Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Wednesday, April 25, 2012
Constitutional Interpretation: Originalism and Textualism (Scalia) Part 1
Notes and Thoughts on Interpreting the Constitution by Antonin Scalia
I apologize for typos and such, I haven't had time to thoroughly proof read this post yet.
Preamble
So, I'm writing my philosophy of law paper on constitutional interpretation; "originalism" in particular. At first, I thought the whole idea of originalism kind of silly, but after doing some reading and thinking it's clear that there are some important reasons to consider some brands of originalism. It really comes down to what kind of originalism we're talkin' 'bout. Originalism can be divided roughly into two camps: original intent and original textual meaning. Those in the original intent camp derive their interpretation from trying to figure out what the particular issues of the time were and interpreting the constitution in relation to that.
There are quite a few general problems with this view which I won't go into because I'm focusing on textual originalism. But because I know how curious you are are just list a couple of the problems: 1. who's intent? (the particular framer that wrote it? all the framers together? the intent of the state legislatures that ratified it? the intent of the small group of white male landowners who voted in the representative legislature?)
2. Even if we answer this question, how can we ascertain what was in the minds of the group who's intent counts? and that's just the tip of the iceberg. We still have to justify why these peoples intentions should be held as infallible and true for all time. Enough of that, lets move on to Scalia's specific arguments against intentionalism, which have to do with his concept of the rule of law.
Scalia, the Rule of Law, and Intentionalism
Scalia begins with a basic question: What is the objective of legal interpretation? In addressing this question he systematically dismisses different intentionalist arguments.
1. Should judges interpret what the legislature intended by the law or the meaning of the words? Since there is no way to go inside the head of legislators it makes more sense to go by the textual meaning.
2. Should new statutes should be interpreted in such a way that makes them consistent and compatible with existant law. No, we should not assume that the legislator, when drafting the law were aware of every other existing law and how the new law might fit. Nor should we assume that it was their intent for there to be harmonization. If we really want to know was is meant by the law we need to interpret the meaning of the text. We shouldn't hypothesize about the goings-on inside the heads of others.
3. This next point concerns conception of what the "rule of law" ought to be. We want applications of the law to be predicable for the general public. If a law is enacted and seems to mean one thing but is later interpreted as meaning something else, this makes it difficult for people to know what behaviours fit within the law. They may act in a way that seems to conform with the law only to find out that the legislature had in mind some other intent, and end up unknowingly contravening it. For the sake of predictability we ought to interpret them as the text indicates, not as we might hypothesize someone to have intended.
The other objection related to desiderata of the rule of law is that, well, we prefer the rule of law over the rule of an individual. If we interpret according to what a law writer intended instead of the textual meaning then we are ruling according to an individuals desires not according to the law. "Men may intend what they will; but it is only the laws that they enact which bind us".
There is another related question here about the role of the judge in a legal system (which, incidentally, the Constitution says nothing about). If judges are permitted to interpret law in terms of perceived intent, we should expect that the intent they will read into the law just happens to coincide with their particular political/ethical views. If this is the case we lose out on another desiratum of the law: impartiality/objectivity. Judges, interpreting based on intent, will be inclined to interpret laws as what they think they ought to mean rather than what the text means.
Scalia's Examples of Legislative Intent Being Applied Instead of Original Textual Meaning: Church of the Holy Trinity v. US and A (1892)
Vs. Intentionalism
The church contracted an Englishman to be its rector and pastor (hehe! he said "rector"). The Circuit Court ruled that this violated a statute against "assisting or encouraging the importation or migration of any alien...under contract or agreement...made previous to the migration to perform labour or service of any kind."
Later the Supreme Court overruled and reversed the decision because extra-textual indications indicated that "the statute was intended to apply only to manual labour"; thereby making permissible entry on rector (hehe) duties.
Then, the Court goes on, at length, to say that because the US and A is a religious nation that "the construction invoked cannot be accepted as correct."
Scalia agrees that the first justification--the appeal to extra-textual evidence to guide interpretation of textual meaning was justified, but he disagrees that the court should have appealed to their belief that US and A is a religious nation to nullify the validity of the law as applied to rectors.
Next, we get more on Scalia's notion of the rule of law. He believes in judicial deference, that is, the judiciary should not reinterpret a law in such a way that constitutes a change in the law. In such matters, the judiciary should defer to the legislature. The role of the judiciary is not to make law. "Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former..."
Vs. Constructionism
Again, Scalia continues his arguments in favour of deference by opposing a constructionist view. He characterized constructionism as a the permissibility of a judge to consider "not only what the statute means abstractly, or even on the basis of legislative history, but also what it ought to mena in terms of the needs and goals of our present day society." I.e. "the law means what is ought to mean".
This type of judicial "activism" runs counter to democratic theory. It is not the role of judges to interpret laws in ways that might be in line with a current moral view. That is the role of the legislature. By removing that role from the elected representative, judges are undermining democracy--even if the ruling is desirable to er'body. If such a decision is desirable to er'body then the law can be revised in the legislature.
Finally, decisions that read into statues "intentions" or are interpretations that don't directly follow the most reasonable meaning of the text as it was written are weakening the predicability and stability of the rule of law. If a law's meanings change over time according to individuals' interpretation, that is rule of man, not of law.
Part 2: Textualism--Scalia's Positive View on Constitutional Interpretation
see next post
Tuesday, April 3, 2012
Separation of Church and State Part 2: The Establishment Clause and Accommodationist Position
Notes and Thoughts on the Legal Issues Surrounding the Separation of Church and State in the Context of the Establishment Clause
Overview
So, what's the establishment clause? It's the part of the first part of the first amendment that says "Congress shall make no law respecting the establishment of a religion". The free exercise clause follows it is, "[...] shall make no law impeding the free exercise of religion". The first clause is a guard against there being a state religions and the second forbids the gov't from obstructing people's ability to worship however and whomever they please. So, if someone wants to worship me the gov't can't stop them. Now I just need disciples. I'll be accepting applications.
History
Historically there are two basic reasons for the inclusion of the establishment clause: the first is political, the second is philosophical. Obviously, in reality the latter never would have been considered if not for the former. Enough jibber-jabber. Lets talk about the political reasons.
Prior to the 'mercan revolution the Church of England had been the national state religion. After the 'mercan revolution it was not. Pretty simple so far. But now in Virginia the Baptists held most of the political power. They realized that there were no protections in the Constitution against there being a national religion which they di'int want. Other religious groups realized this too, so basically as a safeguard against one religion taking over, the establishment clause was included.
Here comes the tricky part! Who needs the Quikee Mart? A couple of background points. First, is that up until the 14th Amendment was passed (extending the Bill of Rights, including 1st Amendment, to state laws), the Bill of Rights only applied to Federal laws. But part of the reason why the states had originally ratified the agreement in 178-whatever is because they didn't want federal interference in their state in the religious sphere.
So, it sounds like the signatories were against gov't intervention in religion. Not so. The reality was 6 of the states had official state religions. Ah! Now we see why they really signed. They di'int want their particular state religion to be banned or subjugated by a national religion.
In 1940 when the Supreme Court ruled that the 1st Amendment was included state-level laws, no one really had any issues with the "free exercise clause"--but the establishment clause was going to be a problem. Anytime people have to give up power and privilege there will always be resistance.
Two Arguments Against Extending the Establishment Clause to State Law
There are 2 main arguments against extending the scope of the establishment clause to state law. The first regards original intent. Recall that when the states originally ratified the constitution it was to protect their state religions and religious laws from federal interference. Apparently, in 1947 the Supreme Court acknowledges this fact (I need to read the opinions). Despite this acknowledgment, the court still ruled that the establishment clause extends to the state level (interesting).
The other argument involves individual rights. The argument is that the 14th amendment is only intended to extend the Bill of Rights to prohibitions on government interference with individual rights; that is, what were previously only restrictions on federal gov't laws vis a vis individual rights were now being extended to state laws. However, accommodationists contend that the establishment clause doesn't violate anyone's individual rights. It is not in the domain of individual rights, so it should be exempt from the extension of the Bill of Rights. Extending the establishment clause to state laws is an "unconstitutional" intrusion of the federal gov't into state sovereignty. And we all know how whipped up 'mericans can get when the big bad gov't extends it's powers in any way, shape, or form, including triangles. In 'merica, gov't is always baaaaaaaaaaaaad; especially the federal gov't (except when it provides the services that are required for a modern civilized nation...but lets ignore that).
