Jurisprudence The heuristic value of jurisprudence- uncovers the structure of where your argument is coming from and helps

you conceptualize other related arguments that will help you. Where does the law come from? What is its scope? -Not all of human existence is encompassed by law. -All of human existence falls under legal thought. You can get a yes or no to anything you ask. -Law only exists when it speaks to answer a question. When no question is asked, law does not exist. Positivism would say that there are pockets of human existence that are not covered by the law. Natural law, on the other hand, is pervasive, all around. Every case is unique but the law is a generalization. In that way every case involves facts that are not covered by current law. That does not mean that we always say the law is silent on the issue. As lawyers, with an unknown variety of cases to be brought to us, we do not have the liberty to declare ourselves beholden to one philosophy or another. A judge may be able to say “I am a natural lawyer,” but a lawyer cannot. We must be more heuristic, knowing each of the possible philosophies and be able to apply them comfortably. Is Jurisprudence concerned with how we as advocates should analyze and argue what the law is, or is it concerned with what occurs inside a judge’s head? Maybe it’s both or it’s neither. We can look into a judge’s head by reviewing previous decisions or what arguments worked and which didn’t. We can use our own philosophies to figure out how to better persuade other people. This involves how the judge conceives his/her role. Lord Devlin conceptualizes his role as representative of the people. He’s visiting society’s ideas upon the defendants who appear before him. Another category of judges are the benevolent dictators, like Posner, who believe that they are going to make rules which will then be imposed because they are considering what is in the best interests of the public. Case of the Speluncean Explorers: Reductionist example of what a judge goes through in his/her deliberation. Not uncoverable in most cases. Most cases do not come with stipulated facts. As you can introduce new facts, you undoubtedly change perspective. The explorers in this case have “contracted out” of society. But they are prosecuted according to Newgarth law anyways. 1. Chief Justice Truepenny/Positivism

2 H: Statute requires that the killing be punished, the statute applies and thus they should be punished.

This no-nonsense approach may ensure that the public has notice of the statute’s interpretation. The judges are responsible for construing the law in a way that the average layperson can understand. • • It would be a disservice to the person on the street to construe the law in surprising, confusing, overly academic ways. This would lead someone to have less respect for the law, construe the law as fallible, escapable.

But is any judicial interpretation every directly extended to the citizen? We all interpret it differently. Some would even say that we would read the statute the same way, as applying to this act, but then weigh the chances of being punished. Scalia believes that literally reading and applying a statute expands the power of the Supreme Court because it means the lower courts will have to follow him. In general the Court handles so few cases that it is difficult for them to regulate the conformity of lower courts with their judges. Scalia says that by insisting on literalism you can control the deviance of lower courts. -Presumes that there is a literal meaning of the statute. -Your literalism doesn’t mean that lower judges will interpret an issue in the same way as you. The lower judge’s literalism may even lead her to another holding. We tend to buy our law retail. Even the federal government says that compliance with tax forms does not ensure compliance with tax law itself. You’re even told not to rely on the retail direction given by IRS agents on a help-line. One scholar has even said that the criminal law is not even written to the public. Statute is addressed to the court system, not the potential thief. “If you find…you can prosecute for…” This is what Truepenny is not saying, that people in fact don’t even consult the statute. Then what’s the point of issuing a decision on the principle that it will give clear guidance to the citizenry? Should efforts be made to make the law clear and concise if we know that the vast majority of people will never read it? It’s really not at all clear that the legislators intended to incorporate or anticipate these facts when creating the statute. Because it was unanticipated, it’s hard to say that the statute literally applies. But every case has elements of being unanticipated by statute. That does not mean that an application of law cannot be made. If the Chief Executive is involved, does that taint the judicial system? Is the chief executive incorporated in the judicial system? If the chief executive gives pardon, it does not necessarily encourage the disregard of law because your still taking a risk by committing the act without insurance that you will be absolved. 2. Judge Foster/Natural Law

3 H: The men should not be punished because this act, while normally condemned under natural law, would fall into an exception for necessity. ???

Natural law is all pervasive, transcends all jurisdictional and geographic boundaries. If morality is the basis, this may be constant (see D’Amato’s theory on universal morality). Natural law comes from observations about how groups exist within society. It comes from our situatedness, us being humans in society. Natural law is not an absolute empirical observation. Many times the issues are in flux. At first Foster side-steps the murder statute because he says the positive law does not apply in the cave. Positive law has territorial limits. Foster says that NL is not opposed to this particular killing because there was a known exception for necessity. This is a flaw because if NL is universal/pervasive, and murder is a crime against NL, then universality allows no exceptions. One example, the military exception, is not universal. Many American positive laws forgive killings accomplished during war efforts. Nevertheless, the same action many elicit murder charges by other nations and the natural law. And there are war crimes rules so that you cannot act without limit. In Part II Foster changes his mind. He pretends that positive law does reach the explorers, but he says that we must look to the intent of the statute in order to know if the men should be punished. He holds that while a statute may plainly prohibit some conduct, if the situation is such that the purpose would be frustrated by punishing, then we shouldn’t. Ex: Parents say the teenager cannot drive their car without permission. If the teen did so because of an emergency, she should not be punished. If the parents had thought about that contingency, they would have written an exception into the rule. This involves looking backward from the time of the questionable conduct. If had known that type of circumstance may have arisen, you wouldn’t have prohibited it. In this way natural law and positive law are very different. Natural law looks at the end result and asks what the original purpose was. Positivism looks from the initial statute, reads it literally and applies it to any subsequent conduct. Purpose of a statute is it’s aim. Foster says the purpose of this statute is to preserve life. Ideally the deterrent value of the prohibition would mean no murders would ever take place. But the preservation of life was going to be frustrated anyways, perhaps the murder actually ensured more lives than inaction would have. So under Foster’s natural law, if the purpose of the statute runs out, it no longer applies. Clincher: Foster claims that allowing the men to be executed would make the executioner a murderer to be punished by death and so on…

3. H:

Judge Tatting/Legal Indeterminacy The men should not be executed, to do so would serve no purpose because deterrence is a moot point.


Tatting also argues that no statute should be applied in a way that contradicts its purpose. He holds that the purpose of the murder statute is to deter future killings. (Competing purposes would be to provide orderly outlet for retribution, rehabilitation of wrongdoer). Because of the unique nature of the motivation for the killing, prosecuting these men would serve no purpose. Purpose is forward-looking, goal-oriented. But it’s interpreted backwards, look at the tendency of the statute toward a purpose. Interpret something in light of what it’s tending toward. If you don’t know the purpose something serves, you cannot make sense of it (Aristotle). Teleological purpose. If the rule here comes from natural law, then how can the judges have any role in deciding the case? You can’t just sit back and say we lack authority; those men will be hanged. Perhaps you could try to divest the trial judge of authority, but where is the authority for that? Also, instead of trying to apply the “constitution” developed by the explorers, we can apply the unwritten laws of mankind dealing with basic concepts like murder. Then we could apply the law of nature. Is there anything wrong with applying the law of a foreign nation? Conflicts of law here would govern the principles. An expert is brought in, treating the law of the cave as a fact. If there is a controversy, the other side can bring their own expert. Tatting could have done this to apply natural law. Judge Tatting claims the purpose of the law is deterrence. According to law and economics, assuming everyone is a rational thinking, as long as the costs are high enough, you can keep someone from doing something. If deterrence is the sole purpose of the criminal statute, economic interpretation fits perfectly. You can keep raising the fine for speeding and get more people to slow down. But society must ask what is our cost (in resources) in regard to the benefits (increased safety). We wouldn’t execute for speeding violations because there is also a cost for over-deterrence. Economists say punishment is irrational. If the criminal has made a rational choice in robbing the bank, there’s nothing wrong with crime, it’s a calculated risk. Economists can’t deal with right or wrong-only costs and benefits. One can question whether any crime has ever been deterred. We’re asserting punishment under the guise of deterrence once a person has already committed a crime. That person obviously wasn’t deterred. Thus, deterrence is for others. This gets into criticism of utilitarianism. It’s possible that a scapegoat could be used, in an effort to deter the rest of society. The injustice of that becomes irrelevant. As long as the system is upheld, injustice is tolerated. But if deterrence doesn’t serve its purpose here, we can add incapacitation, retribution and other theories to justify criminal justice.


What about the ten workers killed during the rescue? Tatting also has issues with the governance, contract, in this cave. It looks like they acted precipitously, for one. And the process of selection is important. 4. H: Judge Keen/Positivism Recuses himself.

Keen disarms us at the outset by saying that if he could act according to his own personal conscience, he would let the men go free. This may not be proper, but it may not even be possible. Not schizophrenic, can’t divide your mind. Keen doesn’t say that he’s choosing to divorce his moral interests, but he has to. He doesn’t like that he has to convict the defendants, but he is obligated by office to ignore his personal interpretation. This doesn’t appear sincere. Many judges are more forthright about taking their own opinions into consideration. But, Keen’s conclusion is something that our system values. We don’t necessarily that a judge’s personal opinions cloud a decision. The outcome, would then depend upon the judge assigned. The system would be less secure, more instable, more about luck. It throws the legal profession in question. Why argue a case when the decision has been made before you walked into court? This also undermines the predictions made by rational thinkers who weigh risks before they act. If you don’t know who the judge will be, you can’t know your risks. This role of the judge as law maker upsets our whole system. Rigorous Article III judge ratification process is telling about our acknowledgments of the role of personal opinion. What impelled Justice Keen to do what he did? Oath of office is not sufficient. Aren’t you the judge of your own destiny- a judge can determine what it is about her role to make her considerations different from laypeople. It’s hard to escape the fundamental moral question. According to positivism, there is nothing inherently moral about a law. A law enacted by a legislature can be evil and immoral, there is no intrinsic connection between the to. Whether what they did was right or wrong is not a matter for the judge, he is only trained to discern legality, not morality. Morality should be limited to commentary, not relevant to the expounding of what the law actually is. 5. H: Judge Handy/Realism

6 Least legalistic of the opinions thus far. It really appears as a management theory: the government’s role is to adequately manage the people; the manager cannot just enact policies the people abhor, need to take popular opinion into account. Handy first takes issue with the role of juries. He then notes that judges must consider the reallife ramifications of their decisions. Handy makes a statement that juries can very well (and often do) ignore the instructions they are given. Their personal opinions and values inevitably factor into the decision. Jurors are required to give a decision on the totality of the case. The ultimate question of applying the law to the facts is one that a jury has to make, at least in a criminal case. In a civil case a special verdict like this would have been fine. Jury nullification plays a large role in the American judicial system. For one, civilian jurors can ignore the law to some degree and focus on their own opinions (like South African jurors denouncing apartheid over and over). Lawyers can also come as close as possible to the limits on their argumentation, insinuate that the judge is part of the conspiracy that resulting in the statute. If you were a defense attorney, you could have taken issue with the statute, said “willful” did not apply to such situations, that the legislators had never conceived of such a situation when drafting the provision. You can’t argue that the jury should ignore the law. It will be striken as too prejudicial, could be contempt of court or ground for mistrial. As counsel you meet with the judge to work out the jury instructions, but it is ultimately the judge’s decision of principles of law. In the end the judge will read the applicable statute to the jury, giving them a copy, and urge them that this and only this statute should be applied as the sole basis for determination. This choice of law is the judge’s discretion. The realist judge will cite public opinion if it helps, but primarily the judge is using his/her own subjective perceptions. Supreme Court justices admit that they read the papers. Think of the turn-around in the face of the Court-packing plan. Others say that the five conservatives now on the Court were so afraid of a Gore-appointed Chief Justice that they decided to “elect” Bush themselves. These all would be called legal realism. All of current reality push toward this outcome, the only constraint is “the law.” The idea is that if the outcome effects me, as a judge, why should I let legal niceties constrain me? Realism may also involve a total blur of the lines between your considerations for yourself as the judge and your assessment of the considerations of the greater society. Does this equal corruption? Once you say, let’s take the law out of the equation, you’re essentially saying do what ever you want. 6. Professor Wun/Formalism

7 Self-defense fails in this situation because the victim was not the one threatening their lives, circumstances were. So we look more closely at the necessity defense. Utilitarian: It’s better to save more lives than fewer lives. This elicits the scapegoat argument. Everything is relating to maximizing the well-being of the majority. No ethical reason for finding what the explorers did wrong. This would point toward acquittal.

