Monthly Archive for July, 2005

Is Law or Should Law Be?

Published on July 29, 2005 in Jurisprudence. 1 Comment

Does the following sentence strike you as odd? “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty.” If you are like me, you will answer: yes and no.

First, there is nothing odd about that sentence if you are reading a guidebook for tourists explaining US tort law. Looking from the outside, like a sociologist or guidebook author, what the law says or doesn’t say is a fact, just like “The capital of West Virginia is Charleston.” In America, we are so familiar with this external perspective (or the perspective of a second-order observer), because we are brought up on it from the beginning. This is Holmes’ bad man: “Don’t tell me what I should or shouldn’t do, tell me what the law is, and what will happen to me if I do as I please,” says the bad man and looks at the law from the outside, like a bystander, and not from the inside, like a participant who seeks guidance of conduct (”What should I do?”).

Here is the odd thing now: We are so used to speaking of the law in factual terms, that we are losing sight of the normative character of law. This may just be loose talk, but think back how many times you hear people speaking as if it is a fact that murder is illegal, but it is a norm that “you should not kill.” Once you phrase it as a norm, using should or ought, people think you must be talking about morality. But of course there is a legal norm also that says “you should not kill.” It is only a different way of saying “murder is illegal.”

Most of us agree that law and morality can be separated and many believe that they should be separated. If law consisted of facts and morality consisted of norms, they wouldn’t mesh. Natural law theories wouldn’t make sense: law and morality could not be other than separate, since facts and norms (or values, if you prefer) are separate and different things. Kelsen makes this point clearly when he distinguishes legal norms and moral norms (which may overlap but are distinct). In fact, Kelsen’s Grundnorm can be seen as nothing but the normative principle, the statement that the law, even though separate from morality, is imbued with normativity: that law consists of “oughts.” Logically, the statement “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty” is equivalent to “You should pay damages to anyone whom you harm by negligently violating a legal duty.” Norms have no existence in the real world, and their normativity is their only “existence.”

The deeper question is: should law guide conduct? The citizen faced with alternatives for action needs a legal norm, which states “you ought to do A, you ought not to do B.” The image here is that law becomes part of the decision by supplying a decisional norm. The judge is in a similar role, the role of first-order observer, when when he tells the defendant: “You should not have caused harm to the plaintiff negligently. You should pay damages.” Our tendency to overlook this normative character of the law derives from at least two sides: from realism, which regards the judge not as someone to whom norms are addressed but rather as someone who consumes breakfast, and from law & economics, which considers incentives and disincentives to rational actors rather than oughts and ought-nots addressed to citizens.

Subway Searches in NYC. How About Fixing the Escalators?

Published on July 28, 2005 in Law and Society. 1 Comment

The recent policy of randomly searching subway passengers pushes the limits of symbolic political action (once again) into the realm of the patently absurd. Why would an attacker ever submit to a search if the search is essentially voluntary? He would either say, “no thanks,” and walk away, or blow himself up right there in the line created by the search. Alternatively, he would enter the subway system early, as searches, even at main points of entry, seem to be confined to rush hour traffic. Or he would go to a shopping mall, a bus terminal, a popular little park or restaurant at lunchtime, etc. What’s so frustrating about all this is that the simplest, most effective, and cheapest measures are not being taken. For example, large crowds make for attractive targets. So dispersing large crowds seems like a good idea. Yet every morning, I see densely packed crowds of commuters patiently waiting their turn to walk up long flights of stairs, mostly single file, because no one cares to fix the escalators. Similarly, why not add some more trains to busy lines at peak times? Or have MTA personnel direct foot traffic in some of the long and narrow tunnels, connecting one station to another? The faster people move through the subway system (or any system of transportation for that matter), the fewer people there are in one place at a time, the lower the casualty count in the event of an attack – an attack that random bag searches are doing woefully little to prevent. Too bad that fixing broken escalators and adding trains doesn’t seem to translate into political capital, because the marginal dollar spent on those measures would surely add more to safety (not to mention convenience) than random bag searches likely ever will.

Changing the Meaning of a Past State of Affairs through Punishment

Published on July 23, 2005 in Theories of Punishment. Closed

Preventive and retributive theories frame the issue of crime and punishment differently. Certain conduct or states of affairs are labeled a threat, in order to justify protective measures. Framing the state of affairs as the result of a culpable action, however, means disapproval of that action. Our relative freedom in framing or modeling states of affairs is known in classical rhetoric as stasis or the “focal point” of a dispute. Notably, the focal point of a dispute is ordinarily not established by the original assertion but the response to it. Thus, responding to crime instrumentally, frames it as damage done to certain material or immaterial goods. In contrast, responding to crime by affirming the validity of the norm that the crime negates, frames it as an act of normative rebellion against the prevailing order. The response “You are wrong. The norm is still valid” only makes sense if we understand the crime as an assertion “This norm is invalid.” In that manner, our response to the crime changes the meaning of the crime with ex post effect. Through our response we change what happened in the past. One of the stock criticisms of retributivism has always been that “we can’t change the past,” thus, looking to the future consequences of our reaction to the crime is the preferred source of legitimacy. But while we indeed can’t change a past state of affairs, we can change the meaning of what happened in the past, because past, present, and future are temporal categories processed by the mind (as thoughts) and by social systems (as communications) in the present (and only in the present).

More on Tamanaha’s Pervasive Perils of Instrumentalism

Published on July 13, 2005 in Jurisprudence. Closed

There have been two previous posts here discussing Brian Tamanaha’s article on the Pervasive Perils of Legal Instrumentalism. The first dealt with the transition from hidden to explicit instrumentalism, and the second dealt with the historical development of instrumentalist views of the law. I’d like to add a third post to make two quick observations: about positivism, natural law and instrumentalism, and about the symptoms of the current instrumentalist disease.

