Legal reasoning

by John Quiggin on October 10, 2014

Not surprisingly, the US Supreme Court’s non-decision on equal marriage has caused plenty of debate, including John H’s smackdown of NR’s Matthew Franck.

The discussion got me thinking about the broader problem of legal reasoning, at least in its originalist and textualist forms, and also in precedent-based applications of common law. The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand. There are all sorts of well-known difficulties here, such as how words written a century ago should apply to technologies and social structures that did not exist at the time. And it often happens that these approaches produce results that seem unacceptable to most people but for which a legislative or constitutional fix is impossible for some reason.

It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer. But why should this be true? The same law might contain contradictory clauses, supported by contradictory arguments, voted in by different majorities, and understood at the time of its passage in contradictory ways. Most notably, the same constitution might grant universal freedoms in one place, while recognising slavery in another.

At a minimum, such contradictions mean that there is no determinate law on the particular points of difference. But the problem is worse than this. The law rarely prescribes an exact answer in a specific case. The standard view of legal reasoning is the principles can be extracted from case law, then applied to new cases. But contradictory laws and contradictory cases produce contradictory principles. The ultimate stopping point is the paradox of entailment: a contradiction implies anything and everything.

I don’t have a fully worked out answer to this problem but I think it underlies a lot of the disquiet so many people feel about legal reasoning (apart from the ordinary disappointment when the answer it produces isn’t the one we want).

{ 104 comments }

1

J Thomas 10.10.14 at 7:27 am

The science fiction writer Christopher Anvil once proposed a Council of Dunces. this would be a reasonably large collection of ordinary people chosen by lot, who would veto any legislation they did not consider clear enough that they entirely understood it.

The idea was that the laws should be easy for ordinary people to understand, and should not require lawyers to interpret.

I tend to doubt that it would give us a perfect solution, but I imagine it would be a big improvement over what we have now.

2

Gabriel 10.10.14 at 7:37 am

Reminds me a bit of China Mieville’s doctoral dissertation, which argues that ‘international law’ is simply another tool of empire, and that appeals to lawfulness from left can, in the end, never produce the results the left wants (if I remember correctly).

3

Ze Kraggash 10.10.14 at 7:49 am

Something had to replace the king’s divine nature theory.

4

ZM 10.10.14 at 8:21 am

John Quiggin,
“…there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer. But why should this be true? The same law might contain contradictory clauses, supported by contradictory arguments, voted in by different majorities, and understood at the time of its passage in contradictory ways. Most notably, the same constitution might grant universal freedoms in one place, while recognising slavery in another.”

I think you are confusing two sorts of laws here – you have legal law which is made up over time by parliament or another body and so contains contradictory elements – then you have abstract law which is ideal so not contradictory (unless you think it is an abstract personification and then it might be contradictory because the Greeks and Romans did seem to highlight that some personifications were contradictory in their characters – but having said that Justice is usually depicted blindfolded and with scales [although that might be the result of putting two personifications together from vague memory] so she is very just and impartial and should not be contradictory).

If you see there is two laws – ideal and real – you will see real law can be contradictory and the idea is to improve it to approach ideal law (that is why the Americans always like to talk about ‘a more perfect union’) – but ideal law is somewhat hard to approach because people are not ideal an awful lot of the time, and also as it is abstract or a personification it is not something that is as easy to perceive as words marked on paper or on a screen.

In the case of England – common law was the more easy to perceive law with set sentences, and chancery law (conscience law) was less easy to perceive and the sentences more dependent on the judge or the chancellor. But because the parliament and industrialists were so cruel to the common people – there was ever so many cases waiting to be seen to in the chancery courts – so the parliament, being hardhearted, instead of creating more courts and judges – amalgamated common law and chancery law to get discourage common people queuing for justice.

“At a minimum, such contradictions mean that there is no determinate law on the particular points of difference. But the problem is worse than this. The law rarely prescribes an exact answer in a specific case.”

There are too many different sorts of cases – the law library is very big as it is – imagine if there was law written with an exact answer for every little thing in all its possible detail. This would be too many laws. Also – the saying is ‘the law is an ass’ – this is because when you just write laws down on paper they cannot be responsive to all the varied circumstances of the people and events involved in the court case – so we have judges to use their great wisdom and discretion to ensure justice (unless the parliament enacts set sentences as they are doing in Victoria after they have stopped giving any prisoners parole so there was great overcrowding with prisoners sleeping on camp beds in the prison hallways – and now they house the prisoners in portable shipping crates which are not allowed to be referred to as shipping crates – they are to be called ‘cabins’ instead)

5

Phil 10.10.14 at 8:44 am

There’s a huge literature on all this – ‘indeterminacy’ is the buzzword of the American Legal Realist school, and of the critical realists who came after them (in which group I’d include China).

Another view (to which I subscribe) is that a legal system which is genuinely and widely indeterminate in its workings is a legal system which isn’t working as it should do – and the same goes in spades for a legal system which enshrines contradictions rather than trying to work them out. Defects of this sort do exist – they’re inescapable to some extent – but they’re seen as defects, problems which lawyers as well as legal scholars try to resolve. If you go down this route, it’s up to you whether you think of those defects in technical terms (as in ‘this poison is defective’), as morally loaded flaws in a system which aspires to offer a moral order, or a combination of the two.

6

Neel Krishnaswami 10.10.14 at 8:52 am

But contradictory laws and contradictory cases produce contradictory principles. The ultimate stopping point is the paradox of entailment: a contradiction implies anything and everything.

Speaking as a logician, I’d tell you to go read what philosophers of law have written about this.

This is an obvious problem, and one they have thought about for a very long time. The short answer is that valid legal arguments do not permit the use of the principle of explosion: that is, not everything is derivable from false. When you reach a contradiction, that means that the contradiction has to be resolved, not that everything is permitted. And the order in which contradictions are resolved matters — the law is not monotonic; it is path-dependent. (For political scientists, this offers a clear example of how powerful, and unavoidable, issues of agenda-setting can be!)

In fact, there are many vastly harder problems in legal reasoning — for example, legal responsibility depends on questions of causality, which means that counterfactual conditionals are essential to legal reasoning. Another example are questions of where to draw the line in Sorites-style paradoxes, such as arise in the case of questions of privacy and data protection (where small amounts of data are harmless, but large amounts amount to creepy Orwellian surveillance).

7

JHW 10.10.14 at 8:54 am

I don’t think contradiction is anywhere near as great a problem as the indeterminacy of language. We have a reasonably good grasp of how to deal with contradiction. Where possible, you read contradictory laws so as to render them consistent. Where not possible, you favor specific provisions over general ones and recent provisions over older ones. There are problems of indeterminacy in practice when applying these principles, but that’s generally true of principles of interpretation; it’s not a special problem of contradictory laws. And you don’t get into paradoxes of entailment because non-contradiction still holds; the text may say “P and not P” but a court is going to find a way to go with one or the other as being the law.

8

J Thomas 10.10.14 at 9:21 am

On the one hand, we don’t like it when the law is inconsistent.

On the other hand, we don’t like it when law fails to recognize special circumstances which should change the outcome.

So we don’t like it the way it is now, with rich people and people with connections getting special deals that we can’t get. And we wouldn’t like it if the law was applied consistently either.

But we don’t have to like it. We have law so that we can get some sort of decision and move on, when people cannot agree. Nobody wants to lose a law case, but when there are two sides somebody has to. The lose will feel wronged, but there is nothing he can do about it. That’s how it works *in the best case*, when the law is *working*.

It doesn’t have to be consistent. It only has to avoid sufficient public outrage to cause rioting in the streets etc. The Rodney King case was inadequate law — even after all the delays too many people were outraged. The OJ Simpson case was adequate.

I don’t like it but I don’t have to like it. The system maintains itself just fine without my approval.

9

Norwegian Guy 10.10.14 at 9:22 am

Something had to replace the king’s divine nature theory.

Popular sovereignty did.

10

Brett Bellmore 10.10.14 at 9:47 am

” but for which a legislative or constitutional fix is impossible for some reason.”

Where the usual reason is that it isn’t really unacceptable to most people, just to some well placed people.

11

Ebenezer Scrooge 10.10.14 at 10:54 am

Nobody in the law business thinks that the law is “determinate”, except perhaps for a few high-resolution statutes such as UCC Articles 4A or 8. (These statutes had damn well better be determinate, because they determine who owns all the money and securities in the world. A little bit of leakage is a lot of money.)
Instead, lawyers think that most law is, at best, constraining. You can get anywhere you want, if you’re willing to wait long enough. On the other hand, there are some things you can’t do overnight. Chief Justice Roberts appreciates this, and plays a longer game. Justice Scalia does not, and loses influence as a result.

12

Rich Puchalsky 10.10.14 at 11:04 am

The U.S. has a special case of this problem, because we have a holy document underlying our law that can no longer practically be changed since the social upheaval of the 60s. Comically, the last change could only be made because it has been proposed in 1789 and was still awaiting approval. This document is supplemented by precedent: stories about long-past decisions. So we have a kind of religious or sharia law. Every part of American life must, finally, be justified with reference to this holy document and every new decision must pretend to be carrying out something that was implicit within it but that we somehow hadn’t seen for hundreds of years.

13

Trader Joe 10.10.14 at 11:51 am

Each year thousands, maybe even millions, of pages of legislation are written but only a mere handful of the related provisions ever ultimately see the inside of a coutroom, let alone a state or federal Supreme court room.

Seems to me there are plenty of parts of law that are reasonably deterministic and well accepted. Where the law seems indeterministic is inevitably on the folds of societal differences on matters which tend to be social or moralistic. This makes it seem like the law is unsettled or contradictory since the foundation under the interpretation is more like sifting sand than firm granite.