Kant: It is never permissible to use a human being as a means. Every human life is an end within itself, of infinite value. If you have something of infinite value, if you add three lives to this (in the sense of saving most) adds nothing. This is totally contrary to utilitarianism. The Kantian principle would favor conviction for murder. With respect to the fundamental moral question, who is right? Can four needy people kill a healthy person in order to maximize survival? Would we want to live in such a society? What if we allow for this, how would we develop parameters? At some point the will of the majority will be used to exploit the minority. Does it all come down to a calculation of risks? Under utilitarianism you would say that you’re committed to democracy through majority rule, and this clearly would benefit the majority. But, when I bought into this system, there were exceptions to majority rule (like due process of law, civil rights). Even if there were due process accommodations to this law, would you agree? Do we own our own bodies? Not 100% clear, because ownership is regulated and enforced by the state. It’s not clear that we did anything that normally invests ownership rights to such “property.” Why should the body be exempted from the laws of property? We could view it as community property. Unfair distinctions between people might be contrary to generally accepted principles, but are they separable from individual identity? This might be egalitarianism carried to extreme. Treating everyone as the same, therefore you can add them up, try to equalize them all, purportedly to maximize public welfare. Utilitarianism doesn’t come from suspect history, rather from idealistic history. But it’s implications may be frightening. Those who are distinctly in the minority can easily be interfered with. Justice v. welfare. Are they mutually exclusive? Justice is Kantian- treating people to that which they have a right for. This would detract from the maximum social welfare that utilitarians think should be the sole consideration. Isn’t the proper function of a democratic government to satisfy most of the people most of the time? This is a majoritarian view. It would force us to read the Bill of Rights out of existence. Question of Odds:

8 Murder is normally thought of (and has been since antiquity) as someone trying to gain an advantage. This is why juries are so concerned with motive. In this light, this is why the executioner (one who willingly takes the life of another) is never considered a murderer; he has no personal motive in the killing. Why are these four defendants so anxious to kill Whetmore? He had excused himself from the lottery (in risk or benefit). They included him in the rolling of the dice, not because they knew he would “lose”, but because it would increase their own chance of survival. This is a motive for murder. Think about primitive societies and involuntary sacrifice. Even those primitive societies would recognize it as murder should one islander set up a another to be the one sacrificed. They would consider their sacrificial traditions as pure procedures, corrupted by personal motive. They know what murder is, they just define it differently in certain respects. Deterrence His “most important” argument. Deterrence doesn’t work when the person has already committed crime. Instead, he’s suggesting here that we should be investigating this case not after the fact, but before the act occurred- what did they do, what possibilities did Whetmore have? This would make for a whole different story. 7. Professor Tieu/Pragmatism

Survival trumps all. The voice of the group is absolute, majority rule with no restraints. But as between societies (groups) there are some relative concerns. The utilitarian decision in one society is good for that society alone. We, in America, don’t take into account the will of the British people; there are not persons to be counted in our majoritarian democracy. The notions of rights and justice are whatever this majority wants it to be. These terms are not constant, but adaptive to popular opinion. Thus, your definition of these terms have no influence on other societies. Other societies can define as they wish as well. Suppose country X decides to commit genocide. Utilitarians in country Y must not interfere, must say we have no right to judge/resist this genocide. (Although if some majority of country Y is upset with X’s genocide, they would be justified in pursuing some resistance.) This all appears amoral. We only have egotistical concerns, only concerns with ourselves. This offers a “psychopath” an opportunity to explore in the situation in which a state will afford him rights he would not have granted them. The Kantian notion of fundamental rights is by definition a concept of universal rights. If anyone is endowed with inalienable rights, we all must be, irrespective of jurisdiction. Wouldn’t allow another country to violate your “inalienable” rights. Some see human rights as an impediment. Bush Administration and Taliban leaders: just getting “in the way” of their administration of power.

9 Aristotle- worried about the reinforcement of democracy- that tyranny of the majority might offer no hope to the individual. If there is a tyranny of one (a despot) at least there is the hope of overturning that single person. Not so with the majority. The law would say that the rights basic to humanity only apply within the Commonwealth of Newgarth. If something happens to you outside our borders, we don’t necessarily care. To the extent we infuse the law with “rights”, we are stretching its reach. Law is a point of tension- utilitarians trying to write rights out of the law, libertarians trying to write them in. Tension between rights and welfarism. Tieu says that we’re better off declaring that the explorers were a society unto themselves; if they decided by majority to kill Whetmore, who are we to question that? Handy approaches this “lawless” position, seeing that law is a constraint, but he doesn’t go as far. Foster, in his first section agrees that these people created their own society. 8. Professor Threi/Justice

The “lawlessness” argument plays well with the media, but not often with the courts. The idea that the judge can decide totally according to discretion is not favored among the legal community. It undermines the enterprise of law. Posner says law is “what judges do,” thus they are not constrained by anything but personal discretion. If you want to know what the law is, just look at what I do. But this assumes that the judges will see you as interpreting fairly their decisions, and the judges can also change again at will. This upsets our legal system- need some reason, some predictability. Threi’s opinion seems to violate huge legal principles. For one, the “law” requires yes or no answers. He is saying here that the defendants are both innocent and guilty. There is a justicebased notion, but it is transcendent, absolute and universal and therefore very difficult to apply or quantify. In one sense Prof. Tieu was arguing for economic analysis through utilitarianism. Threi, on the other hand, acts like something of an administrator- applying principles to fit the defendants’ unique circumstances. The bureaucrat has no problem adapting law to any given situation. But judges are not supposed to do that. Juries can do this (they regularly qualify damages, compromise, thereby adapting the law to the facts). Why don’t we allow judges to do this? If justice lies somewhere in the gray, why do we insist on black or white determinations? Is the whole legal system on trial in this case? It’s pretty remarkable that the public here wants to see the defendants go free. The danger is that if the men are executed, public opinion will see the law as ridiculous.


10 Positivism may be called the literalist model. In Hitler’s Germany there were many positivist judges who were faced with statutes calling for the sterilization of Jews. This was too offensive, so they chose not to literally apply it. They would declare or question whether the defendant was actually a Jew. Gave the government the run-around, making them prove that the whole genealogical history was Jewish. Cases v. statute. Seems trivial, but is fundamental to the study of law. Precedents only work if the judge adds a little something to the law. Statutes, instead, are a way of changing the law more sharply. From the view of an individual, the law is a two-faced thing, coming at you from both sides. One primary difference between statute and case is the moment in time in which they occur. Statutes are in place before the conduct occurs. Cases come up afterwards. Anomalies are possible. For instance, bills of attainder, ex post facto laws, retroactive laws, are all grounds for dismissal as unconstitutional because statutes are not supposed to be subsequent to the action. TROs, however, can be case decisions which affect/avoid future action. Another problem is changes in case law which occur after the action but before the adjudication. Can be addressed by using ex ante inquiry or by expediting judicial proceedings. Fuller called positivism a one-way projection of authority. Law has no necessary connection with morality. There are spheres where law and morality overlap and spheres where they don’t. This does not affect the validity of the law. If there is an overlap, it is a matter of happenstance. Good Samaritan ideas are like this. A. The Command Theory of Law

Positivism didn’t rise until later in the history of the human race. For the longest time natural law ruled. Positivism rose later with the sophistication of the nation states. John Bodin- first use of the concept of sovereignty. Kings at the time considered themselves judges, not sovereigns. They believed that they were under a law which had been dictated to them and it was their job to interpret it. Positivism as we know it was “invented” by Jeremy Bentham in England. He did not intend to be an inventor, but was a reformer instead. He was observant and horrified by social conditions of his time. He saw his society (and the legal system) run by the affluent, and the friends of the affluent. Even if certain parties didn’t belong to this class, they aspired to it. He considered the lawyers to be part of this greater conspiracy. Bentham does not advocate the overthrow of the government, but the reform through the concept of parliamentary democracy. The government must reflect the wishes of the voters, make them receptive to the voice of the people. If you increase the democratic franchise so that poor people can vote, the government will take care of itself. His mechanism: periodic elections. The election itself is not important, but rather

11 that it must take place at regular, frequent intervals. The person in a representative capacity will strive toward reelection, thus must appease the voters. This creates a dynamic of the party in power and the party seeking to be placed in power. Either will win depending on broad appeal to the majority of voters. This explains a movement toward the middle, the moderates win the election. Anyone straying from the middle gets ousted out of office. [D’Amato would say that the current Court is entirely positivist.] I. Jeremy Bentham: Positivism and Common Law

Thomas Hobbes said the law is the “command of the sovereign.” Bentham may have believed this, but felt strongly that the legislature (as representatives of the people) should be the sovereign and not the judiciary. He denounced the Common Law as “legal fictions” by which judges changed the law while making it appear to conform with precedent. This power of the judiciary, granted to people not elected and not impeachable, was unacceptable. Bentham believed that statutory codes make the law readily accessible to the people and that so long as the codes contained sufficient detail they could be easily applied to any case by any judge. To Bentham, real law was statutory law; judges had no right to change it. Law: An expression of will, an act of legislation, and exertion of legislative power. Common Law: A collection of autocratic acts and orders used to have the effect of general laws; for those who can neither read nor speak. Written law: Law of those who can both speak and read. Traditional Law: Law of those who can speak but not write. Argues that common law has no value. “Quasi-law,” “quasi-imperative” etc. Who made this rule? Where is it found? When was it made? Under what circumstances does the “rule” apply? Which facts are dispositive and which are inconsequential? On what authority does your opinion rest? Will other people agree with your interpretation? The great example is Cadi the baker. Why was he strangled? How can other bakers avoid his fate? Are other merchants at risk? There is nothing permanent about common law. Its principles wax and wan with the discretion of the law-applier (the judge). Cannot not give notice (which means no deterrence) because its authority and its effects are so tenuous. The most important thing to him is the giving of fair notice. Fair notice allows you to alter your own behavior in accordance of the law. Bentham’s model of the Command Theory: -Message (“command”) is issued by the Legislature to individuals -Message filters through subsystem of judges (we need someone to apply law to facts) where it is transmitted essentially intact.

