LAW AND JUDICIAL PROCESS
CLASS OUTLINE
Why are we here learning
about government, politics, and law?
It’s generally agreed THE most
important question as a human being is “what is the meaning of life.” Really what this is asking is "how am I
to live?" or, "What is the best way to live?” But the question “how am
I to live?” means,
unless your alone and isolated on a deserted island, "how am I to live with
other people?"! This question
is usually answered by religious and ethical philosophy. BUT deciding how to live together necessarily
means asking "what rules should we live by?":
That is, how should our society be structured? What laws should we have? Who
should have power to enforce those laws? What limitations will there be on such
enforcement (that is, what rights will people have against arbitrary
enforcement of the laws?) etc. So HIGHLY
inter-related with religious and ethical philosophy is the question "what
government and laws" should we have?
Questions of government, politics, and law are only one step (if that)
removed from the deepest and most important religious, moral, and ethical
questions known to humanity.
***Thus, an understanding of
government, law and politics through the study of them all under the heading of
“political science” is FUNDAMENTALLY necessary in deciding how we should live together
as a human beings!!!
And since we all at this moment live in the
religious, moral, and ethical philosophy!!!!***
Jefferson, Bill for the
More General Diffusion of Knowledge, Virginia, 1779 “whereas it is generally true that the people will be
happiest whose laws are best, and are best administered, and that laws will be
wisely formed, and honestly administered, in proportion as those who form and
administer them are wise and honest; whence it becomes expedient for promoting
the publick happiness that those persons, whom nature
hath endowed with genius and virtue, should be rendered by liberal education
worthy to receive, and able to guard the sacred deposit of the rights and
liberties of their fellow citizens . . .”
Jefferson,
And
this brings us to the point at which are to commence the higher branches of
education, of which the Legislature require the development; those, for
example, which are,
To form the statesmen,
legislators and judges, on whom public prosperity and individual happiness are
so much to depend;
To expound the principles
and structure of government, the laws which regulate the intercourse of nations,
those formed municipally for our own government, and a sound spirit of
legislation, which, banishing all arbitrary and unnecessary restraint on
individual action, shall leave us free to do whatever does not violate the
equal rights of another; . . .
To develop the reasoning
faculties of our youth, enlarge their minds, cultivate their morals, and
instill into them the precepts of virtue and order;
And,
generally, to form them to habits of reflection and correct action, rendering
them examples of virtue to others, and of happiness within themselves.
Law and Judicial
Process: Philosophy, History, Law,
Politics, Criminal Justice, Sociology, even a little Evolutionary Psychology
I. Jurisprudence: Rule of Law,
What is Law, Critique of Law
II. Sources and Interpretation
of Law: Constitutions, Statutes, Caselaw
III. Legal Systems: ADR, Civil
and Criminal Justice Systems
IV. Participants in the Legal
System: Litigants, Attorneys,
Prosecutors, Police, Juries, Judges
******Philosophy of Law
(Jurisprudence) from latin “juris
prudentia” meaning “study/knowledge/science of law”
“Philosophy of Law” or “Legal
Philosophy” or “JURISPRUDENCE”
Narrow definition of
jurisprudence: what is law? (field of philosophy only)
Broad definition of
jurisprudence: evaluation and critique of law and legal institutions.
Includes fields of law, sociology, political science,
economics, etc.
There are no bright lines
between different schools of jurisprudence. The legal philosophy of a
particular legal scholar may consist of a combination of strains from many
schools of legal thought. Some scholars think that it is more appropriate to
think about jurisprudence as a continuum of overlapping ideas. There are MANY different philosophical approaches
to law. We’ll look at some of the major
ones, but first we need a general framework to use see how all these approaches
differ and relate to one another.
RULE OF LAW:
President Clinton’s
impeachment hearings: Politicians and
scholars who thought he should be impeached appealed to the “rule of law”: that
even the President should be subject to the same laws as anyone else, he should
not be “above the law” and therefore, it was important that he be convicted in
the Senate to uphold the rule of law.
Pres. Clinton’s supporters ALSO appealed to the “rule of law”: that the
law should be followed, even when we don’t like the law, or its application,
and even if its not politically popular to follow the
law, and since
After 9-11, when President
Bush Jr. made a major televised speech before a joint session of Congress where
he insisted the Taliban stop harboring Al Qaeda, he said only certain
Governments would be supported by the U.S. as legitimate, and one of his
criteria he said was that the government recognized the “Rule of Law.”
As we attempt to establish new
governments in
New draft of proposed
Constitution of European Union:
The
What is the “Rule of Law”? Short answer:
It’s not any single “rule” or “law” but the entire system of rules (laws) of a
government and its society, IF that system meets certain requirements (certain
criteria) of non-arbitrariness (i.e. rational, reasonable, and justifiable).
RULE OF LAW: (Not
arbitrary power)
1. Government under
law: Government itself must operate
under the law (Government under law, NOT a government with arbitrary
power that is “above” the law)
2. General and
authoritative rules: Government must regulate society through a
system of general and authoritative rules—crimes are specifically defined and
their punishment, GENERALLY applicable, not to specific persons only (groups is
another matter)).
3. Fair warning of rules: The general
and authoritative rules should give individuals fair warning: the rules must
meet these formalities:
a. enacted in
accordance with pre-existing legal rules—e.g. through formal, codified
lawmaking procedure
b.
made public—e.g. no hidden laws no one knows until violate
c.
in force for a reasonable period of time—e.g.
don’t change every day—then no way to keep track and know what law is
d.
reasonably clear in meaning and
specific in what they prohibit---e.g. no vague law against “unpatriotic
conduct”
Also,
no one can be guilty of a crime without a law, and no punishment can exist
unless a crime was committed. (“No crime without a law, no punishment without a
crime”)
e. applied
prospectively (to future only; not retroactive—i.e. no “ex post facto”
(“after the fact” laws)—e.g. can’t outlaw last week.
f. applied impartially—e.g.
police, prosecutors, judges, juries can’t simply enforce laws against people
they don’t like
4 possible to comply with--e.g. can’t require people person to stay at home and
report to govt. office at same time.
5. All person
must be given due process—that is, a
fair chance to defend themselves against formal charges that they’ve violated
laws—e.g. can’t try someone and tell them they can’t present any evidence or
testimony in their own defense. Or try
them without notifying them. “notice and an opportunity
to be heard.”
6. People under law: the sovereign
people ought to establish constitutional government and abide by its laws—i.e.,
under John Locke’s social contract theory, all government is from consent of
people and so people are sovereign, thus the people themselves must be under
law, not “above” the law. Otherwise, tyranny of the majority (mob rule).
*** key
to all this is that “rule of law” means NOT ARBITRARY POWER. Totalitarian dictatorship is the complete
opposite of rule of law. e.g. Saddam Hussein.
Notice there is no element
#7: “The substance of the laws must be
just.” Individuals, let alone nations,
can’t agree on what is “just” so every nation would accuse all other nations of
not having the rule of law:
WHY do we want the Rule of
Law?
1.
(People can then choose to
avoid religious activity or continue and risk arrest).—e.g. Taliban outlawed
preaching of Christianity with notice
2.. Prevent corruption—if rulers had arbitrary power, many rulers would abuse power for own
personal gain rather than exercising power for the good of the people/society,
if those rulers had arbitrary power. Look
at wealth of Saddam Hussein, or former Soviet leaders . . .
3. peaceful
dispute resolution: Controls and channels disputes and vengeance
from limitless cycle of violence which harms innocents into nonviolent dispute
resolution.
4. Economic prosperity depends on settled expectations of laws protecting
property, contracts, etc from violation from individuals or govt. E.G. if government can confiscate your
business, factory, land at any time, no one would ever attempt or invest in
such things!
But 2 FLAWs
with Rule of Law: (Basically, it’s the same point: there is not, nor can be, a perfect
implementation of the rule of law.)
1. If one follows the procedural rules
laid down by any rule of law, it is inevitable that some innocent people are
punished or are not compensated, and that some guilty people go free without
punishment or being forced to pay compensation. “[S]ince
the costs of operating a legal system free from errors would be prohibitive,
the best of real-world systems will exhibit a copious inequality of legal
outcomes”.--
Richard A. Posner, Problems of Jurisprudence, pp. 333-34.
2. Even if all the procedural rules are
followed, the substantive rules that come out might be themselves
unjust!, That is, injustice will sometimes result from even the “fairest”
lawmaking procedure—e.g. violation of liberty of speech, religion, sexual
freedom, with prison.—e.g. Taliban, U.S. Slavery, Segregation, Soviet Union,
Nazi Germany—if you follow the rules, INJUSTICE results!. So what if SUBSTANCE is arbitrary? Is it still the “Rule of Law”? Was Nazi Germany fulfilling the “Rule of
Law”? Philosophers of law have heavily
debated this.
NUREMBURG Trials: Post WWII, Allied Powers enacted NEW
international law defining international crimes such as “war crimes” and “crimes against
humanity.” Then tried
Nazi leaders for violating those crimes.
Nazi defense lawyers argued this violated the Rule of La. Chief Prosecutor, the Chief Justice of the
U.S. Supreme Court, Justice Roberts, argued it did not. Philosophers of law still debate this today.
____________________________________________________________________________________________________________
NOW let’s consider issues
surrounding this: What is law, and to
what degree does the “rule of law” exist?
***NOTE that NO system of law
can guarantee that the government or persons within government will ALWAYS
conform to the law.
So it’s not possible to have
PURE rule of law. E.g. there will ALWAYS
be some corruption, biased, arbitrary decision-making, innocent people
convicted, unjust or inequitable results from procedure OR substance, etc. So the question becomes one of practicality: is it possible to have reasonably
thorough/complete rule of law? Since
can never be a PERFECT rule of law, it’s a GOAL to strive for; an IDEAL.
***I.E. It’s never
All-or-Nothing, it’s a spectrum, so the question is to what degree can and do
we (The U.S.) have the Rule of Law?
i.e. to what degree does the
First, WHAT IS LAW?
(and then we can see to what degree we have the RULE
OF LAW or JUSTICE):
The
Meaning of Law and Problems of Definition. There is no fixed, set, universally
agreed-upon definition of “law.” Here are a few. Notice the diversity of their approaches.
Posner: Law is the "achieve[ment] of social order through subjecting people's conduct
to the guidance of general rules by which they may themselves orient their
behavior"
Austin, A Command Theory of the Law: "A law in its most general sense is a
rule laid down for the guidance of an intelligent being by an intelligent being
having power over him."
Friedman:
“The existence of public order.”
'lectric
law library: "LAW - Rules established by a governing authority to
institute and maintain orderly coexistence."
Law.com: "any system of regulations to
govern the conduct of the people of a community, society or nation”
Lawyer website: "All the rules of conduct that have been
approved by the government and which are in force over a certain territory and
which must be obeyed by all persons on that territory"
OTHERS:
"a set of rules that provides guidelines for resolving
disputes."
" a
set of behavioral norms that regulates how members of society must act"
“a
language that lawyers and judges use when they try to prevent or resolve problems—that
is, human conflicts—using official rules made by the state as their starting
point.”
***PERHAPS MOST COMMONLY
QUOTED DEFINITION OF LAW: (since the 1920’s).