In the second half of his essay, Tamanaha looks at Contemporary Legal Instrumentalism, and discusses what he calls instrumental theories of law. Many of the current theories construe law in “consummately instrumental terms,” according to Tamanaha:

Law and economics … characterizes law as an instrument for maximizing wealth. Critical Legal Studies characterizes law as a (relatively autonomous) instrument of domination by the elite. Critical feminism characterizes law as an instrument of male patriarchy. Critical race theory characterizes law as an instrument of white domination.

I think that Tamanaha would agree that a theory of law that doesn’t stipulate the fixed pre-existence of law, but rather assigns a purpose or even just an effect of law in society, is instrumental in a different way than the ruling of an “activist” judge who disregards settled doctrine to achieve his or her political ends. That is to say, believing that the point of law is maximizing wealth or preserving the male patriarchy, doesn’t tell us to what extent judges should consider themselves bound by statutory language, precedent, and doctrine, and to what extent they may diverge from these restraints to take into account (political) conflicts of interest in society. In either law & economics or critical feminism we can still argue over who should make the law and who should apply it: Especially if a state were to pursue pernicious ends, like the oppression of women, such a state might not want its judges to stray from the chauvinistic and patriarchic path laid out in the (formal) law. Tamanaha, however, doesn’t draw this distinction and even takes his argument that the concept of law dictates the formalist/instrumentalist character of law, a step further. He equates positivism with instrumentalism:

The most influential essay on the rule of law in legal theory was written by Joseph Raz in the 1970’s, which asserts a purely instrumental, morally empty understanding of law: “A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of law, indeed it is their most important inherent value. It is the essence of law to guide behavior through rules and courts in charge of their application… Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which it the instrument is put.” (Joseph Raz, “The Rule of Law and its Virtue,” in: The Authority of Law (1979), 225-26.)

I don’t take this Razian positivism to be instrumentalist, even though Raz mentions the law as an instrument. After all, if “good or evil?” is not a useful question in determining what law is, then the only question left to ask of law is, “does law achieve what it sets out to do?” The virtue of law, Raz and other positivists assert, is its ability to guide behavior through rules. Binding judges to rules is formalism. Radical realism made the point that judges could not be bound to rules, because judges will always decide according to prejudice, socialization, and agenda. I read Raz to reject outright the claim that the application of laws could not or should not be restrained by the written rules laid down in statute and precedent. Positivism is not instrumentalism. By the same token, natural law isn’t formalism: in fact all natural-law theories to some degree prescribe the violation of formal law in favor of a substantive (moral) standard not laid down the formal law. Letting the end justify a breach of textual restraints: that’s instrumentalism (at least in a world where there is no consensus on what constitutes the public good).

To wrap up my thoughts on Tamanaha’s excellent article, here are a few words about cause litigation, one of the practical examples Tamanaha gives (the others being professional conduct rules for lawyers and judicial appointments). I agree, of course, that cause litigation is political and that it raises serious questions about the democratic process. Perhaps, though, it is not as new as we think. Consider the development of modern corporate and bankruptcy law in the late 19th century. The development was driven by highly sophisticated lawyers (especially the Cravath firm and its predecessors) representing the richest business interests and litigating to achieve specific social ends: The strengthening of limited liability, the reorganization of the debtor’s business at the expense of the creditors, and so forth. Within the space of 30 or 40 years, the legal landscape had been fundamentally altered, without an Act of Congress. This does not, of course, refute Tamanaha’s view that cause lawyering is one of the symptoms of the instrumentalist disease of our age: a “Hobbsean conflict of all against all transplanted into the legal arena.” Tamanaha cites the Hawaiian and Massachusetts Supreme Court cases, which recognized the right to homosexual marriage, as the result of instrumentalist cause litigation. He points to the instrumentalists backlash resulting in constitutional amendments in many states barring gay marriage. All this threatens to corrode the integrity of law, according to Tamanaha. But aren’t the gay-marriage cases rather an encouraging sign, from a systemic perspective (and apart from how I feel on the particular issue)? True, legal battles are costly and perhaps exclusionary; but they are public. If indeed the courts in Hawaii and Massachusetts rendered instrumentalist decisions, then the fact that there was an ensuing public debate, which resulted in democratic action to correct perceived-as-errant judicial decisions through constitutional amendment is encouraging. It means that the public is not entirely captive to the instrumentalist whims of the lawyers and the courts.

So here is my final word on the Pervasive Perils of Instrumentalism: The fact that law serves a purpose in society is not the same as the politization of the legal process. We can’t today assume that law is just there, an end in itself; like the state itself, law needs to have a purpose and serve that purpose. The concept of law is a different category than the political capture of our legal institutions.

Moral Values and Market Attitudes

Published on July 10, 2005 in Law and Economics. 1 Comment

In Moral Values and Market Attitudes, Wayne Baker and Melissa Forbes (both University of Michigan) explore how moral values influence market behavior. Not surprisingly, that influence is pervasive. For example, a nationalist is more likely to boycott foreign products than a non-nationalist. (Of course, once expressing one’s values through the market becomes too inconvenient, we choose less expensive means, such as bumper stickers on SUVs in lieu of curbing the consumption of Saudi oil, as, I believe, Bill Maher aptly remarked.) None of these findings challenge the foundations of modern economics, even though Baker and Forbes suggest that the results of their study strengthen “the oft-cited sociological critique of viewing man solely as Homo Economicus [sic], rather than considering social and cultural influences on market attitudes and behavior.” (Id., 15). I doubt that there is significant disagreement. The rational actor of economic theory seeks reasonably efficient ways to satisfy his or her preferences, whatever those preferences may be. Our values are part of that set of preferences. Thus, if “buy American” has utility for A, then he will value a car made in the U.S. higher than a foreign make, assuming that both cars are equal in all other respects.