12 -Individuals, through elections, provide feedback to Legislature ensuring that legislation will be responsive to the people. In this way the legislature has an almost direct communication with the individual. The court is an agency of the legislature. There is a hitch to Bentham’s mechanism: the courts.

Courts are not usually elected, so not subject to the concerns of reelection. They (like in England) are appointed for life, so they were not subject to the concerns of the majority. Could spend their careers appeasing the gentry with no repercussions. By extension, the judiciary can “screw up” the legislature and abuse the majoritarian-enacted laws. He saw the common law system as frustrating the will of the people (as expressed through legislation). It was absurd to him that any case of substance is like a case of first impression. You can’t know what the law is until after the case is settled. One decision has no bearing on another. Taken to itself extreme the common law is a lawless system of arbitrary system imposed to exploit the majority of the people. During Bentham’s lifetime, judges believed that parliamentary law was made out of whole cloth. Statutes would be construed strictly if it diverged from common law (especially when statute was seen as progressive). There were exceptions- courts adopted some statutes that they considered useful in the application of common law. Now, some courts have lost their skepticism; they apply statutes which are written essentially by lobbyists, without strict scrutiny. But Benthams’ theory denies judges any creativity, relegates them to robot status. Bentham attacked not only the judges who were playing favorites, but the common law itself. He wanted to weed it out of existence (learn statutes in law school, rather than cases). Benthamite codes: take all the common law you can think of and make it into a statutecodification. Codes became widely popular. Napoleonic code. Legislation in his view should be dense and detailed, supplanting the rules of common law. This is the same as the civil law system in Europe and Latin America. Cases are considered illustrations of statutes instead of being law themselves with precedential value, as is true under common law. How does Bentham address the murder through slow poisoning? He would acquit. Ideally, the legislature would sit as a court in cases of dispute, they would be the appliers of their own statute. As a nation grows and becomes complex, this is impossible. Bentham would allow the legislature to appoint a bureaucracy to apply the statute to specific cases. He was really advocating was not the abolishment of courts and reconstitution of a bureaucracy. He was merely saying that existing courts should exist only to apply (not interpret) the statute as written by legislature. Does this lead to a civil law society? II. John Austin and Jurisprudential Positivism


Austin is more skeptical of legislation than Bentham. If Austin looked at the slow poisoning statute, he would just find something wrong with the statute itself. He would not find a moral basis for punishing the person. Committed to positivism, does not look to morality. He could argue that the legislature at time of enacting, had no information related to the possibility of slow death. (This is a little beyond Austin. Think Hart.) Austin finds Bentham’s criticism of “judge-made law” to be improper. It is the privilege and the duty of the judge to “clean up” the statute as negligent law-makers write it. The power of judges to legislate in this sense only comes if you reverse the time sequence we have discussed. Austin thinks the courts must interpret the statute, but cannot so strongly interpret it so as to change it. It’s possible to find some legislative mistake of oversight that allows judicial creativity. Austin has not reconciled his theory by giving an alternate time sequence. He is, in a sense, allowing judges to become mini-legislators. He would say that the judges may be applying the law retroactively, but only in the metaphysical sense. Even though the case comes before the court in real time, the case is unresolved while the judge is “tinkering” with the legislation at which point it is applied to the individual involved in the incident. The new law takes effect when the decision is handed down. Austin basically asserts that judges are delegates of the legislature. In another sense, the judge is just as unfettered as the legislature. There is nothing between the judge and the parties which interprets and approves of the judge’s “determination” of the law. Parliament issues legislation An Incident OccursCourt interprets law in light of incident. But, where’s the notice? Positivists don’t have the luxury of looking for the deeper meaning behind ideas encompassed in the law. Under the positivist theory, the legislature has the authority to create any statute it wants; there doesn’t have to be any deeper meaning behind the legislation. Positivism is a word-based approach rather than a meaning-based approach. You can’t argue with the words. Yours is not to reason why, yours is to do or die. This is not the most efficient way. Personnel at all levels have different levels of information- to carry out something at the lowest level from the highest does not always prove efficient. Ex: computers, “drop everything and come here”, military orders. a. John Chipman Gray

American law professor. Took Austin’s theory to an extreme. Courts are not only the appliers of the law, but the determinants of the law. The law does not become actualized, does not become real, until the judge applies it. What the legislature enacts is “virtual law.” It is a source of law which only applies to the controversy if the judge says so. The judge, as interpreter, is allowed wide discretion, pushing and pulling the law under the guise of interpretation. The law is not imposed on people by the legislature, but by the courts. But, this is not always true. If the legislature creates a new traffic light, that will affect the people’s behavior irrespective of the fact that no court has intervened. Gray would say that compliance comes from general knowledge of what the courts would do if they didn’t

14 comply. This is tough to accept; the reality is that we accept the legislature’s enactments and assume they are constitutional without waiting for court’s interpretations. Also, with respect to the discretionary interpretation of 65 mph speed limit, because judge’s decision are not obviously following from the statute, it’s a never ending cycle of virtual law. Posner seems to follow Gray’s jurisprudence. Statutes are treated as statutes, not dispositive. Courts can revise statutes at will. III. Hans Kelsen: The Pure Theory of Law

Why does the law have to apply to individuals at all? What if the command is never heard? Ignorance is no excuse, but what if he could not have heard the law? This is even more radical than Bentham. Once you have the citizen as receiver of the law, you run into problems (like above). We should look at law as a message sent from Congress directly to the courts. Citizens are left in the cold; the law is complete when legislatures and judges decide what the law is. Does not mean that individuals are not affected by the law, or that the law does not apply to individuals. He takes an economic, cost-benefit, analysis of the law. The individual, with knowledge of the state’s action, makes a rational decision when pursuing a conduct. But how does the individual become aware of these potential costs? After all, they only exist by virtue of the fact that both you and the victim live within an organized state. Kelsen says there is no way to know that prosecution would happen. You just take into account probability of such future consequences. He says it is all context dependent, based on observations of general practices (?). For example, Naples and Chicago enforce the same traffic laws differently. Law to Kelsen is nothing more than a ration calculation of the probability that a state itself will do something to you that is harmful to you (fines, imprisonment, punishment). If the benefits outweigh the costs, go ahead. There is no deterrent for someone who thinks the crime is worth the punishment. It’s a mistake to view any law as having any moral component to it whatsoever. There is “morality” which is outside the law, and as contingency- there will be some laws that overlap with morality, but that is happenstance and your own obligation to obey the law is legal. He calls this the pure theory of law, really the scientific theory of law. Drained of all metaphysical notions (justice, morality, right/wrong). Approach law as scientific, an object of study. This is almost the exact opposite of natural law. What is legal obligation?

15 He would say that legal obligation an oxymoron. All obligations are moral. Law is simply a descriptive term, something that is out there. There is no legal obligation for you not to steal, but if you’re caught then you’re obligated to pay the price. He says he doesn’t understand the obligatory part, but insists that it’s an economic transaction. If you look at the chart, however, you can see that Kelsen saw an obligation to the sanctioners to impose the sanction. Splits obligations into two “oughts”. One is the derelict who ought to observe a certain conduct and one who ought to execute a sanction in case the first ought is violated. Norms and obligations… “If it is assumed that the first norm…is valid only if the second norm attaches a sanction, (If I steal I will be punished)…then the first norm is… superfluous” ([if I steal] I will be punished). Kelsen is saying that the first norm doesn’t tell us anything. It is not compelling. Without the second clause, you can say that a person is able to steal or not to steal. If I steal has no consequence. If the first norm is to exist, it must be contained in the second. “I will be punished for stealing.” Kelsen says this doesn’t dictate our decisions, but is factored into our calculations. If a sign says, “Computer $1000”, that does not mean you have to buy one or that you are morally obligated to buy one. But it says that if you want to walk out of the door with a computer, you have to factor that in as your price. If we decide to steal we are obligated to accept the punishment. There’s no morality attached to it, you just pay the going rate (which is the penalty assessed by the state). Kelsen says that the legal directives are not the addresses of commands at all. Nothing is said to you by the directive. All it says is what the sanctioners, enforcers, must do. These directives are totally communications between the law maker (legislature) and enforcer (court, police). Kelsen doesn’t seem to give any guidance to the judges as to how to apply the law correctly. He doesn’t say that there’s anything wrong with the feedback loop from the people back to the legislature (like in our system of popularly elected representatives), but he doesn’t think it’s necessary to create law as it’s defined. Kelsen and Secret Laws: Kelsen says that for positivism, the law is complete at the point where the law maker and the law enforcer are aware of its prohibition. He is only talking about the validity of the law (whether it is law) and not the efficacy (whether its better for the laws to be known). The red light means stop even if there is no law that says so. But wouldn’t the law be more controlling of people’s behavior if the meaning of a red light was published?

16 While the command theory says that parliament issues a message to the people, through the court system, Kelsen’s view says that it need not exit the court system, needs never reach the people. Law is the enactment of the law (by parliament) plus the enforcement (by courts). Kelsen would say that a would-be criminal will never read the statute to know whether the law prohibits his intended conduct. This could lead to a police state where the law is whatever those in power want it to be and the rest of us are at their mercy. If law is something that channels human behavior, how can we be channeled by the oxymoron “secret law.” It’s more efficacious, but not really getting at the essence of what the law is. IV. H.L.A. Hart: Positivism and the Separation of Laws and Morals

Hart- law is the enactment of the law, the statute/command as written by Parliament.. H.L.A. Hart says that in positivist theory, laws need not be promulgated, which is in symmetry with Kelsen’s theory. Hart finds too much simplicity in Austin’s command theory. If you want to reduce law to being complete as soon as parliament enacts it, it’s too simple. Gun man analogy- your money or your life. Is the legal system then gun man writ large? Hart says that the problem of the gun man in the alley is that it is immediate and has no carry-over benefits. Our laws have a persistence to them, whereas the gun man’s threat is only binding at that moment. Who is the parliament? They come and go, sometimes they abstain from votes. Hart says it’s the rules themselves (or the Constitution) more than Congress itself. This rule-based conception is a huge step from the simple command of Bentham or Austin or the conspiracy theory of Kelsen. We’ve gone from the concrete to the abstract, from a powerbased system to law-based system. Law itself is a player. Hart introduces a notion of constitutionalism- constitution is above the system. This constitution is the will of the people and is higher than one session of Parliament. Even in dominant monarchies, the rule of King Louis X!V is supreme, but the law of succession is even higher. Then the rules of succession become a kind of constitution.