Justice Oliver Wendell Holmes:
“The prophecies of what the courts will do in fact.”
i.e. a prediction how a
court will decide a dispute—it’s your best guess what a judge will say.
What is“JUSTICE”:
Black’s law dictionary: “Proper administration of laws. In
jurisprudence, the constant and perpetual disposition of legal matters or
disputes to render every man his due.”
Justice is from lat
“jus”=”law” or “right” (in the legal but abstract sense). Other dictionaries: fairness, equity, to be
impartial, to follow rules and procedures, etc.
In other words, is the Rule of Law the same thing as “justice”?
***But another meaning of
“justice” is being “just” which is being “moral, upright, righteous, noble,
virtuous, honorable, ethical, good,” etc.
***NO GOOD OR EVEN WIDELY-USED
DEFINITION!!! Let’s look at western
history of law to see how concept of “LAW” has evolved:
For at least a thousand years,
there has been a philosophical Distinction between
NATURAL LAW and POSITIVE
LAW:
POSITIVE LAW: human made
law: usually written, but not necessarily in early cultures. (from “to posit” meaning “assert, declare, put forth,
announce.”
NATURAL LAW: fundamental moral laws that exist in the universe as
do the laws of physical reality like gravity.
also referred to as NATURAL
JUSTICE (latin =“jus naturale”)
discoverable by rational intelligence and reason, and observing nature.
Remember justice had two meanings: one in the legal
sense and one in the moral sense; in the latter case, justice IS the natural
law!
So by
this definition, “natural justice” is redundant; like saying “wet water.” ; all you need to say is “justice.”
So be
aware, that “justice” can have both a legal meaning and a moral meaning; i.e. a
positive law meaning and a natural law meaning.
Natural Law—Usually, but not always,
religiously grounded. Laws derive
"authority" from their correspondence with an objective moral reality
(moral laws) existing in the universe. Univeralism:
there are universal moral truths that are true always, everywhere.
Historically, for thousands of years,
this has been philosophical justification for law.
St. Thomas Aquinas—Summa Theologica
William Blackstone—Commentaries on the Laws of
Lon Fuller—The Morality of Law
John Finnis--
John Rawls—A
Theory of Justice
Ghandi--
Henry David Thoreau--Civil
Disobedience
Martin Luther King, Jr.--Letter from
a
Lysander Spooner—No Treason
1. Natural Law Theory: Positive law is valid only if conforms to
"natural law" i.e. objective moral reality---like gravity is a
natural physical law of the universe, so too are there universal moral
principles; moral "laws" to the universe; that humans can NOT repeal
(just like the law of gravity could not be repealed). This is as opposed to “relativism” or "cultural
relativism." –no objective, universal moral “truths”—each
society/culture (or even individual) determines what is right/wrong E.g.
slavery, cannibalism, human sacrifice, female genital mutilation—no universal
morality.) Cultural relativists argue
that what the law 'is' politically and 'ought to be' morally is to be found in
the national character, the culture, and the historical ideals and traditions
of the people or society whose law it is—i.e. cultural relativism---e.g. female
genital mutilation practiced in certain African cultures—cultural relativists
say you can't argue it's morally wrong, you can't even argue the strengths and
weaknesses of it, must simply say "its part of the history of the
culture/national ideals/community values."
BIG Problem: How do you figure out what the Natural Law
is???
Natural law theorists usually
argue IF there is natural law, you should be able to know it either through
divine revelation OR human reason, because it should be just like gravity—you
can explore, study, and understand it
Law that conflicts with natural law is an
“unjust law” which is really not a law at all, like “counterfeit money” is NOT
money, but is posing as money.
Problems: 1. Is there a supernatural
god/power/force/one/all/is/absolute/being/mind/entity”.?
2. If
so, does that god make rules for us to follow?
3. If
so, how do we know what those rules are?
E.g. “Torturing
babies is wrong.” But what else? Killing people is wrong? But what about in self
defense? under
what conditions? defense
of others? again
under what conditions? capital punishment? for what crimes? Euthanasia? War? Only certain types of
war? Etc.
***i.e. Regardless
where the natural law comes from, what are those natural law rules? NO ONE has ever been able to demonstrate what
they are, and reasonable people strongly disagree over morality and take both
sides on many (all?) issues. i.e. there is NO
UNIVERSAL CONCEPTION OF MORALITY!!! SO,
if there’s no demonstrable universal conception of natural law, then any
enforcement of natural law is arbitrary, and violates Rule of Law!
AND Another PROBLEM: even natural law theorists themselves agree
that not all human made law (positive law) corresponds to the “natural law” E.G. is “law” =
“morality”? No! Why not? Because THERE IS NO UNIVERSALLY
AGREED-UPON CONCEPTION OF MORALITY:
Law and Morality: Does
Law=morality? Almost all scholars/lawyers/people would agree,
they are NOT same thing.
i.e. the positive law overlaps ONLY to a LIMITED degree
with the natural law (morality).
Thus, law does not equal
morality. The criminal law has concepts that recognize this:
malum
in se: inherently evil, regardless whether law makes it a crime—e.g.
murder, rape, robbery, etc. (NATURAL LAW)
malum
prohibitum: wrong because law says it’s
wrong—e.g. tax evasion, running red stoplight. (POSITIVE LAW)
1. Morally GOOD things you
should do, but law does NOT REQUIRE it.:
should be grateful and
express appreciation when you receive a gift or a favor
hold a door open for a
person coming out of grocery store whose arms are full of groceries, or who is
pushing a baby stroller.
rescue a person trapped in
burning building
give money to a poor, hungry
person asks you for money for food.
stop a group of kids who are
beating up another kid
yell a
warning to a person about to accidentally step into oncoming traffic.
See a
2-year old playing on a railroad track and a train is coming.
call for an
ambulance if you see a person lying shot in the street.
Case law suggests that there
are four sets of circumstances in which courts have decided that persons have a
legal duty to rescue another: "First, where a statute imposes a duty of
care to another [e.g. Good Samaritan laws]; second where one stands in a
certain [special] status relationship to another [e.g. parent and child];
third, where one has assumed a contractual duty to care for another [e.g.
doctor and patient]; and fourth, where one has voluntarily assumed the care of
another and so secluded the helpless person as to prevent others from rendering
aid. [e.g. rescuer who removes a victim to a place and
no one is aware of where the victim is]"
**** Good Samaritan Laws exist in most (all?) European
countries;
Duty to Aid the Endangered Act,
Emergency Medical Care
(a) A person who knows another is exposed
to grave physical harm shall, to the extent that the same can be rendered
without danger or peril to himself or without interference with important
duties owed to others, give reasonable assistance to the exposed person unless
that assistance or care is being provided by others.
(b) A person who provides reasonable
assistance in compliance with subsection (a) of this section shall not be
liable in civil damages unless his actions constitute gross negligence or
unless he will receive or expects to receive remuneration. Nothing contained in
this subsection shall alter existing law with respect to tort liability of a
practitioner of the healing arts for acts committed in the ordinary course of
his practice.
(c) A person who willfully violates
subsection (a) of this section shall be fined not more than $100.00 -- 1967 No.
309 (adjourned session) SS 2-4 effective March 22, 1968.
2. Morally BAD things you should not do, but law does
NOT PROHIBIT it:
teaching your children the values
of the KKK or the Taliban, or Al Qaeda
parents
take care of lazy, irresponsible adult child with no expectation of return,
then child abandons parents when parents old and sick
person is dating two people
at once without telling each other about other person.
person
quickly pulls their car into a parking space they saw you were already waiting
for.
person cuts in line ahead of
you in a movie theatre line
charging $100 for a loaf of
bread to a starving person
emotionally abusing your
child or spouse
lying
(former) slavery
some say abortion
3. Morally neutral things the
law requires:
responding to the
census—government doesn’t need to know
registering before you can
vote—could be automatic based on driver’s license
registering a firearm
wearing clothes—children
raised in nudist colonies aren’t harmed, so why not let people go nude in
public?
4. Morally neutral things the
law prohibits:
Drive car under a red light—not inherently evil—could
make red mean go, green stop, or orange go, blue stop
Driving on left-hand side of road. Other countries drive on left-hand side (e.g.
Some would say “victimless” crimes—prostitution,
drugs,
Some
would say land use development
Some
say abortion
5. Morally bad things the law
requires (or allows: (small category))
(Former) slavery or racial segregation
Some say paying taxes is equivalent to armed robbery,
and what our taxes fund (war; subsidies to oil or meat industry, etc.)
Some say the death penalty
Some say military draft
6. Morally good things the law
prohibits (small category)
Some say prohibiting euthenasia
or doctor-assisted suicide prevents human suffering.
Some would
say outlawing gay marriage is a travesty of justice.
Some say prohibiting selling live human organs causes
countless people to die who can’t get donated organ transplants.
HUGGING KIDS!
Public school policies now usually forbid teachers, coaches, counselors,
bus drivers, etc. to hug kids even if they’re hurt, crying, want a hug, etc.
out of fear of lawsuits. Yet studies
show this is severely hurting children’s psychological growth and well-being.
2.Legal Positivism POSITIVE
LAW: idea began around 1600’s.
Law does not come from morality, but simply because humans say it is
law.
Thomas Hobbes--Leviathan
John Austin, The Province of
Jurisprudence Determined
Jeremy Bentham—Introduction to the
Principles of Morals and Legislation
H.L.A. Hart—The Concept of Law
***BUT BIG PROBLEM: if “law” does not correspond with “morality”
(i.e. NATURAL LAW) then why should we obey it?!
What moral obligation do we have to obey it if it’s NOT malum in se, but merely malum prohibitum?
Positivists needed to argue why, and began to do so around 1600’s. They said human-made law is self-legitimizing
if its created within the legal system (notice this
says that the source/origin/procedure of the law commands obedience). Whatever law is “posited” (“put
forward”) by the state, is the law that must be obeyed. Also, the law SHOULD be obeyed, because it
was made by the legitimate sovereign (ruler) with the power to threaten and use
coercion. Thus, there’s an OBLIGATION to obey!
[Remember: if the law is natural
law, you should obey it because it’s a divine command/rule!]
BIG PROBLEM: This simply
begs the question: WHY should I obey a command simply because it’s
government?? What right does the
government have to tell me what to do?
In other words, what right does any other human being have to tell me
(an adult of competent mind) what to do or not to do?? We used to call this SLAVERY . . . . so what’s the difference?
E.G.. What difference is there between a gunman
that says “your money or your life” and a government that says “pay your taxes
by April 15 or else”? What difference
does it make that it’s the government making the rule, or that the rule is
written down, or made through the normal lawmaking procedure, as opposed to a
stranger just walking up to me and giving me an order? Where is this moral duty if its not natural law?
Why is a robber holding a gun to my head wrong, but the government
holding a gun to my head okay?
There are lots of different
thoughts as to when obedience to law is morally obligated, on a spectrum from
always to never.
OBEDIENCE to law: When is disobedience to law morally justified?
Strong Positivist (It’s rare that one is a
pure utilitarian/communitarian/authoritarian/majoritarian/populist): —whatever society does in its own good
outweighs any individual interests, thus individual has obligation to
obey. If society thinks a law is good,
BY DEFINITION the law is good. Rarely
find—e.g. taken to it’s logical extreme conclusion, the majority could do
ANYTHING to a minority group: e.g. exterminate the minority e.g. a simpler example: against law to
hide Jews in Nazi Germany, but not too many positivists would say you should
follow that law.