Interesting. So, it looks like the accommodationists have some technical arguments...but do they have philosophical arguments? I'll keep looking...it'll make a better paper when I crush them!
Overview
So, what's the establishment clause? It's the part of the first part of the first amendment that says "Congress shall make no law respecting the establishment of a religion". The free exercise clause follows it is, "[...] shall make no law impeding the free exercise of religion". The first clause is a guard against there being a state religions and the second forbids the gov't from obstructing people's ability to worship however and whomever they please. So, if someone wants to worship me the gov't can't stop them. Now I just need disciples. I'll be accepting applications.
History
Historically there are two basic reasons for the inclusion of the establishment clause: the first is political, the second is philosophical. Obviously, in reality the latter never would have been considered if not for the former. Enough jibber-jabber. Lets talk about the political reasons.
Prior to the 'mercan revolution the Church of England had been the national state religion. After the 'mercan revolution it was not. Pretty simple so far. But now in Virginia the Baptists held most of the political power. They realized that there were no protections in the Constitution against there being a national religion which they di'int want. Other religious groups realized this too, so basically as a safeguard against one religion taking over, the establishment clause was included.
Here comes the tricky part! Who needs the Quikee Mart? A couple of background points. First, is that up until the 14th Amendment was passed (extending the Bill of Rights, including 1st Amendment, to state laws), the Bill of Rights only applied to Federal laws. But part of the reason why the states had originally ratified the agreement in 178-whatever is because they didn't want federal interference in their state in the religious sphere.
So, it sounds like the signatories were against gov't intervention in religion. Not so. The reality was 6 of the states had official state religions. Ah! Now we see why they really signed. They di'int want their particular state religion to be banned or subjugated by a national religion.
In 1940 when the Supreme Court ruled that the 1st Amendment was included state-level laws, no one really had any issues with the "free exercise clause"--but the establishment clause was going to be a problem. Anytime people have to give up power and privilege there will always be resistance.
Two Arguments Against Extending the Establishment Clause to State Law
There are 2 main arguments against extending the scope of the establishment clause to state law. The first regards original intent. Recall that when the states originally ratified the constitution it was to protect their state religions and religious laws from federal interference. Apparently, in 1947 the Supreme Court acknowledges this fact (I need to read the opinions). Despite this acknowledgment, the court still ruled that the establishment clause extends to the state level (interesting).
The other argument involves individual rights. The argument is that the 14th amendment is only intended to extend the Bill of Rights to prohibitions on government interference with individual rights; that is, what were previously only restrictions on federal gov't laws vis a vis individual rights were now being extended to state laws. However, accommodationists contend that the establishment clause doesn't violate anyone's individual rights. It is not in the domain of individual rights, so it should be exempt from the extension of the Bill of Rights. Extending the establishment clause to state laws is an "unconstitutional" intrusion of the federal gov't into state sovereignty. And we all know how whipped up 'mericans can get when the big bad gov't extends it's powers in any way, shape, or form, including triangles. In 'merica, gov't is always baaaaaaaaaaaaad; especially the federal gov't (except when it provides the services that are required for a modern civilized nation...but lets ignore that).
Interesting. So, it looks like the accommodationists have some technical arguments...but do they have philosophical arguments? I'll keep looking...it'll make a better paper when I crush them!
Saturday, March 31, 2012
Separation of Church and State: The Lemon Test
Pre-amble
As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays. Basically, I'm apologizing in advance for what might end up as "rambling". For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion. Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis. Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.
Also something went crazy with the layout so I apologize for that.
Intro the First Amendment Regarding Establishment of Religion
The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion. (Note, it has been extended to laws at the state level since 1925).
Before we put on our philosopher beards, lets look at the actual law:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof (then some
shit about free speech, freedom of the press, assembly,
blah, blah, blah).
So, what's the point of the law? It seems it's to make it so
government neither promotes one religion over another or
interferes in anyone's ability to practix their religion of choice, and
maybe to secure freedom from being coerced into a particular
religion.
The clauses work together in that if government were to enact
policy that gave preference to one religion (or branch of a
religion), it would be a hop, skip, and a jump away from
interfering others' ability to practix their own religion.
Conversely, by interfering in someone's/some group's ability to
practix religion, they'd be tacitly endorsing others.
There are lots of instances where the manner in which this law
should be applied is pretty clear, and we never hear about those
because they never make it to court. There are however other
instances where it's not so clear how or if the establishment clause
applies.
Two Interpretations
There are 2 basic interpretations of the law: the separationist and
the accommodationist. Obviously, the separationist view is that
there should be a strict separation of Church and State. The
modern separationist interpretation (the standard one) was first
invoked in 1971 in Lemon v. Kurtzman. In this case private
religious-based schools were axing for money to supplement
teachers' salaries who taught secular content. Out of this case
arose what is called the Lemon test. The purpose of the test is to
determine whether a proposed piece of legislation constitutes the
establishment of religion, thereby violating the establishment
clause.
The Lemon Test
Here it is--check it!
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."
Regarding the first section, it is noted that a law can also have
religious motivations and still be constitutional, but it's primary
purpose must be secular. The second section is self-explanatory.
The third has faced the most criticism and has been interpreted
various ways.
One interpretation of the third part is that it is only the effects of
the proposed law that cannot bring about Church-State
entanglement. For example, most "Church" charities are actually
largely funded by the government. Because government doesn't
administrate or regulate the charities (possible problem?) these
types of policies have not been interpreted as "excessively"
entangling gov't with religion.
Another consideration in interpreting the third section of the
Lemon test is the purpose of the law. Hospitals and universities
are institutions considered to have secular purposes, for this
reason, a law which approves funding to such institutions even if
they have religious affiliations can be (and has been) considered
permissible.
Accommodationists
One can make the argument that accommodationists are "less
concerned about the dangers of establishment and less concerned
to protect free exercise rights, particularly of religious minorities."
Basically, as I mentioned before, if you give an advantage to one
religious group it is very easy for smaller groups to be prejudiced
against and not be able to compete for souls on a level playing
field. Er'body knows that whatever religion ends up with the most
souls wins. It's unfair for gov't to help one team while not helping
others.
The accommodationist position is best summarized by the opinion
of Justice Douglas in Zorach v. Clauson: "Accommodationists read
the establishment clause as prohibiting Congress from declaring a
national religion or preferring one to another, but laws do not have
to be shorn of morality and history to be declared constitutional".
They apply Lemon only selectively because "[w]e are a religious
people whose institutions presuppose a Supreme Being".
Oy! Where to begin! For my paper I'm going to attack the clause
"do not have to be shorn of morality and history" because a) the
(absurd) implication is that the is no morality without religion (or
that our moral values are derived from religion) and b) that this is
what the writers of the constitution intended and/or that this
interpretation is implied by the historical circumstances at the time
of the writing. It seems Justice Douglas is taking liberties with his
psycho-analysis of James Madison.
Obviously, the claim that the US gov't institutions presuppose a
Supreme Being is also pretty loony. Suppose it is true. What does
that tell us about our sexual preference? Exactly, it's irrelevant.
Someone please tell me how the existence or non-existence of a
Supreme being is relevant to EPA legislation.
Arguments for Interpretation
I should add that the separationists, to support their position,
appeal to one of Jefferson's letters in which he uses the phrase and
advocates the view of "separation of church and state". Also in
1879 Chief Justice Waite consulted with historian G. Bancroft to
discuss Madison's (author of the 1st Amendment) "Memorial and
Remonstrance against Religious Assessments". In that petition
Madison proposes there should be "a great barrier" between
Church and State.
This brings up the issue of how interpretation is done in
constitutional law: do you strictly interpret the letter of the law in
the way it would have been understood in its era? Or do you make
allowances with the understanding that what made sense in one era
might not now, and that law-makers can't foresee all future
circumstances.
Maybe you argue for interpretation based on intent, but how do
you know the authors intent? Do you have a time-travel machine
and a mind reading machine? It is almost certain that our own
biases will be read into how we "interpret" the intent of a
lawmaker.
Anyway, I think this is a productive start. I think I'll go though
some of the major trials and read judges opinions and go from
there. I welcome any comments or suggestions. Thanks for
putting up for the scattered writing...
G'nite!
By the by, if you're interested in reading G. Madison's "Memorial
and Remonstrance against Religious Assessments" here's the link
(it's not very long):
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html
As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays. Basically, I'm apologizing in advance for what might end up as "rambling". For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion. Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis. Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.