The Central Role of Language

Even if we say that we must interpret the meaning of every word in a statute, don’t we then need to examine the meaning of the whole sentence? The Legislature is stuck in the intractable position of trying to convey what they don’t want people to do, without providing room for absurd results. Maybe we need a paragraph, but why stop at a paragraph, why not write a novel for each provision? Some states used extensive preambles, but interpreters do not agree whether the preamble has legislative substance.


Goedle: In no sufficiently complex language can you avoid the inevitably un-provable statements within every language. Fuller’s tank example is such a case, its an indeterminate use of the word “vehicle.” I. H.L.A. Hart: On Core and Penumbra

Assign meanings even to ambiguities, exceptions are just exceptions and do not collapse the rule. But, there really is no way to assign a fixed meaning to a word. Every word has subjective connotations, unique to every individual. We each bring to our use of the word a different perspective. We are able to communicate with each other because of the high degree to which our meanings overlap. ??? Hart is a student of the Ordinary Meaning school of language. The problem with philosophy, they said, was the ordinary meaning of words. They saw those ordinary meanings ignored, thus becoming the means to clarifying all philosophical confusions. He would say that the one small section where all of our meaning “circles” is something common to us all. He, in essence, said that there is a core instance of meaning inherent in every word. This meaning transcends us all. We cannot communicate if our core meanings don’t match, can only be explained by one party being mistaken. If a statute refers to the word “vehicle”, we may not know precisely what the legislature meant, or how to define every class of item, but we must concede that an automobile satisfies the definition. We may not know if bicycle, baby carriage, or skateboard is included, but we know that automobile is and the courts have no business messing with that meaning. The law is complete, may go toward the court or to the people themselves. No Vehicles in the Park and an Ambulance…Positivism would not allow for the ambulance driver to be acquitted or for parents to have claim against police officer who barred entry. Hart would allow for core meaning to change over time, at least in the case of technological extensions. While the core meaning gets conveyed without any question, there are also penumbral meanings. It is the courts who include and exclude penumbral meanings. In determining inclusion in the penumbral cases, the legislature has delegated the judges to make law. In essence, under Hart’s theory, the judge has two and only two questions to ask: (1)Is the motorized wheelchair an automobile? If not, (2) make legislative determination as to whether it’s a penumbral category. The first case that decides what a motorized wheelchair is, is part of the official interpretation of the statute (via delegation of legislative authority) and any future case does not give the judge any discretion. Precedent of the first case is absolute.

18 II. III. Principles: Lon Fuller: Hart’s Core and Penumbra Rules and Principles

Ronald Dworkin:

Always take a good shot.

Many people were excited by his idea that the difference between a rule and a principle was like the difference between a binary and an analog decision. He says that rules are binary, answered by yes or no. Ex: Did you file the brief in 30 days? (yes/no) Did you file the brief in a reasonable period of time (gray)

Precision is achieved by the analog process, which can be emulated by the digital process, but is still less precise. Digital works for positivists who want to give you binary answers, but this may not be the best analogy to the law. The “wave” understanding of the law is more effective/helpful. The real world is more complex than this binary, positive notion. For example, the selfexecuting rule of spiked bumps in a parking garage. Suppose just as you enter the parking garage, stuck in a line in front of you, your passenger needs to go to the emergency room. The garage would say, well if you don’t like the law, go to the law-maker and get it changed for prospective situations. Unsatisfactory. In this respect, the first case that comes up is always the “sacrificial lamb.” Dworkin The court finds principles or maxims, that don’t have yes/no answers and are “thrown in to the mix.” Think about manipulations of a person’s presence so as to procure jurisdiction for serving papers. These questions are not sharply answered, only examined in light of reasonableness or approximation. Dworkin says that even when the principle isn’t followed it does not mean it doesn’t exist. On the other hand, if a court declines to apply a rule, it means the rule no longer exists. It’s a way of making legislative intent apply to real life terms by expanding its applicability. Dworkin’s attempt to add principles to rules is another attempt to add direction to legislative messages. Are the principles rationalizations, though, rather than explanations? IV. Stanley Fish: A Broader Notion of “Rule”

In teaching someone a game, if we try to go by rules of play, you quickly get frustrated. Learning through experience and commands of coaching have more effect than rote rules. Some things cannot be described in terms of rules. Fish says we learn practices, not rules, and these may train us to be rule-appliers. Perhaps judges should be “trained” to extrapolate legislative intent. We’ve moved from the word, to the context, to the practice.



D’Amato: Computerizing Substantive Law

Computers are literal machines. When given a command, a computer will only do one thing. We don’t mind because it has limited impact on our lives. More modern search engines allow for some margins of error by giving us near matches. Still, it is only assigning a probability of a given word sequence, it demonstrates no comprehension of the words themselves. In a way the computer is the perfect positivistic machine. Computers are getting better at approximating human thought, but it does this by being programmed both with all the rules and also an extensive history of experience If we could set up a legal system where everything was programmed, there would be no doubt as to what the legal rule is. The legal rule would always be answerable: Does income tax have to be postmarked by April 15th? Change would be effected not through judicial review, but by having the legislature recognize necessary changes and inputting them into the computer. You would have to program all of the statutes, with legislative history, plus all the previous case law. You would only get your facts from the courts’ opinions, assuming that the facts written into the opinion were those considered dispositive. Once all of the “law” is inputted, the lawyer inputs the facts of the case before him/her and the computer undertakes a multivariate analysis and finds the cluster of facts closest to yours, finally indicating probability of your win/loss. Supposedly under this theory, both plaintiff and defense attorneys would plug in the same facts and get the same answers, thus diverting litigation. One side effect is that the lawyers and judges would, for the most part, be replaced by computers. D’Amato claims we’ve replaced the injustice of the system because no one can get a different result because of a better lawyer. He claims this “achieves Bentham’s dream,” the law always comes from the legislature and not the judges. The only difference is that they don’t change the law by writing a new statute, but they amend the program to say that X facts leads to Z results, rather than Y results. Perhaps the defense lawyer will say that, yes- on the facts you’ve given me you win. But if you add A fact (the road was slippery), our side will win. Who decides which facts are relevant enough to be entered? That would probably have to go to a jury. We do have to have juries in fact finding positions in the case of dispute. But then the case would be limited to whether the road was slippery that night. The jury would come out with a simple yes or no. There must be some room for judicial review. If the facts of the case are so unique that they lower the threshold of probability, anything lower than a certain probability will have to go before a judge. Or maybe you can be literal and if your case doesn’t fit, then you lose and have to petition the legislature to give you remedy or change the law. But this system is totally static, it will remain the same forever unless the legislature changes some things. D’Amato thinks a static system delivers the law in the most just way, because then you can’t be surprised.

20 His strongest criticism of the system is that it’s a literal system with no understanding of what the law, the facts, or the results mean. That distorts the words of the facts and the overarching reality. We may give up reason and rationality for certainty and predictability. It could be that the judge assumes that everyone knows the essential facts, which is something the computer doesn’t know.

Natural Law Natural law is very old; Cicero used to be taught in grade schools. Modern society is much more positivist. Jury members strictly apply a judge’s instructions, for instance. In the natural law system, there is less of a vacuum (positivism) and more like a floating sea of norms, justice, morality. The picture is somewhat more amorphous, the image coming from the legislature may get blurred on its way to the courts, and then further blurred after it leaves the court. This is not an effort to be vague, but instead to give weight to the things that “really count.” The way that we should behave is not necessarily the way that the legislature tells us to behave. This blurring aides the adaptation of law to reality, excluding extremes, thus ensuring the survival of the whole legislative system. Natural law is complicit with the governmental enterprise. We’ll buy into the system, but adapt it to our own purposes. There is a notion that natural law would create less impetus for revolution. By allowing these external forces some expression in the system, they left off some of the tension. A natural law judge would say there is no such thing as statutory compulsion. Just because something is written down does not mean that it mush be applied to the exception of every other principle. Positivism, on the other hand, would say that those external concerns are trumped by the letter of the law by virtue of the fact that they are on the outside, the statute comprises the inside. Abortion: Natural law principle would say that the fetus, embodies the potential for life and, as such, should be protected. In contrast, natural law would also say that there is a natural right for the woman to control her own body. Thus the decision regarding abortion is merely a balancing of the right of the woman with the right (and viability) of the fetus to retain its potential for life (per D’Amato). Cost-benefit analysis? It is also possible that the law does not reflect, but dictates people’s personal opinions. If you say that something is illegal, the implication created in the minds of ordinary people is that it must be wrong. This is one effect that Brown v. Board had, it made people think differently about segregation. A natural law diagram would show no sphere of law which sits apart from morality. All law is morality. That does not mean that all of morality is covered by positive laws (like the duty to worship God).

21 Objectivity of Natural Law Natural law must claim to be at least somewhat objective in order to have credibility. If it’s all subjective and depends on individual judge’s morality, then the system would never be accepted. Objectivity also helps make it seem binding. This may have been plausible in the 4th century, but in modern pluralistic society? There are three alternatives: 1. “It disgusts me.” This is conceding that there is no objective moral concern at issue. It means that you disagree with the practice/conduct and would change it if you were in power. But unless you are in a position of authority (legislator or judge) you disgust is irrelevant. This is Posner’s view. 2. “It’s immoral in my view, though not in everyone’s.” This is relative morality. It’s immoral for me but not for them. A person’s subjective experience and life situation dictate what is moral or immoral to them. Cultural differences. Posner also said that if he lived in ancient Rome he would not be bothered by slavery. This is saying that moral reaction is a function of experience, and thus subjective. This fails scrutiny to some degree. We cannot assume that just because a culture supports a given practice that everyone in that society finds it morally acceptable. Think about us in the U.S. and capital punishment. 3. “It’s immoral for me, they think it’s not immoral, but I’m right and they’re wrong. They are poor and misguided.” This is objective or universal morality. If you can say that a practice is every justified, that means it can never violate the moral code. Objective morality offers no exceptions. Examples: Sitee: Immolation of widow on her husband’s funeral pyre. There is no obvious coercion, but clearly she’s been affected by being raised in the Hindu tradition. The practice itself was outlawed as people found it increasingly less morally cognizant. Infanticide: In western cultures is almost universally deplored, but inhabitants in infanticide societies would equally say that it’s presumptively moral. Slavery: If you can say that it’s better than being killed as a prisoner of war, you may even find it humane. This is what Hobbes and Locke thought. D’Amato disagrees with moral relativism and with the practice of trying to figure out how you would feel if you had different experiences/surroundings. There’s no way to say, if I were living then, I would think… Morality has to have a language which allows us to identify slavery when it

22 exists and condemn it when we see it, even if deep down we see it differently. To push the objectivity of morality is the same as the objectivity of color. Posner would say at best morality is subjective, at worst it doesn’t exist. If I’m disgusted I’ll rule against it, but not because of fairness or justice or morality. We have to strip these mushy things from our analysis of the law, which ultimately is about power. This is positivist, the state is in a position to impose unilateral will upon its citizens. The judge’s job is only to make sure the state’s message is purely imposed. Individual Feelings and the Objectivity of Morality (D’Amato)