Weak Positivist (most positivists): You can disobey
when law is “bad.” So what are “good” laws?
E.g. “No motorized vehicles in park.” What about ambulance to rescue heart attack
victim? What about swerving across
double-yellow line to avoid hitting pedestrian, when statute doesn’t list any
exceptions? What about running a red
light to take a dying person to the hospital?
If you say the law should be disobeyed because of some “higher
principle” then that’s natural law!!!!
AND since there’s no agreement about natural law, then it’s arbitrary
enforcement (or unenforcement); i.e. that is, if
people are allowed to disobey positive law anytime, then doesn’t that violate
the Rule of Law?
Natural Law Theory—Civil Disobedience—When
law is “unjust” or “immoral.” obedience is unjust! BUT PEACEFUL, NONVIOLENT disobedience.—e.g.
King, Thoreau, Gandhi (see the movie Gandhi) Thoreau’s Civil Disobedience and
King’s Letter from the Birmingham Jail are two of the most influential and
widely-read pieces on civil disobedience.
NOTE: Lawbreaking because of an
appeal to a “higher law” can be either peaceful OR violent (terrorism) (e.g. Nat Turner
who tried to help slaves escape, John Brown who tried to help a slave revolt,
etc.) OR peaceful (underground
railroad, 60’s sit-ins).
Modern anti-abortion
activists: peaceful sit-ins and
demonstrations outside abortion clinics, or violent (bombings of clinics,
murders of doctors)
Natural law theorists say a
positive law that violates natural law is like counterfeit money: it’s fake, worthless,
it’s not “real, genuine” law.
Libertarians—government’s only role is to
protect from violence against person or property. All other laws may be disobeyed.
Thus, a government should consist only of a military
and police force, with minimal legal system, courts and prisons.
Anarachists (rare)— Disobedience is
ALWAYS morally permissible if it goes against one’s morals: No one, including the government, has the
“right” to rule another. We have natural
law right to life, liberty, and property.
In other words, we have a right to personal autonomy, to self-rule
over ALL our property, which includes our minds (speech, religion) bodies
(food, drugs, medicine, travel) and other property (housing, land, business, labor).
State control over ANY of these things (which really means state
MONOPOLY on legitimate use of coercion/force/violence to obedience by making
laws prohibiting or requiring conduct) violates our natural law right to CHOOSE
how to self-rule our life, liberty, and property, so natural law
requires/mandates NO government! So disobedience is almost always justified
(ALL laws may be disobeyed!) —there should be NO government, whether arbitrary
OR even operating under Rule of Law.
Thus, ANY government is illegitimate.
“Legitimate government” is an oxymoron. The ONLY obligation to obey is to laws that
are “good” or “just” or “moral” as we deem. Or, simply obey out of practical need to
avoid punishment. But there is NO moral obligation to obey law just because
it’s “law.”
***AND,
because any positive law in a democracy is arbitrarily made based on whatever
majority of citizens decide, and if it’s not a not a democracy then the law is
based on the arbitrary decision of rulers, then most/all positive law is
arbitrary, and thus the “RULE OF LAW” does not exist.
[[[This
is called anarcho-capitalism,
(or “right-anarchism”) to distinguish it from anarcho-socialism,
(“Left-anarchism”) in which all individuals would voluntarily
give up all right to property, so that there would be no such thing as property
rights, and thus there would be (allegedly) perfect equality of wealth and
power. But you don’t need to know these
distinctions. If you want to learn more
about it, you can go on the web and read up on it.]]]
BUT WHY would a positivist say
there is any MORAL obligation to obey positive law, besides the practical
reason that the state has a monopoly on the legitimate use of coercion
(violence) to enforce obedience to the law?
Where does this obligation come from?
This is the BIG problem for positivism:*** If
LAW IS NOT MORALITY, (if civil and criminal justice is NOT natural justice)
then where is the moral obligation to obey the law??? Let’s consider a debate
between a strong Positivist (P) and an Anarchist (A): (we’ll look at the two
extremes because of limited time AND the debate is more focused/sharp.)
PHILOSOPHICAL ARGUMENT
between a Positivist “P” and Anarchist “A”: (some philosophical, some
practical)
P: Social
Contract: In democracy, John Locke’s social contract theory: GROSSLY SIMPLIFIED VERSION:
people come together to form social contract, and consent
to be governed, so we have voluntarily assumed an obligation to obey
government’s laws.
A: Never happened! There is no universal consent,
and certainly not express consent. We
are born, and find ourselves being governed.
No one today signed anything! (I certainly didn’t).
P: Implied consent:
A. By
accepting the protections and benefits of the state (police, roads) we take on
an obligation to reciprocate and obey law.
B. By
staying here under this social contract and not leaving, it shows you agree to
the terms.
C.
Voting (taking part in political system) implies consent to be ruled by laws
produced by the outcome.
D.
Not voting implies waives your right to object to laws produced by the outcome.
A: No choice: (in any of these)
A. (David Hume “Of the original contract”) But we are
forced to accept benefits we don’t want.
What right is there to force something on someone and then make them pay
for it? Then salespeople could leave all
sorts of things at my home doorstep that I don’t want and I’d be forced to pay
for all of it!
B. No
real alternative—there’s no other nation to go to where we can refuse
protections and benefits. EVERY country
requires obedience. It’s like waking up
on a ship in the middle of the ocean-if you don’t like the captain’s rules,
you’re free to jump overboard!
C. No
real alternative—like a slave given a choice between two masters, one who will
beat you six days a week versus the other who will beat you all seven days of
the week. It’s not a “legitimate” choice and thus does NOT imply consent to be
governed! That is, its
simply Satan versus Beelzebub. You don’t
want EITHER but you’ll at list pick the “lesser of two evils” if given the
chance.
D. No
real alternative—ballots don’t have “None of the above” or “no government” as a
choice. So the ONLY way to indicate withdrawn consent (that is, a lack of
consent) is to NOT participate!
P: “Hypothetical
consent”: if we had NO govt., we’d
be sick of constant violence, and we’d LOVE to have a state. We’re just spoiled and don’t appreciate what
we have, so if everyone were faced with the true choice, we’d all consent to be
governed and thus owe obedience to law.
A: Not true: Not EVERYONE would choose government—many
people would actually prefer no government, and can’t know about rest of
people. At least SOME people would
choose to live in government-free communities. And regardless, “hypothetical
consent” is never valid in any other area of law or ethics. Imagine the outrage if businesses could start
sending you bills based on the fact that you owe them money because you would buy the product if you only
understood how great the product is? Or imagine a rapist arguing a woman
“hypothetically consented” because she would
have consented if she only understood what a truly great guy he was? We don’t allow hypothetical consent anywhere
else, so why should the positivist be allowed to
assert hypothetical consent here?
***NOTICE! The Anarchist wins
on the philosophical points. Positivism
has yet to philosophically justify any moral duty to obey positive law.
PRACTICAL ARGUMENTS: A positivist can fall back on practical
grounds, though. Note that this admits
you do NOT have any moral obligation to obey the law; you should simply do it
out of practicality. This concedes
defeat to the philosophical points of the anarchist.
P: Anarchism
is Too idealistic: As a practical matter, anarchism is too
utopian/idealistic--won’t work, because disorder, chaos, violence,
warfare.
A: a. we already have LOTS of violence and war
with government (including brutal oppression by police and military), estimates
are between 100-to-200 million people dies because of state-based murder in the
20th Century—e.g. WWI, WWII, Korean War, genecides
of Jews (Holocaust), Cambodians (Killing Fields), Hutus and Tutsis (Rwanda),
Stalinist purges in Russia; Maoist tyranny in China, etc. so it can’t be any
worse without government.
b. but more importantly, peaceful anarchism is Realistic:
1. Most people are good and rational, and thus will
voluntarily self-cooperate.
2. Social pressure will induce uncooperative
(anti-social) individuals to conform and cooperate, through ostracization,
insults, etc..
3. Private security and arbitration companies will
provide security and dispute resolution that people contract for.
4. If no
private companies, then people voluntarily work together to coerce (even
violently) social behavior from uncooperative individuals (i.e. if they ignore
contract obligations, steal, commit violence, etc.) e.g. neighborhood
would band together to stop violent resident.
5. (Anarcho-socialist) Most violence
is caused by inequalities of wealth. If
you eliminate government and property, this will eliminate poverty, and thus
there won’t be any reason for violence.
P: No evidence that anarchism could work: All
these claims that people would cooperate peacefully are purely speculative (no
evidence); and in fact evolutionary psychology shows that people, especially
male primates including humans, innately are aggressive and seek dominance and
hierarchical power.
A: Evidence of successful anarchism: Real examples
in history of successful (cooperative) anarchist groups: anarchist communes during Spanish Civil War,
Israeli kibbitzum, medieval Iceland, medieval
Ireland, “free cities” in medieval Europe; even during U.S. colonial period and
“wild west” often had no real functioning governments, but people (for the MOST
part) lived cooperatively and in peace. Also:
Police strikes—crime rate only goes up slightly. Also,
NOTE: This practical argument kind of dead-ends in
speculation—would people choose government over anarchy if given the real
chance of alternative option? Would
human nature allow anarchy communities to survive and thrive in peace rather
than descending into violence and chaos, ruled by the most powerful gangs? This is mostly speculation,
that likely will never be answered definitively.
***
So maybe there’s a solution
for the positivist: what if the positive law expressly includes natural law—NOW
is there a moral duty to obey ?
BUT Can Positive Law
incorporate Natural Law? At least three ways one might do this:
1. Positive law outlaws
violations of the natural law: Problem: ESPECIALLY by charging someone with a crime,
this would violate the Rule of Law because that person would have no fair
warning of the law!.
E.G. Government issues law that says:
“Any
violation of Natural Law is subject to a sentence of one year in prison.”
This violates the Rule of Law!
It’s the same thing as saying:
“Any
violation of the following three Natural Laws is subject to a sentence of one
year in prison:
1.
2.
3. “
This would violates
MANY principles of Rule of Law: (RECALL):
2.
General and authoritative rules: (crimes are specifically defined and their
punishment--(“No crime without a law”)
3.
Fair warning of rules: The general and authoritative rules should give
individuals fair warning:
(a) made
public—e.g. no hidden laws no one knows until violate
(b) reasonably
clear in meaning and specific in what they prohibit
*
(d) applied
prospectively (to future only; no ex post facto laws (ie.e
no retroactive crimes))
*
(g) enacted
in accordance with pre-existing legal rules—e.g. through formal, codified
lawmaking procedure
MAYBE it wouldn’t violate the
Rule of Law if EVERYONE agreed what those unspecified Natural Laws were. . . .
BUT since there’s no universal
agreement about natural law, applying/enforcing natural law would be totally
arbitrary—whatever people in government or majority of citizens thought it
should be at the moment! Again, it would
violate the Rule of Law!
AND the moment you actually put
the natural law into words, then it has become
positive law, not natural law.
HYPOTHETICAL DILEMMA: A nation
claims to uphold the Rule of Law as the highest principles of justice. But then there’s an ABSOLUTELY BARBARIC
crime, but there was NO positive law prohibiting it? The people demand “justice.” What does that
government do with the guilty person(s)?