Also something went crazy with the layout so I apologize for that.
Intro the First Amendment Regarding Establishment of Religion
The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion. (Note, it has been extended to laws at the state level since 1925).
Before we put on our philosopher beards, lets look at the actual law:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof (then some
shit about free speech, freedom of the press, assembly,
blah, blah, blah).
So, what's the point of the law? It seems it's to make it so
government neither promotes one religion over another or
interferes in anyone's ability to practix their religion of choice, and
maybe to secure freedom from being coerced into a particular
religion.
The clauses work together in that if government were to enact
policy that gave preference to one religion (or branch of a
religion), it would be a hop, skip, and a jump away from
interfering others' ability to practix their own religion.
Conversely, by interfering in someone's/some group's ability to
practix religion, they'd be tacitly endorsing others.
There are lots of instances where the manner in which this law
should be applied is pretty clear, and we never hear about those
because they never make it to court. There are however other
instances where it's not so clear how or if the establishment clause
applies.
Two Interpretations
There are 2 basic interpretations of the law: the separationist and
the accommodationist. Obviously, the separationist view is that
there should be a strict separation of Church and State. The
modern separationist interpretation (the standard one) was first
invoked in 1971 in Lemon v. Kurtzman. In this case private
religious-based schools were axing for money to supplement
teachers' salaries who taught secular content. Out of this case
arose what is called the Lemon test. The purpose of the test is to
determine whether a proposed piece of legislation constitutes the
establishment of religion, thereby violating the establishment
clause.
The Lemon Test
Here it is--check it!
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."
Regarding the first section, it is noted that a law can also have
religious motivations and still be constitutional, but it's primary
purpose must be secular. The second section is self-explanatory.
The third has faced the most criticism and has been interpreted
various ways.
One interpretation of the third part is that it is only the effects of
the proposed law that cannot bring about Church-State
entanglement. For example, most "Church" charities are actually
largely funded by the government. Because government doesn't
administrate or regulate the charities (possible problem?) these
types of policies have not been interpreted as "excessively"
entangling gov't with religion.
Another consideration in interpreting the third section of the
Lemon test is the purpose of the law. Hospitals and universities
are institutions considered to have secular purposes, for this
reason, a law which approves funding to such institutions even if
they have religious affiliations can be (and has been) considered
permissible.
Accommodationists
One can make the argument that accommodationists are "less
concerned about the dangers of establishment and less concerned
to protect free exercise rights, particularly of religious minorities."
Basically, as I mentioned before, if you give an advantage to one
religious group it is very easy for smaller groups to be prejudiced
against and not be able to compete for souls on a level playing
field. Er'body knows that whatever religion ends up with the most
souls wins. It's unfair for gov't to help one team while not helping
others.
The accommodationist position is best summarized by the opinion
of Justice Douglas in Zorach v. Clauson: "Accommodationists read
the establishment clause as prohibiting Congress from declaring a
national religion or preferring one to another, but laws do not have
to be shorn of morality and history to be declared constitutional".
They apply Lemon only selectively because "[w]e are a religious
people whose institutions presuppose a Supreme Being".
Oy! Where to begin! For my paper I'm going to attack the clause
"do not have to be shorn of morality and history" because a) the
(absurd) implication is that the is no morality without religion (or
that our moral values are derived from religion) and b) that this is
what the writers of the constitution intended and/or that this
interpretation is implied by the historical circumstances at the time
of the writing. It seems Justice Douglas is taking liberties with his
psycho-analysis of James Madison.
Obviously, the claim that the US gov't institutions presuppose a
Supreme Being is also pretty loony. Suppose it is true. What does
that tell us about our sexual preference? Exactly, it's irrelevant.
Someone please tell me how the existence or non-existence of a
Supreme being is relevant to EPA legislation.
Arguments for Interpretation
I should add that the separationists, to support their position,
appeal to one of Jefferson's letters in which he uses the phrase and
advocates the view of "separation of church and state". Also in
1879 Chief Justice Waite consulted with historian G. Bancroft to
discuss Madison's (author of the 1st Amendment) "Memorial and
Remonstrance against Religious Assessments". In that petition
Madison proposes there should be "a great barrier" between
Church and State.
This brings up the issue of how interpretation is done in
constitutional law: do you strictly interpret the letter of the law in
the way it would have been understood in its era? Or do you make
allowances with the understanding that what made sense in one era
might not now, and that law-makers can't foresee all future
circumstances.
Maybe you argue for interpretation based on intent, but how do
you know the authors intent? Do you have a time-travel machine
and a mind reading machine? It is almost certain that our own
biases will be read into how we "interpret" the intent of a
lawmaker.
Anyway, I think this is a productive start. I think I'll go though
some of the major trials and read judges opinions and go from
there. I welcome any comments or suggestions. Thanks for
putting up for the scattered writing...
G'nite!
By the by, if you're interested in reading G. Madison's "Memorial
and Remonstrance against Religious Assessments" here's the link
(it's not very long):
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html
Sunday, February 5, 2012
What is Law? Baby Don't Hurt Me, Don't Hurt Me, No More...
Ok, before I start I just want to note that there are clearly different ideas of social conventions. Take for example the person who is sitting across the room from me blabbing on her phone. The parameters: It's Saturday night, I'm in my favourite study place (the laundry room) which is, I acknowledge, a public space. It is however Saturday night and with the exception of a couple fools with no life like myself, the building is empty. She can see I'm studying. My books are open. They're not comic books. It's not like there's nowhere else to go in the building. There's a lounge around the corner. Oh, well...
Notes and Thoughts on H. L. A. Hart's The Concept of Law: Law as the Union of Primary and Secondary Rules
Overview
I know what you're thinking: this is going to be the most exciting thing to read--ever! Well, I can't promise you that, but I'll do my best to make it into your top 3. From the point of view of philosophy of law, H. L. A. Hart is pretty exciting. Lemmi 'splain why. So, in my last entry on philosophy of law we looked at Aquinas' naturalistic conception of the law, which expresses one of the poles on the continuum of answers to the question of "what is law". On the other pole is Austin and "positive law". I didn't write anything about his position but basically the central debate in philosophy of law (in modern secular terms) is over the role of morality in law.
To recap both positions, Augustine thinks that human law (what we now generically refer to as "law") is only legitimate to the extent that it expresses divine law (i.e. morality). A strong interpretation of Augustine's position is that if a law is unjust (i.e., inconsistent with divine law/morality) then one is not compelled to obey it. This interpretation raises some interesting issues that I might discuss later.
Austin, on the other hand, is all "dude! if it's a law in the books, then it's a law. Sayin' a law is immoral is one thing, but saying it's not a law, and you don't need to obey it is another." For Austin, a law must be obeyed to the extent that it emanates from a legitimate political entity; its content is irrelevant. Actually, he has a pretty awesome quote to summerize his position:
Now, to say that human laws which conflict with the Divine law are not binding, that is to say are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God...the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up...An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment. (my italics)
Regardless of where you stand on the continuum, the main issues arise out of your answer to what you think is the relationship between morality and law. Does law have to reflect morality? Does law arise out of morality? Does the legitimacy of law arise out of its relationship to morality or the political institutions from which it was promulgated? What is our obligation, as citizens, to obey laws? And out of what does that obligation arise? Under what conditions should we disobey the law?
Of course there are more questions, but you get the picture: our answer to how law and morality are related is going to heavily influence how we answer the above questions. Ultimately, by trying to understand the relationship between law and morality we also approach an answer to the question, "what is law?" (baby don't hurt me, baby don't hurt me, no more)
So, anyway, around the middle of the 20th Century, H. L. A. Heart comes along and is all, like, "guys, check it out, I've got an idea that everyone can enjoy..." Yay!
HOLY CRAP, THAT CHICK IS STILL TALKING!
Law as the Union of Primary and Secondary Rules
Primary Rules
Yo, check it. Imagine you is in a jungle tribe (because all tribes lives in jungles). There's no formal government or legal system--i.e., courts, legislature, etc...So, what would allow these tribespeople that hunt with spears and play drums all time (all tribes hunt with spears and play drums all the time) to co-exist with each other? Well, it would be the general attitude of the tribe towards its own standard behavioural norms--i.e., the degree to which they adhere to their social conventions and customs. Hart calls these customs the primary rules.