Range of feelings: “Do not care”  “Disgusted”  “It’s wrong”  “Must intervene” Hypothetical of witnessing a man beat a child with a baseball bat. You can imagine any context that you want- anytime, any place. If you don’t care about what you’re seeing, then the context is completely irrelevant. The “egotistical” approach. What about a person who believes in predestination, who am I to interfere in god’s will? Two objections. (1) God put you there for a reason and perhaps that reason is for you to interfere, (2) that says that God may be evil. Think about the children of Christian Scientists. We allow some intervention there. Perhaps this is our view that it’s okay to determine what happens to your body, but not someone else’s (even child’s). If you say you’re disgusted, it’s probably dependent upon context. You’d be more disgusted if it happened in the hallway of the law school than in ancient Rome. If you’re inclined to say “that’s wrong,” your contextual difficulty is greater. Assuming you think it’s wrong (people should not act that way), your view might change in certain circumstances. Would you consider it wrong in all possible contexts? Is there any context in which you would say “it may be wrong for me, but it is not wrong if someone out there (the man) thinks it’s right?” If it were happening in Wrigley Field with 60,000 people cheering, you might question your own reaction. This might lead you to say that it’s only wrong in a subjective sense. You might feel like your reaction should be readjusted. If someone believes that there is no case in which the act would not be wrong, that demonstrates at least for this situation that you subscribe to a universal morality. And if you’re not a relativist in this situation, you are not a relativist. You have this one absolute conviction, there must be others. If you feel an impulse to intervene because it is so wrong, this is the strongest feeling you could have. You should not allow the man to take the third swing, you shouldn’t have (actually) allowed the second swing.

23 This does not mean that you will, in fact, intervene (it may be too great a risk to yourself). But is a feeling that comes over you, perhaps an impulse for which you cannot explain. What happens if the beating is lawful and your morality conflicts with legality? Which wins? Where are your obligations? How does that shake your beliefs if apparently everyone else feels like it’s okay? How do we say the brutal death of innocent civilians is justifiable in the exercise of a war effort? Dresden- Allies decided that unless they demolished the human capital of the German war machine, their efforts were merely a slow down for the Nazis. In this way they viewed the workers as part of the German machinery. What role does an offender’s motivation play in our determination of the immorality of his acts? People have become increasingly morally literate through the ages. There has been a cumulative learning experience by which people have learned about the rights of others and the obligations of others. Fewer people would now say that they have no right to interfere with the man beating the child, they would instead say that they not only have an obligation to prevent the man’s action, but perhaps even an obligation to tell him why it is wrong. There is an argument that morality is learned by having it forced upon you by someone who is in a position of power. Think about settlers imposing themselves on native and parents upon kids. Source of reality comes from learning to adjust your selfish motivations to the needs of others. You learn that your obligations to others are likewise reciprocal. Does morality come from within or without? Is it possible that our genetic code gives us an inherent morality? Is it just a capacity for moral understanding? Perhaps it’s a feature of evolution, in order to survive we needed morality. Not matter what the motivation of the WTC attackers, D’Amato says his view is more important because it is a view that is shared by others who have had the opportunity for moral growth and maturity. If you are certain about moral beliefs you are intolerant of other differing views. His answer is not that “it’s my moral system” but that “it’s the moral system.” This may or may not be D’Amato’s view, but it is the view and principles of natural law. ???? Is it better to subordinate yourself to morality (natural law) than to people (positivism)? Laws against homosexuality. Lord Devlin said that if the prevailing opinion was toward criminalization, then he would uphold convictions under that law and would give police leeway in entrapping perpetrators. But he noted that the anti-homosexuality laws were being reconsidered and said that if the practice was legalized (thus implying that the popular opinion had also changed) he would no longer allow entrapment for these convictions. He says that his own morality would not enter into it. Maybe this issue is just not a core morality for this one judge. It doesn’t rise to the level of hitting the child.

24 The overarching principle according to D’Amato is that if a certain practice strikes you as immoral (slavery) you will never view the practice as acceptable, regardless of how society views it. One justification for criminalizing homosexuality was that it was believed to be contagious. Taken to the extreme this could wipe out human civilization because there is no procreation. Our disgusts tend to change over time. No one now would say that it disgusts them to watch an R rated movie. (D’Amato sees the idea that morals change over time reflects not subjective or evolving morality, but an increasing number of people who become aware of the constant morality some knew from the beginning.) A. Procedural Natural Law I. Lon Fuller: Internal Morality of Law

Says that natural law is a more managerial system. There are competing interests which you must prioritize, allowing more pressing concerns to take precedent over less important concerns. The legislature doesn’t say you have to comply with these rules no matter what. You can get guidance and special dispensation for other external factors. A good boss doesn’t say, “do it because I told you to do it.” A good manager, instead, says “do it, unless there’s some good reason not to do, because you should do it.” He says we should try to apply this to our legal system, even if it’s difficult. The judges must think about whether the legislature would have revised the law with respect to the Speluncean explorers if given the opportunity. In this sense, the diagram works with feedback going in all directions all the time. Under natural law there is room to use judgment to make adjustments to the law. This does not mean that the courts, mid-Speluncean explorers, can re-assemble the legislature to amend the law to reflect the message that should be applied to a given case. The legal system as we know it, does not allow this. But, are these external concerns more controversial, in fact, than the law as drafted by popularly elected legislators? Is there a uniformity in concepts of right and wrong? Fuller tried to develop a theory of natural law that would appeal to his positivist colleagues at Harvard. If law’s going to work for all people, it must have certain internal prerequisites. This is why he developed the fable of King Rex. What things does law itself require? • • • • • • • Generality Clarity Non-retroactivity Promulgation Can’t be contradictory Possible Infrequently changed

25 • Congruence between announcement and enforcement He ended up calling these things the internal “morality” of law. It has led to controversy. Fuller believed that non-promulgated, secret laws (ala Hart) would be inefficient and would lead to people ending their own participation in the society, at the extreme. But he really says that it’s immoral (not right) to punish someone for violating a law they did not know existed. Secret legislation is an offense to us as rational human beings. But these concepts of morality change with the times. It used to be perfectly acceptable for the state to punish the insane for their crimes, whether they were aware of the offense or not. Fuller was trying to find some neutral principles which would appeal to various jurisprudential perspectives. Many positivists liked the concepts espoused and began to infiltrate all other theories of jurisprudence and theories of legal process. Fuller is trying to join the two concepts of law and morality. Law works when it includes moral principles and is then a reflection of our morality. As a natural lawyer, any separation of the two is problematic. Law is not worth its weight without morality, morality is the only thing that inures any obligation to obey into the law. Natural law does not say that we shouldn’t make law that is immoral. It says that if the law made violates morality, it is not law at all. Natural law says that if you call it a law because it was validly enacted you are setting up a conflict in the minds of the people who believe that law should be respected yet can be disregarded if it violates their morality. People cannot handle this cognitive dissonance. By saying that it’s acceptable to separate law and morality, natural lawyers accuse positivists of causing great confusion and turmoil among the people. There is an innate idea that a valid law is worthy of obedience. This is precisely what went wrong in Nazi Germany. People said they would never have condoned Jewish sterilization themselves, but once it was condoned by law they had no choice. Fuller sees this as an imposition upon the people and an incredible potential for abusing state authority. What’s the difference between a positivist argument that says that you should disobey a law which is immoral and a natural lawyer who says that because it violates morality the law doesn’t even exist. If it’s between two parties in our court system, the positivist always wins. A natural lawyer can persuade in such a way so that a judge can hold that the law violates morality without saying so. A positivist will also say that even if a law violates morality, it will be enforced and then will encourage the legislature to re-state the law in order to make it conform with morality. [It’s open and shut that the ambulance will be allowed in the park by a natural lawyer just as much as it’s open and shut for the positivist that it would not.] II. Hart’s Rejoinder

26 Hart’s answer is that many institutions have internal principles, which do not make them moral. Isn’t there is an internal morality of poisoning (how to do it effectively)? We shouldn’t take law so widely as Fuller does, we should be more cynical- there are good laws and bad laws. Fuller thinks law requires a certain amount of respect. Why, as Hart asserts, shouldn’t law and morality be confused? Suppose Parliament passes a law that certain retail stores will now be closed on Sundays. Would Hart say that because the law was validly enacted, are people obliged to respect the law? No, because Hart says that law and morality have nothing to do with each other. There is no obligation to follow the law. It’s a matter of prudence. If you violate the law, you may get caught and have to pay the penalty. But if morality says you shouldn’t visit retail stores on Sundays, that’s your own restraint, not one effectuated by law. If you confuse morality and law, you will think that any validly enacted statute deserves following. He says they should be separated. What if there’s a conflict between what the law and what morality say? In ordinary English, morality has built into it the concept that it must be followed. If you regard something as moral, you have to follow it above all other concepts. What you ought to do, says Hart, is what morality tells you. You still may be penalized for failing to obey the law. Thus, you must weigh the strength of the moral notion and the potential penalty to be imposed. Moral obligation trumps all other obligations, that idea is inherent in the word and conceptualization of “morality.” Fuller and Hart would agree that there are spheres of law and spheres of morality and some place where the intersect. But Fuller would say we should disregard the sphere of law which does not coalesce with morality. Hart would say that the overlap of law and morality is merely accidental. B. Substantive Natural Law I. Hart: The Case of the Grudge Informer

In a positivist society, what do you do with someone who uses the law to a personal end? Imagine a wife who denounced her husband to the Gestapo for possessing a radio. Hart thinks it’s outrageous to punish her, he says there was no crime. We could let her go unpunished (reverse of legislative flagellation theory) or we could punish her by retroactive law. He says that if you pursue a retroactive law with candor (be honest about the fact that you’re doing it) restores some credibility to the enterprise. II. Fuller: The Grudge Informer

Fuller would cringe at this idea that candor can validate a retroactive law. He disapproves of each of the positivist alternatives.