Argue that the natural law was violated . . .
MOST FAMOUS EXAMPLE: Nuremberg Trials—after WWII, allied powers (U.S.,
England, France, Russia) adopted the “London Charter” which made several new
international law crimes, including “crimes against humanity” Then, charged high-ranking German
leaders and military commanders with “crimes against humanity” like genocide
and mass-murder (as well as other crimes), mostly because of Jewish Holocaust,
but also killing of homosexuals, gypsies, some prisoners of war, etc.
Prosecution argument:
“crimes against humanity” were unwritten laws that were violated, and
which overruled Nazi law. Thus, natural law IS Rule of Law.
Defendants said they “just
following orders” i.e. government law not only did not prohibit killing
concentration camp prisoners, the law REQUIRED killing them. Thus, they were UPHOLDING the Rule of Law,
and charge/conviction/sentence TOTALLY violates Rule of Law!
U.S. Supreme Court Chief Justice Jackson’s opening
argument as chief prosecutor for the allied powers: “…The fourth
Count of the Indictment is based on Crimes against Humanity. Chief among
these are mass killings of countless human beings in cold blood. Does
it take these men by surprise that murder is treated as a crime? . . .
“But if it be thought that the [
***A strong positivist would say the prosecution
violated the Rule of Law; a weak positivist, or a
natural law theorist would say it didn’t.
ANOTHER FAMOUS EXAMPLE:
East German Border guards that
followed law and shot people attempting to escape
What about a low-level Taliban
soldier that was “just following the law” to shoot individuals preaching
non-Islam?
1. He violated the law of nature so convict?
2. He was following the written law established by
government so acquit?
My-Lai massacre . . . U.S. troops in the village of My Lai during the
Vietnam war were ordered by their commanding officer (Lt. Calley)
to kill everyone—men, women, and children because (according to Lt. Calley) they might be Viet Cong troops or even suicide
bombers, etc. In the heat of battle,
most soldiers obeyed, and most of the villagers were shot to death, including
many young children; only a few survived or were rescued by one U.S. helicopter
crew who saw what was happening and rescued some of the villagers from the
Massacre. The servicemen’s defense was
that they were “just following orders” from Lt. Calley . . .
Their commander Lt. Calley was prosecuted but
eventually pardoned.
2. Have the positive law
protect natural law rights:
The U.S. Constitution tried to
include open-ended natural law in its positive law, not as crimes, but as
RIGHTS:
U.S. Constitution’s 9th
Amendment (1791):
“The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.”
WHAT “other rights”? A majority of the Supreme
Court has never applied the 9th Amendment, because of the
impossibility of achieving consensus on what that means. It’s the Judge Robert Bork ink-blot
problem: it’s as if the Framers said
“The other rights are *************” but someone spilled ink on the copy
and its forever unreadable. It’s
meaningless to enforce, so it’s as if it wasn’t even written. There is no PRINCIPLED way of interpreting
these rights, so the only option is to say the language is meaningless.
3. Have the positive law include the natural law
as a DEFENSE against violation of other positive laws.
Anglo-Saxon Common law
includes the defense of “necessity.” You can break the law if it
is “necessary.” What is “necessary”?
Isn’t this an attempt to apply natural law without expressly saying so?
Basically yes. The natural law excuses
violating the positive law.
Model Penal Code definition
of necessity defense: "Conduct
that the actor believes to be necessary to avoid harm or evil to himself or to
another is justifiable, provided that: . . . the harm or evil sought to be
avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged."
Federal caselaw
definition of necessity defense:
Necessity case:
Necessity Defense: the defendant must show
(1) defendant "act[ed] to prevent 'an imminent harm which no available options
could similarly prevent.'" i.e. ONLY choice left.
Political system to change law IS an option—e.g. smuggle
non-FDA-approved drugs into country.
AND (2) defendant reasonably anticipated the
existence of a direct causal relationship between his conduct and the harm to
be averted.
i.e. your action would have
made the difference—e.g. “no vehicles in the park” but an ambulance must come
into the park to rescue a heart attack victim or “no crossing the double yellow
line” but you swerve over it to avoid hitting a child that suddenly ran out on
the road. These would be allowed by the
necessity defense. But NOT your entire
house is in total flames so you smash through your neighbor’s garage door to
get to a garden house, because a garden hose would make no difference in
stopping a raging fire.
NOTE anti-abortion extremists
and animal rights activists have tried to argue the necessity defense in
prosecutions for attacks on abortion doctors on clinics, or destruction of
animal labs. So far, they have not won
those arguments in court.
Relationship between necessity and civil
disobedience:
Civil Disobedience:
you think the law itself is immoral—e.g. slavery,
segregation. taxes?
ban on assisted suicide?
Necessity: you
think the law is moral in itself (generally), but its application would be
immoral in a particular circumstance.
What about smoking marijuana
as necessary to treat cancer or other medical ailment? euthanasia? doctor-assisted suicide?
Smuggling non-FDA-approved medicine (but approved by
Examples of successful
implementation (besides several states in cases of medical marijuana use)
California
v McMillan, 1988.
Defendants blockaded Diablo Canyon Nuclear Power
Plant. Judge allowed testimony about
seismic instability in era, and defendants’ fears. Judge acquitted the defendants.
Chicago
v Streeter, 1985.
Defendants occupied South Africa Consulate
protesting apartheid. Judge allowed
necessity defense. Jury acquitted the
defendants.
Colorado
v Bock, 1985
Defendants occupied
What about a trolley driver,
who suddenly realizes the breaks have gone out. He can do nothing, and let the trolley go
straight and run over five people who have their back turned and don’t see the
trolley, or he can veer off onto another track, where only one person is
standing with their back turned. . . . If he veers off and the trolley kills
the one person, and the driver is charged with murder/manslaughter, can he use
the necessity defense?
Or a person is hiking in the
jungles of
A doctor has five patients who
need immediate organ transplants. Two of them need a lung; two need a kidney;
the fifth needs a heart. A man walks into the doctor's office for an annual
check-up. The doctor kills the man, gives his lungs to the first two patients,
his kidneys to the other two, and his heart to the fifth, thus saving five
lives for the price of one. . . .
***BASICALLY what we as a
society have said (both our nation and the international community of nations)
that if you violate the positive law because of your conception of natural law,
the burden is on you to defend the action as consistent with natural law, AND
if you obey the positive law in violation of the natural law, the burden will
ALSO be on you later to explain why it was NOT a violation of natural law. In other words, you’d better be careful that
you ARE following the natural law (whatever that is!), whether you are obeying
OR disobeying the law.
________________________________________________________________________________________________________________
***Natural Law versus Positive
Law was the only real debate (only 2 big theories) until 1920’s. Until then, all this debate between natural
law and positive law was called “legal formalism” –i.e. judges
use logic to apply abstract laws to concrete situations. Law (whether natural law OR positive law”)
can be objectively determined. There is
a “legally correct” answer/solution to every possible legal issue/problem—i.e.
here IS such a thing as “THE” law, whether it comes from innate human concepts
of Justice or from positive law written in law books.
Like math, 1+2=3; 100
mathematicians will all agree! So any
neutral, objective judge will agree to the same solution: Law + Facts =
Solution.
BUT THEN! . . . Duh Duh Duh . . . Legal
Realism!
5.(American) Legal Realism: The
alternative to legal formalism is "legal realism.” This says Legal formalism ignores, denies
reality. Realistically, there is no such
thing as objectively determinable “LAW” whether natural law or positive
law. There are no “correct” legal
answers to legal questions. “Law” is
whatever judges say it is. That is, law
is simply the application of POLITICS and POWER by judges to decide legal
disputes however judges want the dispute to be decided:
RECALL PERHAPS THE MOST COMMONLY QUOTED
Definition of Law:
Justice Oliver Wendell Holmes:
“The prophecies of what the courts will do in fact.” (i.e. a prediction
how a court would decide the case).
Holmes was a leading legal
realist. According to Holmes [in The
Path of the Law], judges’ words don’t reflect any ultimate, objective, determinable
truths about law, scientific or otherwise. Judges words instead merely convey
the judge’s power-oriented thinking.
Judges decide FIRST how they want the case to be decided, and THEN CLAIM
to be applying law and facts, but merely use that reasoning to justify their
pre-determined political outcome. i.e. JUDGING=POLITICS.
For instance, if I say that my
words are law because the police will throw you in jail if you disobey what I
tell you to do, that’s the essence of law.
It’s like the accountant for an organized crime syndicate. One of the bosses of the syndicate asks the
accountant "What’s two plus two?" The accountant replies, "What
do you want it to be?" and “cooks the books” to make the answer come
out. Same with judges. “They first ask themselves “what do I want
the law to be” (usually based on their political ideology) when deciding a
case, and then “cook the books” and claim the law/facts have clearly determined
a single outcome, allegedly using positive law, natural law, or a combination
(whatever works).
Benjamin
Cardozo—The Nature of the Judicial Process
Jerome
Frank—Law and the Modern Mind, Courts on Trial
Oliver
Wendell Holmes—The Path of the Law
Karl
Llewellyn—The Bramble Bush
Roscoe
Pound—Introduction to the Philosophy of Law
Judith
Shklar—Legalism
What does this say about the
Rule of Law? A pure legal realist would say NO SUCH THING as rule of law, nor CAN there be,
because all judicial decisions are ARBITRARY! (based
merely on what judges want).
BUT a weak legal realist would
say one can never TOTALLY have the rule of law, but you can aspire to the
goal. Laws do constrain judge’s choices
somewhat, and judges can TRY to remove as much bias in their judicial
decision-making as possible. So Rule of
Law can be somewhat or mostly achieved.
The law provides a box within which judges can move. But a strong realist would reply that the box
ITSELF is simply whatever the legislature wants it to be, so again, LAW=
POLITICAL POWER
Recall the problem with
positivism: how to philosophically
justify a moral obligation to obey the positive law? This problem disappears
under legal realism! Might makes right!
You must obey because government has a gun to your head! That’s naked politics, and that’s all law
is! Actually, it’s not to say literally
that might makes right, but simply that whoever can exert the most power makes
the law, that’s just the way it is.
Recall the problem with the
Nuremburg trials. Die-hard legal
positivists say it violated the Rule of Law.
Natural Law theorists says no. A legal realist says (from a website): "Obviously, these were monsters who had
to be killed; the only question was whether we made a mistake in giving them a
show trial first, and I think it was a good idea because it provided an opportunity
to pile up the evidence against them so the public would agree that we should
hang them. In other words, law is something that national leaders can use for
political purposes, to provide a formal, solemn excuse for something they’re
going to do anyway. We were going to
execute the Nazi and SS leaders anyway, so the show trial appeared to give us a
good reason—it simply justified what we did.”
***MOST lawyers today are
trained to be (and are) legal formalists.
Almost all (if not all) political scientists and other social scientists
are trained to be (and are) legal realists.
Yet even outspoken realist judges like Holmes won’t admit to being
arbitrary; even he claims to be neutrally following objective law:
“A judge cannot "do
justice" directly in the case before him. This view was strongly expressed
in a small episode in the life of Justice Oliver Wendell Holmes. After having
lunch with Judge Learned Hand, Holmes entered his carriage to be driven away.