Said differently, every state has a law that says you have to stop at a red traffic light, everyone agrees that makes sense and there are approximately zero cases contesting it. Every state also has some law respecting a woman’s right to terminate a pregnancy and every day there is someone protesting it and there always will be.

14

Left Coast Bernard 10.10.14 at 12:27 pm

Consider this clause from the Reconstruction era Fourteenth Amendment:

“… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The framers of this amendment had in mind to protect the rights of former slaves. Thus, by originalist doctrine, “person” refers to white or black men.

By this thinking, if we wish for “person” to include other groups existing at that time but not mentioned, we’d have to amend the amendment, replacing its text with these words:

“… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The legislators who vote for this new amendment should be sure to have in mind that “person” includes men and women.

15

Anderson 10.10.14 at 12:44 pm

“The law rarely prescribes an exact answer in a specific case. ”

Simply untrue. In the great majority of cases, the answer is clear. That’s why you don’t hear about those cases. Don’t confuse daily legal practice with the puzzlers that come up in constitutional law.

The reason for the determinate answers in hard cases has little to do with the nature of law & more to do with the nature of courts. Parties in a suit are there for a decision. The need for a decision drives the rest. Hopefully it’s right, but at least it’s a decision.

I don’t think the law often comes down to Berlin-style incommensurables. A much larger problem is a decision dressed up as law that’s just an exercise in power – the much discussed Judicial Activism. Shelby County v Holder, or the 5th Circuit’s upholding of Texan anti-abortion rules – Judge Dennis yesterday wrote 62 pages why they were wrong, but 12 judges voted the other way. I’m much more concerned about crap like that than about some rare example that law, like every other human endeavor, has its theoretical flaws.

16

Anderson 10.10.14 at 1:22 pm

14. A fun example. But, the 1860s legislators also knew the difference between the words “man” and “person.” They enacted broad (ha!) language and can thus be presumed to have intended what their words meant.

17

Mike Huben 10.10.14 at 1:25 pm

If law seems deterministic, it might have more to do with adhering to norms than with reasoning from the laws or cases themselves.

Not a lawyer here, but I gather in contract law it is a basic that contracts can never be complete specifications and are normally underspecified. I can’t imagine that laws are any different in that respect, and might well be much worse since they are normally not written with a single-minded interest in profit.

Given how recent psychological research has shown that choice comes first, and justification comes afterwards, the norms idea strikes me as plausible. It would explain a whole lot about unequal application of the law to rich and poor, majorities and minorities.

18

Long-neck Vase 10.10.14 at 1:29 pm

Where the usual reason is that it isn’t really unacceptable to most people, just to some well placed people.

It seems to escape the attention of many on the hard right that governments in the United States were structured around bicameral legislatures with one house being set up for equal geographical representation at a time when the United States population was fairly evenly distributed between and throughout states. That condition no longer applies – the actual human population of the US is now concentrated in urban areas and with great variation between states – but the geographically equal legislatures remain. It is unclear why empty farmland in western Illinois gets the same vote as a densely populated district on the South Side of Chicago when it comes to electing legislatures and approving constitutional amendments but it does. That may explain why popular changes are often not enacted into law.

19

Anderson 10.10.14 at 1:31 pm

17: love that, because I’ve argued that’s how judges work in cases that aren’t crystal-clear: decide what’s the fair result, then reason back to an explanation. With the caveat that if that process results in something cheesy, be prepared to revise your sense of what’s fair.

20

LizardBreath 10.10.14 at 1:36 pm

Simply untrue. In the great majority of cases, the answer is clear. That’s why you don’t hear about those cases. Don’t confuse daily legal practice with the puzzlers that come up in constitutional law.

I was coming into the thread to say exactly this: lawyers have a tendency to look at legal questions as having exact answers that can be unambiguously determined by reasoning from statute and precedent, because the vast majority of legal questions do. Legal questions that become interesting to people who aren’t either lawyers or parties to a dispute are not much at all like the ones that lawyers spend most of their time on. While there are contradictions, they are mostly obvious errors (one judge literally makes a mistake deciding a case; a legislature messes up drafting a statute) rather than an innate part of what it means to answer legal questions.

21

Patrick 10.10.14 at 1:42 pm

Legal reasoning isn’t philosophical reasoning. The goal isn’t to get the platonic truth. The goal is to resolve a dispute. The case continues until an answer is found. If the law underdetermines the answer, that itself tends to imply an answer.

Think of it like medical care.

Imagine that we had a concept of “proper course of treatment.” You might argue that we have no idea how to treat Disease X, so therefore there is no “proper course of treatment.”

But we’re not going to take a patient with Disease X and dump him on a street corner because we’re flummoxed (because he has no money, sure, but not because we don’t know what to do).

He’s in the hospital, he’s our problem now. SOMETHING is going to be done, even if it’s just painkillers and providing a quiet room in which to die. That something is our “proper course of treatment” now, until something changes. When a young doctor encounters Disease X for the first time and asks around for what he should do, that’s what he’ll be told. And he’ll be expected to do it, or else not, in which case he’ll be expected to explain his thinking.

So in short, you’re right, but it doesn’t matter very much.

22

Scott Martens 10.10.14 at 1:55 pm

Solutions vary. Rather… there are no solutions, but some different ways of looking at the problem.

In Canada, a lot was covered by the “living tree” doctrine originally developed in the context of the famous “Persons Case”, in which the proto-originalist Supreme Court of Canada determined that since the clear intention of the drafters of the British North America Act had never intended the word “persons” to include women (regardless of the facial definition of the word), then it did not include women for the purposes of qualifications to sit in the Senate of Canada. The Privy Council in London, came to the opposite conclusion, explicitly rejecting the originalist reading of the Canadian court and commanding a “large and liberal” interpretation of the language in government acts. In Canada, this logic has generally stuck. However, Canada has no universally binding human rights code, and no absolute supremacy of the courts except in matters related to the structure of government. When the law is supposed to have fixed effects, there are people able to fix it, given the political impetus to do so.

In the UK, and often in other former British colonies, but almost never in the US, this is resolved with the notion of “purposive interpretation”, where laws are always interpreted in a way that most puts the intent of the drafters into effect. Furthermore, governments can order courts to use specific interpretations of words: Canada could have (and I think eventually did) pass a law requiring the courts to interpret all references to “persons” as meaning both men and women, regardless of the drafters intent, unless such an interpretation was clearly stupid. But, once again, the UK has no absolutely binding human rights code. The Parliament has absolute supremacy in all matters, when the political will to do something is there.

I’m less sure about other common law systems. In other parts of Europe, there are various degrees of purposive construction required from judges, with a lot of legislative and judicial fudging where required, and I am not sure any country in the EU has an absolute human rights code of the kind the US has, and I am certain that none has the kind of practice of judicial supremacy that is the norm in the US. Germany comes close with the “unamendable” part of its constitution, but that’s the only case I can think of that is similar to what makes US law so uniquely bizarre.

Alternatively, you could look at law in a deconstructive way – the text of the law has an infinite number of potential meanings, but meaning is not the same reference, and the idea that a text has a clear set of referents is somewhere between doubtful and wrong. I saw a paper some years ago that went in this direction, but I don’t remember where I saw it. Honestly, though, scriptural interpretation and the common law appear to be the places where Derrida is the most obviously applicable and most obviously makes a difference to outcomes.

Or, you could use a Latour-style Actor-Network analysis and claim the law has a role as an actor, a person in its own right, of sorts, whose activities are mediated by a wide variety of changing players. You can no more expect the law to come out the same every time than you could expect identical outcomes from two different teachers, teaching two different groups of students, using the same written curricula.

In any case, I think you should change some of your categories: The law in all cases exists, and there can be little doubt of it. It is at least as determinate as the text of Shakespeare’s plays or the New Testament. But what you want – “determinate answer[s]” – is a call for a fixed relationship between the textual objects of the law and the real, objective, fixed things that are outside of the law. And on that count, you are SOL. Any legal theory that claims to provide you with such a fixed relationship is simple stupidity (i.e., originalism as advocated by some legal thinkers), wishful thinking (the “sovereign citizen” movement), or just plain lying (Scalia).

23

Barry 10.10.14 at 1:58 pm

J Thomas 10.10.14 at 7:27 am
“The science fiction writer Christopher Anvil once proposed a Council of Dunces. this would be a reasonably large collection of ordinary people chosen by lot, who would veto any legislation they did not consider clear enough that they entirely understood it.”

Anvil is a guy whom I thought really smart when I was in my teens, and don’t think so now.

24

Left Coast Bernard 10.10.14 at 2:09 pm

Anderson at 16: I agree with you that in English “man” embraces “woman,” but I haven’t read anywhere that the authors of the Reconstruction amendments had women in mind when they wrote them. Indeed, women of that time were shocked to discover that those amendments enfranchised black men, but not women of any race.

25

jake the antisoshul soshulist 10.10.14 at 2:14 pm

I think John’s post comes off as more general than he intended. I suspect he was referring to the sort of contentious law that tends to reach the Supreme Court.
To me, the divide between the left and right over constitutional interpretation derives over the fact the the right tends to think that there are permanent, universal values that are unchanged over time. Many seem to see the constitution in much the way a fundamentalist might see a holy text, literally and universally true. The left tends to think that many of those values are social constructs and vary over time. And the constitution should be flexible enough to adapt to those changes.

26

Brett Bellmore 10.10.14 at 2:15 pm

“It is unclear why empty farmland in western Illinois gets the same vote as a densely populated district on the South Side of Chicago when it comes to electing legislatures and approving constitutional amendments but it does. ”

Well, if you genuinely want an explanation for why this is a legitimate way to do things, I can explain it:

The US is a federation. That is to say, it is an assemblage of soverign states which have banded together for limited purposes, because doing so advances all their interests together. For instance, a common defense is to the advantage of all the members, because it helps them avoid being picked off one by one by an adversary which is too much for any one of them to handle. Lack of internal tarrifs creates a free trade zone which is economically advantageous.

