Front Page Titles (by Subject) I: Legal Philosophy and Norms - Literature of Liberty, Spring 1982, vol. 5, No. 1
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I: Legal Philosophy and Norms - Leonard P. Liggio, Literature of Liberty, Spring 1982, vol. 5, No. 1 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Legal Philosophy and Norms
Legal philosophy tends to be as contentious and litigious as legal advocacy in our courts. Especially today, during our protracted epoch of cultural crisis and transition, we see little consensus uniting the numerous partisans of rival interpretations of the nature, scope, and norms of law. The history of ideas likewise presents us with the unsettling spectacle of an unending debate over justifications for law and justice. Long after the sophist Thrasymachus in Plato's Republic argued that justice is simply the interest of the stronger and assailed Socrates' defense of a non-positivist, non-man-made rule of law, legal scholars and philosophers continue to wrangle over what legal-philosophical system is superior: positive law, common law, or natural law? The following summaries show that the ‘jury' is still out and deliberating these issues. We discern one recurrent theme, however: How objective (in terms of logical certainty) are the various legal norms, whether efficiency, political fiat, or natural-law reason?
The Transformation of English Common Law
“The Aristotelian Basis of English Law, 1450–1800.” New York University Law Review 56(April 1981): 18–59.
Pre-modern legal thought (1450–1800) exhibited an Aristotelian epistemology which led lawyers to see law as fundamentally “a mosaic of rules” rather than a set of basic axiomatic principles. This pre-modern period may be suggestively divided into two periods: an earlier classical period (1450–1650) which emphasized wisdom as the source of the law's validity, and a later “decadent” period (1650–1800) that emphasized certainty as the source of law's validity. The shifting from one source of validity to the other reveals the influence of the scientific revolution on legal methodology; it likewise clarifies the significant way in which the decline of Aristotelian epistemology transformed pre-modern legal thought and led to modern (19th-century) legal thought.
In Aristotelian epistemology, practical knowledge (including legal knowledge) differs from theoretical knowledge (e.g., mathematics), in that it is comprised of probable truths, depends more on experience, and proceeds not by apodictic deduction or systematic construction but by reasoning through analogy and insight into the basis for “informed opinion.” Classical pre-modern lawyers (German, Fortescue, Coke) followed Aristotelian thinking here by emphasizing the role of “intuitive reason” in arriving at (probable) first principles and applying these principles to actual controversies on the basis of a long tradition of precedents, rather than on the basis of any systematic deductive structure.
The 17th-century scientific methods, however, were soon applied to the “moral sciences”—with a geometrical, deductive model taken as the paradigm for law. For Hobbes, the notion that law could be probable and unsystematic gave too much leeway for civil strife. Locke adopted Hobbes' reasoning here and applied an equally axiomatic model—only to reach different more liberal political conclusions. In response to this development, defenders of the common law (such as Matthew Hale, Chief Justice of England) countered that the rules of the common law are so numerous and concrete that, once learned, their application is straightforward. By contrast, the geometric method was considered too novel to be applied straightforwardly in law. However, by stressing the certainty of the common law (rather than its wisdom) these latter-day defenders of the common law had conceded that accumulated experience is a source of the law's validity only because it allows us to transcend “mere” probability. This concession gave a new sense to the notion of “reason” that the law should embody, and it allowed modern legal thinkers to reject probabilistic reasoning and precedent as the essential components of the “reason” that all common law should express.
From Royal to National Treason
“From Lèse-Majesté to Lèse-Nation in Eighteenth-Century France.” Journal of the History of Ideas 42 (April—June 1981): 269–286.
The concept of treason (an offense against the state's summa potestas or sovereignty) underwent a sea-change in eighteenth-century France while still maintaining the authoritarian core of its earlier meaning. Until the Revolution in 1789, treason was lèse-majesté: any violation of the “majesty” of the king who personified public power (violations might include assaults, libels, counterfeiting, etc.). But with the Revolution the object of treason became transformed into lèse-nation: a violation of the majesty of the nation or people in general. With the Terror “majesty is revolutionized as well as nationalized. The nation is sovereign, but the exercise of sovereignty is aleatory and up for grabs.”
Western political and legal thought had prepared the way for the newer ‘nationalߣ version of treason by carrying in its traditions different notions of “majesty” derived from sources in Roman law and historical memories of ancient republics. Thus, subterranean republican legal tradition had founded sovereignty and majesty in the populus or citizens at large. This was contradictory to the royal ideology of the Bourbons who subscribed to Bishop Bossuet's maxim: “the state is in the person of the prince.” Gradually during the eighteenth century a subversive republican (and largely literary) tradition arose to contest these royalist claims. The concept of lèse-nation was also nurtured by a “philosophical” critique against many of the elements judged inseparable from royal majesty. Aiding this nationalizing development was the tendency to identify France rather than the monarchy as the focus of patriotic unity. Finally, during this period, we discern the evolution of a representative rather than an omnipotent notion of kingship, which sapped the vitality of absolute royal majesty.
The historical evolution from royal to republican or ‘national’ treason is traced by Kelly throughout the eighteenth century. Paradoxically, the Revolution brought about punishments for treason far more severe and widespread than those suffered under the monarchy. What remained uncontested was the belief that public power, however defined, must not be challenged or contradicted by dissenters.