All systems of primary rules, in order for people to co-exist along side each other, must contain (1) some form of restriction on the free use of violence, theft, and deception. Such rules are found in every primitive society along with various positive obligations toward contributing to the society (unless it's a libertarian society, in which case everyone else can go screw themselves).
(2) The second set of conditions required in a society having only primary rules is that the number of people who support a given rule must be in the majority, otherwise there would not be sufficient social pressure to ensure conformity. So, in any primitive society there will be individuals who try to or do break the rules or object to the rules, but the majority will always live by the prevailing rules/customs.
Problems With Having Only Primary Rules
Consider the following situation: I am a world famous DJ (call me DJ QWanTum NRG) living in a primitive pre-legal society and I want to remake the early 90s classic hit "What is Love". It is custom in our tribe to ask permission from the original artist to remake a song, especially if it's going to be a techno-trance remix, which happens to be my speciality. (Every detail in this hypothetical situation is of vital importance). Unfortunately, Haddaway (the original artist who also lives in my tribe) went-a-way for a hol-i-day. Well, I've got a rave to DJ tonight and I can't wait for him to come back this-a-way. I need to know now.
Anyway, to make a long story short, I play my awesome remix and er'body loves it so much they say I should change my name to DJ Jesus. The following Saturday, I run into Haddaway. He says I broke one of the customs and now should be sentenced to hang by my thumbs. I say, "well, I didn't know I have to ask about doing a remix, I just thought we do that to be polite." And Haddaway is all, "no, for this custom you are obliged to follow it, otherwise you will be punished". And I'm all, "well, if I had-a-way of knowing things were that-a-way, I wouldn't have played my remix; it's not clear what customs are suggested practice and which are rules must be followed."
This totally plausible example summarizes would happen in hypothetical society with only primary rules (customs) where there was a disagreement on whether a rule applied to a situation or not; or that there was even a rule that applied. In a system of only customs, how is it to be determined if a custom is a rule of etiquette that is polite and optional (e.g., table manners, RSVPing, social conventions) but not obligatory, or a rule to which adherence is obligatory.
In a society with no legal system, there would be no procedure or criteria for differentiating: they won't have any official book or authority that can resolve the dispute because this would imply a secondary set of rules: rules concerning how to resolve disputes about the degree of adherence required for a given primary rule. A primitive system of only primary rules will have a problem with uncertainty, because of an absence of rules prescribing how to resolve such situations.
A second problem with such a primitive system is that its rules will be static. Since there are no rules about how to change rules, a society will not be able to adapt where and when appropriate. The only way primary rules can be introduced is if they, by random happenstance, move from being optional, to habitual, to obligatory. For rules to be eliminated, deviations that were previously punished will start to go unpunished, until such infractions go unnoticed.
The third problem with our hypothetical primitive society's system is that of inefficiency. Rules are only enforced by social pressure, but what happens in borderline cases where it isn't clear if a custom was broken or not? Some might think a custom was violated, others not. With no rules for resolving such situations, our tribe's system is very inefficient.
The Solutions: Secondary Rules
You guessed it: we need secondary rules--rules that outline how to deal with problems of uncertainty, staticity, and inefficiency in a system of primary rules. Also, it is interesting to note that it is the introduction of secondary rules that brings about what we recognize as a legal system. So, what are secondary rules? They are the rules about the primary rules. They concern how primary rules can be ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.
Secondary Rules for Uncertainty: The Rule of Recognition
The first and most important of the the secondary rules is "the rule of recognition" which addresses the problem of uncertainty. How do we know what rules are socially polite to follow (e.g., table manners) but not obligatory, and what rules are obligatory and whose transgression are followed by sanction? The rule of recognition tells us! The rule of recognition might be something as simple as "whatever Bob says is law" or "look at the tablets God gave to Moses'" to something as sophisticated as, "if it passes votes in both legislative houses by a 2/3rd majority and isn't vetoed by el presidente". The point is, when there is a rule of recognition, there is some way for individuals to know what customs are obligatory to follow and which aren't.
Secondary Rules for Overcoming "Staticness": Rules of Change
If we want our society to have a way to change rules we need rules on how to change those rules, which are called the rules of change. These rules can be simple or complex. A simple rule of change would be that a certain individual (the head DJ of the tribe) gets to decide whether a primary rule can be introduced, eliminated, or modified.
There will be a close relationship between the rules of change and the rules of recognition because introducing a new rule or repealing an old rule will also require the rule of recognition to tell us what is and/or isn't a rule. The simpler the legal system, the closer the rule of recognition will resemble the rules of change.
A contemporary instance of a primary rule changing can be observed in US states where there are attempts to extend marriage laws to include gay couples. The procedures the advocates are going through are the rules of change for the respective state legal systems.
Secondary Rules for Overcoming Inefficiency: Rules of Adjudication
Under a system of only primary rules, compliance is brought about purely through social pressure. How do we decide in ambiguous cases if someone has broken a primary rule? This is where rules of adjudication come in: these are rules about what individuals get to decide if a primary rule was broken and how (i.e., judges, courts, lawyers, jurisdiction, and judgement). Rules of adjudication will also include what sort of penalties are are acceptable for different classes of transgressions of the primary rules.
Conclusion
Returning to the original issue of the relationship between morality and law, we are in a better position to evaluate the matter now that we have a clearer picture of what law is. Within Hart's framework, we can ask internal and external questions about law. Internal questions are about whether a certain law applies to a given situation--that is, is a given law valid? Does it meet the criteria of the rule of recognition? Answers to questions of validity will involve analysis of the secondary rules: Is the primary rule (i.e., law) legitimate in regards the rule of recognition?
External questions are about the secondary rules that confer legitimacy on a particular law. Such questions might include: is it good that the only thing that makes a law valid is that DJ Jesus said it's valid? Maybe there should be other criteria for validity...
Notice two things. In Hart's model we aren't questioning the moral worth of particular laws, we can only question whether they are valid and whether they apply to a particular situation. However, as we enter the realm of external questions, we enter the realm of values, but not about particular primary laws...
So, I ask you: What is law? Baby don't hurt me, baby don't hurt me, no more...
Notes and Thoughts on H. L. A. Hart's The Concept of Law: Law as the Union of Primary and Secondary Rules
Overview
I know what you're thinking: this is going to be the most exciting thing to read--ever! Well, I can't promise you that, but I'll do my best to make it into your top 3. From the point of view of philosophy of law, H. L. A. Hart is pretty exciting. Lemmi 'splain why. So, in my last entry on philosophy of law we looked at Aquinas' naturalistic conception of the law, which expresses one of the poles on the continuum of answers to the question of "what is law". On the other pole is Austin and "positive law". I didn't write anything about his position but basically the central debate in philosophy of law (in modern secular terms) is over the role of morality in law.
To recap both positions, Augustine thinks that human law (what we now generically refer to as "law") is only legitimate to the extent that it expresses divine law (i.e. morality). A strong interpretation of Augustine's position is that if a law is unjust (i.e., inconsistent with divine law/morality) then one is not compelled to obey it. This interpretation raises some interesting issues that I might discuss later.
Austin, on the other hand, is all "dude! if it's a law in the books, then it's a law. Sayin' a law is immoral is one thing, but saying it's not a law, and you don't need to obey it is another." For Austin, a law must be obeyed to the extent that it emanates from a legitimate political entity; its content is irrelevant. Actually, he has a pretty awesome quote to summerize his position:
Now, to say that human laws which conflict with the Divine law are not binding, that is to say are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God...the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up...An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment. (my italics)
Regardless of where you stand on the continuum, the main issues arise out of your answer to what you think is the relationship between morality and law. Does law have to reflect morality? Does law arise out of morality? Does the legitimacy of law arise out of its relationship to morality or the political institutions from which it was promulgated? What is our obligation, as citizens, to obey laws? And out of what does that obligation arise? Under what conditions should we disobey the law?
Of course there are more questions, but you get the picture: our answer to how law and morality are related is going to heavily influence how we answer the above questions. Ultimately, by trying to understand the relationship between law and morality we also approach an answer to the question, "what is law?" (baby don't hurt me, baby don't hurt me, no more)
So, anyway, around the middle of the 20th Century, H. L. A. Heart comes along and is all, like, "guys, check it out, I've got an idea that everyone can enjoy..." Yay!
HOLY CRAP, THAT CHICK IS STILL TALKING!