In a federation, the activities of the central government are supposed to be, theoretically, for the benefit of ALL the members of the federation. Not to the benefit of some, and the detriment of others. So the fact that this part of the federation really, really likes the idea of doing something, doesn’t override the fact that that part over there doesn’t want to do it. Federations are only supposed to be doing things that have widespread support, not just regional support.

Federations are not supposed to be undertaking actions at the expense of one part of the federation, in order to benefit another part. Unless maybe some horse trading couples this with actions that benefit the latter part at the expense of the former. The purpose of a federation is not so that a few states comprising 51% of the federation’s population can run the whole federation for their own benefit.

The Senate’s purpose in this scheme is to enable the smaller, less populous members of the federation the power to keep the larger, more populous members from running the federation for their exclusive benefit. To prevent the federation from doing things which are only regionally favored, at the expense of a different region.

Now, you don’t want the US to be a federation of sovereign states, but that IS what it was set up to be, and despite the Civil war, that’s what it is still constitutionally designed to be.

27

geo 10.10.14 at 2:31 pm

OP: a legislative or constitutional fix is impossible for some reason

Yes, exactly, and while I’m not sure this is the main problem with constitutional law as the use of an “appropriate procedure” to “interpret an inherited text,” it’s a large part of the problem. In an effective democracy, constitutional amendment ought not to be as difficult as it is the the contemporary US. A constitution is not a deliverance from Heaven but a set of mutually agreed guidelines for social life. Because they’re broad in scope, they should require a supermajority, to give social life a certain stability. But the extreme difficulty of achieving a constitutional amendment is just another of the many undemocratic aspects of the US constitution.

28

Anderson 10.10.14 at 2:33 pm

24: ‘I agree with you that in English “man” embraces “woman,” but I haven’t read anywhere that the authors of the Reconstruction amendments had women in mind when they wrote them.’

Oh, I doubt that any did, but my point is that the language is clearly broader than they had in mind.

The “originalist” would be all, well, surely they just meant “men,” probably white and black men, surely not thinking about Asians, or Cherokees …

The textualist says, Hm, it says “person” – that’s clear on its face, and was generally understood to embrace humans in general … “person” as used elsewhere in the Constitution includes women … not a hard question.

Note the textualist is actually bound by the text, whereas the originalist can pick & choose his law-office history. That’s the dirty secret, because originalists *say* their method is meant to constrain judges & prevent activism. Not really, as Posner & others have observed.

29

Anderson 10.10.14 at 2:35 pm

24: also, I just noticed some unconscious appeal of mine to your original intent; I hadn’t argued that “man” includes “woman” but that “person” includes men and women.

30

Anderson 10.10.14 at 2:36 pm

“I think John’s post comes off as more general than he intended.”

But then his point becomes less interesting. Even mathematics can be pushed to where we don’t have solid foundations. Observing that there are rare examples of truly hard cases doesn’t tell us much about law.

31

bianca steele 10.10.14 at 2:37 pm

If you read the book “The Living Constitution,” you learn that the kinds of contradictions that end up being considered by the Supreme Court are of a few different kinds. Can the federal government build canals? Can the states build canals? Can you legally take young girls across state lines for immoral purposes? Can you speak publicly against war policy in wartime? (These aren’t just generic “hard cases,” of the kind LizardBreath describes @20.)

The contradictions around slavery were arguably built into the Constitution deliberately, by people who wanted slavery abolished and assumed it would be done peacefully someday, and people who didn’t want slavery abolished and assumed they could keep things the way they were. (The contradictions around federalism, it seems to me, were always treated differently, so no one was really happy saying “it’s a contradiction, it’ll have to work itself out, someday,” as they perhaps were for slavery.)

I haven’t yet seen a good argument that technologies create social structures that demand their own laws, and I’m dubious that it’s the case. These don’t seem even to rise to the level of “contradiction.”

32

Long-neck Vase 10.10.14 at 2:38 pm

I’m certainly familiar with the Schoolhouse Rock(tm) explication of the US Constitution and federalism. I was simply pointing out that the Nixonian ‘silent majority’ arguments that tend to get deployed in response to certain topics are insufficient to explain JQ’s observation that “… And it often happens that these approaches produce results that seem unacceptable to most people but for which a legislative or constitutional fix is impossible for some reason.”

33

Anderson 10.10.14 at 2:40 pm

BB: “The US is a federation.”

I think you meant to write “confederacy.”

Among the many errors in your notion is that the Constitution nowhere refers to the United States as a “federation” and that the 1789 government was precisely designed *not* to be a federation as under the Articles of Confederacy.

Sovereign states do not hand over the kind of powers handed over in the Constitution, which was not ratified by the states, but by the *people.* The people are sovereign, not the individual states.

(I realize none of this, nor any other fact, can sway BB, but the b.s. shouldn’t stand unrebutted.)

34

geo 10.10.14 at 2:41 pm

Brett @26: that’s what it is still constitutionally designed to be

Yes, that’s the problem. The design of the constitution is obviously faulty, since the members of the federation are orders of magnitude more integrated and their members more mobile than in the late 18th century. But the design is hard to alter, largely because business can play the states off against one another or simply buy up the legislatures of the smaller ones, and business has (as we know from Thomas Frank and many others) is extremely adept at whipping up right-wing faux-populism.

35

Anderson 10.10.14 at 2:43 pm

31: the Strauss book? I take it you recommend it, then? Thanks!

36

Brett Bellmore 10.10.14 at 2:44 pm

“In an effective democracy, constitutional amendment ought not to be as difficult as it is the the contemporary US.”

I agree, but don’t think the supermajority requirement is what’s actually blocking the Constitution from being amended. The real problem, I think, is that ‘living’ constitutionalism, and a supine Supreme court, let Congress ‘amend’ the Constitution by statute. For the most part, any power they want, they exerise, and then the Supreme court usually rolls over and lets them have it.

So Congress largely doesn’t need amendments for what it wants.

That just leaves amendments Congress doesn’t want, and Congress isn’t going to originate those. That’s what a constitutional convention is for, and I think we’ll have one soon, and the logjam will break.

37

bianca steele 10.10.14 at 2:45 pm

@35 Never heard of it. I meant Padover, of course.

38

Anderson 10.10.14 at 2:52 pm

37: Ah, that is actually “The Living U.S. Constitution,” according to Amazon. Sorry for my confusion!

39

chris y 10.10.14 at 3:21 pm

That might be an explanation as to why North Dakota is afforded the same Senatorial representation as California, but Illinois is not a federation, it is a state. Your entire screed is therefore a quite fantastic waste of your time and everybody else’s.

40

Brett Bellmore 10.10.14 at 3:53 pm

Chris, there being no reason why a soverign state shouldn’t internally constitute itself as a federation of smaller entities, the explaination is perfectly capable of being applied recursively.

41

J Thomas 10.10.14 at 4:34 pm

#23 Barry

“The science fiction writer Christopher Anvil once proposed a Council of Dunces. this would be a reasonably large collection of ordinary people chosen by lot, who would veto any legislation they did not consider clear enough that they entirely understood it.”

Anvil is a guy whom I thought really smart when I was in my teens, and don’t think so now.

I thought and think he’s pretty smart. He was writing for the sort of teenage SF war-game nerd who liked to solve simplistic problems in decisive ways. He brought in lots of decision theory, industrial psychology, and process management methods written so simply that they were easy to pick up. He may have done a lot of good.

As I recall it, the story this came from involved space aliens who gave the earth a collection of gifts. Much-improved agriculture, greatly-improved health, etc. But each gift could be sabotaged by the aliens, and they came back decades later when the humans would be utterly dependent on the gifts, ready to blackmail humans into giving up whatever the aliens wanted.

Anvil looked at the question of how to create a society that would be hard for a technologically-superior opponent to intimidate. They intentionally had a whole lot of people using the older methods, and they created a sort of super-SCA that promoted old or alternative technology wherever it would work adequately. They had lots of governments in a crazy-quilt patchwork so that it would be hard to attack and defeat one of them without involving the others. Etc. his Council of Dunces in one important patchwork nation made it harder for aliens to sneak in and subvert the laws. Faced with a suspicious world that was taking difficult steps to stop them, the aliens left to subvert easier suckers, though they could have killed everybody and started with a clean slate.

It was a good story for its intention.

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J Thomas 10.10.14 at 5:04 pm

#26 BB

The Senate’s purpose in this scheme is to enable the smaller, less populous members of the federation the power to keep the larger, more populous members from running the federation for their exclusive benefit. To prevent the federation from doing things which are only regionally favored, at the expense of a different region.

The problem is that this only helps small states, and small states mostly aren’t the problem any more.

So at our new constitutional convention, let’s consider the possibility of letting people vote for *anything* to provide Senate members, not just states. The fifty organizations with the most votes win.

So we might get two senators that are Democrats and two that are GOP. We might get two from Rhode Island and two from Wyoming. We might get two from the NRA and two from NOW and two from the US Marine Corps or a veteran’s organization and so on.

Up to fifty minorities that want protection, that try to block things that hurt their constituencies and that make deals with each other. Those will be states if states are the entities that minorities feel most represent them in the threats against them.

So if you are a gay Republican gun-owner who’s concerned about the NSA and wants us to get out of middle east wars and stop the drug war, you get to choose which minority to vote for. Maybe libertarians will fit your needs and maybe not.

I like it.

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Bruce Wilder 10.10.14 at 5:10 pm

Economist discovers rules. Video at eleven.

And, of course, he immediately questions whether the law exists! It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists.