Fuller looks to the state of the law at the time of the incident. You can look at the statute itself, and question whether the man’s conduct can be fairly called public utterance. There may be a way to punish the woman for persecuting her husband because he may not have actually broken any law. (D’Amato would go further to say that it was the woman’s act which took his behavior further to complete the crime.) Even if the Nazis said that utterances against the state were treasonous, they did not say that utterances (period) were outlawed. If it rises to the level of jeopardizing the state, it is outlawed. Wife took a private comment and introduced it to the public. Therefore you would say that the husband did nothing wrong. Fuller would like to be able to say that if we take the internal morality seriously, we can take a neutral position that this was not law in any real sense of the word. But is this persuasive? Not really because, in the end, Fuller, like Hart, would make a retroactive statute. He calls this an isolated “clean up” mission. It may be limited in its retroactivity, but is that persuasive? If you looked at the substantive act, that the wife tried to kill the husband, you will see her guilty even though she used a state apparatus rather than a gun to do it. He says this seems to suggest there’s a higher law, that the moral notion trumps the legal notion. He says this is Catholicism. The conflict is between two forms of positivism, according to Fuller. It’s still a hierarchical one-way projection of authority, though now God is the authority rather than the State. As soon as you start saying that morality is an authoritative code, you’re buying into the positivist view that it’s the code that controls. The natural law position says that statutory codes, or even the 10 Commandments, are legislation that don’t have word-based meanings and are merely reflections of the morality we have. If the Commandments say one thing, its not a code pronouncement and not pre-verbal like we consider morality. Killing during war. The positivist would look at the statute to decide whether to prosecute. A natural lawyer would say we have to look at what it means to prohibit wrongful killings. Business purpose rule (tax law). No matter how complicated the code, it’s always possible for someone to construct an institution in order to avoid paying taxes. The courts recognized that positivism couldn’t cope with it, so the looked to natural law and developed the business purpose rule. Even if you comply with every word of the tax code, if your structure creates no business purpose, then you created it just to avoid taxes which will be unlawful. This goes against the idea that law runs out. There is a time at which even the most complex code cannot cover the given situation. III. D’Amato: Comment on the Grudge Informer

A lawyer advising the wife would have an obligation to say that although you’re clear under the present regime, a future regime may change course and prosecute her later. There is no statute of limitations on murder and this is exactly the scenario that he predicted. What she did was immoral but legal under the old regime. This was a dilemma for the future court, but they still convicted her.

28 Universal Morality per D’Amato- If two reasonable people differ about what’s right and wrong, one must not be reasonable. This is the absolute morality position. C. Legal Obligation I. D’Amato: The Moral Dilemma of Positivism

Hart said that while you are compelled to give your money to a gunman in the alley, you are not obligated to do so. There is no legal obligation. If you say that the U.S. government is the gunman writ large, are you obligated or obliged to pay your taxes? How is a legal obligation created? According to positivist, the valid enactment of statute is what creates the obligation. Without the law you cannot have a legal obligation. Kelsen would say, however, that the law gives you an economic alternative. You can obey or disobey, but you need to weigh the costs and benefits of compliance before you decide. Kelsen would also say that there’s no prima facie obligation for a non-citizen to obey laws of the nation because they played no part in the legislative process. Other positivists might disagree. When Congress passes a law, is there any sense in our saying we have a legal obligation to obey the law? Natural lawyer would not say that everyone has a choice to follow his/her own morality. They would say that there’s something objective about morality, to which we must all agree. Perhaps a validly-enacted statute creates a prima facie obligation, but it can be trumped by moral considerations. If it’s on obligation, according to D’Amato, it’s about morality, not legality. Legal principles are separate. Natural law: If something is immoral it has also been immoral and you don’t need to point to a statute’s enactment for the obligation not to do it. Furthermore, the immorality of an act is unrelated to anyone’s knowledge of that immorality. But something like aggressive warfare used to be commonplace, acceptable. Then it becomes unlawful. What’s the obligation? D’Amato says that we reexamine the define of the phrase itself. Aggressive warfare is really murder, which we agree is immoral. Hart would say that there is such a thing as a legal obligation, that one arises with the existence of the law itself. He made it very clear that you have to follow your moral obligation. If you approach a park guard who says it’s a good thing for children to die, you should barge into the park anyways with your ambulance to save the bleeding child. But you are also then liable to be prosecuted. Suppose a person doesn’t have notice of some regulation, something neutral. Most judges will say that you cannot plead ignorance of law, we just can’t do that. If you create that excuse you foster ignorance.

29 Jesuits and 16th century “savages.” Positivist Catholics would have said that these people are condemned to hell. Jesuits found it reprehensible to punish these people for something about which they didn’t know. They then found themselves obligated to become missionaries to them. II. John Finnis: The Moral Obligation to Obey the Law

There is a tendency to see an obligation where there is law because we assume that law represents morality. We feel like we must obey the law because we presume that it is just. (Fuller said that law has more affinity with good rather than evil.) To Fuller and Finnis law is certainly better than some alternatives, like anarchy. Law is generally pacifying, and often egalitarian (benefiting weaker as opposed to stronger people as would persevere under anarchy). Not all systems do this and there are specific exceptions where the law is used against egalitarian principles. Natural lawyers want to assert affinity between legal systems and the promotion of justice, peace, all positive things. III. IV. Joseph Raz: There is No Moral Obligation to Obey the Law D’Amato: Law is Only a Fact, Not a Value

Law is merely a fact, it has no inherent affinity with anything. It does not give rise to moral obligation to obey it. Metaphor of wearing legal colored lenses which change our perceptions of everything. Law is all around us, does not exist in nature (for animals to recognize) but can be seen by us everywhere we look. These are factual considerations. You may have property rights in something which is recognized by law, but that doesn’t equate to moral rights. That doesn’t mean that property seizure is fine, but just that moral rights to property is irrespective of the current law. If we have no moral obligation to obey the law, then perhaps law should arise like it does with a conflict of law. If you’re importing the law from another jurisdiction, you call an expert to testify to this foreign law, which is a way of treating law as a fact. Morality is the one thing that provides its own reason for acting. Rational economic theory says that you should act a certain way because it’s in your own best interest. Morality says there are situations in which you should act in ways that are not in your best interests, but with no justification. Sympathy-David Hume-we feel the child’s pain and that is why we interfere. This brings self-interest and morality together. Perhaps self-interest is a necessary, not sufficient, factor of morality. D. Obligation and the Community I. John Mackie: Respect for the Law




The Death of Socrates

If we find some obligation “to the state” then any state law may have prima facie obligatory character. Socrates was sure that he could not morally escape from prison, but he wondered what other obligation he had to obey Athenian laws. There were pragmatic reasons (outlined in footnote 59) and we can add his “reputation after death” to this list. Pragmatic reasons don’t count as moral reasons, but only as self-interests. There are situations, however, where morality has something to say about the situation but the law does not (as in Good Samaritan cases). What he was doing was not refusing to join the army, but instead teaching soldiers to question authority which is not what soldiers are supposed to do. Socrates wonders if Athens has done something for him which makes him obligated to obey it. He sees the state as the father figure to the citizen-son. There is the idea of defense provided by the state to its citizens, but Socrates theoretically fulfilled this obligation by himself serving in the army. Socrates thought that irrespective of its effect on his life, the Athenian legal system was formally valid, worthy of respect. You cannot pick and choose among laws from which you benefit and from which you dissent. But what about when the law is so clearly intended against your interests? Positivists want to be content with a formalistic system where you plug in the content (procedure) whereas natural lawyers are concerned with what the content is (substance). Positivists are machinists. If there is a Law Machine, as long as we say it is properly constructed anything that comes out of it is valid. The positivists don’t ask about who is supplying the content, but say that what comes out of the machine bears a legal obligation. Socrates fits closer to Hart’s view than Kelsen’s. If Socrates were a natural lawyer he might just say that the law for which he was convicted was evil, carrying with it no obligation to obey. Thus, escaping the prison would not be dishonorable at all. It may even be more honorable, obligatory. Is Socrates’ a totalitarian mentality? Whatever the state says you must obey, irrespective of its morality/validity? Kelsen was accused by Fuller of being a totalitarian, but he didn’t insist that the state is the ultimate source of reality- disobeying state laws is a terrible thing. Kelsen really said that law and morality were completely unrelated. Your decision to obey or disobey is entirely a question of pragmatics- what’s in it for you?

Formalism A formalist is not necessarily a positivist. A positivist will say that we need to look outside the statute to determine what the word “vehicle” means because the statute doesn’t tell us. The

31 formalist says that you don’t need to look outside the statute, you can find the answer within the law itself. (May have these backwards) It doesn’t matter what leather is because that’s a legislative concern. Legislative determination as to the meaning of law are just that, legislative, and not judicial. Hart said that when a judge is deciding a close decision, he in the first instance is making a legislative decision (a role he has been delegated). As far as the core of the statute, there is no peripheral consideration. Both positivists and formalists want to separate morality from the examination of law. The legislature can take morality into account, but the formalist judge cannot. General social policies that will be impacted by a given decision should also be disregarded. The judge should make a decision based on the rules of law and the facts of the case; policy considerations should not enter his mind. Formalism posits that every case has a single “right” answer. To say that in reviewing the legal rules and the facts you still don’t know would be fatal to the theory. No judge is going to say, “I don’t know.” You would either say that formalism is wrong or force yourself as a strict formalist to find the “right” answer in legal materials (rather than social scientific). Statutes, regulations, codes, decisions, etc. are examples of legal materials. What is “right”? This categorization would have to exclude all ethical and moral considerations. That we use this word in the context of math problems and the case of the child’s beating is evidence of the paucity of our language. The German word “recht” means right literally, but is used to refer to law. This is a linguistic coupling of right and law, which would be favorable to a natural lawyer but might confuse a positivist lawyer. D’Amato would prefer that we use entitlement when we mean right under law. We have an entitlement to the freedom of speech. This may be right in the moral sense. If the light turns green you have an entitlement to go, but no moral right in the case that a pedestrian is crossing at that moment. Words Law Morals Right wrong deductive recht entitlement

Formalists get the law from statute or from cases. The statute (according to them) contains its own narrow definition of what fits within the statute and what doesn’t. The case (at least per Dworkin’s approach) offers several theories from which to choose. Even if there is a written opinion, that is not necessarily what the case stands for, but merely one theory to be considered. All we ever have to take from a case are the material facts. Anything else is dicta. A. Autonomy I. Stanley Fish: The Law Wishes to Have a Formal Existence

Fish says that the law wants to have an existence of its own and lawyers need only training in the law. The other school of thought is that lawyers need little legal training and more training in the social sciences.



Michael Moore:

The Semantics of Judging

Michael Moore distinguishes between formalism and a theory which does not exist by itself.

The first premise of formalism is that you can decide real questions of the world according to a body of law. This is similar to the philosophy of the Catholic Church who says every question can be answered by the Bible in coordination with its chosen interpreters. The law, according to the formalists, is the same. The Law is the body of doctrines with judges as authoritative interpreters. Their decisions are applied in a system where the doctrine is never, in itself, questioned. The Pope would never explain a Church rule by saying at some point in history it became clear or was so determined. That would allow the interpretations to be relative. Instead, the doctrine comes straight from the Bible itself, thus more permanent. Even Posner has never said “I am in error”. He has said that the law is wrong in one instance or another; he is critical of formalism in this sense. Certain things are simply inexplicable under formalism, unless you read everything literally. Take as example Posner’s distinction between the crèche allowed by the Court and the cross which he said was distinguishable and thus, impermissible. B. Deductive Logic I. Morris Cohen: Logic in the Law

Cohen talks about deductive logic in a rough mathematical sense. Premise All pigs can fly. Fact Officer Friendly is a pig. Apply deductive logic… Conclusion Officer Friendly can fly. The premise does not have to true in order to plug it into deductive reasoning. There is no test of truth for legislative enactment. A fact has a truth value on its own, but we determine this either by looking within the law or outside the law. The conclusion, however, is totally rigid. The conclusion doesn’t have a truth value, but a deductive, logical value. It follows from the premise and the factual assertion, not necessarily “right” or wrong in the moral sense. Wrong may mean invalid. Right means valid.