As he left, Judge Hand's parting salute was: "Do justice, sir, do justice." Holmes ordered the carriage stopped.
"That is not my job," Holmes said to Judge Hand. "It is my job
to apply the law."
[Thomas Sowell, The Quest for Cosmic Justice,
The Free Press, 1999, p. 169]
9.
Critical Legal Studies (CLS) (often (but not always) Marxist/Neo-Marxist)
Because principles of law never reflect universal
truths, they are merely allocations of power among social groups. Thus, it’s
senseless to talk about whether a law is right or wrong or moral or amoral. Law is whatever the most powerful cultural
group in society makes it, and thus law is an instrument of
social, economic, and political domination.
The law merely reflects the political ideology of the ruling class and
protects their interests. The wealthy
and the powerful use the law to maintain their privileged place in the social
hierarchy. In short, law and
legal institutions are tools of oppression. Law and legal power is abused, used as a
tool by the wealthy and powerful to oppress the weak in society. Although CLS
formally began in 1970’s, its roots go back much farther, not just to legal realists of 1920’s, but marxist
thinkers as well. Strong marxist leanings, but not
always—one can simply say that law is used by powerful against weak. But often CLS theorists are neo-marxists.
FOR EXAMPLE: Law favors employers over employees, creditors
over debtors, businesses over consumers, government over citizens, landlords
over tenants, etc., educators over students, insurance companies over the
injured, whites over racial minorities, men over women, Christians over
religious minorities, etc.
Thus, the CLS movement wants
to overturn the hierarchical structures of domination in the modern society and
many CLS proponents have focused on using the law as a tool in achieving this
goal. [[[Strong overlap with “Law
& Society” movement—leans heavily towards CLS perspective, but not
always. There are courses on “law &
society” in political science, sociology, criminal justice, philosophy
departments.]]]
Rule of law? NO RULE OF LAW
(or not much) because the law ITSELF is partial, biased, and then applied even
more partially and in a biased manner.
CLS includes subgroups with
sometimes different or even contradictory, views. We’ll look at the two biggest sub-groups:
feminist legal theory, which examines the role of gender in the law; and critical
race theory (CRT), which is concerned with the role of race in the law.
Frederick Engels—Socialism: Utopian and Scientific
Michel Foucault—Discipline and Punish: The Birth of
the Prison
David Kairys, ed.—The Politics of Law
Roberto Unger—The Critical
Legal Studies Movement; Law in Modern Society
Katherine MacKinnon
Andrea Dworkin
CLS has own vocabulary, which
we won’t go into: e.g., hermeneutics, deconstructionism, post-modernism,
post-structuralism, etc.
Feminist
Jurisprudence/Legal Theory Began in late 1960’s, but Radical Feminism, which is
mostly today, began in 1980’s. Andrea Dworkin, Catherine MacKinnon, etc. There is no single theory known as
“feminism”; feminism is a GROUP of theories, some of which even contradict each
other (which we’ll give examples of later).
The only commonality they have is that they are interested in women’s
rights and equality for women, but disagree about what the nature of those
“rights” or “equality” should be.
LOTS of
branches of feminism—liberal feminism, eco-feminism, postmodern feminism,
multicultural feminism, marxist/socialist feminism,
cultural feminism, libertarian feminism, etc. Look at wikipedia. One book
your instructor once read had 13 different chapters each describing a different
version of feminism. But BASICALLY they
all agree by saying law is biased against women, because it either has been or
is used as a tool for the male-dominated, patriarchal society to oppress women,
and maintain the male power structure.
BUT biggest differences are
best displayed by two relatively opposite branches:
Traditional/LIBERAL
feminism: (began in 1960’s) laws
that discriminate based on sex are wrong.
Law should be “gender-blind.”
Sexes are almost equal now. As
long as the law treats men and women equally, that’s the end of the struggle
for equality.
But: RADICAL feminism: (emerged in
1980s) laws AND society/culture/norms
(institutions of marriage, religion, education, employment, industry, media potrayals) oppress women, so society as a whole needs to
change, AND if law allows this to continue, then law and the legal system are
knowing accomplices in the continued oppression of women. So, law should be used as a tool to create
that social equality/social justice (NOTE: “radical” not a negative connotation
here—it’s the term that is used—think of it as “a stronger version” of
feminism)
-women are still expected to cook, clean, raise kids,
mothers with careers are still frowned on—why not have government-provided day
care? or heavy
tax credits?
-girls in school are still steered toward certain
“feminine” careers like nursing and away from “masculine” careers like
engineering—why not require better training of teachers to avoid this, with
government oversight that this isn’t happening?
-gender stereotyping occurs from birth in the way of
clothing: blue for baby boys; pink for
baby girls; decorations in a baby’s room:
flowers and lace for girls; cars, and sports themes for boys; toys:
stuffed animals and dolls for girls; footballs, cars, trucks for boys.
The book PINKS AND BLUES looks at learned
helplessness in women. Found that in nursery at hospital, male babies were
handled more roughly than females. Message: females = fragile. Teachers favored
assertive boys, quiet girls. Father demands that boy solve problem by himself,
but helps girl solve it. Since the girls are more protected, the boys have more
chances to deal with success and failure.
***NOTICE: how
the “feminine” traits of caring, nuturing, are
considered BAD for boys to have—for fear it will make them homosexual—i.e. a
“real” man cannot be caring and nurturing; so that if a boy wants to learn to
nurture a baby doll, that’s wrong, because that’s supposed to be the role of
women to have babies and take care of them!
So society’s gender-stereotyping is wrapped up in homophobia!
***NOTE the absurdity of the fear and logic behind
it: if you teach a boy to be nurturing, they will somehow become homosexual?!
(as if that were anything
negative to begin with?!)
A few other examples of bias against women in the
law, and what feminists argue the law should do instead:
-male police, prosecutors, judges ignore domestic
violence against women—why does law allow this?
why not mandatory arrest/charge/sentence?
-economic reliance by non-working mother on husband
means she can’t afford to leave him if he’s abusive or oppressive—why not
government-provided services such as worker training, day care, etc.
-disability leave receives government compensation
but not pregnancy leave—thus, women’s careers and finances are hurt by
pregnancy leave, but men’s careers and finances don’t suffer. Law should give pregnancy leave.
-restrictions on abortion force women into condition
of economic dependence by having kids they can’t afford.
-lack of strong restrictions on sexual harassment in
the workplace; e.g. sexual harassment
law says harassment can’t be “pervasive” so a man can sexually harass a woman,
as long as it’s not “pervasive.” And,
many men think its okay, but almost all women do NOT. So, the legal standard should look at what a
“reasonable woman” thinks and feels, and not what a “reasonable person” thinks
and feels.
-limitations on trying to convict men of rape—the law
should allow it easier to prove rape
-women as a whole earn only 70+% of what men as a
whole earn. Laws should equalize pay.
Classic example: Title VII of the Civil Rights Act of 1964
makes it "an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-2(a)(1).
E.G. sexual harassment
case: EEOC regulations: [CITE: 29 CFR
1604.11]
TITLE 29—LABOR
Sec. 1604.11 Sexual harassment.
(a) Harassment on the basis of sex is a
violation of section 703 of
title VII.
Unwelcome sexual advances, requests for sexual
favors, and
other verbal or physical conduct of a sexual nature
constitute
sexual harassment when (1) submission to such conduct is made
either
explicitly or implicitly a term or condition of an individual's
employment,
(2) submission to or rejection of such conduct by an
individual
is used as the basis for employment decisions affecting such
individual,
or (3) such conduct has the purpose or effect of
unreasonably
interfering with an individual's work performance or
creating an
intimidating, hostile, or offensive working environment.
Harris v. Forklift Systems
(1993) (U.S. Supreme Court) : “Conduct
that is not severe or pervasive enough to create an objectively hostile or
abusive work environment - an environment that a reasonable person would find
hostile or abusive - is beyond Title VII's purview .
. .whether an environment is "hostile" or "abusive" can be
determined only by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance”
Radical Feminist response: Why is ANY interference with someone’s work
tolerated? I.e. why is even a SINGLE
sexually vulgar remark or sexual touching allowed against a woman? I.e. it’s okay to tease a woman about her
breasts, or grab her butt, as long as you don’t do it “too much”?! You can “reasonably” interfere with her work,
but just don’t do it so much that it becomes “unreasonable”?! You can create a hostile or abusive work
environment as long as it’s not “severe” or “pervasive”? This is a ridiculous standard.
SO notice that feminists argue
that law should be used as a tool of social
engineering (to design social institutions and laws) to create social justice-a society
where men and women are truly, fully equal in every way—not just legally and
politically equal, but socially equal as well.
Notice that the concept of “gender” is to some
degree what is called “socially
constructed.” "Social construction" means the concept only
exists as a result of society creating and using the concept-like money. Thus,
the claim that gender is socially constructed means that “gender” as not a
concept based in biology, but is created merely through historical and social
and customs, habits, traditions, norms, and processes such as childrearing
practices and educational indoctrination. People who claim that gender is
completely socially constructed generally say, or at least imply, that our
current social construction of gender is harmful, and should be eliminated.
Often feminists argue that
patriarchal (male-dominated) society has imposed an “essentialist”
view on women: women are “essentially”
(inherently/genetically/biologically/evolutionary/spiritually) different to men
and NOT JUST DIFFERENT, BUT INFERIOR: Women
should be not work, should not be leaders in politics, business, religion,
etc., but should focus on staying at home, being caregivers, etc. Men/masculinity is the norm (the superior
trait), Women/femininity are inferior trait. Women are “the other.”
(“not-man.”) These terms are frequently used in
feminist writing. to show how men have historically
marginalized women in all aspects of human civilization.
Example: “Individuals are born sexed but not gendered, and
they have to be taught to be masculine or feminine. . . .For human beings there
is no essential femaleness or maleness, femininity or masculinity, womanhood or
manhood, but once gender is ascribed, the social order constructs and holds
individuals to strongly gendered norms and expectations. Judith Lorber, ”“Night to his Day: The
Social Construction of Gender,” Judith Lorber
The Big PROBLEM for this
theory: the great weight of scientific evidence increasingly shows that this is
scientifically inaccurate.
See: David Buss, Handbook of Evolutionary Psychology.
David Buss, Evolutionary Psychology, 3rd
Edition.
Steven Wright, The Moral
Animal
Steven Pinker, The Blank
Slate
Donald Brown, Human Universals
The fields of Anthropology,
Biology, Evolutionary Psychology, now have huge evidence, and accept that there
ARE significant evolved differences between men and women; their natures are
different IN GENERAL based on averages of the population (there will always be
exceptions).
Men tend to desire power and domination in politics
and leadership in other fields; women tend to not feel such need as much
Men tend to be competitive and seek hierarchy and
status achievement; women tend not to be so status-driven
Men tend to be physically aggressive (e.g. contact
sports) and even wage wars between their “in-groups” against “out-groups”;
women tend to be (much) less physically aggressive and warlike (when in human history did an army of
women ever fight against another army of women?)
Men tend to desire more and shorter-term sexual
partners, and tend to seek youth and beauty among primary factors in female
mates; Women tend to
desire long-term monogamy and tend to seek wealth, status and power among
primary factors in male mates
In all human cultures ever observed or recorded (so
far), men have been the primary hunters and women have been the primary
caretakers of children, etc.