The most interesting part of the article correlates specific values to market attitudes. Baker and Forbes use the value scales of traditional/secular-rational and survival/self-expression, which underlies the World Values Survey project. With respect to the first value-axis:

God, country, and family are major features of the first dimension: traditional/secular-rational values. This dimension represents beliefs in the importance of religion and the importance of God in one’s life, high levels of national pride, pro-life values (against abortion), and beliefs that children should learn obedience and respect. … [T]raditional values are correlated with beliefs in heaven, hell, life after death, frequent attendance at religious services, conservative political ideology …, and confidence in the nation’s churches and armed forces. Secular-rational values emphasize the opposite positions on all these topics. (Id., 9-10).

Those with traditional values tend to have pro-market attitudes, in particular with respect to work, the belief that the U.S. is a land of equal opportunity, and the opinion that income differences in the U.S. are not too large. (Id., 13). Those holding traditional values are relatively more pro-market than those holding secular-rational values, which I find surprising as markets are relativistic, decentralized, transnational, and have historically undermined traditional beliefs and power-structures. Baker and Forbes offer a partial explanation by pointing to the fact that “[p]rotestants tend to harbor pro-market attitudes, indicating the lasting legacy of the Protestant ethic and the spirit of capitalism.” (Id., 15). I wonder to what extent revealed preferences would differ from stated preferences, and if there is any way to get empirical data on that. In any event, Baker’s and Forbes’s article offers a glimpse into a fascinating field of research and is a good read.

Theories of Punishment: Fairness Theories

Published on July 10, 2005 in Theories of Punishment. Closed

Retributive fairness or “benefit and burden” theories of punishment start from the assumption that individuals seek to achieve certain goals and that they generally choose reasonably efficient means to do so. Some goals can be achieved unilaterally, others are pursued more efficiently through cooperation with others. Enter society as a cooperative venture. The participants agree on certain rules which, if universally obeyed, will yield greater benefits than a state of non-cooperation. The common denominator of all rules is that they impose a burden of self-restraint upon the participants, as certain actions are no longer permissible. Some rules may go further and require active participation, for example paying taxes to finance a protective force. As long as the benefits from the mutual agreement (e.g., peace) outweigh the burdens (e.g., taxes) and the net benefit is greater than that of any other possible course of action (e.g., emigration), it is rational to stick to the agreement. So far, these premises are shared by many consequentialists.

What if a participant refuses to cooperate, presumably for marginally greater personal gain? The non-cooperator takes a free ride on the cooperative venture. He or she reaps the benefits but refuses to share the costs. Here is where retributivists and consequentialists part company.

Retributivists find moral fault with the non-cooperator. Free riding provides him or her with an unfair advantage. Punishment is morally justified to restore the status quo ante of a fair distribution of benefits and burdens. Fairness theories are equilibrium theories, underwritten by a normative premise of equality, in that the departure from a normatively desired state requires corrective intervention to restore the conditions of that state. In contrast, consequentialists see the free rider as a threat to the continued enjoyment of the benefits of cooperation by others. Nothing is said about fairness. Consequentialists call for punishment simply to ensure that the gains from cooperation exceed the opportunity costs. (Put differently, the threat of punishment makes criminal careers, on the whole, unattractive, relative to other uses of time and effort.)

The first step in evaluating the viability of retributive fairness theories, is to clearly define what is meant by the gains from non-cooperation. Most writers agree that those gains are not merely the loot; they are not what (if anything) the non-cooperator gains materially or emotionally from the crime. Rather, the relevant gain is defined in relation to the burden imposed by the cooperative arrangement. That burden is self restraint in the pursuit of one’s interests, a self-policed restriction of the freedom to choose. The gain from non-cooperation is therefore the evasion of self-restraint, that is, permitting oneself “an excessive freedom in choosing.” (John Finnis). Note that in contrast the benefits from the cooperative arrangement are more tangible, among them utility gains from trade and a safe and secure environment.

What are the main criticisms of the fairness theories? I will focus on three that I find most persuasive.

(1) Fairness theories are “one crime” theories, as in every instance the moral wrong is the evasion of self restraint. That puts petty theft and murder on the same conceptual plane. (A problem also encountered by contract theories, as Hegel was among the first to observe.) Consequently, the connection between the wrong, the evasion of self restraint, and punishment as a reaction to that wrong is tenuous at best. Some have proposed to impose a special burden on the non-cooperator to compensate for the unfair advantage in terms of evading self restraint, enjoyed by the non-cooperator. That special burden, or so the argument goes, would restore the equilibrium of benefits and burdens. But why is that plausible, beyond a superficial rhetorical level? Initially, the wrong (evasion of self restraint) was defined in relation to the burden (exercise of self restraint). A commensurable special burden would thus require greater than normal self restraint from the non-cooperator. Fines or imprisonment do not fit that bill. While they are unquestionably burdens, they are no longer on the same plane with the wrong and the burden as defined initially. (That said, one could imagine a system that imposes special requirements in terms of self restraint on the criminal, as is the case, for example, with probation and suspended sentences.) Other writers have proposed to withhold the benefits of the system from those who fail to refuse to carry the burden of self restraint. Here the “one crime” nature of the fairness theories causes problems. Removing all benefits of the legal order – arguably, a logical consequence for committing the one wrong – seems a disproportionate reaction to the evasion of self-restraint with respect to, say, the prohibition against theft. And removing the protection of the specific norm broken by the non-cooperator also leads to strange consequences. (Imagine the police protecting the thief from assault, while others loot his apartment with impunity.)