Law as the Union of Primary and Secondary Rules
Primary Rules
Yo, check it. Imagine you is in a jungle tribe (because all tribes lives in jungles). There's no formal government or legal system--i.e., courts, legislature, etc...So, what would allow these tribespeople that hunt with spears and play drums all time (all tribes hunt with spears and play drums all the time) to co-exist with each other? Well, it would be the general attitude of the tribe towards its own standard behavioural norms--i.e., the degree to which they adhere to their social conventions and customs. Hart calls these customs the primary rules.
All systems of primary rules, in order for people to co-exist along side each other, must contain (1) some form of restriction on the free use of violence, theft, and deception. Such rules are found in every primitive society along with various positive obligations toward contributing to the society (unless it's a libertarian society, in which case everyone else can go screw themselves).
(2) The second set of conditions required in a society having only primary rules is that the number of people who support a given rule must be in the majority, otherwise there would not be sufficient social pressure to ensure conformity. So, in any primitive society there will be individuals who try to or do break the rules or object to the rules, but the majority will always live by the prevailing rules/customs.
Problems With Having Only Primary Rules
Consider the following situation: I am a world famous DJ (call me DJ QWanTum NRG) living in a primitive pre-legal society and I want to remake the early 90s classic hit "What is Love". It is custom in our tribe to ask permission from the original artist to remake a song, especially if it's going to be a techno-trance remix, which happens to be my speciality. (Every detail in this hypothetical situation is of vital importance). Unfortunately, Haddaway (the original artist who also lives in my tribe) went-a-way for a hol-i-day. Well, I've got a rave to DJ tonight and I can't wait for him to come back this-a-way. I need to know now.
Anyway, to make a long story short, I play my awesome remix and er'body loves it so much they say I should change my name to DJ Jesus. The following Saturday, I run into Haddaway. He says I broke one of the customs and now should be sentenced to hang by my thumbs. I say, "well, I didn't know I have to ask about doing a remix, I just thought we do that to be polite." And Haddaway is all, "no, for this custom you are obliged to follow it, otherwise you will be punished". And I'm all, "well, if I had-a-way of knowing things were that-a-way, I wouldn't have played my remix; it's not clear what customs are suggested practice and which are rules must be followed."
This totally plausible example summarizes would happen in hypothetical society with only primary rules (customs) where there was a disagreement on whether a rule applied to a situation or not; or that there was even a rule that applied. In a system of only customs, how is it to be determined if a custom is a rule of etiquette that is polite and optional (e.g., table manners, RSVPing, social conventions) but not obligatory, or a rule to which adherence is obligatory.
In a society with no legal system, there would be no procedure or criteria for differentiating: they won't have any official book or authority that can resolve the dispute because this would imply a secondary set of rules: rules concerning how to resolve disputes about the degree of adherence required for a given primary rule. A primitive system of only primary rules will have a problem with uncertainty, because of an absence of rules prescribing how to resolve such situations.
A second problem with such a primitive system is that its rules will be static. Since there are no rules about how to change rules, a society will not be able to adapt where and when appropriate. The only way primary rules can be introduced is if they, by random happenstance, move from being optional, to habitual, to obligatory. For rules to be eliminated, deviations that were previously punished will start to go unpunished, until such infractions go unnoticed.
The third problem with our hypothetical primitive society's system is that of inefficiency. Rules are only enforced by social pressure, but what happens in borderline cases where it isn't clear if a custom was broken or not? Some might think a custom was violated, others not. With no rules for resolving such situations, our tribe's system is very inefficient.
The Solutions: Secondary Rules
You guessed it: we need secondary rules--rules that outline how to deal with problems of uncertainty, staticity, and inefficiency in a system of primary rules. Also, it is interesting to note that it is the introduction of secondary rules that brings about what we recognize as a legal system. So, what are secondary rules? They are the rules about the primary rules. They concern how primary rules can be ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.
Secondary Rules for Uncertainty: The Rule of Recognition
The first and most important of the the secondary rules is "the rule of recognition" which addresses the problem of uncertainty. How do we know what rules are socially polite to follow (e.g., table manners) but not obligatory, and what rules are obligatory and whose transgression are followed by sanction? The rule of recognition tells us! The rule of recognition might be something as simple as "whatever Bob says is law" or "look at the tablets God gave to Moses'" to something as sophisticated as, "if it passes votes in both legislative houses by a 2/3rd majority and isn't vetoed by el presidente". The point is, when there is a rule of recognition, there is some way for individuals to know what customs are obligatory to follow and which aren't.
Secondary Rules for Overcoming "Staticness": Rules of Change
If we want our society to have a way to change rules we need rules on how to change those rules, which are called the rules of change. These rules can be simple or complex. A simple rule of change would be that a certain individual (the head DJ of the tribe) gets to decide whether a primary rule can be introduced, eliminated, or modified.
There will be a close relationship between the rules of change and the rules of recognition because introducing a new rule or repealing an old rule will also require the rule of recognition to tell us what is and/or isn't a rule. The simpler the legal system, the closer the rule of recognition will resemble the rules of change.
A contemporary instance of a primary rule changing can be observed in US states where there are attempts to extend marriage laws to include gay couples. The procedures the advocates are going through are the rules of change for the respective state legal systems.
Secondary Rules for Overcoming Inefficiency: Rules of Adjudication
Under a system of only primary rules, compliance is brought about purely through social pressure. How do we decide in ambiguous cases if someone has broken a primary rule? This is where rules of adjudication come in: these are rules about what individuals get to decide if a primary rule was broken and how (i.e., judges, courts, lawyers, jurisdiction, and judgement). Rules of adjudication will also include what sort of penalties are are acceptable for different classes of transgressions of the primary rules.
Conclusion
Returning to the original issue of the relationship between morality and law, we are in a better position to evaluate the matter now that we have a clearer picture of what law is. Within Hart's framework, we can ask internal and external questions about law. Internal questions are about whether a certain law applies to a given situation--that is, is a given law valid? Does it meet the criteria of the rule of recognition? Answers to questions of validity will involve analysis of the secondary rules: Is the primary rule (i.e., law) legitimate in regards the rule of recognition?
External questions are about the secondary rules that confer legitimacy on a particular law. Such questions might include: is it good that the only thing that makes a law valid is that DJ Jesus said it's valid? Maybe there should be other criteria for validity...
Notice two things. In Hart's model we aren't questioning the moral worth of particular laws, we can only question whether they are valid and whether they apply to a particular situation. However, as we enter the realm of external questions, we enter the realm of values, but not about particular primary laws...
So, I ask you: What is law? Baby don't hurt me, baby don't hurt me, no more...
Tuesday, January 31, 2012
Zumba Theologica Part 1: Aquinas Gets Down with Natural Law
Notes and Thoughts on Thomas Aquinas' Summa Theologica
Favourite Quote of the Reading: "Consequentially it is evident that the proper effect of a law is to lead its subjects to their proper virtue; and since virtue is that which makes its subject good, it follows that the proper effect of law is to make those, to whom it is given, good, either absolutely or in some particular respect. For if the intention of the lawgiver is fixed on a true good, which is the common good regulated according to divine justice, it follows that the effect of law is to make men good absolutely. If, however, the intention of the lawgiver is fixed on that which is not good absolutely, but useful or pleasurable to himself, or in opposition to divine justice, then law does not make men good absolutely, but in a relative way, namely, in relation to that particular government".
Overview
Aristotle's writings had just been rediscovered in the 13th Century when Aquinas wrote. A major problem the Catholic Church had was to reconcile Aristotle's philosophy with Catholic doctrine. A significant amount of Aquinas' work was devoted to this task. The important Aristotelian themes that emerge in Aquinas' legal philosophy are that every creature has its own natural purpose or end and that actualizing this purpose is what good is. As applied to law this concept entails that we cannot understand a political or legal system without first thinking about the good of humans, as well as the purpose of law itself. In other words, the 'goodness' of a legal or political system can be measured in terms of how well it helps to actualize the good of humans (see Moore's Naturalistic Fallacy). Interestingly, it wasn't until 1879 (feelin' fine) that the Catholic Church declared Aquinas' writings to be its official doctrine.
Quick Definition: Natural law is a system of law that is deduced from human nature. The idea is that you analyze human nature and figure out what universal moral principles are necessary for flourishing, then you build your laws in accordance with what best achieves that aim. Central to the notion of natural law is the assertion that morality is universal (and eternal) and we can somehow access it.