In my poking at Plume’s self-satisfied revolutionary fervor, I offered the proposition that cooperation and conflict increase in tandem. The more people interact with each other, and grow dependent on one another, in highly-organized cooperation, the more points of conflict arise. Realizing the benefits of cooperation requires expeditious resolution of the conflicts. Otherwise, the haggling and violence and cheating and arguing and negotiating and strikes and lockouts uses up all the surplus yield from cooperation, and more.

At the most base level, most people are averse to legal disputation for the same reason that they are averse to many aspects of politics in general: the activity seems like an unproductive waste and one that exposes some of the least attractive human propensities.

To get on with the business of mutually beneficial cooperation, we need a decision, as Anderson says. But, of course, we remain materially interested in the details of the decision. The politics of who gets what never goes away, and continues to animate the motion of legal mechanisms, just as the heat of contained explosions animates the motion of an internal combustion engine, and casts off a glow of waste heat in the process.

Naked Capitalism refers to an Angry Bear posting about a pending Supreme Court decision concerning a case where Amazon doesn’t want to pay workers for the time they spend waiting around to be screened for stolen merchandise at the end of the workday in their warehouses. Neither principles of equity nor, really, the applicable law, is all that ambiguous: the workers ought to be paid, but Amazon, alert to the political realities of emerging neo-feudalism, sees a chance to improve the deal it gets from its thoroughly oppressed, but non-union workforce.

I suppose the law is meant to contain the otherwise potentially infinite costs of these kinds of political disputes over how to dispose of the surplus from complex schemes of social and economic organization and legitimize their resolution, by channelling them into particular institutions by way of particular procedures, letting the rest of us to get on with our business.

Procedures — and, yes, myth — can even make a credible stab at overcoming Arrow’s impossibility theorem, imposing a rough consistency of rationalization, which serves to radically reduce the number of disputes actually adjudicated by courts (or debated in legislatures and administrative agencies) by seeming to dictate the probable outcomes in advance, by making those outcomes deducible from principle (or the trend of consensus at least). In this view, the supreme art of the jurist or legislator is not the philologist’s interpretative skill or the oracle’s capacity to divine truth, but the ability of the political psychologist to make a decision stick, closing the door long, wasteful paths of strategic political scheming and escalating contradiction, by articulating a principle that can, eventually, achieve common acceptance.

But, the potential to profit from re-negotiation of the terms of cooperation — that is to say, politics — never goes away, as the structures, habits and means of economic cooperation evolve. A political system uses law to limit the chaos of dispute to a dull roar, and to focus attention on a relatively few issues, and to press politics into employing deliberative reason as a means to fashion resolutions.

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Anderson 10.10.14 at 5:52 pm

“But, of course, we remain materially interested in the details of the decision.”

I find it interesting that Mississippi (where I dwell) says that state trial-court rulings are not even to be cited as authorities. The “details of the decision” are presumed to lack even persuasive authority.

Federal trial-court decisions are often cited (and generally of better quality than a state trial court’s decision), but I sometimes wonder if that’s a good thing.

45

Turkle 10.10.14 at 6:47 pm

Just thought I’d bring up that this sort of issue, the indeterminacy of legal texts, was part of the whole reason Carl Schmitt’s political theory came back into vogue some years back. The early chapters of “Political Theology” are concerned with the moment of judgment in which sovereign power decides upon the exception, etc. At any number of points, someone has to make a judgment, and it is in this power (which suspends law, etc.) in which sovereignty lies. Agamben, etc. Anyway.

46

rvman 10.10.14 at 7:42 pm

Anderson@33: This is factually wrong. The Constitution was intended as a Federation, as opposed to the Articles, which created a Confederation. Specifically, the States did ratify the Constitution:

Article VII:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Ratification of Amendments is done on a state-by-state basis – Article V doesn’t even call for plebiscites – the states can use, at their option, either their legislature or specially constituted “conventions” to ratify amendments. It is explicitly a compact among states.

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Layman 10.10.14 at 7:53 pm

BB @ 26

Aside from what others have said, the notion that the US is a federation of sovereign states was rather fully repudiated by the arguments put forth in the period 1861-1865; which is to say, the Mother of all Precedents.

48

ZM 10.10.14 at 8:38 pm

Are the States in America really not legally sovereign states?

That sounds odd. In Australia all of our States are sovereign states – then we have two territories which have parliaments but the commonwealth federal parliament has oversight over them (one is the Australian Capital Territory with Canbera which makes sense otherwise it would not be fair, the other is the Northern Territory which is pretty much just racism since I think it has the highest proportion of indigenous people – you can see the federal parliament makes much better provision for the ACT than the NT so Brett Bellmore is correct that things can easily go unfair when left to just the federal parliament [although it did prevent euthenasia])

So because of having six sovereign states we have seven queens in Australia – one for each sovereign state and one for the commonwealth, but happily to avoid confusion all the separate Queens are united in the person of Queen Elizabeth. This is lucky – because what if the Queen of Victoria quarrelled with the Queen of South Australia – it could have great repercussions. But as it is only the politicians quarrel (which is quite bothersome enough when they should be busy discussing laws and lawmaking – I have heard they do not even bother reading and writing the laws these days – the public service are left to do this hard task – while the idle politicians just quarrel more and more) as having seven queens and one queen at the same time prevents quarreling.

49

Ogden Wernstrom 10.10.14 at 10:42 pm

ZM 10.10.14 at 8:38 pm:

Are the States in America really not legally sovereign states?

At the risk of turning this thread into an argument about the meaning of “sovereign”, I’ll point out that the states of the USA can have many (most?) of their laws overridden by our Federal Laws and Constitution. That is somewhat less-than sovereign, in my opinion.

Each state still has a Governor (we have an aversion to royal titles), whatever form of legislature it has chosen, and its own courts, taxing authority, etc.

Layman points out what I’ll characterize as the 1861-1865 Revolution. Prior to that, states had few limits on what they could do – and the limits on government actions that are contained in the US Constitution were generally not applied to state governments. States could decide who is a citizen, who is property, who to kill for what reason, which religion to establish, which cronies got which piece of the pie. States could have a lot of power over people, and the federal government would generally not interfere with state tyranny. (The Fugitive Slave Act lent Federal support to state tyranny. I have now met my requirement to make everything about slavery.)

The 1861-1865 Revolution, with the Amendments created out of it, resulted in the rights of people taking priority over the rights of states. That’s how I see the overall direction it took. This did not all happen at once. The principle of equal treatment put the Federal government acting on behalf of persons, and limiting/remedying/reversing actions that states had taken against persons.

“Limited sovereignty” appears to be an oxymoron.

On the issue of courts, cases that have been decided in a state’s highest court can still be appealed to Federal courts. I don’t know when this started.

50

Bruce Wilder 10.10.14 at 10:43 pm

rvman: . . . the states can use, at their option, either their legislature or specially constituted “conventions” to ratify amendments.

A small quibble on a very small point, but I believe the option belongs to Congress. States are given no discretion in the matter. Two-thirds of State legislatures acting together can compel Congress to call a national convention for proposing amendments — bypassing Congress’ role as proposer of amendments.

Point of trivia: Only the 21st amendment, repealing Prohibition, (and the Constitution itself) was approved by conventions.

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LFC 10.10.14 at 10:48 pm

ZM @48
Are the States in America really not legally sovereign states?

Not possible, I suspect, to give a short, clear yes-or-no answer to this. The states are “sovereign” in some respects but certainly not in others. (Btw, the Indian tribes are closer, I think, to legally sovereign, and the Obama admin has settled some big, long-running lawsuits by tribes vs the fed govt over violation of federal trust obligations in managing land and finances.)

Anyway, the US states cannot enact laws that conflict directly w federal law, or more precisely, if they do enact them such laws will be struck down. OTOH certain areas of policy, e.g. education, are largely left to the individual states to control, though in that particular area there is also substantial federal involvement. The US states do not (and cannot) conduct their own foreign policies, though occasionally e.g. a particular city (Berkeley CA comes to mind, so does a particular small city in Md.) has enacted city ordinances or resolutions purporting to have a foreign-policy effect.

There is a big literature on federalism, both the US version and other versions (e.g., India, Australia). I suspect (the late) Samuel Beer’s book on American federalism is worth reading (if it’s of the same quality as his earlier book on British politics).

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LFC 10.10.14 at 10:51 pm

p.s.
I generally agree with O. Wernstrom @49 (I posted before I saw his).

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Layman 10.10.14 at 11:22 pm

@ 49

I concur with this. As to ‘sovereign’, the Civil War established that states have no right to leave the union. I think that means they are by definition not sovereign.

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John Quiggin 10.10.14 at 11:23 pm

” In Australia all of our States are sovereign states ”

If as other commenters have said, the US states aren’t sovereign, this is true a fortiori of Australia
* No right to secede: a referendum in which the people of Western Australia voted to secede was simply ignored, and everyone forgot about it.
* The “reserved powers” doctrine embodied in the 10th amendment has no Australian counterpart and the High Court has generally rejected attempts to read in an implied reservation.
* An expansive view of the treaty power. Once the Australian government has signed a treaty on any topic, it can legislate to implement the treaty, and this nullifies any conflicting state legislation) .
* As well as being legally subordinate, the states are financially dependent, having no income tax or sales tax

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John Quiggin 10.10.14 at 11:27 pm

As for seven Queens, the answer is that nobody knows for sure, but for all practical purposes there is only one. The only attempt to determine the issue (by a premier who sought to make ER, rather redundantly, Queen of Queensland) went nowhere.

http://www.abc.net.au/radionational/programs/perspective/anne-twomey/3399002

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Tomboktu 10.10.14 at 11:37 pm

@J Thomas, #1: One of the other priests of this parish has co-written a paper on the question of a citizens’ assembly:

http://www.ssc.wisc.edu/~wright/Published%20writing/Democratizing-House-of-Lords.pdf

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Bruce Wilder 10.10.14 at 11:47 pm

ZM: Are the States in America really not legally sovereign states?

rvman: The Constitution was intended as a Federation, as opposed to the Articles, which created a Confederation. Specifically, the States did ratify the Constitution.

