Hypotheses

For the moment, this is a placemarker. I am in the midst of (avoiding) studying for my final final, and should not be taking the time, at 1:38am, to crystallize my jurisprudential sympathies. Impetuous, however, is the name of the game!

In the late 19th century, Oliver Wendell Holmes noted that the time of the black-letter man of law was drawing to a close. He forecasted the rise of the Economic Analysis of Law, and formatted the American Legal Realist program, which remains dominant (in its many derivative forms) in jurisprudence today. The critical insight of the legal realists was the influence that experience, culture, and intention have on legal practice. The incumbent conception of the day was largely that of Christopher Columbus Langdell, whose aggressively positivistic "scientific law," built on syllogism and empiricism, was obviously incommensurable with the facts on the ground.

Insightful as they could be, the realists and their Critical Legal Studies spores entrenched themselves in cynicism to a degree no less dogmatic than the legal positivists' attachment to empiricism. As a syllogistic jurisprudence failed to describe the actions of lawyers, legislators, and judges, so failed the realists.

Between these extremes falls the work of Ronald Dworkin (no relation to Andrea Dworkin). Dworkin proposed that, beyond the rules of law lie principles. He illustrated this through a study of the opinions given in "landmark cases". Often, these decisions tend to shame precedent, if not the law itself, into submission by pointing out the failure of the law to account for a necessary "principle". One such example was the infamous Riggs case in which a grandson named in the will of a recently deceased grandfather was denied the opportunity to collect the terms. The grandson murdered the grandfather, and stood to collect a significant reward. The courts ruled that, despite the fact that the law made no special provision for such a case, one could not benefit from his own crimes under the law, and chose to deny him the terms of the will. Here, the statement that one cannot benefit from his own crimes under the law stands as a principle, outweighing the normative status of approved legislation.

Whether or not this is right, the application of principles to legal decisions seems more accurate than the idea that a judge is always motivated by internal political aims, unrestricted by the paltry written word (as the Law and Literature movement would have it).

This, of course, does not solve the legitimacy issue, nor does it explain how political aims do get written into the law (since they clearly do at times...). Where a judge is empowered to make decisions unsubstantiated by law, or more, contrary to law, it is reasonable to suspect that this qualifies as a violation of the "Rule of Law". While the realists aimed to simply fill the space where the law "runs out" (fails to cover a specific type of legal case, as in Riggs) with social sciences, free-market economics, feminist theory, literary theory, or whathaveyou, Dworkin's pseudo-Natural Law analysis is at once less conspicuous and more intuitive. The difficulty with trying to fill in the lines with, say, free-market economics (Posner, for instance), is that market relations do not accurately reflect the spectrum of human interaction. While it is valuable to analyze "subsidizing" industrial pollution under an economic lens (the Coase Theorem) , it is awkward to evaluate harassment through supply and demand models.

good lord, it's 2:20 in the morning. I'll be back.

Posted by Cat Tierney at 01:35 AM | Permalink | Comments (0)

In Natural Law Theory, as systematized by Thomas Aquinas in the Summa Theologica, the criteria for a law to be just include that "the law does not exceed the power of the lawmaker." This brings me to wonder where the lawmaker received his power. If we assume that the lawmaker must be designated by law, this criterion seems paradoxical because it would require the presence of a positive law which is unjust, since there existed no lawmaker with the legal authority to create that particular law. This unjust law would then be used to justify the authority of the lawmaker who created laws that justify the power of future lawmakers. The system of just laws is necessarily incomplete.

However, there is a strain of conditioned democratic thought here: one could easily contest the paradox by pointing out that the rulers of Aquinas' time were not necessarily subject to law. The kings of medieval Europe were not required to obey their own promulgations, which makes sense: only the divided man can be his own subject. Early positivist thinkers, such as John Austin, found this answer suitable. Austin reformulated the "just promulgator" clause of Summa Theologica in such a way that his theory explicitly excludes the lawmaker from any legal bindings. Rather, the sovereign of Austin's positive law "receives habitual obedience from the bulk of the population, but... does not habitually obey any other (earthly) person or institution" (Stanford Encyclopedia - John Austin).