On The Essence of Law
Whether Law Is Always Directed to the Common Good
Yes. The End. Well, that's the conclusion anyway. Let check aus the argument:
(1) Law belongs to the class of things that are principles of human action. Ok, that seems pretty straight forward.
(2) Reason is also a principle of human action. Nothing too crazy here.
(3) There is also a principle that governs reason; that principle is that actions should be directed toward the objective of human life--happiness and beatitude (blissful happiness...yay!). I'm not going to go to much into it here but it's important to note that the notion of happiness for Aristotle has very little to do with an emotional state or hedonistic pleasure. It has to do with self-actualization, sometimes called "flourishing". It is a continuous process for which attainment can only be judged after someone has already died, because only then can we fully assess whether someone actualized their potential.
(C) Therefore, law should mainly be about creating an order in society such that beatitude is preserved and produced. The idea here is that law should be about creating a society that is conducive to allowing a society to flourish. I guess a legal system that stifled people ability to actualize themselves wouldn't be 'good'. But I think it's still an open question as to whether enabling flourishing should be the prime role of a legal system...
Here's the grand conclusion: since the governing principle of law is the common good, any law that runs counter to the common good is not law. Say wut? A law isn't a law? Yup. If a law does not produce human flourishing then it is actually not a law.
Whether Any Individual Acting through Reason Is Competent to Make Laws
Nope. But why not? Because if an individual makes a law, it doesn't have the force of compulsion. "A private person cannot lead another to virtue efficaciously; for he can only advise, and if his advice be not taken, it has no coercive power, such as the law should have..." Well, that kind of makes sense. I can't imagine many people being compelled to do things just because random individuals decide they want to make a law...
That's not to say people can't make rules within their limited domains. Obviously, a man can make rules governing the conduct of his wife and children (trolling!) but these do not have the force of laws. So, what's the difference between rules and laws? Well, rules are applicable in a limited domain, such as a household, or a community. Laws, however, have to do with the flourishing of an entire state. So, rules have limited scope in terms of the size of the group to which they apply. Laws apply to the entire state and must be directed at producing flourishing to count as law. "Law is nothing more than an ordinance of reason for the common good, promulgated by him who has the care of the community".
Wait a minute. How does the guy who "has the care of the community" know what the laws are? and while we're at it, how does everyone come to know what the laws are, especially in illiterate societies? Sooooooo simple. "The natural law is promulgated by the very fact the God instilled it into man's mind so as to be know by him naturally".
See? That wasn't so hard. But wait, why do we need someone to tell us what the law is if "God instilled it into man's mind"? Or did he just forget to instil it into some people's minds (evidence favours this)? Oh! God! You little rascal! But that's not what he says, in a later section he continues that "the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light". (*angelic singing*)
Then, he goes on to contract himself (again) because he says that those who are not present when a law is promulgated are bound to obey the law in so far as it is made known to them by others. But, again, why do we need others to tell us the law if God instilled it in each and every one of his children? (at the moment of conception, I'm sure!)
Of course the God argument is silly but we might argue the same sort of thing from a secular point of view, that we are hardwired a certain way that allows us, upon reflection, to know what morality is and what moral actions would consist in. We'll get into that more later...but right now, my main man Aquinas is gonna drop some knowledge about different kinds of law...
On the Various Kinds of Law
Human Law (vs. Divine Law)
"A law is a dictate of practical reason". Technical term alert!!! What's practical reason? It's the kind of reason we use when we decide how to act; usually to choose between alternative courses of action. Here's where it gets interesting (finally! I know, right?). The explanation of human law goes a little somethin' like this: The principles of natural law (i.e. morality) are known and common to us but are indemonstrable. Human reason isn't perfect so we don't have perfect access to divine I'm not sure if he's referring to the idea that our knowledge of morality comes from intuitions and so (maybe) can't be put into words.
Or maybe (more likely) he's saying something like, value principles are difficult to put into enough clauses that will cover every possible legal situation past, present, and future. Our reason allows us access what to do in particular cases (*angelic singing*): we reason from abstract moral principles to fine-grained particular laws and legal/moral decisions. But, humans can't know how to perfectly apply moral rules to every possible case. Nevertheless, the particular laws derived from practical reason are human law--so long as the "flourishing" condition is met.
Of course, our practical reason isn't perfect and neither is our knowledge (why didn't didn't God give us perfect access to the divine law? What? We don't have enough challenges already?) so it doesn't overlap entirely with divine law. Divine law would require perfect knowledge of moral principles and perfect practical reason.
Divine Law: Is It Necessary?
If we can't access divine law, why is it important? Aquinas give us 4 reasons:
(1) This one's a little weird. (a) Since how a man acts to achieve his ultimate goals is directed by laws and (b) his ultimate goals will only be in proportion to his natural abilities, then (c) there is no need for him to aspire to anything greater than his own goals. (d) But since the big man upstairs (Zeus, of course) has even bigger plans that are beyond man's natural ability--that of eternal happiness (touchdown Jeeeeeeeezus!)--man needs law given by Zeus to direct him to his true end. Basically, if Man is left to set his own goals, he won't set the bar high enough and won't act in such a way that lets him frolic eternally on top of Mount Olympus. Since our actions are directed by laws, divine laws will get us to act in the way we need. Whew!
(2) Because people can reason incorrectly and come to different judgments on moral decisions and contradictory human laws, for people to know exactly what they should do, there needs to be law given by Zeus (Aquinas uses the generic "God", but I'm quite sure he meant Zeus). Ok, so where do we get this famous divine law? He doesn't say here, but I'm gonna wager he's talking about The Iliad and The Odyssey, two obviously inspired texts whose events are factually corroborated by selective readings of history.
(3) Step three. Judge what's in me! It's not entirely clear what he's talking about here but I'll let you decide. He says that since people can only judge exterior acts and not "interior movements that are hidden" a divine law is required. So, is he talking about interior acts of others? Or is he talking about Orwellian thought crime? It seems like he's referring to the latter in the passage:
"...for the perfection of virtue it is necessary for man to conduct himself rightly in both kinds of acts. Consequentially, human law could not sufficiently curb and direct interior acts, and it was necessary for this purpose that a divine law should supervene" (my italics).
(4) Step four. It can punish you more! Divine law in necessary because "human law cannot punish or forbid all evil deeds". True dat. The next line actually warns against the dangers of legislating against thought crime (unless you're Zeus). "...since it would do away with many good things, and would hinder the advance of the common good, which is necessary for human living."
This post is getting way too long...I'm going to stop here and make a (shorter) part two.
g'nite...
ps. feel free to tell me about typos and glaring errors...
Favourite Quote of the Reading: "Consequentially it is evident that the proper effect of a law is to lead its subjects to their proper virtue; and since virtue is that which makes its subject good, it follows that the proper effect of law is to make those, to whom it is given, good, either absolutely or in some particular respect. For if the intention of the lawgiver is fixed on a true good, which is the common good regulated according to divine justice, it follows that the effect of law is to make men good absolutely. If, however, the intention of the lawgiver is fixed on that which is not good absolutely, but useful or pleasurable to himself, or in opposition to divine justice, then law does not make men good absolutely, but in a relative way, namely, in relation to that particular government".
Overview
Aristotle's writings had just been rediscovered in the 13th Century when Aquinas wrote. A major problem the Catholic Church had was to reconcile Aristotle's philosophy with Catholic doctrine. A significant amount of Aquinas' work was devoted to this task. The important Aristotelian themes that emerge in Aquinas' legal philosophy are that every creature has its own natural purpose or end and that actualizing this purpose is what good is. As applied to law this concept entails that we cannot understand a political or legal system without first thinking about the good of humans, as well as the purpose of law itself. In other words, the 'goodness' of a legal or political system can be measured in terms of how well it helps to actualize the good of humans (see Moore's Naturalistic Fallacy). Interestingly, it wasn't until 1879 (feelin' fine) that the Catholic Church declared Aquinas' writings to be its official doctrine.
Quick Definition: Natural law is a system of law that is deduced from human nature. The idea is that you analyze human nature and figure out what universal moral principles are necessary for flourishing, then you build your laws in accordance with what best achieves that aim. Central to the notion of natural law is the assertion that morality is universal (and eternal) and we can somehow access it.
On The Essence of Law
Whether Law Is Always Directed to the Common Good
Yes. The End. Well, that's the conclusion anyway. Let check aus the argument:
(1) Law belongs to the class of things that are principles of human action. Ok, that seems pretty straight forward.