(2) As the non-cooperator’s wrong is the evasion of self restraint, he or she is a free rider, someone who enjoys the benefits of an arrangement without paying his or her share of the costs to maintain it. Is this a plausible account of a criminal wrong? The problem is that characterizing self restraint as a burden and evasion of that restraint as the wrong, implies that everyone would wish to do as the non-cooperator did, provided that non-cooperation was more advantageous than cooperation. The resentment felt by others vis-a-vis the non-cooperator is mixed with (in fact, is hardly distinguishable from) envy. (Matt Matravers). This critique goes to the heart of the fairness or benefit and burden theories. Evasion of self restraint is seen to badly mischaracterize the nature of the criminal wrong. The moral wrong from the crime is not in the unequal distribution of benefits and burdens, the wrong is in the disrespect for the moral standing of others, it lies in the coercive interference with spheres of freedom from arbitrary non-dominance, to borrow a term from Philip Pettit.

(3) As equilibrium theories, fairness or benefit and burden theories aim to restore the status quo ante through punishment. The underlying assumption is that the distribution of benefits and burdens prior to the crime was just, or at least more desirable than the distribution is after the crime. That may not always be plausible, as Jeffrie Murphy has famously pointed out. At the very least it shows that fairness theories cannot be independent of a broader, underlying theory of (distributive) justice.

Of course, the above sketch cannot hope to do justice to the nuanced discussion about the merits of all the various flavors of fairness theory. That said, the structural flaws underneath the initial rhetorical appeal seem to fatally undermine the enterprise, at least with respect to proposing a fairness theory as an independent justification of punishment. Any account of legitimate punishment (assuming that there is such an account), must be rooted in a broader theory of justice or freedom. Such a theory must at least provide: (i) a theory of the subject; (ii) a theory of society; and (iii) a theory of the good, however ultimately defined. Fairness theories of punishment fall short of those demands.

Detention of Enemy Combatants: A Reply to Eugene Volokh

Published on July 8, 2005 in Law and Society. 2 Comments

Is the indefinite detention of enemy combatants unfair? According to Eugene Volokh, it is not. At least, he writes, the arguments commonly advanced to buttress claims of unfairness are unconvincing. I don’t want to take issue with Volokh’s factual propositions, many of which I believe to be wrong, for example, that people who fight against an overwhelming force, invading their country, are unlikely “to be deterred by the risk of repeat incarceration.” Rather, I want to address the underlying normative question, which is valid. In my view, the answer is that the indefinite detention of anyone under any conditions, without a trial and subsequent conviction, is morally impermissible. The primary reason is that under a rule of law, which is a moral, not a legal concept, there should be no persistent pockets of executive or military power that are beyond the reach of the law. I appreciate that there may be temporary extensions of “political authority over military affairs where the judicial power may not enter,” as Justice Kennedy states in his concurring opinion in Rasul v. Bush, but temporary is the critical qualifier here. After three years there is no credible claim of military exigency any more and whatever pocket of executive power beyond (or maybe, prior to the arrival of) the law might have existed, should have disappeared by now. Only that it hasn’t. And that is what makes the detentions at Guantanamo morally unjustifiable. In other words, detention limited in scope, conditions of confinement, and duration may be justifiable, even though much of it should be subject to ex post judicial review. In contrast, indefinite, extra-legal detention is a per se violation of the rule of law. And as such, it is morally unjustifiable.

Succession of Supreme Court Justices

Published on July 6, 2005 in Law and Society. Closed

In response to a recent post by Hanno Kaiser, in which Hanno argued that the Supreme Court overpowers the law (see also this follow-up), Daniel Solove over at Balkanization has this to say:

In reality, the Supreme Court doesn’t wield a lot of power. Its bark is far louder than its bite has ever been. … The Supreme Court receives such attention because it is a dramatic symbol.

I won’t go into assessing the power of the Supreme Court (although I’ll say that it’s hard to ignore its power in such cases as Bush v. Gore), or into comparing the Supreme Court’s power to the executive or the legislature. But it is clear that the Supreme Court’s power exceeds that of any other court and that by virtue of being such a dramatic symbol it is the focal point of political attempts to use the law to partisan ends. That alone is sufficient to raise questions about the neutrality, professionalism, and balance of the court.

In that vein, consider O’Connor’s resignation. By resigning during Bush’s term, at a time when the Republicans control both houses, while the Democrats’ force as opposition is at a nadir, O’Connor is affecting the choice of her replacement: She knows who’ll be picking her successor and who controls the Senate for the confirmation hearings. The death of a justice in office is of course sufficiently unpredictable. But in chosing the timing of retirement, the out-going justice is given power to affect the choice for his or her successor. (I am not implying that O’Connor timed her retirement for any reasons other than personal ones.)

A fix would be to postpone the appointment of retiring justices’ successors until after the next election. (The analogy is to the 27th Amendment, which makes a law by which Senators or Representatives raise their own pay effective only after an intervening election.) Outgoing justices would not have an incentive to alter the timing of his or her retirement, nor the power to indirectly affect the choice of successor. The power of the president to appoint Supreme Court justices would not be affected, since the power attaches not to the person of the incumbent president but to the office of the presidency. My proposal is another exploration of how the time factor can be used to prevent the political capture of the Supreme Court.

Punishment and Moral Communities

Published on July 6, 2005 in Theories of Punishment. Closed

Retributive punishment presupposes the existence of a moral community. By moral community I mean a social arrangement that makes moral values real. Moral qualities, qua moral qualities, have no causal power. Yet they are recognizable, either as absolutes or as social conventions. Moral communities create (or detect), observe, and act because of the moral quality of an act or a state of affairs. They thus connect moral qualities to real-world consequences. On the individual level, such connection will be psychological, in that moral properties serve as motivators. On a societal level, the connection will be institutional, for example in enforcing laws and social norms, as in the case of punishment. In any event, moral communities are social environments that treat moral qualities as causes for real-world effects, and thereby give effect to otherwise inert moral qualities.

