Knowles v. Mirzayance

The insanity defense is an odd but intriguing duck. On the one hand, its justification is relatively straight forward. We believe that the full impact of punishment must be reserved for individuals that can fully (or adequately) understand the meaning of their offense. Moral responsibility is as much principle as it is capacity. On the other hand, the insanity defense is a rather opaque construction. It’s comprised in part by cultural judgment and in part by scientific observation. Both aspects shift with time. In early Massachusetts, insanity was irrelevant to the outcome of a trial. Punishments reflected the will of the divine. We’re still a bit leery of the concept today, but we do accept it. Yet for any given insanity defense, the jury must match their concept of insanity with what they know about the defendant. Over the course of a trial, this process of matching is affected by a host of factors, everything from cultural norms and scientific models to the manner and style of argument presentation. The premier guide for mental disorders comes from the APA’s DSM, for instance, but that too has changed and reflects social norms as well as science. Homosexuality until relatively recently was classified as a mental disorder. As acceptance grew during the 90’s, it was declassified as a disorder. Also, interesting is the fact that a low IQ can diminish culpability (through the insanity defense) whereas a high IQ creates no corresponding rise in culpability. Yep, smart people make the laws! So where does all this take us anyway? Not sure. Certainly the concept of insanity is spongier than its advocates care to admit. But still, there are people (perhaps like Mirzayance) that through no fault of their own are legitimately out of their mind. Deciphering between such cases can be difficult and while it may not be a perfect solution, the best means for assessing insanity is probably the one we already utilize, a court of law. Here at least, the law sanctions competing views and meritless insanity defenses can be exposed, wrung as it were, of error.

Bartlett v. Strickland

The case of Bartlett v. Strickland is quite interesting and revolves on the question of how democracy should be defined. Should electoral outcomes, for instance, reflect broad cross-sections of interests? If so, minority voices may be diluted by larger voting blocks. Or should electoral outcomes by geared toward representing specific ethnic groups and the issues that are important to them. The case itself is based on a state law in North Carolina which “declares that a state may not act in a way that impairs, on account of race or color, a citizen’s opportunity to participate in the political process and to elect representative of his or her choice.” The question is then, is the law activated when (a) a minority ethnic group constitutes 50% of a voting district or (b) when that same group, comprising less than 50%, obtains a controlling majority, and can therefore elect a candidate of their choosing, with the help of another group.

If I understand the case correctly, it’s really bizarre in how paradoxical it is. On the one hand, the purpose of the law is to prevent the dilution of ethnic communities that vote consistently in blocks but are out voted by their majority counter parts. On the other hand, the law is triggered only under two conditions – just so happens that these conditions reflect a significant degree of voter “non-dilution.” If under condition (a) the group constitutes 50% of the districts population, it’s hard to imagine how any candidate could ignore the group and survive, even if the actual voting population is less than 50%. Under (b) “non-dilution” is even more obvious since the minority group obtains controlling majority, i.e., they get their candidate. So in conclusion, if my powers of discernment have not failed me, the case makes little sense, since the law comes into effect in cases where either dilution is weak, as in (a) or where it doesn’t occur at all, as in (b).

Fuller

Fuller and Hart are night and day on most issues but seem to agree that the intersection of morality has a profound impact on the judicial process. It just happens that for Fuller, this intersection is a critical component of vitality of law and society. But for Hart, morality constitutes something far more pernicious. If law is the host, then morality might be considered the parasite that sneaks its way in and preys upon the health and integrity of law. So, in this entry, I’d like to answer or at least explore what kinds of morals enter and take root once the partition between morality and law is lowered. In other words, will judges call upon “good” morals as Fuller indicates or “bad” morals as Hart cautions, in dealing with penumbra cases? In the contentious arena of the courtroom, which of the two, if indeed any, has the natural edge?

Big questions! I’ll make several observations that I think illuminate an answer but a really thorough answer would be Herculean undertaking. In any case, I think Fuller and Hart disagree about whether bad morals or good ones has the natural edge stems, has to do with radically different assumptions each make about human nature. There’s a strong case to be made that Hart views human nature as relatively malleable and determined by cultural and environmental circumstance. If true, this would explain Hart’s position that bad morals are incorporated into law as easily as good ones. So if humans are not “wired” to resist unjust legal outcomes, then one can easily imagine how a judge would accept and even generously interpret one of Hitler’s totalitarian edicts. In contrast to Hart, Fuller seems to think that what we call “good morals” (e.g., “religious beliefs, common conceptions of decency and fair play”) have more pull on the human psyche than bad ones. So just as Hart takes position that evil goals are as coherent and logical as good one’s, Fuller retorts, “ I, for one, refuse to accept that assumption” later adding that while his view may be indefensible, he believes that “coherence and goodness have more affinity than coherence and evil.” This point of clash, which springs from diametrically opposite conception of human nature is not an easy to resolve.