(2) Reason is also a principle of human action. Nothing too crazy here.
(3) There is also a principle that governs reason; that principle is that actions should be directed toward the objective of human life--happiness and beatitude (blissful happiness...yay!). I'm not going to go to much into it here but it's important to note that the notion of happiness for Aristotle has very little to do with an emotional state or hedonistic pleasure. It has to do with self-actualization, sometimes called "flourishing". It is a continuous process for which attainment can only be judged after someone has already died, because only then can we fully assess whether someone actualized their potential.
(C) Therefore, law should mainly be about creating an order in society such that beatitude is preserved and produced. The idea here is that law should be about creating a society that is conducive to allowing a society to flourish. I guess a legal system that stifled people ability to actualize themselves wouldn't be 'good'. But I think it's still an open question as to whether enabling flourishing should be the prime role of a legal system...
Here's the grand conclusion: since the governing principle of law is the common good, any law that runs counter to the common good is not law. Say wut? A law isn't a law? Yup. If a law does not produce human flourishing then it is actually not a law.
Whether Any Individual Acting through Reason Is Competent to Make Laws
Nope. But why not? Because if an individual makes a law, it doesn't have the force of compulsion. "A private person cannot lead another to virtue efficaciously; for he can only advise, and if his advice be not taken, it has no coercive power, such as the law should have..." Well, that kind of makes sense. I can't imagine many people being compelled to do things just because random individuals decide they want to make a law...
That's not to say people can't make rules within their limited domains. Obviously, a man can make rules governing the conduct of his wife and children (trolling!) but these do not have the force of laws. So, what's the difference between rules and laws? Well, rules are applicable in a limited domain, such as a household, or a community. Laws, however, have to do with the flourishing of an entire state. So, rules have limited scope in terms of the size of the group to which they apply. Laws apply to the entire state and must be directed at producing flourishing to count as law. "Law is nothing more than an ordinance of reason for the common good, promulgated by him who has the care of the community".
Wait a minute. How does the guy who "has the care of the community" know what the laws are? and while we're at it, how does everyone come to know what the laws are, especially in illiterate societies? Sooooooo simple. "The natural law is promulgated by the very fact the God instilled it into man's mind so as to be know by him naturally".
See? That wasn't so hard. But wait, why do we need someone to tell us what the law is if "God instilled it into man's mind"? Or did he just forget to instil it into some people's minds (evidence favours this)? Oh! God! You little rascal! But that's not what he says, in a later section he continues that "the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light". (*angelic singing*)
Then, he goes on to contract himself (again) because he says that those who are not present when a law is promulgated are bound to obey the law in so far as it is made known to them by others. But, again, why do we need others to tell us the law if God instilled it in each and every one of his children? (at the moment of conception, I'm sure!)
Of course the God argument is silly but we might argue the same sort of thing from a secular point of view, that we are hardwired a certain way that allows us, upon reflection, to know what morality is and what moral actions would consist in. We'll get into that more later...but right now, my main man Aquinas is gonna drop some knowledge about different kinds of law...
On the Various Kinds of Law
Human Law (vs. Divine Law)
"A law is a dictate of practical reason". Technical term alert!!! What's practical reason? It's the kind of reason we use when we decide how to act; usually to choose between alternative courses of action. Here's where it gets interesting (finally! I know, right?). The explanation of human law goes a little somethin' like this: The principles of natural law (i.e. morality) are known and common to us but are indemonstrable. Human reason isn't perfect so we don't have perfect access to divine I'm not sure if he's referring to the idea that our knowledge of morality comes from intuitions and so (maybe) can't be put into words.
Or maybe (more likely) he's saying something like, value principles are difficult to put into enough clauses that will cover every possible legal situation past, present, and future. Our reason allows us access what to do in particular cases (*angelic singing*): we reason from abstract moral principles to fine-grained particular laws and legal/moral decisions. But, humans can't know how to perfectly apply moral rules to every possible case. Nevertheless, the particular laws derived from practical reason are human law--so long as the "flourishing" condition is met.
Of course, our practical reason isn't perfect and neither is our knowledge (why didn't didn't God give us perfect access to the divine law? What? We don't have enough challenges already?) so it doesn't overlap entirely with divine law. Divine law would require perfect knowledge of moral principles and perfect practical reason.
Divine Law: Is It Necessary?
If we can't access divine law, why is it important? Aquinas give us 4 reasons:
(1) This one's a little weird. (a) Since how a man acts to achieve his ultimate goals is directed by laws and (b) his ultimate goals will only be in proportion to his natural abilities, then (c) there is no need for him to aspire to anything greater than his own goals. (d) But since the big man upstairs (Zeus, of course) has even bigger plans that are beyond man's natural ability--that of eternal happiness (touchdown Jeeeeeeeezus!)--man needs law given by Zeus to direct him to his true end. Basically, if Man is left to set his own goals, he won't set the bar high enough and won't act in such a way that lets him frolic eternally on top of Mount Olympus. Since our actions are directed by laws, divine laws will get us to act in the way we need. Whew!
(2) Because people can reason incorrectly and come to different judgments on moral decisions and contradictory human laws, for people to know exactly what they should do, there needs to be law given by Zeus (Aquinas uses the generic "God", but I'm quite sure he meant Zeus). Ok, so where do we get this famous divine law? He doesn't say here, but I'm gonna wager he's talking about The Iliad and The Odyssey, two obviously inspired texts whose events are factually corroborated by selective readings of history.
(3) Step three. Judge what's in me! It's not entirely clear what he's talking about here but I'll let you decide. He says that since people can only judge exterior acts and not "interior movements that are hidden" a divine law is required. So, is he talking about interior acts of others? Or is he talking about Orwellian thought crime? It seems like he's referring to the latter in the passage:
"...for the perfection of virtue it is necessary for man to conduct himself rightly in both kinds of acts. Consequentially, human law could not sufficiently curb and direct interior acts, and it was necessary for this purpose that a divine law should supervene" (my italics).
(4) Step four. It can punish you more! Divine law in necessary because "human law cannot punish or forbid all evil deeds". True dat. The next line actually warns against the dangers of legislating against thought crime (unless you're Zeus). "...since it would do away with many good things, and would hinder the advance of the common good, which is necessary for human living."
This post is getting way too long...I'm going to stop here and make a (shorter) part two.
g'nite...
ps. feel free to tell me about typos and glaring errors...
Sunday, January 29, 2012
Citizens Can Be Lawfully Detained: Oxymoron?
Hamdi vs. Rumsfeld: Is The Detention of US Enemy Combatants Lawful?
Overview
In the immediate aftermath of 9/11, Yaser Hamdi an American citizen was captured by the Northern Alliance, then turned over to the US military in Afghanistan. The US government declared him an enemy combatant and detained him without access to legal council or the opportunity to challenge his indefinite detention. Hamdi's fah-jah filed a writ of habeas corpus and argued that Hamdi was an aid worker who had been in the wrong place at the wrong time and was being illegally detained.
Lets do a quick break down of the terms and key issues before looking at the Supreme Court's ruling on the matter.
Habeas Corpus
First of all, what's habeas corpus? Habeas corpus laws protect people from arbitrary detention. The idea is that if you get arrested for something, you have the legal right to hear the charges against you, to contest the factual grounds for the charges against you, and that an impartial judge evaluate the charges against you in light of everything. In other words, you cannot be detained without being presented particular charges and having those charges being grounds for detention--as determined by an impartial judge. Habeas corpus laws protect citizens from being thrown in prison on a whim. Under habeas corpus, if you are not charged with a specific crime for which an impartial judge determines there are reasonable grounds, you must be released.
What are the Issues?
So, what happened in the Hamdi case (short version) and what issues does it bring up? Hamdi's fah-jah's initial petition to a lower court in Virginia was rejected on arguments from the Bush administration. The Bush administration argued that since Hamdi was caught in arms in a combat zone against the US, he could be detained as an enemy combatant. If he is an enemy combatant then his legal rights are no longer those of a US citizen, protected by US law, but of an enemy combatant which are governed by the Geneva Convention. Under the Geneva Convention, enemy combatants only need to be released from detention after the cessation of hostilities.
Another argument from the lower court was that habeas corpus, in this case, would interfere with the broad powers of the executive achieved through the Authorization for Use Military Force Act (AUMF), enacted by Congress right after 9/11. In short it says the President may "use all necessary and appropriate force against those nations organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations or persons." The US government alleged that Hamdi had had contact with the Taliban and at the time of capture surrendered his weapon (evidence of being a combatant). In addition, interrogations of Hamdi further revealed that he met "the criteria for enemy combatant".