Of course, since the causality of moral qualities is the result of social institutions and psychological conditions, effects from moral causes are not necessary in the sense that physical objects, without fail, obey the laws of nature. Bridging the gulf between the world of the moral properties and the effects of such properties, or just explaining the nature of that gulf, has rightfully been the focus of much moral philosophy. For Kant, famously, moral properties were noumena, and part of the grandiose concept of the Critique of Practical Reason was to explain how such noumena could cause effects in the phoenomenal world, that is, how “pure reason may become practical.” The intelligible yet causally unreliable nature of moral qualities is reflected in our choice of language. For example, in describing moral qualities without regard to their causal impotence we tend to use simple declaratives (”Murder is wrong.”) But when we take into account the contingent nature of the effects of moral properties, we tend to restate such concepts either in imperative form if our focus is on psychological contingencies (”Thou shall not murder”), or in the form of executable code, addressed to social institutions (”Whoever kills someone else shall be imprisoned for no less than 5 years.”)

The problems, then, for a theory of punishment, are no different from those facing any first-order moral theory. Prominently among them: (i) What states of affairs or actions are good and bad? (ii) To what extent are we justified in requiring compliance with any rules, promulgated (or discovered) on the basis of (i). This view entails a rejection of the (relative) independence of punishment theory from moral theory. It is not possible to give a meaningful account of punishment independent of the normative order that underwrites it. It also explains why consequentialist theories are so immediately and persistently plausible (which is not to deny that they are facing significant objections), namely because they not only give a reason for why we are justified in seeking compliance through punishment, but also, and more importantly, because they contain the outlines of a first-order moral theory, usually a form of utilitarianism, that takes human welfare seriously. And human welfare is likely to be a key concern in every moral community, whatever else that community might be about in addition to human welfare. The question is, of course, whether a focus on human welfare alone is sufficient to identify an adequate set of moral properties and to justify requiring compliance with that set. But structurally, at least, consequentialism is able to address both issues. The same cannot be said for most variants of retributivism. Most variants of retributivism focus on (ii), and try to explain why punishment is an adequate response to the wrongdoing (because a rule has been broken, because fairness requires that the balance of benefits and burdens be restored, because punishment expresses condemnation of the wrongful act, etc.) That endeavor is incomplete (and, consequently leads nowhere) unless coupled with an appropriate first-order moral theory. That’s what writers such as Rawls, Hare, and Hart have done in the context of consequentialist theories. Genuine modern attempts at creating a non-consequentialist first-oder account, however, have been far and few between. Most often, writers on punishment in the retributive tradition refer to Kant and sometimes Hegel to underwrite their partial theories. But these casual hyperlinks are insufficient. If retributivism is to succeed as part of a substantive moral theory, it must present a plausible, fully integrated account of the subject, of society, and of the moral good. I have argued for such a theory, drawing on notions of recognition as developed by Hegel and Fichte, and refined further by writers such as Kojeve and Williams. But are those concepts really more persuasive than a bare-bones consequentialism? Are they even normatively adequate for an increasingly diverse society? Most design choices of consequence in punishment theory will follow from that answer.

Formalism vs. Instrumentalism = Savigny vs. Jhering?

Published on July 5, 2005 in Jurisprudence. Closed

In response to my thoughts on the historical context of Formalism and Instrumentalism, I received the following interesting question about Karl Friedrich von Savigny (1779 – 1861) and Rudolph von Jhering (1818 – 1892): Can Savigny be seen as a formalist and Jhering as an instrumentalist? Jhering’s famous work Der Zweck im Recht (1877 – 1883) appeared around the same time as Holmes’ Common Law (1888), and influenced Pound and Felix Cohen. (Remember the Heaven of Legal Concepts, that farce with which Cohen begins his article on Transcendental Nonsense? It’s taken from Jhering.)

When in the early 19th century a call went up for a German national code of law, Savigny responded that now was not the time for a national codification; he warned against the “infinite arrogance” of enlightenment codes that went against the grain of the customary and grown traditions of the law.

Savigny was a reactionary: He explicitly was not against legislation (or even new legal systems), but against a new social order. Germany in 1814 was emerging from the Napoleonic wars, as a result of the which things had been shaken up in Germany: Napoleon had created new combined kingdoms and coalitions, had divided some states and principalities, and had installed the Code Civil in several places in Germany. An enthusiasm for the new egalitarian ideas of the French Revolution and a desire for cultural (if not political) unity swept through Germany. Unlike France or England, Germany had seen an early weakening of the feudal crown and had splintered into many kingdoms, duchies, principalities, and city-states: a motley and disparate order that had existed basically unchanged since the end of the Thirty-Years War in 1648. Seeing the success of the Code Civil, Thibaut called for a German codification that would still the yearning for civil liberty and German cultural unity. By successfully forestalling such a movement for codification, Savigny played into the hands of the Restoration and preserved the pre-Napoleonic German legal order. You could call him the Metternich of the law. (The irony is that the French Code Civil by no means represented a radical break from the past, but codified the Germanic customary law of the North and the Roman traditions of the South of France.)

The interesting and puzzling thing is what Savigny suggested instead of codification: Although he called it “customary law” and the “grown legal traditions of the people,” he meant the Roman law. Roman law at the time was also known as the “common law” (Gemeines Recht) , because it was common to the 471 or so German states, and it was in effect only by default where there wasn’t particular (local) law on point. The reception of Roman law in Europe had started with the rise of the universities in the 12th century. In the two hundred years before Savigny, the Roman law had in fact developed to include indigenous and local laws and usages, as well as various medieval codifications and had evolved from detached and scholastic principles to the flexible and practical usus modernus, which preserved the spirit and form of the Roman law more than its substance. Savigny wasn’t interested. He restricted his historical inquiry to the ancient Roman law, preaching that to understand, one must go to the root (the codex iustinianus). In fact, Savigny’s book on the history of the Roman law stops before the 17th century and its religious wars. This makes clear that when Savigny refers to the customs and the grown traditions as the expression of the will of the people, he is not speaking of the people literally, he is referring to a cultural and idealized community. “Historical,” if you will, means conceptual for Savigny. There are two effects of this virtual conception of the people: an apology of the political restoration in Germany after 1815, and the creation of a positive science of law, an inquiry into the internal logic and elegance of Roman law (and in this endeavor Savigny is an early and marked follower of Immanuel Kant, alongside Gustav Hugo and Anselm von Feuerbach).

