democracy itself demands some moral claims.” (Macedo) Justice Foster espouses the importance of the contract the men had made. From a social contract perspective, they have mutually consented to a compact in which one of them has to die. It is a fair contract, ruled by the mathematical law of probability. Consent is present in this case which validates the contract. Lockean theory holds that the social contract is sacrosanct once entered, the terms of which applies to everyone and is irrevocable, the moral authority of which is derived from the consent of the parties involved. In this case, the nature of the consent is explicit, rather than tacit, which is fulfills precisely the basis of the validity of the Lockean contract. Whetmore knowingly entered the contract with the possibility of being killed. He was forewarned and informed of the consequences. Analogously, the law is fair if it is promulgated. He accepted the risk and has to have been prepared to take it. The importance of observing a contract can be found in the following quote: “Why are we bound to observe our promise? It must here be asserted, that the commerce and intercourse of mankind, which are of mighty advantage, can have no security where men pay no regard to their engagements.” (David Hume, “Essay XII: Of the Original Contract”) In this paper, I have given the strongest case to purposive interpretation in examining the views of the various judges. I have defended my case with a leaning towards Justice Foster’s disposition.

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