So the main issue in this case is how to determine the legal rights of a citizen that is allegedly an enemy combatant. Does the fact that they are an alleged enemy combatant put them under the domain of the Geneva Convention and strip them of their citizen rights to habeas corpus? What is the legal way to treat an citizen who is an (alleged) enemy combatant in wartime?
Court's Ruling (Short Version)
"[...] due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." If we look at how the judges arrived at their decision, we see some scary and interesting things.
Justice O'Connor
Scary quote: "There is no bar to this Nation's holding one of its own citizens as an enemy combatant"!!!
O'Connor questions the concept of "enemy combatant" and the evidentiary threshold that must be met to place someone in that category. O'Connor (along with 3 other judges) agree that the AUMF authorized the President to detain Hamdi, and "there is no bar to this Nation's holding one of its own citizens as an enemy combatant". Wut? habeas corpus can be ignored? How? Doesn't the rule of US law require that citizens always have habeas corpus? So, now the government can pick and choose when it applies? Sounds a bit like arbitrary detention... As a side note, habeas corpus can only be suspended by an act of Congress, which it had not done...
The problem for these judges is not with detention of citizens without due process but with indefinite detention detention without due process. The "War on Terror" is unconventional and could conceivably go on for generations in one capacity or another, rending it difficult to identify a clear criterion for when the "war" will officially be over. Since the the law is that enemy combatants can be detained so long as there are ongoing hostilities, it might be problematic to detain for potentially very long times without due process--especially a citizen.
Another issue involves the constitutional rights of a citizen to dispute his status as an enemy combatant. So, perhaps one might make the argument that an enemy combatant can be detained without due process, but why shouldn't a citizen have the right to dispute their status? In the post 9-11 histeria, how do we know that the US military properly and impartially assessed Hamdi's status?
This was the argument put forward by O'Connor and 3 others, that "the circumstances surrounding Hamdi's seizure cannot in any way be characterized as 'undisputed'..." In other words, taking the government at the word that Hamdi meets the criteria for being an enemy combatant is not consistent with due process.
The other government postion that the court opposed was that no further factual exploration was warranted or appropriate given the "extraordinary constitutional interests at stake". Here the Government is referring the broad warmaking powers of the President in the second article of the Constitution which "prevents the courts from interfering with this vital area of national security". In other words, there's a tension between individual's constitutional legal rights and the constitutional powers of the President.
In a country that usually favours individual rights over those of the government, this is one time they got it right. Interesting that it was a Republican administration that was fighting so hard for government rights trumping those of individuals...don't ya think? He writes:
...as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the US during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat...We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.
If I go through all 9 judges this will take too long. I'll stop here and note that it's interesting that 4 of the 8 judges who ruled against the Government did so not on the grounds that habeas corpus can't be suspended except by an act of Congress, or that a citizen is an enemy combatant, rather habeas corpus rights in such cases are only extended so far as to dispute the factual basis for the plaintif's classification as "enemy combatant". This points to an inconsistency in the law because the law is quite clear on the conditions under which habeas corpus can be suspended, and (like it or not) being an enemy combatant isn't one of them...
Overview
In the immediate aftermath of 9/11, Yaser Hamdi an American citizen was captured by the Northern Alliance, then turned over to the US military in Afghanistan. The US government declared him an enemy combatant and detained him without access to legal council or the opportunity to challenge his indefinite detention. Hamdi's fah-jah filed a writ of habeas corpus and argued that Hamdi was an aid worker who had been in the wrong place at the wrong time and was being illegally detained.
Lets do a quick break down of the terms and key issues before looking at the Supreme Court's ruling on the matter.
Habeas Corpus
First of all, what's habeas corpus? Habeas corpus laws protect people from arbitrary detention. The idea is that if you get arrested for something, you have the legal right to hear the charges against you, to contest the factual grounds for the charges against you, and that an impartial judge evaluate the charges against you in light of everything. In other words, you cannot be detained without being presented particular charges and having those charges being grounds for detention--as determined by an impartial judge. Habeas corpus laws protect citizens from being thrown in prison on a whim. Under habeas corpus, if you are not charged with a specific crime for which an impartial judge determines there are reasonable grounds, you must be released.
What are the Issues?
So, what happened in the Hamdi case (short version) and what issues does it bring up? Hamdi's fah-jah's initial petition to a lower court in Virginia was rejected on arguments from the Bush administration. The Bush administration argued that since Hamdi was caught in arms in a combat zone against the US, he could be detained as an enemy combatant. If he is an enemy combatant then his legal rights are no longer those of a US citizen, protected by US law, but of an enemy combatant which are governed by the Geneva Convention. Under the Geneva Convention, enemy combatants only need to be released from detention after the cessation of hostilities.
Another argument from the lower court was that habeas corpus, in this case, would interfere with the broad powers of the executive achieved through the Authorization for Use Military Force Act (AUMF), enacted by Congress right after 9/11. In short it says the President may "use all necessary and appropriate force against those nations organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations or persons." The US government alleged that Hamdi had had contact with the Taliban and at the time of capture surrendered his weapon (evidence of being a combatant). In addition, interrogations of Hamdi further revealed that he met "the criteria for enemy combatant".
So the main issue in this case is how to determine the legal rights of a citizen that is allegedly an enemy combatant. Does the fact that they are an alleged enemy combatant put them under the domain of the Geneva Convention and strip them of their citizen rights to habeas corpus? What is the legal way to treat an citizen who is an (alleged) enemy combatant in wartime?
Court's Ruling (Short Version)
"[...] due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." If we look at how the judges arrived at their decision, we see some scary and interesting things.
Justice O'Connor
Scary quote: "There is no bar to this Nation's holding one of its own citizens as an enemy combatant"!!!
O'Connor questions the concept of "enemy combatant" and the evidentiary threshold that must be met to place someone in that category. O'Connor (along with 3 other judges) agree that the AUMF authorized the President to detain Hamdi, and "there is no bar to this Nation's holding one of its own citizens as an enemy combatant". Wut? habeas corpus can be ignored? How? Doesn't the rule of US law require that citizens always have habeas corpus? So, now the government can pick and choose when it applies? Sounds a bit like arbitrary detention... As a side note, habeas corpus can only be suspended by an act of Congress, which it had not done...
The problem for these judges is not with detention of citizens without due process but with indefinite detention detention without due process. The "War on Terror" is unconventional and could conceivably go on for generations in one capacity or another, rending it difficult to identify a clear criterion for when the "war" will officially be over. Since the the law is that enemy combatants can be detained so long as there are ongoing hostilities, it might be problematic to detain for potentially very long times without due process--especially a citizen.
Another issue involves the constitutional rights of a citizen to dispute his status as an enemy combatant. So, perhaps one might make the argument that an enemy combatant can be detained without due process, but why shouldn't a citizen have the right to dispute their status? In the post 9-11 histeria, how do we know that the US military properly and impartially assessed Hamdi's status?
This was the argument put forward by O'Connor and 3 others, that "the circumstances surrounding Hamdi's seizure cannot in any way be characterized as 'undisputed'..." In other words, taking the government at the word that Hamdi meets the criteria for being an enemy combatant is not consistent with due process.
The other government postion that the court opposed was that no further factual exploration was warranted or appropriate given the "extraordinary constitutional interests at stake". Here the Government is referring the broad warmaking powers of the President in the second article of the Constitution which "prevents the courts from interfering with this vital area of national security". In other words, there's a tension between individual's constitutional legal rights and the constitutional powers of the President.
In a country that usually favours individual rights over those of the government, this is one time they got it right. Interesting that it was a Republican administration that was fighting so hard for government rights trumping those of individuals...don't ya think? He writes:
...as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the US during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat...We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.
If I go through all 9 judges this will take too long. I'll stop here and note that it's interesting that 4 of the 8 judges who ruled against the Government did so not on the grounds that habeas corpus can't be suspended except by an act of Congress, or that a citizen is an enemy combatant, rather habeas corpus rights in such cases are only extended so far as to dispute the factual basis for the plaintif's classification as "enemy combatant". This points to an inconsistency in the law because the law is quite clear on the conditions under which habeas corpus can be suspended, and (like it or not) being an enemy combatant isn't one of them...
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