Certainly in the US, major social and civil rights movements have shaped the moral character of the nation. In the past several decades, morality has informed the judicial process in number of ways, extended rights of privacy to abortion and also equality, in the form of equal protection, to women, homosexuals, and the disabled. So at least in our country, lowering the partition between morality and law has produced a greater appreciation for autonomy. Similarly, if we buy Fuller’s argument, the erosion of morality in the German courts, subordinated autonomy and facilitated the atrocities that were to follow. What these examples ultimately convey is difficult to say. Perhaps we can surmise that Fuller is correct and that judges are indeed wired to incorporate good morals into law and that a preoccupation with separating morality from law has the tendency to override that natural disposition. If that were true, then “good morals” would enjoy a kind of natural advantage because of the structure of human nature. On the other hand, the examples may only demonstrate a coincidence at work and given another time, another place, the inner logic of morality could help society reach goals we now consider evil. Of these two possibilities, I think history favors the former.

Hart

I think, Hart’s position that judges should strive to make a clean distinction between “what law is” and “what law ought to be” is ultimately untenable. Hart seems to believe that surrounding the penumbra of law is a settled core; that judges who set foot on this hallowed ground should, like Moses, walk with the utmost reverence and in doing so, abandon preloaded moral judgments and act only to apply the “law that is.” In the best case, as Hart sees it, veering from this route presents judges with too many attractive alternatives to what the law is. Each one vies for his attention and all operate to dilute the core of the law and expand the area of the penumbra. In the worst case, the entwinement of law and morality turns into an instrument of despotism or in words of Hart, “that the existing law may supplant morality as a final test of conduct and so escape criticism” (p. 71). I think this argument is especially shrewd and serves as a good response to the natural law theorists who blame the stature of positivism in Nazi society for the abusive laws that quickly sprang up.

So while it might be the case that softening the distinction between “what law is” and what “law ought to be” does not guarantee a benevolent and humane society, it is interesting to note that Hart makes two significant concessions concerning the relationship between law and morality. First, he references the utilitarians and seems to agree with them here that the development of the legal system was profoundly influenced by moral views and second; that it might be possible and appropriate at times to incorporate moral principles into law. Taken together, both concessions substantially increase the relevance that morality has in its relationship with law. If it’s true that law is often based on moral opinions and that those opinions can and should be incorporated into law (probably through the legislative process), is it really inappropriate or even a leap to say that judicial decisions can be informed by morality? It may be the case that bringing moral opinions to bear may actually breathe life into legislative intent, since the “law that is” may not be the law that legislators intended.

Of course, if its okay to entwine the “is” and the “ought” then how does society prevent judges from inserting their own private moral opinions into law, thereby legislating from the bench? A couple points. First, I think that since morality by nature is hierarchal (e.g., murder is worse than stealing) utilizing morality does not necessarily create more options for a judge to choose from. It may create less. In fact, since what the “law is” is often silent, as in the case of Riggs v. Palmer, bringing moral judgments to bear may illuminate a path. This answer is still not satisfying because it does not show how the core of law is necessarily protected from rogue moral opiums. In conclusion then, the second point is that judges might refrain from radically altering the course of law if they were held to account more than what the status quo allows. In other words, if a judge, while blurring this “is” and the “ought” broke with past judgments and acted with questionable moral justification (meaning, out of step with society) than he would be subject to an investigation and retired early. Of course, this solution opens the door to other problems, for instance, that it might be used for political purposes but I’m not convinced such potential harms could not be mitigated or create an acceptable level or risk given the benefits gained.

Response to Dworkin

The problem

The success of Dworkin’s argument seems to hinge on this question: is it appropriate for judges to accept principles as legally binding when no “other” specific rules apply? If the answer is “yes,” then principles, despite being murkier then law, are given the same weight as law, provided that no specific laws apply. The upshot? Law remains a coherent whole and lives to fight the nominalists another day. If the answer is “no” then either some other standard must discovered so that judges can adjudicate these kinds of cases or alternately, if there is no standard, then we should simply recognize the law for what it is; the defunct product of a forced marriage between miscellaneous parts. Dworkin, of course, answers yes to the above question and goes on to argue that legal principles are both accessible to judges and that recourse to them beats the alternative; naked judicial discretion. While upgrading principles to the status of “actual law” makes law “as a whole” less firm and predictable, at least it hems in judicial discretion with longstanding principles.

If the choice is then between naked judicial discretion or discretion guided by principles, I reluctantly side with Dworkin. But I’m reluctant because I think Dworkin’s position forces us to be complicit in a legal fiction, which is, that while he recognizes a difference between rules and principles, he expects (in cases where specific rules do not apply) courts to apply some cosmetics and brush over the differences between the two. But rules and principles are not the same and he acknowledges this when he says, “It is true that generally we cannot demonstrate the authority or weight of a particular principle as we can sometimes demonstrate the validity of a rule […]” (p. 59). It is then an odd situation that while the law deliberates on what exactly the law is, we hold defendants hostage, and upon discerning what the law is (after all of the relevant legal principles have been ferreted out) proudly pronounce a verdict, as if the court’s sudden epiphany should have been known to the defendant all along. There are, I think, other problems with the Dworkin’s position, but in the remaining space I want to propose a solution and get your thoughts on it.