Layman: the notion that the US is a federation of sovereign states was rather fully repudiated by the arguments put forth in the period 1861-1865

“Sovereignty” is one of those “hot air” concepts, used to fill the balloon whose ascent lifts the whole edifice of constitutional law as a system of deductive reasoning off the ground. The beauty part of “sovereignty” as a concept is that it does not have a referent — it does not denote any actual or concrete thing being in the world. Though it may pretend to be a foundation, being weightless, it’s not required to even reach the earth.

Blackstone’s King-in-Parliament, for example, doesn’t refer to a thing extant, or anything real anyone can point to. It does organize many disparate threads into a learnable doctrine, making possible legal education and law as a learned profession.

It may be a pretence, but it is a useful pretence, and once aloft, provides a vantage point from which the whole pattern of the landscape — scarcely visible from ground level — may be glimpsed and mapped.

There’s something not right, in asking whether an American State is “sovereign”, as if that were a question of “fact”, an objectively observable property of the thing itself, when it is really a question about the pattern set up by the small-c constitution and capital-C Constitution in their actual structures and habits of governance.

Asking the question, and answering with a story, that strings together a large number of features of institutional governance is not completely idle by any means. The pattern that the story picks out from political and institutional facts, if it gives a workable coherence to the whole body of law and governance can be of great political importance.

The word game that “sovereignty” prompts — arguing about where power resides, about its nature and alleged divisibility or indivisibility, whether it answers or remains absolute in repose, that kind of thing — is just a bootstrapping parlour game, the drawing of an hypnotic trance, until the pattern map is argued, and various actual features of governance are argued, their interpretation reconciling the facts to the story.

Ultimately, it isn’t a matter of hermeneutics, though. The facts, which the story must reconcile by interpretation, are the facts of political operation, and not simply the text of some author.

In the constitutional crisis of the 1850s that culminated in the Civil War and was resolved constitutionally by the adoption of the 13th, 14th and 15th amendments, lawyers and politicians argued competing interpretations of Constitutional sovereignty and citizenship, individual rights and states’ rights. The advocates of states’ rights interpretations argued the case for a voluntary association of states, from which individual states could withdraw on their own mere motion, without the consent of the whole, that is, without the consent or acquiescence of the Federal government. Operationally, this proved to be a non-starter. Under the political conditions of the time, several states could not disestablish the Federal government, even in their own territories, because the Federal government rested on legal, economic and political foundations independent of the state governments. Of course, the reverse was also true, and several southern states formed a new federal government in the Confederacy, and the two rival federal governments fought a civil war.

My point is that, regardless of whether a text and a method of semantic interpretation is determinate, political operations and the mobilization and exercise of political power have their own logic and force. We may try to tame and rationalize the exercise of power with constitutions and laws, distilling the exercise of power into disinterested judgments where we can. Telling persuasive stories about the past is part of this process. But, we will never entirely succeed in channelling the exercise of political power. We will not agree on politics — if we could, it wouldn’t be politics; politics is disputes and conflicts. We resolve conflicts, by agreeing to disagree without fighting. So, while law must deliver a decision, it cannot deliver a perfect reconciliation of conflict in an undisputed philosophical text; the conflict of interest in cooperation, that generates politics, continues in the agreement to disagree, but get on with life.

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ZM 10.11.14 at 12:04 am

John Quiggin,

This may be because Queensland is a newfangled sort of a state with only a lower House of Parliament – not a great longstanding noble steadfastly monarchist state with an upper and a lower house like Victoria. We certainly have a Queen of Victoria – for example – until 2010 prosecutions were made as the crown vs plaintiff – this crown is obviously the Queen of Victoria because the Commonwealth does not look after all the State crimes – the State does – also we can make a claim against the commonwealth for wrongs at the commonwealth level or maje a claim against the crown for wrongs at the state level – so this crown at the state level is the Queen of Victoria of course.

Against your theory of Queensland being without a Queen – I just read all Queensland’s barristers have won their noble campaign to be Queen’s Councillors – so they must be councillors to the Queen of Queensland for state crime cases. This shows you have a Queen, although maybe your laws need some clarifying explanations on the matter (and Quennsland could get an upper house like its meant to have at the same time) – although looking at the constitution it currently refers to the sovereign several times and of course this would be the Queen of Queensland.

Likely the event you cite (which is just about the politicking and intrigues of Bjelke Peterson and Whitlam) is an example of how in Australia the crown is very controversial and not well understood because it is so controversial (people often blame the crown for all the wrongdoings of the parliament in Westminster even the many wrongdoings after the so called glorious revolution). Hopefully with everyone now trying earnestly to be Knighted or Damed throughout the land there will be much more celebration and knowledgableness of the Curious Constitution of the Seven and One Crowns of the State’s and Commonwealth of Australia.

59

Richard York 10.11.14 at 1:35 am

I’m rather stunned that among the erudition displayed here, no one has stooped to quoting Dickens (Oliver Twist). To wit,

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass- a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience- by experience.”

Enough said?

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Anderson 10.11.14 at 1:40 am

46: you are factually wrong.

The Constitution was ratified by popular conventions, not by the legislatures of the states. This is a crucial point.

Having assented to the Constitution, the people vested their sovereignty in the United States government.

The same people who prattle about state sovereignty tend also to hold that ceding military & fiscal powers to the UN or any other supranational body would be a treasonous forfeiture of US sovereignty. Yet that is what happened in 1789. Ponder that, if you will.

The states are, as the Supreme Court has said, quasi-sovereign, mainly in their police powers over matters not addressed by the Constitution. They are not independent and as others have commented, they have no right to secede or otherwise retrieve their sovereignty, save by amending the Constitution.

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ZM 10.11.14 at 2:01 am

Richard York,

To whom were you addressing your question ‘Enough said?’ I did mention the saying the law is an ass – but I thought it was a general saying about the law not being responsive to individual cases when it is just statute writing in a book. You have put my error to rights – but now I am no longer fond of the saying as I don’t think Mr Bumble is of good enough character for us to agree with him . The encyclopaedia Britannica gives this run down of his character:

“Mr. Bumble is the cruel, pompous beadle of the poorhouse where the orphaned Oliver is raised. Bumbledom, named after him, characterizes the meddlesome self-importance of the petty bureaucrat. Mr. Bumble marries the poorhouse matron, Mrs. Corney, a tyrannical woman who completely dominates him. In response to learning that a husband bears legal responsibility for his wife’s actions, Mr. Bumble utters the celebrated line “If the law supposes that—the law is a ass.” The Bumbles become paupers in the same poorhouse where they once inflicted such damage and unhappiness.”

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Richard York 10.11.14 at 3:05 am

ZM@61 – Be their origins encyclopedic or not, ad hominem arguments need not detract from the accuracy a a particular argument.

The query was, perforce, rhetorical.

In what follows, I only address the ridiculous voter id laws. Clearly, confusion seems to reign over this issue at SCOTUS.

Simple common sense and a minimal understanding of the Civil Rights movement would lead most observers to decide that almost all the Republican state legislatures which put in place restrictive voter registration laws created them as useful extensions of gerrymandering. As has been exhaustively demonstrated through conscientious analysis, there is and has been little or no voter fraud. There is no practical or protective explanation for these laws. They are completely political and designed to reduce potential Democratic votes.

Clearly, I am no master of jurisprudence. However, there must be some value in looking at the impact legal interpretations have on that most fundamental of democratic rights, the right to vote. As a moderate liberal, it has been extremely painful to watch the unraveling of rights which so many of us fought for 50 years ago. While there were many unintended negative effects of desegregation, I never thought I would see the erosion of voting rights we are observing now.

One could certainly accuse the Warren Court of being ideological. However, it would be difficult to find a court in recent history as blatantly political as the Roberts court (and, to a lesser extent, the Rehnquist court). Bush v. Gore (pace Lund et al.) was the most blatant political act since Marbury v. Madison. But, in Marbury, Marshall at least established judicial oversight and restraint of the actions of both the legislative and the executive branches. Bush v. Gore only demonstrated how judicial review can be abused. More recent decisions continue to demonstrate this court’s willingness to support some of the worst abuses of our electoral system.

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William Timberman 10.11.14 at 6:56 am

Bruce Wilder @ 57

Marvelous, but this:

…the conflict of interest in cooperation, that generates politics, continues in the agreement to disagree, but get on with life.

is a bit of a fudge, isn’t it? What follows the but is what makes a liberal a liberal, and I’m all for it, but don’t we have to admit that getting on with life is precisely what people in political extremis don’t do, or don’t do often enough to make our genuflections at the altar of orderly political process seem a little like whistling past the graveyard? I’m thinking of examples like Hitler’s Sturmabteilung, the Dixie enthusiasts at the first battle of Manassas (or the Dixie irredentists of today), the Taliban, ISIS, Cliven Bundy, and of course the crockery smashers of our present Supreme Court. Give me the cold chills, these do, and come pretty close to driving what’s left of my liberal impulses clean out of me at times.

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James Wimberley 10.11.14 at 1:31 pm

Consulting the family lawyer in Jersey over my mother’s will, he said that there is an ancient principle of Norman-French law (which is the basis of law in the surviving parts of the Duchy) governing joint ownership of real estate : “nul n’est tenu de rester en indivis.” Any discontented joint owner can force a sale and share-out. It’s so clear that it never comes up in the courts.

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Michael Cain 10.11.14 at 3:09 pm

That is to say, it is an assemblage of soverign states which have banded together for limited purposes, because doing so advances all their interests together.