33 Deductive logic is also reductive, you wind up at the end with less than you have put in. You don’t know much from just the conclusion, you know much more from knowing the premise and the fact. Formalists like this, we don’t want judges to add anything which will sacrifice predictability. As a formalist, if you disagree you are disagreeing with the fact. A child asks his parent why he stopped at a red light. The positivist would answer “that’s what the law says.” A child wants more than that, why does the law say we have to stop at a red light? A positivist could not fully answer that, unless you gave an institutional response (validity of legislative system) but this will not satisfy the child. So the question is really- what is the justification for stopping? Is it a justification to say that the we’re stopping because the legislature says we must? This confuses the notions of reason and justification. The reason is because the law says you must stop at a red light, but this is not necessarily the justification. This is a good a criticism of Hart who says that we obey a law because the law is valid. It’s an example of a conclusion being flawed because of the premise upon which it is based is flawed. Further, it’s a criticism of the notion that law is based on a deductive system. What answer do you give the child that goes beyond positivism? Well, we need to have some system in order to prevent cars from hitting each other. If we didn’t have them we might be able to get through the light, but we would be stuck for hours in traffic accidents. The is also a need to let pedestrians cross. As a corollary you can think of situations in which there is no threat of accident or hitting pedestrians and you would argue that the purpose of the red light law does not apply. But the greater notion is that if you start allowing these kind of individual determinations and exceptions, the whole system of traffic safety has been compromised. The price we pay for rigid rules may be paid because we recognize that we’re not always dealing with rational people. Reason, here, is something that eventually runs out. There is a point at which the child no longer asks questions. The child at some point becomes satisfied. That’s not the end of all inquiries, though, because there are times when you have to violate the laws (like an ambulance). These kinds of exceptions make the law more complicated and perhaps weakens the principles of formalism. If there are ways in which moving through a red light is not a violation of the law (in the case of ambulances), then there is a weakening of the idea that the law exists and speaks for itself. Natural lawyers say that it denies the reality of human reality that the answer to every question can be found in a single body of doctrine. A formalist would respond that it frustrates the system to say that context should be taken into account because it’s too complicated and unmanageable. II. III. Richard Wasserstrom: Ronald Dworkin: The Role of Deductive Logic

Hard Cases

34 You can’t confess, as a formalist, that the system cannot provide an answer in a hard case. Dworkin says we need to accept a meta-rule that the system must be consistent. The court is an institution in which the individual has the right to demand justice. This is the rights theory, empowers the individuals. This is the opposite of the “may it please the court” and “your honor” mentality. The right to the “right” decision is one that triumphs over all other considerations, including the judge’s personal opinion. The harder the case, the more the judge has a moral obligation to look up the law and determine what is right. Thus he comes up with the fictitious judge Hercules who goes to any length to determine the right outcome of every case. When we talk about “right” answers, we seemingly invoke some moral issues. But what we’re really talking about is that the decision must be legally right. Question of Mistake: If, in the course of her research, the judge uncovers some precedents which are mistakes, she can slough them off. Rather than create an illogical web of connections between proper and improper precedents, it would be easier to ignore those that were wrongly decided. But a theory of precedents which includes the notion that some prior decisions were wrongly decided is less persuasive than a more absolute theory with some unexpected connections. By saying that there is a right answer to every legal question, Dworkin, in a sense, works backwards. ???? You ask for a right answer to your legal question. He gives you one. Then you ask for the theory behind it and he says that it comes from looking at all of the theories available. These theories are not made up but are found in literature and alluded to in court opinions. These give you reasons for reaching a conclusion. The reason is a creature of the theory which best fits the precedential evidence. Dworkin is accepting this theory in large part. In every hard case you cannot simply take a sentence of what a precedent stands for. You need to look at the whole opinion from which it came. This statement can never be dispositive because it was never made with your case in mind. You may want a case to stand for something for which it is not known, but which is relevant to your facts. Many cases stand for more than one rule depending upon the context to which it is later applied. A rule does not come from the opinion of a case, but in our later re-reading of the result. Gravitational Force of Precedents: A case has a gravitational force and a statute doesn’t. (This is positivistic). A statute carves a particular rule for a particular set of circumstances. You cannot argue fairness. Legislative enactments (being of definite scope), therefore, do not have the controlling aspects of judicial decisions. Judicial decisions are not limited in applicability. Applicability is determined by judicial proceedings later on either extending or limiting it.

35 A counter example is the inclusion of gender discrimination in readings of Title VII. It wasn’t written into it, but courts read it in. It was treated as a more organic piece of legislation. There are other examples of this. Statute of Uses, Statutes of Fraud. How Do We Deal with Mistakes? Ignoring them would be too easy. Dworkin’s theory of best fit is one reading of how to use cases. Another approach is to use analogy- something is more or less like something else. This may be how children first learn. But which factors do we consider in using facts from one case to analogize and distinguish future cases? Issues? Parties? Circumstances? Analogy has the potential to confuse and obfuscate many other issues which may not be relevant. Essentially you could analogize nearly anything. And do these approaches merely beg the question? What you’re given are simply facts plus decisions which are attached to them. But what do lawyers need to do with that? C. Stare Decisis Donoghue v. Stevenson P sued for damages resulting from her ingestion of soda which contained remains of decaying snail. D was manufacturer. Res ipsa, the tort speaks for itself. Is a case with a live snail analogous? What if it’s some other noxious substance? What if it’s not a noxious substance, but still improper for inclusion into the soda? Julius Stone: The Indeterminacy of Holdings D. E. Justification Reasoning by Analogy I. Lon Fuller: The Analogical Development of the Common Law

O v. T is similar to O v. G but is analogous and distinguishable to different extents. Fuller says we have to look at policy, the greater impact of a decision on society. In this case we don’t want to create an accepted black market of stolen goods, it’s against policy. If we want to protect the policy of ownership we should not allow this case. The natural law then asks whether we should be protecting ownership rights in the first place.



Holmes’ remarks in 1897 spawned the Realism movement of the 1920s and 30s. Most law students were exposed to this school within a generation or two. Wasn’t an original idea, it came from German philosophers to which he gave little credit. One idea from this 19th century school was that if you look at the law from the point of view of the person (Holmes’ Bad Man), his behavior is a matter of choosing between actions and legal consequences. Posner, as economist, also fashions himself a legal realism. Decides his cases based on the economic underpinnings of the greater society. Many judges today consider themselves legal realists. A. The Prediction Theory of Law

The desire to predict the actions of others and the consequences of our actions is elemental. Why do we care what the law’s reaction will be on us? Well, it’s the enforcer and we will suffer or not depending. Kelsen spelled a lot of this out. If I steal the bicycle, the law will probably do this to me. The probability aspect is something added to Kelsen’s theory by the realists. Is the measure of probability an acknowledgement that there uncertainty as to the degree of law? What if there is certainty as to the law (it’s illegal to steal) but not as to the odds (will I get caught)? The statement “If I do Y, the state will do X to me” presupposes that the state has knowledge of our actions. Kelsen does not address this because his perspective is that of the state, not of the citizen. Realists say that the law delivers itself upon each one of us in a probabilistic fashion. In most situations, concealing your actions improves your odds of not being punished. But an attorney cannot advise a client to conceal their actions. It may be realistic advice, but it is not unproblematic. You couldn’t do it under positivism, naturalism or formalism, but can you do it under realism? You have to acknowledge that despite your calculation of probability, your own sense of natural law (this is wrong) tells you that despite available information, it is possible that the system might react in such a way that will defy your ex ante calculations. Predictions Ex: Libel case. GP-lawyer says that your chance of winning is 60%. Libel lawyer says that your chance is 80%. Has the law changed? Isn’t each lawyer’s calculation, coming from accurate facts, inherently accurate and then not contradictable? You must weigh into your prediction the degree of expertise in the subject matter. So the law under realism varies according to the lawyer. This may be indicated by the fact that we’re considered officers of the court. You don’t simply tell people what the law is, but actively participate in the system that you have studied.

37 How do you account for the judge? What do you do when the judge is known to have a certain bias? It certainly enters into your calculation of probability. The most precise advice you can give a client is that the chance of successful litigation is X %. But, if you said 60% rain, what does that mean? If it rains is the prediction wrong? If it’s sunny? The prediction is not provable or disprovable. How is this precise? Probability was invented in observations of civil trials, over a period of time. It’s been refined. Probability, is a law-rule science. If you predict the probability of flipping a coin, you base it upon rules of instances of heads and tails. If it’s defined in the long-run, how do you apply this to one particular instance? You do this because one toss of the penny is just like every other toss. So you’re basing your prediction on the average, which reflects long-term experience. So then this mathematician said that our predictions are based on our degrees of personal confidence in a given outcome. This is subjective probability. How do we assess the validity of such predictions? People struggle with the idea that a legal prediction is something other than 0% or 100%, they perceive the law as being dichotomous, static and predictable. But keep in mind that one thing is always missing from a prediction- there may always be facts missing, even if you believe that the legal rules are known. The basis of the lawyer’s prediction is always the same: experience

More experience breeds stronger predictions. The more cases with like fact patterns, or the greater experience in one area of law, the more accurate the lawyer’s prediction. There is an argument that as you make these predictions, they are either confirmed or refuted and thus with time, your experience helps you adjust your predictions to finer distinction. So probability does have a long-range perspective. Some people are willing to go in on class action cases on much lower probability because the windfall is so great and the cost to each litigant so small. The choice to pursue litigation is also based on the risk aversion of the characters. How do you make sense of the prediction of a one-time event? Well, any probability is the prediction of an outcome of a predictable process? There are some variables which will be different in each case, but some probability can still be offered. What factors do we add into the probability calculation? Bowers v. Hardwick. An example of a case of lawyers being surprised that something which is technically illegal will actually be enforced. They chose to enforce, and this rebutted most predictions. Bowers is a fictitious case meant to test the law. Early Realists: Later Realists: give me the facts and I’ll predict your outcome see that facts aren’t always known or dispositive

Realists would say that you can’t know the consequences of your own actions, at least not with certainty.