A Solution

Suppose that as society evolves with time, we develop an institutions means of handling the so-called furry edges of the law? We might, for instance, begin by creating another tier in our legal system exclusively designed to handle these sorts of cases. Here’s how it might work. A regular court, confronts a case like Riggs v. Palmer. Upon realizing that no law applies, the court turns the case over to our new court, which is designed to handle such cases. Trained specifically about legal principles, the justices of this new court decide the outcome of the trial based purely on a review of principles and arguments by the defense and the prosecution. If the verdict results in innocence, then nothing more comes of the case. If it results in guilt, however, then the defendant receives a symbolic censure. The heir in Riggs case, for instance, would still receive his inheritance but confront public shaming when the verdict became public knowledge. Of course, the guilty verdict would signify that while a rule did not apply to the defendant, the defendant nonetheless violated a certain moral or legal principle. That legal principle, which was not adequately represented in law, would then be sent to the legislature (a state legislature for cases tried in state courts and likewise for federal) in the form of a bill. With any luck, the bill would become law and a new rule representing that principle would become codified and binding. The beauty of this solution is that it eliminates the need for a legal fiction that has a distorting effect on the law. Either the defendant did violate the law or he did not, and because we recognize the law in those black and white terms, we don’t have to force the law to extend where it naturally does not. And this forges a kind of dialectic in legal field between two sets of intuitions that overtime allow legal and moral principles to organically grow and develop until finally they reach the status of mature law. Of course this idea would radically alter the preexisting court system, reduce workloads and generally streamline the process. Further, the advantage to the defendant is that he is warned of what the legal principle is without at the same time being punished by ex-post-facto law. In conclusion, I do find my idea more appealing than Dworkin’s but I’m also aware of that old adage, “The devil is in the details.” Hopefully the problems with my model are manageable and nothing that a little exorcism can’t fix.

Resonses to Karl Llewellyn

As Karl Llewellyn opens his essay, “A Realistic Jurisprudence – The Next Step” he catches the reader by surprise. The author plants his feet firmly and declares that no definition of the law (which happens to be his subject) will be forthcoming. At first blush, one wonders if this isn’t an easy out for what might otherwise be a tough and controversial task. It turns out, however, that his rational runs much deeper. Law, in his view, is not a monolith so much as a “heterogeneous multitude of engines.” It is natural, he admits, to take the world in, impose categories on it, and demand that order exists even perhaps where it does not. In some cases, concepts and categories are useful if not unavoidable but they also have the uncanny ability to distort whatever they’re applied to.

According to Llewellyn, it is the cult of words and legal phraseology (the tool chest of the legal theorist) that inadvertently undermines the integrity of the law. Legal theorists like to focus on the idea of substantive rules and rights. Both, however, make the law less clear not more. The widely bandied term “this is the rule” is one such instance. In Llewellyn view, that term might mean any one number of things from “this is what people agree the law is” to “this what courts have said it is.” By stressing one element over another, any one of these formulations might lead to radically different judicial outcomes; in the first, by emphasizing the perceptions of the layman and in the second, by emphasizing legal precedent. With respect to substantive rights, the concern is that the jurist or theorist subconsciously slips between descriptive rules (how something is) to prescriptive ones (how it ought to be). Prescriptive rules are of special concern to Llewellyn because they introduce value judgments that conflate the legal with the moral and break down the clarity and soundness of the law.

What’s to be done? Rather than focusing on definitions or trying to forge universals so that one law is applicable under any number of circumstances, Llewellyn states that the focus of law ought to be “…on the area of contact between judicial behavior and the behavior of the ‘governed’.” Under this paradigm law becomes the study of social interactions, emphasizing observations about behavior over words and definitions. As Llewellyn puts it, “Real rules,” then, if I had my way with words, would by legal scientist be called the practices of the courts, and not “rules” at all. And statements of “rights’ would be statements of likelihood that in a given situation a certain type of court action loomed in the offing”(p. 30). For Llewellyn, this new paradigm will demystify law and place it on a solid edifice.

Llewellyn might be right, I don’t know. It is true, I think, that all to often a jurist conflates the legal with the moral. And the entire structure of law suffers from rules that are not fixed and predictable. In contemporary parlance, judicial activism captures one aspect of problem. As regards the abandonment of any reference to “rules” and “rights,” the point is thought provoking but the picture Llewellyn paints of an alternative based on the “point of contact between judges and governed” seems esoteric; quite heavy on theory but light on examples. So I can neither discard nor embrace his position. The essay is worth another go through; I’ll probably do so later in the semester when I have a better idea of the relevant issues.