The large majority of the 50 states were never sovereign anythings (ignoring the indigenous populations); they were administrative areas carved rather arbitrarily out of federal land holdings, that were eventually granted statehood. Nebraska never had the option of deciding whether being part of the assemblage was better or worse than standing on its own; statehood was simply the best deal that it could get. A minority of the states ceded power to the federal government; for the majority, power was ceded in the opposite direction.

Some states got better deals than others. In 1976, the federal government decided to retain its large western land holdings in perpetuity — over the unanimous objection of the states that would be significantly affected by that decision. I can guarantee you that in every one of those states, every year, the state legislature struggles on one or more policy decisions with the fact that the largest land owner in the state doesn’t have to pay attention to the state laws unless it chooses to.

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Hogan 10.11.14 at 4:53 pm

Chris, there being no reason why a soverign state shouldn’t internally constitute itself as a federation of smaller entities, the explaination is perfectly capable of being applied recursively.

And yet no state actually does that. Local governments of all kinds are entirely creations of the state. Counties don’t have constitutions.

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Brett Bellmore 10.11.14 at 8:53 pm

Somebody hasn’t heard of a “home rule” city, apparently.

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Bruce Wilder 10.11.14 at 9:15 pm

William Timberman @ 63

It’s nice to have a fan. Thank you for that.

What I worry about is that the social contract is vertical as well as horizontal. We may pay lip service to political equality and our ancestors may have largely displaced hereditary landed aristocracy with allegedly meritocratic managerial capitalism, but electoral democracy is, at best, only a weak reed to check elite domination in a political economy, organized largely by bureaucratic hierarchies, private as well as public.

We have law and economics to press our savage East African Plains Ape selves, as Brad DeLong might say, toward Enlightenment rationality. In the never-ending re-negotiation of the social contract, the constant re-invention and reproduction of the society and its instituted political economy, we liberals and social democrats press for Enlightenment ideals and messy compromises called reforms, that allow people to get on with their short lives, and try to salvage the contradiction between ideal and compromise, by preaching progress. Let not the perfect be enemy to the good, we say; step-by-step, let us improve and adapt.

Emergent and immanent in the negotiation of the social contract, though, is the elite negotiating the division of the surplus with the commons, the boss negotiating wages and benefits with workers, the wealthy capitalist few negotiating with the rest of us. In that top-down negotiation, the only advantage of the down is numbers; the top has organization, resources. The down’s only resort, only threat is to walk, to strike, to revolt, that is, to break the contract and walk away from cooperation, walk away from political economy organized on the say-so of the elite. Neither revolutions nor labor strikes usually pass a strict cost-benefit test; they are the option of the desperate and the righteous only, willing to ignore the strict cost-benefit test. The top will make a take-it-or-leave-it best-and-final offer every time — each time carefully calculated to make cooperation materially superior to strike or revolt, but the summary trend of those offers over time will tend to ratchet the down into misery and disorganization that makes the next negotiation go in the same direction as the last. Marx’s Reserve Army of the Unemployed will be swelled, kept within the peripheral vision of the employed, to remind them of their precariousness. Each time, getting on with life, too short life, is the materially better option, by design, but, equally, by design, the accumulation of the elite’s claims against the society’s income continues to grow in share, at the expense of the commons and masses. r > g

It is certainly not the only way that this relationship of elite to commons or masses can go. The elite may feel a solidarity with and find a circumstantial material dependence on the commons that outweighs their more narrowly selfish interests, and leads to nurturance or paternalism or nationalism or some other form of beneficent leadership. The elite may divide — perhaps they are divided by heterogenous institutions and other circumstances — and compete for mass support.

r > g, the ratchet down, amid institutional catabolism and disinvestment to fund it, is the way things have been going, though, for 40 years. Political solidarity — that feeling of shared identity, which enables a People to come together to constitute a state — is scarcely recognized by 21st century liberals as anything more than a threatening form of racism or chauvinism. The responsibility of elites for the functioning of the society and its government is largely forgotten. We were shocked by the government’s response to Katrina, but Barack Obama’s studied determination to avoid prosecuting any of the banksters, gets a pass. Europe stumbles forward, despite the utter disaster, which the Euro became, because of rank incompetence among the technocrats, incompetence that not incidentally provided many opportunities for financial predators to take advantage of.

These things have their rhythms, their cycles. The institutional systems put together during and after WWII — the international alliance system of states and trade, the European social welfare state, the European Union, the American New Deal, etc. — were always going to go into their catabolic old age, and have to be re-invented and renewed. I think in the U.S. that there’s a deeply felt, but not well-thought-out sense that the comfortable world of middle-class expectations of fulfilling modest ambitions is past its expiration date, and that brings out more than a little desire to just break things, which no longer seem to be working. It is particularly scary, because there’s no apparent capacity to put something new in its place — at least not something new, which would work well for the mass of ordinary people.

It is not where we should want to be — at the 70 or 80 year major contract re-negotiation and re-structuring point, so to speak — with political solidarity at an historic low ebb and political ideology in the intellectual bankruptcy demonstrated by neoliberalism.

Cliven Bundy and ISIL and the like do not worry me as much as the response to them. The corrupt, cynical way elites manipulate the mass response is part of what worries me. The tolerance for social pathology is very high. The lack of imagination, the irresponsibility of elites is breath-taking to me.

Revolutionary moments arrive, even without rebellion or revolt, from the cycle, driven by generational change. The social contract can break down, interrupting lives even without rebellion, just from the inability to marshal the political will and imagination from elites to renew the institutional organization of society.

Winter is coming, the poet said.

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Matt 10.11.14 at 9:52 pm

It seems to escape the attention of many on the hard right that governments in the United States were structured around bicameral legislatures with one house being set up for equal geographical representation at a time when the United States population was fairly evenly distributed between and throughout states. That condition no longer applies – the actual human population of the US is now concentrated in urban areas and with great variation between states – but the geographically equal legislatures remain. It is unclear why empty farmland in western Illinois gets the same vote as a densely populated district on the South Side of Chicago when it comes to electing legislatures and approving constitutional amendments but it does.

I think the hard right not only notices that sparsely populated areas are over-represented in government, but heartily approves of it and wishes to amplify it. I have seen a fair bit of talk about how Republican-leaning states should allocate their votes for the electoral college according to how many congressional districts voted for someone, rather than how many people voted for someone. That way the sparsely populated rural areas of a state, which are more conservative even within already conservative states like Nebraska, get more political power even after their voters’ preferences no longer reflect the majority of the voters.

70

William Timberman 10.11.14 at 11:57 pm

Bruce Wilder @ 68

The OP is on the right track, I think, as are you. Who wields the scepter — much less the sword — of rationality, and to what end? Isn’t that the real question? The law in all its shopworn majesty, with all its hordes of attendant sophists, is just one manifestation of a much larger discontinuity.

Anti-populists claim, with good reason, that the popular will, even when it’s engaged/enraged enough to be perceptible, is at best a blunt instrument. Democrats and liberals in general respond by asking what can otherwise constrain our existing or emerging elites from arrogantly treating the rest of us as mere means to their often ill-defined and ill-considered ends. A democrat who is also a recovering liberal might say that Joseph Heller had it about right: Catch-22 says they have a right to do anything we can’t stop them from doing. Yes, politics. Yes, the cycle of institutional growth, maturation, and decay. Stopgaps.

We are, and have been for a long time in our most developed incarnations, individual rational agents, yet we remain, for better or worse, the instinctual, communal creatures we seem to have been when we started out. Daniel Davies vs. David Graeber on the subject of the money economy vs. the potlatch from a while back, and recalled by DD in the thread above. A brilliant formulation by DG, an equally brilliant riposte by DD, but as a not-so-innocent bystander, I couldn’t help but marvel at how badly integrated we are. All these centuries of religion, philosophy, psychology, anthropology, sociology, political economy, mathematics, neuroscience, and still no clue how to reconcile the irreconcilable.

It helps, I guess, to realize that we’re temporal creatures after all. Whatever happens, it’s the species which carries the burden forward, not us as individuals, no matter how clever we are, or imagine ourselves to be….

71

Bloix 10.12.14 at 4:14 am

“A much bigger problem … The implicit assumption that ‘the law’ exists.”
“There is no such thing as water,” said the fish.

72

john c. halasz 10.12.14 at 5:12 am

@ 71:

To cite Geo, what does “exist” mean?

73

LFC 10.12.14 at 12:19 pm

Michael Cain @65
The large majority of the 50 states were never sovereign anythings (ignoring the indigenous populations); they were administrative areas carved rather arbitrarily out of federal land holdings, that were eventually granted statehood.

Btw and somewhat on this pt, I recently happened to skim through an article that discusses, among other things, how the fed govt used land policy (eg the Homestead Act) to control/spur westward population mvts and ‘manufacture’ white majorities in certain western territories that eventually became states:
Paul Frymer, “‘A Rush and a Push and the Land is Ours’: Territorial Expansion, Land Policy, and U.S. State Formation,” Perspectives on Politics 12:1, March 2014.

74

J Thomas 10.12.14 at 12:55 pm

#72

To cite Geo, what does “exist” mean?

That is a subtle question.

Some things, like unicorns and witches and Santa Claus, have a solid existence in the public imagination. The law is as real as human imagination can make it.

Other things, like policemen, are more physical.

Soon after we were married, my wife was driving down the street in an angry mood and she saw a cop and gave him the finger. She figured she wasn’t doing anything illegal and he’d shrug it off. But he was having a bad day, and he stopped her, and he looked until he found something he could ticket her for. $125. That was as real as the money it cost.

She got paranoid after that and she wanted to take the bumper stickers off the car. She had one that read COEXISTENCE with various letters replaced by religious symbols, and we had a Darwin fish kissing a Jesus fish, and I think one that was something like “Renewable energy is homeland security”. Since she had seen that she could get arrested whenever the cops wanted to, she realized she did not want to attract their attention.