Positive science of the law is another word for formalism, and in this sense Savigny is a formalist: The law has internal rhyme and reason and is more than a haphazard collection of disparate royal commands. Savigny’s legacy in Germany was abstract legal thought, the distilling of principles from separate legal rules to build an interlocking system of legal concepts called Dogmatik and Begriffsjurisprudenz (conceptual jurisprudence). The result was not an increased sense for the historical (and social) contingency of law, but rather a rigor of detached concepts and a stifling taxonomy that soon became a caricature of itself.

And that is where Jhering comes in: Excelling in his youth the game of conceptual jurisprudence, he became disillusioned with it. First, Jhering began writing anonymous satire on post-Savigny conceptual jurisprudence (such as quoted by Felix Cohen), and then, in what must have seemed open rebellion, he published Der Zweck im Recht (which remained incomplete), arguing that law serves the purpose of protecting individuals and society, by minimizing social conflicts. Reading Jhering you cannot help feeling that he is having a harder time convincing himself than anyone else: no one ever really believed that law was completely logical, neutral, and detached (didn’t the Romans themselves at every turn ask cui bono?). And stating that law is instrumental doesn’t explain anything, either. Jhering’s influence therefore lasted only a few years in Germany before it was replaced by Philip Heck’s Interessenjurisprudenz, which posited every legal norm as the resolution of a specific social or economic conflict, and gave judges the mandate to look to the specific contemplated resolution of the conflict rather than the letter of the law (thereby explaining the task and power of judges).

In the US in the meantime, lawyers never went to the extreme lengths of 19th-century German law professors to distill logic, consistency, and conceptual purity from ancient Roman sources (the Germans did get the world’s greatest civil code, the B??rgerliche Gesetzbuch of 1896, out of it). Common law, after all, has always been practical and never very academic. Lochner-era formalism and “mechanical jurisprudence” is a far cry from conceptual jurisprudence, and while Jhering’s elegant prose resonated in the US, it meant something different here. Holmes, in The Path of the Law, had no problem presenting the Bad Man and stating (in the same breath, so to speak) that “[w]e have too little theory in the law rather than too much.”

The formalism/instrumentalism dichotomy as presented by Tamanaha therefore doesn’t quite fit the Savigny/Jhering dichotomy. In Germany, the view in the nineteenth century was at the same time more instrumental and less instrumental than in the U.S. On the one hand, the notion of legislation and codification, the purposeful and instrumental shaping of society by the law-giver, was more acceptable than it was in common-law countries (where Bentham’s call for codification remained marginal). On the other hand, law was regarded as having such strong internal, conceptual logic that jurisprudence imposed limits on what a law-giver could regulate. In this sense, Savigny objected to codification because he realized that law was instrumental (and he took sides in a political struggle), and Jhering was a formalist because his Kampf Ums Recht (1872) and Zweck im Recht are detached theoretical inquiries into the nature of law without apparent political agenda and without significant social effects.

Eliminating the Supreme Court as a Standing Body?

Published on July 4, 2005 in Law and Society. 4 Comments

In my post Weaken the Court, Strengthen the Rule of Law, I argued that the hierarchical nature of the law does not require a similarly hierarchical structure of the courts. Now let me take this one step further: Why not eliminate the Supreme Court as a standing body altogether? Inevitable circuit splits would be resolved by an ad-hoc supreme (constitutional) court, which would be in session twice a year. That court would be comprised of randomly selected judges, chosen, for example, from among the judges of the courts of appeal. Each so-selected court would hear and decide cases, selected by the outgoing court. The combination of (i) random composition, and (ii) separation of case selection and decision, would make ideological court-packing virtually impossible, depoliticizing the appointment of judges in the process. Random selection would also likely have a moderating influence on the courts of appeal, because an appeals panel, intent on adopting an extreme position, could no longer expect review by a politically, ideologically, or philosophically sympathetic Supreme Court. Random selections would introduce a significant element of uncertainty into the set of known extra-legal determinants of future judicial behavior. It would be impossible, for example, to apply an attitudinal model of the court to predict future decisions. It stands to reason that genuinely legal considerations would gain in relative importance as a basis for judicial decisions from an internal point of view, and a basis for “prophecies of what the [ad hoc supreme court] will do in fact,” from an external point of view. Random selection, as outlined above, would at the very least keep openly political jurisprudence at bay, one of the more corrosive variants of pervasive instrumentalism.

Weaken the Court, Strengthen the Rule of Law

Published on July 2, 2005 in Law and Society. Closed

Both Larry Solum and Brian Tamanaha have posted thoughtful comments regarding Justice O’Connor’s resignation. Both are concerned that we will soon witness an all-out war over her replacement, focused squarely on the ideology of the appointee, as opposed to, say, genuinely judicial virtues such as a demonstrated history of impartiality and fairness. And, of course, they are both right, because, as Solum points out, in so many instances, O’Connor was the court.

The root of the problem is that the Supreme Court is simply too powerful an institution. The court overpowers the law. Of course it matters whether the next appointee is virtuous in Solum’s sense rather than a party delegate, but the fact remains that constitutional adjudication has been and will always be political adjudication. Constitutional courts are arguably shared institutions, in that they operate both within the legal and the political system.