It is interesting to note, in this context, the use of "(earthly)" as an aside. I have yet to read Austin's writing on the subject, however, in light of the fact that Austin saw himself as furthering Aquinas' theory, it has interesting implications for the question at hand. It may, in fact, solve the query. If we import this notion, that the sovereign need not hold allegiance to an earthly law, into Aquinas' theory, it seems to indicate that this original authority is of divine origin. Presumably, the only evidence one might find for whether the lawmaker was "authorized" would be to compare his laws to natural law... but this seems to break down the driving line of legal positivism, the separation thesis. I'm not certain of this analysis, and will get back to it, but I do think it's interesting.

Posted by Cat Tierney at 05:35 PM | Permalink | Comments (0)

This blog is dustier than the Mad Arab's volume, but consider this a first restorative puff across the cover, and do forgive me should the dust raise a cough or two.

I have found myself, a novice in the field of Jurisprudence, registered for Phil5415: Philosophy of Law this semester. With my neophyte status in mind, I intend to blog regularly about topics under discussion in the class for two purposes. The first is to foster a better understanding of concepts unfamiliar to me. This course is offered at the graduate level, both under the College of Liberal Arts and as a Law School class - which leaves the me, the spirited but naïve undergraduate, in an obviously difficult position. I will be left with a plethora of concepts utterly new to me, which is at once exciting and daunting, and so, I believe that the use of this medium will prove invaluable, should I actually manage to use it.

The second purpose is again related to my odd position in the course: observation of my own learning process. Often, coming into a philosophy course, I have a good level of background information, along with knowledgeable peers, and pretty convincing grasp of context. Here, despite the fact that I have a forthcoming paper on the role of mercy with respect to criminal justice for the UCLA Undergraduate Law Journal, I have nowhere near that wealth of resources. That being said, I'm also not a complete moron, so I think it'll be interesting to review this blog once the class is over, and watch the process. I'm sure quantum physics says "No" here, but empiricism isn't everything (it's really only.. one thing... actually...), so enjoy the show if you like.

All of that out of the way... on to the real deal. Today's course dealt with the topic of Jurisprudence in a general sense - circumventing the obligation to answer "What is Law?", we instead asked, "...and what the does that mean?" Which is a perfectly acceptable endeavor, I'd say. Though we discussed several different interpretations of this, from a pseudo-Platonic analysis onward, what caught my attention was the proposition of Joseph Raz - Conceptual Analysis.

I have read little of Raz' work, but what I've seen illustrates a brilliant mind, certainly deserving of the attention he is given in this class thus far. For Raz, it seems, the Concept of Law denotes an existing, particular category of thought and speech, rather than a tangible entity. The Concept of Law is described as an intermediary between individuals and the world, by which I presume is meant the larger body of ideas that make up the Concept of Law. Thus, the Concept of Law is really our Concept of Law, rather than The Concept of Law. What we are able to do then, by analyzing our Concept of Law, is to determine what is essential to it, that is to say, we can learn the criteria for judging whether a given set of rules is law.

That, however, seems anticlimactic, to be a bit churlish. There ought to be more at stake here, something more substantial than what boils down to little more than a scholarly tinker's manifest. Foreshadowing indicates that I am not alone in this line of thought. Intuitively, I gravitate toward Natural Law theory for answers here, though I have only a rough understanding of NL, and have read little concentrated work on the subject. The assigned reading for next week is Thomas Aquinas - will I find refuge there? I'm guessing as much, but isn't this fun? Everyone else in the entire world seems to have read everything Aquinas ever wrote - it smacks of a "little did he know".

Posted by Cat Tierney at 04:42 PM | Permalink | Comments (0)