There’s some kind of reality there, but it isn’t the kind of reality that doesn’t go away if people stop believing in it.

75

William Timberman 10.12.14 at 2:56 pm

Postscript to Bruce Wilder @ 68

From Jaron’s Lanier’s acceptance speech on being awarded the Peace Prize of the German Book Trade today:

So peace is a puzzle. How can we be free and yet not veer into the freedom to be nasty? How can peace be both capricious and sustainable?

The resolutions between freedom and stability that we have come to know have tended to rely on bribery – on ever-increasing consumption – but that doesn’t appear to be a long term option.

Sounds familiar, no?

76

geo 10.12.14 at 3:07 pm

jch@72: To cite Geo, what does “exist” mean?

Depends. What does “mean” mean?

77

mattski 10.12.14 at 3:09 pm

To cite Geo, what does “exist” mean?

When I grow weary of Nagarjuna’s answer,

“There is neither existence
Nor non-existence
Nor both
Nor neither”

I prefer to consult the Buddha,

“Things are not as they seem
Nor are they otherwise”

78

Pat 10.12.14 at 3:50 pm

A lot of ignorance in this comment thread. Particularly from Bret B., who appears never to have heard of Reynolds v. Sims….

On the indeterminacy of laws, and just to echo some of the early commenters, this is a well-trod subject. Check out “The Bramble Bush” by Llewellyn, and for a counterpoint the best source is Dworkin’s Law’s Empire (although Taking Rights Seriously is a good introduction as well).

79

Bruce Wilder 10.12.14 at 7:32 pm

William Timberman @ 70: Who wields the scepter — much less the sword — of rationality, and to what end? Isn’t that the real question?

I see the law — and Enlightenment rationality emerging into politics generally — not as a struggle to answer that question, but, rather, as a struggle against that question.

“Rationality” is one of those words onto which people project a lot of disparate concepts. One of the meanings — that of instrumental rationality — depends on the metaphor of individual intentionality in a task of wanting and then getting — rationality is thinking and imagining and story-telling and counting and writing as a tool. But, unlike a tool that one holds in one’s individual hand — whether scepter or sword — rationality is a tool of society and social cooperation. In economic terms, “rationality” is a public good. Or, maybe, more precisely, it is the quality that insists on substituting the social construction of public good for the simple rivalry of private ambition and selfish seeking, Hobbes’ bellum omnium contra omnes.

I would submit that the “individual rational agent” is a misunderstanding, an oversimplification. This capacity we humans have of abstract thought and story-telling and thought and communication is not individually instrumental — it is a social capacity of a social animal, an instrument of society. Logic is socially useful because it is so strangely compelling, more compelling than any sceptre or sword, and so it becomes entangled in the struggle to realize a common good.

80

Anderson 10.13.14 at 6:58 am

Pat: you can’t cite the Supreme Court vs BB – it just proves they’re not reading the Constitution properly.

81

William Timberman 10.13.14 at 6:36 pm

Undone by the extravagance of my own metaphors again. In ideal terms, the law — the common law in particular — is an instrument of rationality, I agree. It’s also an artifact of the collective will, or at least of the collective judgment of those who agree to submit to it. Whatever it’s origins in the submission to authoritative prerogative, the claim that it’s a vehicle of the Enlightenment’s pursuit of (or should I say infatuation with) reason isn’t entirely false.

From another viewpoint, however, it’s an anodyne fantasy. In non-ideal terms, it’s hard to simultaneously contemplate equal justice under law, and the fate of Michael Brown without risking a severe case of cognitive dissonance, one which is scarcely noticed, let alone honored, by the august personages charged with defending the rationality of the law. (Yes, Justice Scalia, Justice Roberts, Justice Alito, I mean you, but by no means only you.)

Scepters and swords, and their modern descendant, systematic marginalization by a manufactured demos, aren’t as fanciful in this context as they might seem. I take seriously your argument that the corruption of principles, and the institutions which were intended to embody them, will always be with us, and that the arc of the moral universe is by no means a smooth one, except in the rhetoric of hopeful protest. In fact, I largely agree with it. Where I disagree, I guess, is in my belief that the primary responsibility for the genesis, care, and feeding of rational processes lies with the individual, however conditioned the individual may be by what Heidegger called das Geworfene, or Marx die Produktionsverhältnisse.

As I see it, the primary wrestle between — and hopefully synthesis of — the rational and irrational always takes place with the individual, no matter where or how in society it’s finally expressed. The link between this individual purgatory and a consciously collective, consciously political stance in the world is indeed the missing link. Sometimes Hier stehe ich, ich kann nicht anders works, sometimes it doesn’t. This puzzled Gandhi as much as it did Lenin, and it should puzzle us as well, even as we go about doing the best we can.

But enough. This thread is already as good as embalmed. As RAI used to say at the end of every broadcast when I was living in Italy 50 years ago, Vi ringraziamo per l’ascolta.

82

John Quiggin 10.13.14 at 9:06 pm

To various commenters, most recently Pat. I’m aware that this observation isn’t new (though I haven’t seen it put in precisely the way I did), hence my reference to the problem as being particularly severe for “originalist and textualist forms, and also in precedent-based applications of common law”.

It would be nice to get some pointers to how originalists etc have responded, if at all to this problem, and whether these responses have any force.

83

Anderson 10.13.14 at 9:50 pm

81: of course I don’t know the answer, but I would like to see the #s on how many originalists are also believers in natural law.

I still don’t think the problem you’re addressing has much reality though, because it’s the nature of the common law to (1) address new situations and (2) balance competing values. The court makes a judgment call. If the precedent seems to work out in practice, it isn’t overruled later, and new cases accrete onto it.

But there is no such thing in common law, that I’m aware of, as a logical contradiction that therefore entails everything. One proposition or the other will give way by some dodge or other. That’s how the machine works.

84

LFC 10.13.14 at 11:05 pm

JQ in the OP:

The discussion got me thinking about the broader problem of legal reasoning, at least in its originalist and textualist forms, and also in precedent-based applications of common law. The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand….It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer.

“It is assumed”? By whom? Perhaps by some ‘originalists'[*], but I think/suspect that many scholars wd say that difficult questions of, say, constitutional law don’t have “determinate answers,” certainly not in the way a math problem has a determinate answer. After all, if there were a determinate answer to a difficult legal or constitutional question, arguably you wouldn’t need nine justices on a Sup Ct — you would just need one. (N.b. Ronald Dworkin argued that difficult legal/constitutional questions have “right answers,” but what he meant by “right answer” is not, I think, what JQ means by “determinate answer,” and anyway Dworkin’s position is far from universally accepted.)

In a precedent-based system, as others have already mentioned/suggested (and I agree w Anderson @83), “the law” is what a majority of judges/justices say it is. That doesn’t mean the law doesn’t exist; it means it doesn’t exist in some sealed container that can be “opened” w the “right” method to yield a single “determinate” answer in every case.

JQ seems worried about statutes (legislation) containing contradictory clauses. I suppose sometimes that’s a problem, but more often, I suspect, the problem is trying to decide what the scope of application of a particular statute is, or how it applies to a situation that wasn’t in the range of possible situations the drafters of a statute envisioned. In such cases judges usu. apply established methods of statutory interpretation and do the best they can. (They don’t all come to the same answer all the time; that’s why there are sometimes dissenting opinions. Again, that doesn’t mean the law “doesn’t exist.”)

[*] In addition to all the stuff written by profs of law and philosophy of law, working judges have written on these issues. R. Posner certainly has. I forget whether Scalia is calling himself an “originalist” or something else these days, but he’s written books (culled from lectures, I think) explaining his approach. Not that I wd choose to read them myself, but he presumably addresses some of the interpretation questions as he sees them. Other justices w different approaches have also written on these issues — Breyer, probably Kagan, (former justice) Souter, etc. And, though it’s not about constitutional law, one cd prob do worse than going back to Holmes’s The Common Law (1881), with its famous line in the opening paragraph: “The life of the law has not been logic; it has been experience.” I’ve never read The Common Law myself, and today I think that line is all most people know about the bk. But I assume it’s worth reading.

85

Bloix 10.13.14 at 11:34 pm

Original post:

“The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand.”

This isn’t wrong so much as it is backwards.

The key fact about the common law system – the thing that makes it law rather than just the deployment of power – is that when a judge decides the law that will govern a single case, he or she at the same time must lay down a precedent for future cases. Every decision does more than resolve the dispute between the parties before the court. It becomes precedent. By the gradual accretion of precedents a body of law emerges. In this way, in the vast majority of new disputes the law is known, and in cases at the edge of developing trends, thousands of new decisions build certainty just as coral polyps build a reef.

“There are all sorts of well-known difficulties here, such as how words written a century ago should apply to technologies and social structures that did not exist at the time.”

This is not a problem inherent a common law system. Judges make decisions continuously, and just as quickly as new technologies and social structures emerge, new decisions are made that apply and modify the existing body of law. As judges are confronted with new problems, they make decisions that conflict. Some are wrong, or stupid, or even shocking. After a time, a majority view emerges, some lines of decision are forgotten or marginalized, and a rule is established.

Constitutions present a more difficult problem. But even with a constitution several centuries old, courts do not interpret the words of the document ab initio. Most constitutional provisions are encrusted with dozens if not hundreds of interpretive rulings, many of them very recent. These rulings tell the lawyers and judges what the words “mean.” It is a rare case that depends on a new reading of constitutional text.

“the implicit assumption that ‘the law’ actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer.”

This is a common mistake. “The law” exists but it does not require that every question will have a determinate answer that can be mechanically reached by the application of rules. (In their quest to be confirmed, Justices Roberts and Sotomayor both cynically perpetuated this view with their faux-naïve testimony at their confirmation hearings – Roberts with his ridiculous baseball umpire metaphor, and Sotomayor when she claimed that her “judicial philosophy is simple: fidelity to the law.”)