But this has DEEPLY divided
the feminist movement. Notice that this
is saying men and women are essentially different. BUT radical feminists have huge
disagreements on this essentialist debate (“difference/sameness”)
debate: that is, are men and women essentially the same?
Some radical feminists
repudiate this and openly attack any scholar or evidence that suggests
different natures for men and women. Such feminists argue that this opens up
the door once again to male oppression of women, because men will use innate
differences to justify discrimination.
But note that such men would be committing the naturalistic fallacy:
mistakenly arguing from an “is” to an “ought.” In other words, if I say “the sky is blue, therefore it is morally correct
that the sky should be blue (and not
any other color)” this is committing false reasoning. Or if I say “people under 6 feet tall are
short, and therefore should not play basketball, and thus anyone under 6 feet
tall who tries to play basketball is doing something morally wrong or is
committing a sin so we should prohibit it by law” this is committing the
naturalistic fallacy. It is simply NOT a
valid logical argument because my conclusion does NOT follow from my
premise. So if a scientist says “women
and men are different” it is a FALSE argument for that scientist or anyone else
to then come along and add “therefore women and men should be different” or “therefore women and men should be treated differently and given
different legal rights.”
Other feminists embrace
evolutionary psychology, and argue that the differences of femininity are
either equal to or superior to
masculinity.
See: Anne
Campbell, A Mind of Her Own: The Evolutionary Psychology of Women
Bobbi S. Low, Why Sex
Matters: A Darwinian Look at Human Behavior
Sarah Hrdy, Mother Nature: Maternal Instincts and How they Shape the Human Species.
Also see: Matty
Ridley, The Red Queen: Sex and the
Evolution of Human Nature
Goeffrey
Miller, The Mating Mind: How Sexual Choice Shaped the
Evolution of Human Nature
Cultural feminists, for example, argue that women should embrace an
essentialist view of “the other.”: Women ARE different,
and SUPERIOR! Women should exalt femininity and feminine values of cooperation,
respect, caring, nurturing and support, etc. as superior to masculinity and
masculine values of conflict, competition, aggression, domination, etc. Patriarchal society has simply exalted
imposed masculine values over everyone, and delegitimized, even stigmatized
feminine values. But some few radical
cultural feminists go even farther, and argue that to realize a feminine
society, women must COMPLETELY separate from negative male society (this is a
separatist doctrine) even to the point of giving up heterosexual relationships,
because women in heterosexual relationships or society are (or will be
eventually become) inherently dominated by the aggressive male. In other words, an all-female (only-female)
society is the only solution to escape male tyranny and oppression (this
movement is known as “lesbian separatism” and an even more extreme view by some
that all men should be killed: “dead men don’t rape”).
This debate within feminism is portrayed in how
these two sides approach the issue of pornography:
Cultural feminists see pornography as part of
the social construction of women:
pornography is degrading and demeaning to women, imposing a male view of
the essence of women as sex objects to be abused. Women models/actors in pornography are
economically/psychologically oppressed and that’s the only reason they would
“agree” to do porn, thus it’s NEVER a truly free choice by these women where
they are making the choice from an equal vantage point of equal bargaining
power to men. Thus, pornography should
be outlawed. Law should be a tool used
to eliminate the cultural oppression of women through pornography.
Andrea
Dworkin and Catherine MacKinnon—two big feminist legal scholars, got
Libertarian
feminism says we should reject any concept of “masculinity” or
“femininity” that is imposed on
women, because to do so is to deny women the freedom and autonomy to define
their own sexuality. To accept the existence of difference is dangerous as it
may open the door to continued oppression of women on the justification that
women need special treatment or special protection because of their difference,
or else that women are incapable of success otherwise without that special
help. Thus, these
feministst see pornography restrictions as imposing a
male view that women are psychologically weaker and more frail than men and
thus need men to “protect” them from making “bad” decisions such as being a
porn actress, which is not what men think “proper ladies” should do. This is male control of women (or even women
controlling other women, which is just as bad).
Many women actually want to and enjoy viewing or even making porn, and
to deny them this right is a continued imposition of male views of women as
incapable of making mature, adult decisions, so men must make those decision
for them. A ban on pornography also would deny these women a central aspect of
their sexual autonomy, which is a further oppression and denial of women’s
freedom. It simply imposes a
male-dominated view of the ”proper” role of women as
either “madonnas” or “whores.” (From the Victorian
era distinction that mothers are the essence of pure but sexless womanhood—like
the “Maddonn (Virgin Mary)—or else they are debased
by sexual desire (a whore))
Historically,
in fact, feminists scholar exploring the origins of the regulation of
pornography in 1800’s (U.S. Comstock Laws enforced by Anthony Comstock) were
used primarily to suppress literature involving information about
contraceptives and/or abortion for women!
And at the time the social construction of gender was such that most men
believed in one of only two stereotypes of women: the sexually pure (meaning NON-sexual)
wholesome mother, or else the “filthy whore.”
There was no in-between. It was
all one or the other. So since men
didn’t want their daughters to become “whores,” men suppressed any messages that condoned the sexual
liberation of women.
I.E. Radical Libertarian
Feminists see the regulation of pornography as the denial of women’s sexual
autonomy, but Radical Cultural Feminists see the regulation of pornography as
eliminating the continued sexual subjugation of women. So radical libertarian and
radical cultural feminists each see the other as perpetuating the oppression of
women.
_____________________________________________________
Thus, in summary, apart from
their differences, feminists generally believe law has historically been male
created and thus law reinforces and perpetuates patriarchal power.
****THUS, the rule of law does
not exist, because the pervasively oppressive nature of the law is so
inherently biased, it makes the law illegitimate! But isn’t that natural law, if you say the
substance is “bad” so therefore it’s not the Rule of Law???
Feminist Legal Theory has significantly influenced
hate speech codes, pornography codes, rape trial procedures, stalking statutes,
battered woman syndrome as a defense, domestic violence mandatory arrest laws,
sexual harassment statutes, school sports funding for women, etc.
Critical Race Theory
(CRT):
Roberto
Unger
Derrick
Bell,
Richard
Delgado,
Mari
Matsuda,
Kimberle
Crenshaw
Patricia
Williams
Began in the early 1980’s. Similar to, analogous to, radical feminism,
except applied to race instead of sex. Although blatant, overt discrimination
is almost totally gone from the law, racism pervades our
culture/norms/institutions of society (employment, education, media portrayals,
etc.) “Institutional racism”: racism is subtly embedded but
hidden in the very foundations of our political, legal, social and cultural
institutions. The law perpetuates or is complicitous
in sustaining these legal and cultural norms of white supremacy (and by
extension, also gender, class, and sexual orientation). Thus, the law should be a tool to of social
engineering to achieve social justice by eliminating that embedded institutional
racism AND actively work towards achieving equal social justice.
Examples of institutional racism, and what CRT’s say
the law should do instead:
-EDUCATION:
some racial minorities—espeically
African-Americans and latinos, tend to receive lower
quality elementary school and high school education, mostly in urban schools
with de facto segregation, lower spending, lower teacher quality, etc., Why can’t law require equal spending, require
bussing or other means of racial integration?
Why not vastly increase spending for educational programs like HEAD
START?
-or Elementary, High School, and College courses and curricula
that teach European History, or the history of Europeans in the U.S., but all
but neglect teaching about African History, Asian History, Latin American
History, of the history of Native peoples? or the
history of ethnic minorities in the
-HEALTH CARE
some racial minorities suffer higher rates of most illnesses and
diseases, have higher rate of infant mortality, lower life expectancy.—Why
doesn’t government vastly increase spending on health care, parental education
and training, child food and nutrition programs, etc.
-POVERTY: some
racial minorities, especially Blacks but also latinos,
are disproportionately among the poor and unemployed because of lack of job
opportunities from the racist educational system.—why doesn’t government offer
massive job training programs? or massive jobs programs?
--EMPLOYMENT AND HOUSING: subtle discrimination
continues to occur in employment and housing, etc. (unprovable
on a case-by-case basis, yet statistics show in the aggregate, widespread
discrimination is occurring—e.g. lack of mortgage loans). Why doesn’t the law let AGGREGATE statistics
show discrimination? Why not go farther
and make discrimination not just a civil wrong (where one can be sued), but a
criminal wrong---i.e. make discrimination a crime?
-CRIMINAL JUSTICE: blacks (especially black males)
are disproportionately represented in the criminal justice system---blacks are
stopped, arrested, prosecuted, convicted, and sentenced at a higher rate and
more harshly than whites, even for the same factual circumstances involving the
same crime. Why doesn’t the law
equalize treatment?
—e.g.
WAR ON DRUGS crack (crystallized) cocaine (the cocaine of choice by black
users) is punished much more harshly than powder cocaine (the cocaine of choice
by white users). Why doesn’t the law
treat all cocaine equally?
--e.g.
“WHITE COLLAR CRIME” such as embezzlement or securities fraud are rarely
investigated, prosecuted, or punished severely even when HUGE amounts involved,
yet nonviolent theft of even trivially small items (e.g. shoplifting of toilet
paper) is prosecuted harshly. For
example, under
--e.g. DEATH PENALTY: statistics show the death
penalty is highly racially biased, yet you can almost never prove racial
bias in any individual jury. So why not
let aggregate statistics be enough to show it there is widespread, rampant
racial bias in the system?
--HATE
SPEECH: Why not define hate speech as
ANY speech degrading to a race? -- Yet
hate speech, whether directed at individuals or about a race in general, is not
outlawed—e.g. KKK speech is
legally protected. So why
not outlaw hate speech, broadly defined?
MEDIA
PORTRAYALS: -pervasive negative stereotypes in white culture of blacks as
criminals on TV shows, in movies; news covers crime by blacks more than crimes
by whites, so blacks are seen as criminals, etc. which leads to negative
treatment of blacks in all facets of society such as employment, or white
shopkeeper’s distrust of black shoppers.
Why not condition FCC licenses, etc. on balanced portrayals?
[[e.g. note how deeply ingrained institutional racism
is, even in the Christian RELIGION: Adam, Eve, Moses, Mary and Joseph, Jesus
and his disciples, even God “himself” are all portrayed in paintings, childrens books, movies, etc. as white Aryans—light skin,
brown hair, blue eyes—even in Mel Gibson’s Passion, which he claims he wanted
to be “historically accurate, he hired an Aryan to play the part!” Now, take a guess how many white Aryans were
native residents of the Middle East during ancient times . . . in fact, the
field of anthropology says basically NONE!
Jesus was definitely dark-skinned with dark, probably curly hair. Note even biblical evidence of such:
Soon after Jesus was born, the bible says Herod sent his soldiers to find and kill him
as an infant, so to hide the child his family fled with him to
So CRT says law should be a
tool to radically alter the system and affirmatively help racial minorities end
their de facto second-class status.
Remedies for Discrimination: Affirmative Action
(“Benign/Remedial/Compensatory discrimination”) (opponents call it “reverse” discrimination).
TWO theories E.P. Clause: 1. “Color-blind” theory: constitution forbids
any classification based on race.
2. "class/caste" theory:
Majority can’t subjugate/subordinate a minority to second-class status.