The legal system works best where there are many courts, many cases, many decisions, and no centralized ??ber-court. The unity of the legal system, seen from an internal point of view as a hierarchical system of rules, is guaranteed by the constitution as the highest set of legal norms. But that normative hierarchy, with its single ultimate focal point, does not mandate a similarly centralized institutional structure with one highest court on top. In fact, the power given to individual courts (as opposed to all courts in the aggregate) may well be inversely related to the significance of the rule of law.

A step toward strengthening the rule of law would be to make the Supreme Court into a constitutional court proper, that is, a court that deals with constitutional questions only. Of course, many of those questions would be as divisive as ever, but at least it would help to contain the spill-over effects into areas of the law that can ordinarily be dealt with at a sub-constitutional level, such as tax or antitrust. Having a political court decide every question of federal law has the very real potential to transform the entirety of the federal laws into political law. Of course, our federal system requires normative unity among and between circuits, so there would be a need for a handful of sister courts to the Supreme Constitutional Court, such as a Supreme Administrative Court, a Supreme Civil Court, a Supreme Criminal Court, and maybe one or two in addition to that. The Supreme Constitutional Court would remain primus inter pares, because some of the “really hard” criminal, civil, or administrative cases may well turn out to require constitutional adjudication, but one would expect a certain reluctance on the part of the Supreme Constitutional Court to hear matters that have been decided by one of its sister courts. Over time, a profile of genuine constitutional matters would emerge, and such matters would become the genuine realm of the Supreme Constitutional Court’s jurisprudence.

Of course, judges should be virtuous in the sense that Solum proposes and rightfully demands. But institutions should be set up in a manner that we don’t have to rely on just that.

Tamanaha’s Descent Into Instrumentalism

Published on July 2, 2005 in Jurisprudence. Closed

Following up on drhfk’s comments, here are some further thoughts on the Pervasive Perils of Instrumentalism. According to Brian Tamanaha’s excellent article, there was a shift two hundred years ago, and law transformed from being formalist into been instrumentalist. I have two wrinkles to add: the role of constitutionalism and the historical resistance to formalism in the common law.

What is missing from the Tamanaha’s historical account is the rise of constitutionalism. It is not a coincidence that the first modern bill of rights was passed in Virginia, an artificial new society built in the New World. After the French Revolution, the new French society was also artificial: man-made, and constituted by men. The sense that society and the state could be (re-)made by the people to serve the people, was new and radical. The state wasn’t just there or god-given. The change was monumental, of course, and it flowed from enlightenment as Tamanaha correctly identifies. The state had become a product of society and not a condition of existence. A wave of constitutionalism swept across western societies, and all powers of the state and the rights of the people were constituted in charters. It was no longer self-evident that man was a zoon politikon, but rather that man was imbued with certain inalienable rights, which is to say: that the individual, the person exists before the state and forms the state in order to serve the individual’s ends.

The point is this: It wasn’t just the law that became instrumental two hundred years ago, it was the state and everything in it including the law. An instrumentalist view is a necessary feature of the constitutionalism and the modern state. We can’t be formalists today in the sense that we regard law as having its own rhyme and reason, independent of the state. The constitution and the modern state are built on the belief that all power exercised by the state must be legitimate. Power isn’t simply awarded by the grace of god. The concept of instrumentalism flows from the requirement of legitimacy: What serves no discernible purpose, can’t be legitimate.

Regarding the common law: Tamanaha says that pre-enlightenment law was marked by the presence of natural law and customary law, but not legislation.

Customary law was said to have existed from time immemorial. It was derived from and constituted the very way of life of the community, the byways and folkways of the people. As such, the content of customary law was no the product of any particular individual or any group’s will, but was collective emanation from below. Accordingly, the process of explicitly articulating and applying the law was a matter of discovering and declaring the unwritten law that was already manifested or immanent in the community life.

I am not sure that this is a fair historical description: Legislation was very much a way of life in medieval times. Common Law legislation goes back to the thirteenth century. (On the continent medieval lords delighted in legislating everything from curfews, the color and manner of clothing to be worn by subjects, right down to the weregild owed for homicide. The Reinheitsgebot, that famous piece of medieval legislation fixing the ingredients of beer, dates from 1516.) The point is that pre-enlightenment law wasn’t free from legislation and wasn’t all customary or god-given. “The rise of legislation as a mode of law making was a key contributing factor in the spread of instrumental views of law,” Tamanaha writes. I don’t agree that the rise of legislation made the law instrumental (that was product of constitutionalism) or that rise of legislation exacerbated the situation. Formalist or instrumentalist views don’t turn on the relative amount of legislation found in a particular legal system, and Tamanaha combines a conceptual account with one that is contingent and particular to the common law and the U.S.

The historical model in Tamanaha strikes me as too simple: A golden past of belief in the law as a thing unto itself, somehow above and impervious to the temporal and to squalid politics, followed by a descent into the relativist, cynical, grab-what-you-can present of instrumentalism. If you look for a closer description of what non-instrumentalism looks like according to Tamanaha, you find 19th-century quotes from Langdell and others and the assertion that law used to be divine or customary, not legislated. Tamanaha correctly notes the influence of Blackstone, but he also states that “common law was tought to be product of the customs of the people from time immemorial. It was that the law represented the lived ways fo the community their collective wisedom recognized and refined into law.” That sounds like 19th century gloss on the past of the common law.