38 But we have intuitive notions of subjective probability which color every decision we make. Realists say we must factor in the law and the judges’ biases. The non-Realists say you don’t. Hart argued that Realist theories work for lawyers, but not for judges. It would be selfprediction. I. Holmes: Holmes: The Bad Man Theory

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Who does the Prediction Theory Work For? Hart says it can’t work for judges…it would be self-prediction. What clients want from lawyers is a prediction of what the judge will do in their case, but the judge who will hear the case is unknown. So the lawyer makes a prediction based upon the average of all judges. Judges must do the same thing. They must ask not what they would do in the case (which is Hart’s problem), but what the average judge would do. The judge would have to erase his/her own personal predilections and biases. Idiosyncrasies are thrown out because the specific judge must predict what judge X would do, that it to use what is commonly available to average judges and not what is particular to him/her. Our system is a very structured one, one to which the players bring their own predictions. What happens in the black box of a judge’s mind is never disclosed. But your prediction of what the average judge will do usually plays out because there is relatively little room for flexibility in our structured system. The best thing we can say about realism is that it uses predictions and forces us to focus on the factors which will lead to the most accurate predictions. There may also be a way to use realism to confine a judge to only legally relevant factors (the judge X issue). It’s less a formula for coming up with answers and more a theory for getting rid of biases. What if all the judges in a system share the same bias? You cannot remove this overwhelming factor from your calculation of the client’s chances. It is a rule, even if unwritten, which is being applied in every case. The same might be true of the economic analysis of law, which could take on the character of a law. Brains in a Vat The “real world” is a vat filled with a bunch of brains, being stimulated by electrical impulses to believe that our experiences are real. If you can say that this statement makes no difference, then we can draw no consequences from either option. He argues that there is something we can do with the realist theory such that it doesn’t fall prey to this conundrum. A great deal depends on the arbitrary selection of judges. Judges ought to be assigned by a totally random process. If that doesn’t happen, then we accentuate the possibility of biased, idiosyncratic decisions. This practice is increasing.


If every judge was like judge X, then randomization wouldn’t be an issue. Thus this strategy reflects our skepticism. Another way to counter a judge’s bias is by calling it to the judge’s attention. B. Easy Cases

Realists might say that hard cases have no answer under the law (50/50 prediction is the best you can offer) but easy cases do. But think about dissenting opinions, wouldn’t the public be astounded to see how much (strong) disagreement there is? Supreme courts don’t take easy cases, neither do appellate courts. Professor Frank has said that trials are so “up in the air.” Too many decisions, issues, game playing. Practitioners seem to agree with that statement, especially when juries are involved. So there are no easy cases at the trial level either. Schauer then says that the easy cases are those that don’t get litigation, those that never leave the lawyer’s office. But this means only that the case was cost-prohibitive, not lacking in merit. The mere absence of litigation doesn’t indicate it’s an easy case. Pragmatism What is it? Pragmatists would say that that’s the wrong question. A pragmatic theory is one that says I don’t believe in theories. [In Fuller’s time there were no pragmatist jurists, that’s why they don’t fit into the hypothetical. Posner has asserted himself a pragmatist.] John Dewey and Charles Perce in the 1800s, anti-theory theory. Claimed that theoretical constructs sometimes drive us in the wrong direction. Dewey- applied it to education and said that if we say a teacher should have a theory about education we’ve made a mistake. The idea is to get the students to develop the theories. (Isn’t this Socratic?) He said that in a democratic society (a prerequisite for free thinking) an educational system that starts with questions rather than answers is the best type of education. This anti-theory view may appeal to judges (like Posner) because they don’t want to be constrained by such tools. This also explains why he might not want to be constrained by statutes or precedent. Does Dewey’s theory mean that judges can be replaced by any passerby on the street? Does it take away the purpose of the judicial hierarchy? Surely Posner wouldn’t say that anything goes. He would say that anything he said goes. Thus there must be a filter on the part of the teacher.

40 A. Legal Indeterminacy

Handy’s realism might fit into pragmatism. Tatting goes into legal indeterminacy. Does this leave it feeling unresolved? In a democratic society, people are interchangeable because they all believe that the law comes from within (We the People make the law). That doesn’t mean that it’s applicable in other contexts (like Soviet Russia). But how does this account for indeterminacy? Pragmatism differs from Judge Tatting because Tatting makes it seem as if he can’t make up his mind amongst several theories which he highly respects. Dewey would say he should cleanse his mind of all theories and choose as he sees fit. Einstein says it’s impossible to look at the world without a theory. The theory of the world lets us see the world as we do. We don’t necessarily see them. But ever since Newton we’ve had a theory that there are forces in nature, a new way that everyone began to see the world. Then Einstein came up with a new way to look at the exact same thing. Plato contributed to this dialogue. He said that judges should be trained at the age of 2. take the bright children, put them on an island, make them study philosophy and books with no interaction with other people. They will only learn theories, that way as jurists they will be pure instruments of theory, not clouded by experience. There is some attraction to the judge without personal biases, which is differently from the previous theory of rotating judges as solving the bias problem. He assumed that everyone would read the theories the same way. Einstein says we shouldn’t strip judges of their idiosyncrasies, but we should hide them. So you’re a pragmatist, what follows from that? Nothing. This can either be seen as a liberating idea, or a criticism as to its usefulness. It’s an idea that people can walk into the courtroom and lay down any argument that they want. Perhaps creativity of this type had no place in our judicial system. We want lawyers and citizens to be creative, but creative judges will not be applying the law to you and will not be predictable. If we lose predictability, some would say the law doesn’t exist at all. Pragmatism would take away from the theory peddling, which they think it constraining. Does the Pragmatist’s de-emphasis leave more room for assessment of morality? Does this then estimate natural law- just concepts of right and wrong? Doesn’t this just raise the same questions of anarchy? Einstein would say we’re shot through with morality. That’s the basis for parental decision. We don’t notice, but we are and we’re indoctrinating our children. Pragmatism is certainly more susceptible to natural law than positive law. Analogy to parents. Is every decision based on slowly constructing theories? Perhaps in retrospect we can assign theories to it, but it’s too constraining to make the parent devise their own theory while in the midst of the decision-making.

41 B. Plain Meaning

U.S. v. Locke “On or before December 31.” Someone thought “prior to” had greater significance. The Court took it on to make sure the lower courts didn’t begin to run roughshod over clear statutory language. But they didn’t take into account normal/traditional practices of making sense. If the court says you have to file in 10 days, for example, they give you Sunday as a grace period. Court held that Draconian rules are better even if the result is absurd. A natural lawyer would look for a reason for Congress to hold December 30 as the “magical” day. They wouldn’t find any and would hold December 31 included. If they really wanted it by December 30, they could have been more explicit. For the Court to pretend that the legislative intent is served by their draconian rule is probably unfair. It does, in a way, punish/rectify the sloppiness of the legislature. Thus this stands as a pathology of formalism. Precision is an admirable goal, but cannot be achieved through language because language itself is imprecise. C. Anti-Formalism (Ken Kress)

The result of any case can depend upon the law not only at the time of the action, but the law as it changes between the action and the adjudication. This represents retroactivity, which is contrary to our principles of a good legal system. The hypothetical he gave happens all the time. This inheres in our system an necessary indeterminacy. Not only is the lawyer unable to give absolute advice or prediction, but the individual is unable to use their expectations about the law to shape her/his behavior. We could try to shorten the time between action and adjudication, but can never get rid of this uncertainty.

Justice There’s a steady resistance to this theory. Analogy to doctors and their difficulty in defining health. Kelsen calls justice subjective. Any notion of justice is external (a comment upon) to the legal system. Any complaints about injustice should be addressed to the legislature. Many of the people sitting on our courts, and many who want to be, are interested in principles of justice. Leaving justice on the outside of the system is too much. Judges will let it in if you can show that it’s part of the precedent, if it doesn’t conflict with the law. Some judges might say that (ala Judge Keen) as a personal matter they would like to see justice done, but that it must be explicitly relevant in order to incorporate it into a case. Perhaps you could argue that if the law is considered just, more people will be persuaded to abide by it.

42 Hart’s example on p. 252. Greeks v. Barbarians. This may be troubling, but he talks not about the legal code, only the moral code. Moral because who says so? Where does this come from? What creates this obligation? Why would the Barbarians be obligated because of a morality forced upon them by the Greeks. Judge Shaw and the Thomas Sims’ Case Under the prediction theory, if anyone had predicted that Sims would be decided differently would have been a bad lawyer. 99 judges out of 100 would have decided that way. Despite the evidence that Shaw was kowtowing to his own southern financial interests, which was true, but his reaction was not unusual. It would have taken an extraordinary judge to free Sims. No one would have put such a judge on the bench, thus the system was self-selecting. Analogy: Suits over the legality of the Vietnam War. It was unconstitutional executive action because it had not been declared by Congress. It was also morally abhorrent thus constituting war crimes against the Vietnamese. Couldn’t win as plaintiffs- judges left it to political question, sovereign immunity. How do you make it a defendant’s case. Joan Baez tried by refusing to pay her taxes, but they didn’t prosecute her. Conscientious Objector was inducted to the Army and indicted for felony for refusing to commit himself. Due process clause allows you to interpose any relevant defense to your prosecution. You can say that the President had no right to send soldiers to Vietnam (addressing war’s constitutionality). D’Amato advised that the man’s chances were slim. So he included in the defense that the government had violated its policy by not delivering summons within 10 days. So the brief argued both and the judge easily dismissed it on the procedural grounds. Was justice done? In the aggregate, no. For that client, probably. Was D’Amato himself participating in the violation by arguing the 12 days? Elmer’s Rule: The lawyer client interaction goes a long way towards deciding the final issue. In this case the NY court said (in an innovation) that an heir who kills the testator will not collect. If the lawyer had been a formalist, he may have advise Elmer that he could get away with it. Perhaps that’s what happened. Formal law would predict that punishment for murder may have included deprivation of freedom and life, but you cannot pile on penalties to include deprivation of property (the inheritance). Hypothetical conversation between Elmer and his lawyer. It can be said that this is not the best way to test the law. Because it involves the murder of another person, the case is warped and does not solely deal with application of the law. Cannot divorce other concerns, irrespective of the differentiation between criminal and probate law. This is like the Sims case. The other outcome would have flown in the face of reality. Shaw may have known from the outset how he was going to decide, because he recognized that to free Sims would be to unilaterally start the Civil War.

43 A lawyer may have an innate advantage in predicting a judge’s behavior, even in cases of first impression. Having studied the same thing, having attended school together, if the lawyer finds it repugnant to reward the murderer, then he can reasonably assume that a judge will also find it repugnant. Compare with first instance (in DES cases) the market share liability theory. It was an innovation to say that in the absence of proof you can still hold a manufacturer liable and this was a great insight on the part of the plaintiff’s lawyers. Double Yellow Lines Attempt to work out how justice plays into judicial decisions in a system in which a court puts common sense first. Tried to say that instead of putting a concrete barriers between lanes we put lines because there is an implicit understanding that we may be forced to violate the normal rule. How absolute is the prohibition against crossing? What’s more important the life or the lines? Degrees of reasonableness: Double yellow - single yellow - single white Justice is part of the air we breathe. It’s artificial to say that we can keep it out. Posner may be willing to engage in this separate deliberation, as opposed to blindly following the will of the legislature. But he would say this is because judges are in a better position to engage in the economic analysis. Lon Fuller: If enough people come in and argue about the placement of the stop sign (personification of a piece of legislation), maybe the legislature will change it; this kind of feedback comes in all the time. This only works in the naturalist framework. Gerrymandering: Throughout 50s, Court refused to deal with it, said it was a political question. Cases were persistently filed, Court took action in Baker. Plaintiffs were persistent because they knew that the legislators would never agree.

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