Under
theory 1, NO remedial discrimination would be allowed. Under theory 2, ALLremedial
discrimination would be allowed, because the majority may disadvantage itself
all it wants! In reality, Court has
fallen in-between along this spectrum.
History: Post-Civil War,
Freedman’s Bureau: special
education, economic programs which ONLY former slaves qualified for; also
proposal (defeated for political and financial reasons only) to give each slave
40 acres and mule. But
nothing else for 100 yrs.
Drawing on this provision,
**** CRT theorists deny the
rule of law completely exists because the extent of racial oppression that the
law either imposes or permits to continue makes the law so biased and
arbitrary, it is illegitimate.
***Note that unlike gender,
Race IS almost totally (if not totally) socially constructed!
A. It’s arbitrary—why define race based on skin
color? Why not Hair color? Hair shape? Eye color? Body mass? Height? Nose size? Belly
buttons: innies v. outties? We’ve arbitrarily picked the most prominent
physical differences to define “race.”
B. Even
applied to skin color/ethnicity, the concept of “race”
has radically changed depending on time and culture. E.g. the English used to (1700’s and 1800’s)
refer to themselves as “the english race” to
distinguish themselves from (for example) “The Italian
Race” and so on.
C. Even as
applied in the past or today, it is irreleveant—there
is NO scientific evidence of ANY relevant genetic differences between “races”
in intelligence, capabilities, character, personality, etc. The only thing so far is some minor medical
differences—e.g. blacks carry the gene for sickle cell anemia at a slightly higher rate than whites. But there’s really not much more.
D. EVEN IF there were differences, again to then
argue that there should be differences in law would be committing the naturalistic fallacy—even if there were
differences in the mean/median between two groups, it would NOT morally justify
for discrimination.
E. In fact, prejudice and discrimination itself is
explained by evolution. Evolutionary
psychology shows a natural tendency for humans to identify with “in-group”
versus “out-group”; for millions of years, human primates lived in small
hunter-gatherer clans that were basically large extended families. Obviously if you supported your own kin over
other kin, including by killing other groups if need be in competing for scarce
territory, food, etc., your genes survived.
Over millions of years, the genes for competitive aggression thus were
favored and selected, so that today humans naturally dislike “others” and
become hostile and aggressive toward out-groups. So originally evolutionary-wise it was
related, extended-family clans, but then as our societies grew larger, our
“family” grew to be our “tribe” “race”“nationality”
“religion” “ideology” etc. –even sports teams, or gangs, are people (notice
usually men) that aggressively (even violently) compete against
“out-groups.” So the point is, racism is nothing more than our early primate brain
mistakenly telling us today that someone who looks “different’ is “not one of
us” and therefore must be “against us” and therefore must be “defeated.” Which of course is utterly false, illogical,
and even extremely dangerous today, when “us” and “them” have nuclear bombs
(and probably worse in the future).
Critical Race Feminism—explores
the intersection of race and gender discrimination—i.e. discrimination against
black,
E.g. based
on actual case: Law prohibits
discrimination on the basis of race AND law prohibits discrimination on the
basis of sex. Business has 100 white men, 100 black men,
100 white women. No black women. Blatant discrimination, BUT
no legal protection (according to the court).
Also issues of domestic
violence, education, etc. workplace discrimination—e.g. what if an employer
sexual harasses only black women? it’s not because of race or gender alone, but BOTH, but the
law doesn’t prohibit that (yet).
QUEER THEORY; a.k.a.
QUEER LEGAL THEORY just beginning
in late 1980’s, early 1990’s; still fluid and even its definition is still
under development. Highly related to
Feminist Legal Theory and to Critical Race Theory, but argument is that the law
and our cultural institutions are highly biased against any expression of
sexuality other than monogamous hetereosexual
relations. I.e. any so-called different
or “queer” (as in “unusual”) sexual behavior is not to be accepted—gay,
lesbian, bisexual, transexual, transgendered, even polyamory/polygamy; or non-mainstream sexual practices like
BDSM (Bondage-Discipline-Sadism-Masochism), etc. In other words, the mainstream sexual
majority uses law as a tool to oppress any differences of sexuality and sexual
behavior.
Involves various legal issues,
e.g.:
a. employment
discrimination—public employment as the military, teaching positions, and all
private business.
b. denial of adoption
rights—foster children or step children
c. denial of marriage--which entail benefits of
health care, inheritance, taxes, adoption, and hundreds of other benefits)
d. prosecution of
pornography is biased towards sexual fetishes and “deviances” . . .
Some leading proponents: Michael Foucault, Eve Kosofsky Sedgwick, Judith Butler, Annamarie Jagose, Nikki Sullivan, Shane
Phelan
Donald
E. Hall, William B. Turner, Steven Seidman, Riki Wilchins, Mas’ud Zavarzadeh, Elizabeth
Weed, Naomi Schor
SUMMARY OF CLS: Recall all
variants of CLS says powerful against powerless. As one final example, the argument has been
made pretty forcefully that no wealthy people could exist without poor
people. i.e.
that wealthy individuals could not be wealthy without poor people who are
willing to do the work commanded by the money (and hence power) in the hands of
the wealthy. e.g.
read John Ruskin, Unto this Last.
__________________________________________
CLS is related to Sociological
Jurisprudence— the idea that the scientific study of human behavior (behaviorlism) can objectively measure and determine how law
impacts society, and thus craft law to ideally foster society. Thus, law IS social control whether you like it or not, and since it is, it
should be used as a tool for good rather than bad. In other words, if the law
IS arbitrary, then it should at least be used as a tool for good (justice),
rather than evil (injustice). Thus, the law should engage in social
engineering . . . i.e the law can “build” a
better (and good) society . . . . the Law and Society movement is based on
sociological jurisprudence—i.e. we need to evaluate how the law impacts society
(whether positively or negatively, especially for certain groups of people) and
then support or change the law accordingly.
This HAS impacted the law HEAVILY:
--TAX LAW is filled with social engineering: tax deductions
or benefits for having children, sending your kids to college, getting an
education yourself, buying a home, starting a small business, expanding your
business,
--FAMILY
LAW: with marriage, you get TONS of legal benefits—property inheritance, health
care, child custody and adoption rights, tax benefits; with divorce, sometimes
you can only get it in certain circumstances, and either way, you get
maintenance/alimony plus child support; and related penalties for non-payment
of child support: besides financial penalties, lose driver’s license or
business license
--CRIMINAL LAW:
not just used for violent crimes, but “victimless” or “consensual”
crimes: alchohol
and other drugs, prostitution, gambling, etc. and connected issues: if you have
a drug conviction, you lose your driver’s license, business license, student
loans, job eligibility
-- TRANSPORTATION laws: studies of traffic accidents
and fatalities has largely driven
speed
limits, blood alcohol content levels, traffic signals and signs, requirements
for seat belts, airbags, child safety harnesses, minimal crash test standards,
etc,
Note: right-conservative
critics of the left tend to accuse lelt-liberals of
wanting to engage in “social engineering” through the law. The response by left-liberals is that the law
ALREADY has engaged in social engineering of the dominant majority’s norms and
traditions, enshrining them to the detriment of minority groups (racial,
sexual, etc.) that do not conform to those majority norms. For thousands of years, the law in every
culture has ALWAYS by definition engages in “social engineering” of family
relationship, social arrangements, business culture, political power, etc. So if social engineering has always created
injustice in many ways, then why not now use social engineering to finally
establish
social justice:
creating a society where everyone is not just equal on the surface of the law,
but truly equal socially as well.
Another way to say this is that NEW (positive/affirmative) social
engineering is simply a way to reverse and correct the OLD (oppressive, disciminantory) social engineering that has already
occurred! ***In other words, the law by
definition IS social engineering, so the only choice is between the law
socially engineering inequality, or socially engineering equality.
1. Modern mainstream
political science is behavioral.
Studies political attitudes, social background, political environment,
institutional features, etc. to see what
causes judicial behavior; AND says that ideally that behavior can be
PREDICTED!!!. EXAMPLE: when trying to predict how a judge will vote
in a case, one should look at, and measure, the judge’s political ideology, who the litigants are, public opinion regarding the case or
the issue, etc. Then the vote can be
largely predicted, but NOT with certainty, because human behavior is NOT
certain (unlike physical or biological sciences). But we can make a reasonably good guess
(we’re more likely to be correct than mistaken).
2. Much of the legal
profession adopts behavioral approach.
a. Jury selection: based on social science studies or other
beliefs how jurors will likely vote. Whole industry of jury consulting.
See the movie “Runaway Jury.”
b. Forum shopping: both plaintiffs and defendants try to pick
states, cities, judges or juries which will decide case in their favor.
“Jackpot justice.”—e.g.
c. appointment of fedreal judges—presidents and the Senate can predict their
future votes based on their ideology/past behavior.
BUT within behavioralism
there are variants as well.
ECONOMIC
school of jurisprudence.
Economic/behavioral schools are often referred to as the same, but
technically a little different. The eally a subset of behavioralism.
It says that behavior is based primarily (or perhaps entirely) on ECONOMIC
behavior.
—Richard Posner (
Law should be based on
calculating what people can, might, and will do, and penalize economically
inefficient behavior (and hence reward economically efficient behavior). If we reduce everything to economic terms,
then wealth-creation is the only social value to which judges can make much of
a contribution. From a commentary on
Posner: “Wealth, not justice, is the standard by which we should decide whether
judges are doing a good job. Presto! The goal of achieving justice for the
individual has become transformed into the goal of maximizing social wealth.
Our courts are valuable to the extent that they are contributing to society’s
total wealth.”
Law should be (and often is) “wealth maximization
which is economically efficient.” An
outcome is “economically more efficient” (pareto
superior) if those who gain from a transaction POTENTIALLY could compensate
those who lose and STILL have something left over. Thus, wealth would be increased over the
present state of affairs. An outcome is
maximally economically efficient (pareto
optimal) if there’s no other remaining transaction that could possibly occur to
increase overall wealth.
SO economic/behavioral legal
theorists SOMETIMES say they care only about what IS, but sometimes they say
law SHOULD BE economic maximization.
Rule of Law? Unclear what
they would say, although if the Rule of Law helps promote economic prosperity,
then they would say it’s good. But they
are primarily mathematicians, not philosophers, so the Rule of Law isn’t much
of an issue to many of them. It’s like asking whether the fact that 2+ 2 = 4 is a
good or bad thing? That’s a meaningless
question; value judgments don’t apply. 2
+ 2 = 4; it just is! But they might also
say that if 2+2=4, then to try and make it equal to 3 or 5 is a bad thing. So the law should ideally follow
economics—i.e. wealth maximization.
Regardless whether the
Economic School of Jurisprudence is correct or not about human behavior,
***Law DOES HIGHLY take
into account economic issues: regardless of whether the economic school is
entirely correct.
1. HUGE, ENORMOUS, GIGANTIC
influence on development of common law over hundreds of years; property, contracts,
torts.
Contracts: ECONOMIC EFFICIENCY IS THE BASIS OF
CONTRACT LAW. Economic analysis of contract law:
EXAMPLE 1.