Not every question has a single determinate answer. Most do, and these cases do not inspire controversy. But there may be more than one legally acceptable answer to important questions. We recognize this truth by permitting judges to write dissents. Sometimes, even after a generation or more, views change and the dissent becomes the accepted rule. More often, the dissent drops away, and becomes a road not taken.

On the other hand, there is such a thing as good judging. Justice Stevens, for example, was a great technical judge. Regardless of your political beliefs, when you get to the end of a Stevens opinion you usually agree that the result is a correct application of the law. Unfortunately, our system of appointing judges gives little weight to technical competence, and many judges are not particularly good at their jobs.

But the fact that text or precedent is not always precisely determinate is a far cry from saying that it is utterly indeterminate. There are an unlimited number of potential answers that are clearly impermissible. You can drive the constitutional bus to Boston or you can drive it to Tulsa, but you cannot drive it to Paris or to Beijing.

86

J Thomas 10.14.14 at 12:23 am

Roberts with his ridiculous baseball umpire metaphor

Ah, that reminds me of an old baseball story.

Three umpires were talking about how they did their work. The rookie umpire said “I calls them the way I sees them. I don’t let anything change that.”

A more seasoned umpire said, “I don’t call them the way I sees them. I calls them the way they *is*.”

And then the old, veteran judge said, “They ain’t nuthin until I calls them.”

87

Bloix 10.14.14 at 12:46 am

#86-
The legal equivalent is the famous statement by Justice Jackson:
“We are not final because we are infallible, but we are infallible only because we are final.”

88

LFC 10.14.14 at 1:14 am

Bloix:
But even with a constitution several centuries old, courts do not interpret the words of the document ab initio.

Though judges/justices vary in how willing they are to ignore or overturn precedents they don’t like. (And there are diff. approaches to const. adjudication, obvs.)

Re the statements at the confirmation hearings: Sotomayor’s was perhaps even worse than Roberts’. Anyway, they were both awful.

At the end of the last term of the Roberts Ct, I remember commenters in the media pointing out that there were quite a large number of unanimous opinions. There were also sharply divided opinions, but I recall some commenters saying that Roberts was making an effort to get more agreement as a way partly of pushing back vs the (often justified) perception that the Sup Ct is ideological. I think it often is (and also political), but not in the same way a legislature is.

89

bianca steele 10.14.14 at 1:26 am

LFC @ 84: In such cases judges usu. apply established methods of statutory interpretation and do the best they can.

That sounds very Talmudic.

90

bianca steele 10.14.14 at 1:27 am

@89 crossposted with @88, didn’t refresh quickly enough.

91

LFC 10.14.14 at 1:50 am

bianca steele:
That sounds very Talmudic

There’s probably some general similarity, although I know close to nothing about the Talmud. However I think the statute/Talmud analogy is not quite a fit, b.c the Talmud itself, if I remember this correctly, is a bunch of rabbinic commentaries on various Biblical (?) or other passages, so the (possibly) conflicting statements are built right into the text. Whereas most statutes, while they may have ambiguities, are not, I think, quite like that.

The ‘real’ (i.e. practicing) lawyers here (I went to law school a long time ago but I’m not a lawyer, if you’ll allow that distinction), no doubt can talk about statutory interpretation better than I can. [As for the Talmud, where is J.W. Burton when we
need him? ;)]

92

LFC 10.14.14 at 2:00 am

p.s. I think, on reflection, I misinterpreted you. I guess you meant the methods of judges faced w an ambiguous statute, and the rabbis faced w a knotty scriptural passage, are sometimes similar. Which cd be right. But I don’t really know

93

bianca steele 10.14.14 at 2:53 am

LFC, I (though my knowledge of Talmudic interpretation is fourth-hand at least) meant rules like “if (for example, authorities) A and B differ, always choose A, except on topic P, in which case choose B,” which is the kind of thing I thought you meant by “methods of statutory interpretation” (obviously IANAL and worse seem to be coming down with something). It’s interesting, I think, that there could be similarities in the kinds of reasoning involved; it might be that there are only a few different endpoints, at most, toward which complex legal systems could develop after enough time had gone by.

94

john c. halasz 10.14.14 at 3:26 am

IANAL so I’ve largely stayed out of this one. But the matter is clearly more general than just the problems of law. The are no rules to determine the application of rules, (on pain of infinite regress). And there is never just one rule: if there is a rule, then there will always be other cross-secting rules. But the system of rules can’t pre-determine their contexts of application or those contexts can be deduced from the rules, even if the contexts only emerge in the face of the system of rules. At most, the rules can only constrain, but not pre-specify the contexts of relevant application. IOW meaning is largely use, and the applications of a rule precede and exceed the “existence” of the rule. That’s just the open-ended condition of natural language.

Now legal discourse is formalized and attempts to achieve great precision in its formulations and procedures. But that doesn’t eliminate, even if it successfully limits, the underlying indeterminacy, which is less a problem than a condition of its operation. Lawyers and judges are definitely trained up in a specialized legal “logic”, but if a formal contradiction emerges, then the resolution is the same as in any more general case. The categories involved or the boundaries between categories get reformulated so as to “remove” the contradiction.

The job of the judiciary, aside from maintaining procedural correctness in deciding particular case, (which is usually fairly unproblematic), is to maintain the coherence of the whole body of law and the consistency of its application (legal equality). Beyond that, it becomes politically problematic, (as with the judicial review, which is not quite in the U.S. constitution, of SCOTUS). If the judges assume an “activist” role in deciding political issues, (and in U.S. history, this has largely been the case in a conservative, even reactionary, direction), then they are usurping the more broadly public-political processes that are supposed to give rise to the law and its legitimacy in the first place.

SO the larger ambiguity is whether the law is a system for (the administration of) power or a system for the determination of “justice”. Obviously, it must be the former, since it requires a sovereign power that promulgates, legislates and enforces the law, even as the law is a means of establishing and regulating that power. But it’s just as plain an observation that its relation to “justice” and political conflicts over such matters can be quite adventitious. Whose justice and justice for whom? Perhaps only for those who are already sufficiently powerful to lay claim to “justice”. (Cue Anatole France).

95

Bruce Wilder 10.14.14 at 4:26 am

I thought Bloix @ 85 had it right: This isn’t wrong so much as it is backwards.

The OP mistakes the law for a process trying to decide things ex ante, when deciding cases is governance, a process that is ex post.

A clever fellow could probably work up a symmetrical contrast with the economist’s traditional ex ante analysis of incentives and expectations. Oliver Williamson may have done this already, but no one can tell because he writes badly.

96

William Timberman 10.14.14 at 5:40 am

Another backwards example, closer to constitutional than common law: if it should become expedient to redefine, say, torture, there’ll never be a problem finding a lawyer who’ll do it, and do it willingly. The right one can even make the new definition sound plausible enough to get it past even our most judicious judges. Seems to me ex ante, is the glittery part being displayed in the foreground for us in such cases, even though it’s the ex post part over there in the shadows that really counts.

It’s not that we’re really that dumb; it’s that the game is rigged.

97

Bruce Wilder 10.14.14 at 6:33 am

When it is not worthwhile to rig is when we are well and truly . . .

98

LFC 10.14.14 at 3:45 pm

bianca steele @93:
I (though my knowledge of Talmudic interpretation is fourth-hand at least) meant rules like “if (for example, authorities) A and B differ, always choose A, except on topic P, in which case choose B,” which is the kind of thing I thought you meant by “methods of statutory interpretation”

I didn’t mean something quite that formulaic. Rather, I meant something more like: “look at the text; try to read it in a way that resolves the problems/questions and doesn’t do (too much) violence to the wording; also, and esp. if there are still problems, look at the legislative history; etc.” (But again, others are prob. in a better position to discuss this in detail.)

99

Anderson 10.14.14 at 3:57 pm

“There’s probably some general similarity, although I know close to nothing about the Talmud. ”

Legal interpretation is, as far as I can tell, built with tools created for the study of religious texts. Though all I know about the history of hermeneutics is some off-the-cuff comments by Sontag. Time to go make another addition to my Amazon wish-list. (I rarely *order* from them, but the wish list is handy.)

100

Anderson 10.14.14 at 3:59 pm

“if it should become expedient to redefine, say, torture, there’ll never be a problem finding a lawyer who’ll do it, and do it willingly”

Uh, I think this already happened in the U.S.

101

Bruce Wilder 10.14.14 at 4:02 pm

Uh, I think that was the point.

102

Anderson 10.14.14 at 4:11 pm

Ohhh, sorry. My irony detector is low on caffeine ….

103

Bill Tozier 10.15.14 at 3:26 pm

Ever since I picked up Jonsen & Toulmin’s The Abuse of Casuistry I’ve wondered where the very idea of an absolute “law” actually arose. Surely (based on my understanding of their work) in Medieval contexts at least, the casuistical approach was often employed, and the process was one of identifying what cases should be applied to identify a given situation. Modern legal practice seems to presume the situation has already been identified by the time a case is opened.

I’m not sure I understand the difference, quite. :/

104

LFC 10.16.14 at 2:10 am

B Tozier@103
As I understand it, casuistry (in the non-pejorative sense of the word) in moral reasoning is an attempt to clarify or solve specific cases in light of general principles, or to apply general principles to specific cases (that’s a standard short dictionary definition of “casuistry,” although Toulmin & Jonsen appear, based on the Wiki entry, to describe it somewhat differently). In that general sense, I guess you could say legal reasoning in a precedent-based system is casuistic: it progresses through the consideration/resolution of particular cases. (But I don’t think I’ve really understood your comment, b/c I don’t know the Toulmin/Jonsen book.)

P.s. Walzer, Just and Unjust Wars (1977), Preface, p. xvi: “The proper method of practical morality is casuistic in character.”

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