The common law before Blackstone after all was just one of several legal orders, constantly supplemented by equity. Equity was seen to compensate for the deficiencies of the common law. Common law was the King’s law, and not the law of the people. Their law, evolving slowly from customs, was the law of the manor, of the majorial courts. The common law was separated from the “people” and their customs by Law-French and the “people” in fact would rarely have had access to royal justice, especially after the common-law courts were concentrated in Westminster. Apart from not being thought of as complete or perfect (but rather in need of equity’s redemption), I doubt that the common law before Blackstone was thought of as logical or systematic or an image of pre-existing (natural or divine) order. What seems clear, at least, is that common lawyers weren’t interested in the question: After Bracton, there was no systematic treatise on the common law, no reported inquiry into the nature or internal logic of the common law. In fact there was very little writing about the common law: There is a wealth of written records (reaching back unbroken to the 12th century), there are digests and abridgments, but for centuries before Blackstone, there are no theoretical or systematic treaties on the common law. There are Coke, St. German, Littleton, and Hale, of course, but overall there seems to have been very little interest in questions such as the Nature of Law as formal or instrumental.

Common lawyers were trained in the Inns of court, not at university. Blackstone was the first professor of law in England, if I remember correctly. A professor of law would have appeared strange and superfluous to the lawyers who had trained their own with abridgments and dinners since time immemorial. It is no wonder then, that Blackstone set out to justify his existence by creating a new field of inquiry: the system and nature of the law. On the continent, such theoretical inquiry had been going on for some time, of course, but not in England. It was a part of the enlightenment project, budding scientific positivism. Nature (and the law) were there, inherently logical and rational, and the rational order of things was transparent to man capable of reason. I don’t think there was much of a conception of a complete system and universe of the common law that was discovered rather than created before Blackstone. And if there was it wasn’t sufficiently relevant for anyone to actually write about it.
Descent Into Formalism?
Here is a graph, showing the Nature of Law (I’ve always wanted to chart that one out). In fig. 1, I have charted the account Tamanaha gives, unless I misread him: From a pure and golden past of formalism, in which judges were constrained by the notion that law is fixed and not fungible, we have descended into the depth of instrumentalism. The lower chart, fig. 2, shows my version of events: After centuries of pragmatic unsystematic common lawyering, professors, struggling barristers, and other such marginal common law figures take the enlightenment project to the law and create the immutable, eternal Law that Tamanaha perceives in the 19th-century quotes of American common lawyers. (It is incidentally no coincidence that Tamanaha cites American lawyers for the halcion days of formalism: There was little to read on law but Blackstone in America for almost a century, and I believe it left a lasting (if slightly unbalanced) impression on the America common law.

I have more to say on Tamanaha and the present day, but I’ll leave that for a separate post.

Migrating a WordPress SQL Database from One Server to Another

Published on July 1, 2005 in Admin. Closed

Read the instructions and follow them. In most instances, you should be fine. However, some combinations of MySQL, phpMyAdmin, and PHP seem to cause all sorts of mischief. The most common problems are misformed SQL commands upon import. For example, my source host (Globat, slow as molasses) exported the first SQL command of the Law & Society database as follows:

CREATE TABLE `wp_categories` (
`cat_ID` bigint(20) NOT NULL auto_increment,
`cat_name` varchar(55) NOT NULL default '',
`category_nicename` varchar(200) NOT NULL default '',
`category_description` longtext NOT NULL,
`category_parent` int(4) NOT NULL default '0',
PRIMARY KEY (`cat_ID`),
KEY `category_nicename` (`category_nicename`)
) ENGINE=InnoDB DEFAULT CHARSET=latin1 AUTO_INCREMENT=12 ;

The target host (Godaddy) complained about the command. The solution was to delete all references to the default charset (see bold text above). After that, the import went smoothly. Note that after importing a foreign database, the category structure is likely to be messed up. Creating a new category and assigning it to one post seems to reset or rebuild all other category subdirectories.

How Can Punishment Be An Intrinsic Good?

Published on July 1, 2005 in Theories of Punishment. Closed

One of the most significant hurdles for any retributive theory of punishment is to explain how punishment, which includes the deliberate infliction of harm, can be seen as an intrinsic good. (A question raised by this comment.) Consider the following example. On the schoolyard, Albert gets picked on and pushed around by Bob for no reason. As Albert breaks down crying, Carl steps in and gives Bob a competent beating. What can be said about the beating, assuming that it did not physically injure Bob? It prevented Bob from further abusing Albert, and it might deter others from doing so in the future. It might even keep others from abusing other kids generally, depending on their conscience and/or Carl’s reputation. But while that description is certainly correct, it remains somewhat incomplete. We also feel that “justice prevailed,” that “Bob got what he deserved,” and that a wrong has been righted. The latter might be even more intuitive in cases, where the victim stands up to the bully. (In the movies, that’s where the annoying triumph-of-the-human-spirit theme kicks in.) We wouldn’t naturally describe such acts of asserting oneself, of overcoming adversity, of standing up for what’s decent and right in consequentialist terms. We might even say that the beating that Bob received at the hands of Carl or Albert was a good thing. That notion, I believe, is at the heart of the retributive intuition that punishment, including hard treatment, is only incompletely described as a necessary evil. In certain situations, it may well be an intrinsic good.

Of course, I cheated a little bit. If Albert stands up to his tormentor Bob, he is defending himself, he is not meting out punishment. But what if Carl administers the beating just after Bob is done with Albert and about to walk away from his humiliated victim? Our intuitions would not change significantly. The beating would still be understood as an “act of justice.” (By the way, why be so exceedingly squeamish here? Every revenge movie ‚Äì Kill Bill, the Godfather, Unforgiven, A Better Tomorrow, etc. ‚Äìconvinces us at least temporarily of the desirability of veritable killing sprees. If it didn’t feel good to see the villains die, there would be no revenge movies around.)

Note that I am not trying to make a normative claim (yet). I am not saying that punishment should be justified in retributive terms, because retributivism captures some of our intuitions, an argument that would imply a norm, validating empirical evidence as support for a normative claim. My claim is so far purely empirical. Retributive theories do in fact correctly capture and express certain common emotional reactions to crime and punishment, which explains – not justifies – their persistence.