In ANY voluntary contract, BOTH parties think they are getting the better
bargain (more gained than lost!) But how
can this be—both parties CAN’T be right, can they? YES, THEY CAN! That’s the magic of economics—transactions
are NOT zero-sum!!!:
e.g. One person has
all wheat. One person has all
cotton. One person will eat but freeze
to death in winter, one person will be warm but starve
to death in winter. BOTH people are MUCH
better off if they trade some cotton for an equal amount of wheat.
e.g. I have
an old car that costs me a lot to drive, and I can walk, bike, or take the bus
instead. Someone else needs a car. They give me $500. I think that I’m better off, and they think
that they are better off. ***Voluntary
contracts INCREASE the wealth in society!***
EXAMPLE 2.
Contracts are allowed to be broken—you have to pay damages, but you DON”T have
to actually perform the contract? Why
not? Why not make it a crime to break
the promise, or make the person at least keep their part of the bargain? It wouldn’t be economically efficient.
e.g. You
sell a car for $1,000. That person gives
you money, but before you give them the car, a THIRD person offers to give you
$1100. Are you required to sell the car
to the first person, who offered you only $1,000? No, you may break your contract and sell your
car to the second person for $1100. All
you are required to do is pay the cost of damage to the first person you
contracted with. So, you break your
first contract, give that person their money back (their damages are $1,000) so
they have no more damages, you take $1100, and now OVERALL wealth has increased
$100 more than it would have had you NOT broken the contract! REMEMBER:
No one will break a contract unless they think they can profit more from
breaching the contract than by honoring the contract!!! So, breaking contracts still increases wealth
(thus, it is economically efficient).
[Is the rule announced by the
court in Page v. Hollingsworth (Indiana 1855) economically efficient? (Think
carefully—if cattle owners must avoid harming their
neighbor’s corn, does this harm the cattle ranchers?) If the cost of paying for the corn is less
than the cost of building a fence, they won’t build a fence! (And
vice versa). So
whatever the cattle owners decide to do will be the most economically efficient
for them.]
Another subset of behavioralism:
what if what you’re maximizing in your cost/benefit analysis of behavior is not
“wealth” but “happiness”?
Utilitarianism: maximize
“happiness”: Jeremy Bentham, John Stuart Mill “Utilitarianism” 1800’s.
Greatest Happiness
Principle: people should do (and hence law should
implement) whatever creates the greatest amount of happiness in the greatest
amount of people in society, even if that requires sacrificing the
happiness of one or a few for the many.
Utilitarianism is a modern form of the Hedonistic moral theory which teaches
that the end of human conduct is happiness, and that consequently the
discriminating norm which distinguishes conduct into right and wrong is
pleasure and pain. In the words of one of its most distinguished advocates,
John Stuart Mill,
“the
creed which accepts as the foundation of morals, utility or the greatest
happiness principle, holds that actions are right in proportion as they
tend to promote happiness, wrong as they tend to produce the reverse of
happiness. By happiness is intended pleasure and the
absence of pain; by unhappiness, pain and the privation of pleasure” (Utilitarianism,
ii, 1863).
But, not many people are pure
moral utilitarians.
This requires constantly sacrificing the good of one or a few for the
good of the many.
CLASSIC FAMOUS PROBLEM: the “scapegoat
problem”: assume a hideous crime,
such as a terrorist bombing, or serial killer on the loose. Assume a wrongly accused man is BELIEVED to
be the guilty party. HUGE increase in
happiness from public’s desire for vengeance and for sense of security from
another attack, AND other would-be attackers are deterred thinking they’ll get
caught and executed. All this outweighs
the suffering of the innocent man wrongly accused. Yet utilitarian theory says it’s morally GOOD
that he be convicted and executed.
Critics of the criminal justice system argue this happens all the time,
and evidence shows that it does happen; it’s just debated how often. And some prosecutors have said that even if
the person is innocent of a particular crime, if they have engaged in
past crimes then they are the scum of society anyway, and so it’s no harm if
they’re locked up anyway for a crime they didn’t commit.
Or what about a starving
society—cannibalism is actually good if you kill the weak and eat them; it
allows the strong to survive!
Or slavery—enslaving a few
helps the many have greater pleasure because they don’t have to engage in
boring or painful physical labor.
Note also, this theory has
many other problems as well, such as it would say that having a planet of
trillions of barely happy people is better than having a planet of millions of
very happy people, because the overall net happiness is greater. Etc.
OR, note: three people with units of happiness: 10-1-1 is better than 4-3-3?
Robert Nozick’s
“utility monster”: if monster (person?) got 100 units of
happiness compared to me for using the same resource, then that monster should
get all resources! So if two of us are hungry, and you LOVE pizza whereas I’ll only eat it if I have
to, you should get all the Pizza!
Note that this is Act utilitarianism, not rule utilitarianism: we should
adopt whatever rules tend to maximize
happiness. Notice that the requirements
of the rule of law itself is itself part of rule utilitarianism. BUT two problems:
1. the rules themselves
might not maximize happiness in all circumstances: e.g. “do not kill.” So what about Self defense? Defense of others? Death penalty? War? Euthanasia? So then
we have to start making more detailed rules with more and more exceptions.
2. But then, there are ALWAYS exceptions to EVERY
rule because we cannot possibly imagine every set of possible circumstances
where human situations might provide us with moral choices. But if the rules have endless exceptions to
exceptions to exceptions to account for an infinite possible number of factual
circumstances, then rule utilitarianism becomes act utilitarianism (with all
the problems we just saw).
*****BUT utilitarian
thinking DOES play a HUGE rule in law and public policy!
1. Regulation of
Transportation: Automobiles kill well over 40,000 people per
year. Yet automobiles are not outlawed
even though these thousands of deaths occur each year. Why not outlawed? Because HUGE economic advantages. Same with almost all
transportation—airplanes, trains, boats, even riding horses! Society has decided that it is willing to
sacrifice the lives of many thousands of people for the overall economic good
of society.
2. Products: Same thing
with products: U.S. Consumer Product
Safety Commission, NTSB, and CDC: Annual figures:
1500
falling down stairs; 500 backyard swimming pool drownings,
500 falling out of bed: 300 Ladder deaths; 300 bathtub drownings;
75 killed and 25,000 injured by lawnmowers; 3 deaths from playground equipment;
3. Activities: skydiving, hanggliding, bungee jumping, scuba diving, even swimming,
camping, hiking, sports, ALL recreation, really.
BASE (Building, Antenna, Span, Earth)
jumping is outlawed in many places, though.
4. Gun control—both sides use utilitarian arguments.
a. One side wants to control guns and says many people are
killed with guns, comparatively few people are saved by guns. We should sacrifice the few who will be
defenseless and get killed by a gun attack in favor of the well being of all
those who are victims of gun crimes.
b. Other side wants to allow guns and says many
people are protected in self-defense by guns; comparatively few people are
killed by guns. We should sacrifice the few
victims of gun crimes for the well being of all those who use guns in
self-defense.
Note utilitarianism is used to
defend going to war—e.g.
Utilitarian thinking goes into
all wars—“many will die, but to save many more.”
Legal Pragmatism—AHA! Say some scholars: we have the quick and easy
solution to all these debates about the “proper” law. Simply, judges shouldn’t apply any one legal theory of law across all situations,
because every case has a unique context.
So, simply develop and apply whatever law seems to “work best” in any
given case to solve the problem at hand.
In fact, it is impossible to have legal formalism, because the idea that objectively “correct” legal outcomes can be
deduced from some overarching principle - or set of principles" (i.e.
legal theory or theories) has been rejected by legal realism. So what’s important is NOT consistency with
some “theory” of law, but instead the practical use of the law, or a court decsion. Thus, each
case should (in the extreme ideal) pretend that NO past legal system or law has
ever existed, i.e. ignore all past laws and court decisions, and all theories,
and simply decide what’s of most practical use at that moment, and for the
future. But what’s of “most practical
use?” Whatever will most help people in
their daily lives.
I.E. the best decision is the decision with the best consequences.
Philosophical Pragmatists: William James and John
Dewey;
Legal Pragmatists: Daniel Farber, Thomas Grey,
Margaret Radin, Brian Tamanaha
PROBLEM with legal pragmatism:
it doesn’t really describe how the law IS, but how the law OUGHT to be (in
their opinion). i.e., it’s pretty hard
to make the claim that judges ignore existing law and precedent when they make
their rulings, as law and precedent is all judges say their rulings are based
on. For example, statutes say certain
things are legal or illegal, the U.S. Constitution says certain things are
rights and leaves out others; clearly lawyers and judges look to these laws for
guidance. So pragmatism is not so much a
theory about how law IS, but how law SHOULD BE. Otherwise, judges would reach
constantly reach opposite conclusions from what’s written down in law or case
precedents.
AND: if law is simply whatever is “best” in any
situation, what is “best”? No agreed
definition. It’s whatever a judge thinks is “best” in any given case. In other words, the law is once again
arbitrary! In which case there is no
rule of law.
***So WHY did we spend
so much time talking about legal philosophy?
Suppose you took a course on
“Hammers and Hammering.” The First Day,
the Instructor begins to teach you all the various techniques of how to bash a
person’s skull in with a hammer. You
would (hopefully and rightfully) say “Whoa!
You’re missing a fundamental question that comes before we look at any
techniques, which is to figure out what the proper
purpose of a Hammer is, and thus what are the right and wrong uses of it!” In the same way, LAW IS A HAMMER. If you only learn the techniques of law
without understanding the ethical and moral implications of what you’re doing,
you have abdicated your moral responsibility to understand whether or not
you’re bashing someone’s skull in with the law. . .
***CONCLUSION of
JURISPRUDENCE: What does all this jurisprudential theory
(philosophy of law) show? IMPOSSIBLE to
have 100% Rule of Law! (Other than the
very rare strong positivist) The rest of legal philosophers would say that the
best you can do is shoot for 100%, knowing you’ll never make it—it’s
IMPOSSIBLE!! The only disagreement is
how close we come:
Strong Positivist: Rule of law CAN and DOES
exist. Even Nazi Regime was Rule of
Law.
Weak Positivist:
Rule of law is ideal—we can come close, but can never reach it. They’ll always be some arbitrariness.
Natural
Law: Rule of Law exists except to the
extent that positive law deviates from natural law.
Legal Realist:
Rule of law is largely a farce, or irrelevant question, because all law
is arbitrary anyway.
CLS: Rule of
law only partially exists, because law is arbitrary AND biased in one direction
of arbitrariness: in favor of powerful.
Feminist: Rule of law only exists partially, because
biased, arbitrary oppression of women makes much of law illegitimate.
CRT: Rule of
law only exists partially, because biased, arbitrary oppression of racial
minorities makes much law illegitimate.
Queer Theory:
Rule of law exists only partially, because biased, arbitrary oppression
of sexual minorities makes much law illegitimate.
Strong Behavioralist: Rule of law does not exist, because law is
arbitrary preferences, but we CAN predict those preferences.
Weak Behavioralist: Rule of law is partial: we can predict arbitrary preferences, but
those choices are constrained (as a box) by “law.”
Economic: Rule
of law is irrelevant, or can exist to extent we make “neutral” decisions based
on economic wealth maximization.
Utilitarian: Rule of law exists to the extend it bring
the greatest happiness to the greatest number of people.
Legal Pragmatism: Rule of Law exists to the extent
the law does what “works best” in any situation. Which means,
it’s arbitrary!