Natural Law Vocabulary
“Lexicology of Jus Naturale Concepts.” Vera Lex (Natural Law Society Review) 3 (Winter/Spring 1982): 3–4.
Historically, culturally, and philosophically we encounter complex and shifting meanings and concepts in the use of jus naturale (natural law, natural right). This presents us with various problems and opportunities in reflecting upon these different historical developments of jus naturale as it has been translated or used in later languages and vocabularies.
First, we face the problem of historical determinations of jus naturale. Certain central concepts (such as jus, lex, natura, etc.) are connected with various theories of jus naturale. We need to know, for example, that in French, “droit romain” was used in the sense of “Roman law” in order to appreciate connotations and denotations of terms associated with the natural law tradition.
Second, the history of word forms brings up a second problem of logical and semantic discrimination. The same word in a given language may convey diverse meanings. Thus in neo-Latin culture at one time jus became a synonym for lex. This raises philosophical issues since to determine the boundary, say, between the French droit and loi, always implies a philosophical choice.
Besides the problems of determining the meaning of jus naturale related terms in historical usage or in the context of the linguistic culture at large, we also need to comprehend how an individual author is using a natural law concept in his own philosophic system. Sometimes an author will shift and revalue the meaning of a jus naturale concept from its earlier meanings. Thus Thomas Aquinas elaborates on Roman law and the Aristotelian concept of nature to “tear the semantics of jus out of juridical Augustinianism.”
These are real philosophical problems and not simply semantic quibbles. The author recommends that the Natural Law Society should develop “a historical and comparative lexicon of Jus Naturale.” We cannot get rid of these problems, however, by constructing a formal language theoretically free from ambiguity. The semantic differences point to “real problems in the elaborations of thinking.”
Are Legal Norms Universally Valid?
‘Normative Cogencies’ in the Constitution of Justice. Vera Lex (Natural Law Society Review) 3 (Winter/Spring 1982): 1, 12–13.
The late Professor Tammelo asks whether norms of justice exist that are universal for all legal systems. After examining a number of norms sometimes claimed to be “systems-invariant” (such as “Whatever is legally not forbidden is legally permitted”), he concludes that there are no such norms. However, there are formal (analytic or tautological) norms of justice that are immensely useful for “enabling us to carry out articulation of normative thoughts.”
The search for morally normative universals continues. Accordingly, some norms with material content Tammelo believes are “intuitively so obvious that their refutation does not come into question.” These norms depend upon our experience of nature. “...there are indeed experiences whose content imposes itself on our cognition as irrefutable at all times. Their insightfulness, however is not apriori but is grounded in our civilization.”
These compelling norms of justice have a close connection with the postulate of human dignity as a demand for what man decently ought to do. We feel that we cannot lead our lives as moral agents without respecting such norms.
Professor Tammelo believes that the intuitive obviousness of such norms rests to some extent on their general wording (as in the precept: “Do good and avoid evil”). These norms need to be spelled out in their specifics to mean something definite. He also believes that the postulates of freedom and of equality are criteria of justice, “but there are occasions on which freedom can be granted only by sacrificing equality and vice versa.”
Prof. Tammelo, in his search for more satisfactory criteria of universal justice, points to the promise of “the emerging discipline of constructive linguistics” which he believes may provide us with a language that will allow “complete and well comprehensible formulations of the criteria of justice.” He looks forward to such a “translinguistic” means of communication.
The New Legal History & Constititutional History
“American Constitutional History and the New Legal History; Complementary Themes in Two Modes.” The Journal of American History 68 (September 1981): 337–350.
Is Constitutional History Dead?” This was an ominous title suggested for the annual meeting of the American Society for Legal History in 1980. That question, as even the organizers of the meeting decided, takes perhaps too drastic a view of the current state of Constitutional history. Nonetheless, there is no doubt that the field's prime interest in the doctrines and behavior of courts has been over-shadowed during the last two decades by a distinctly different mode of investigation, one that is often termed the “new legal history.” While acknowledging the potential value of the new legal history's perspective on the American legal system, Prof. Scheiber asserts that only by integrating these perspectives with the concerns of Constitutional history can the full context of change in American legal history be understood.
The current decline of Constitutional history results from several factors. First of all, behavioral theory, quantification, and self-proclaimed “value free” analysis have crowded the normative values of Constitutional history from the scene. This development is parallelled by the rise of the “new social history” which subordinates law, policy, and public affairs to what is termed “private place,” that is, the family, the bedroom and nursery, voluntary associations, and nonpolitical institutions.
The traditional province of Constitutional history embraced the decisions of the Supreme Court, the institutional history of the Court, and biography of the justices. The field therefore proved an easy target for critics who deplored limiting study to what they viewed as a rarified universe of data out of touch with the realities of social, economic, and cultural change.
The literature of the new legal history well reflects the ascendancy of this view. Common law has been pushed to the very center of analytic focus—with an emphasis on how judges have shaped contract and tort law and with what consequences for economic institutions and allocations of income and power. Considerable attention is also being devoted to law-making agencies other than the federal courts, to the making and incidence of state law, and to reappraising of landmarks in Constitutional law in the light of legal, social, and political developments in the states.
Despite their differing emphases, Prof. Scheiber feels that the two areas of study are not inimical. He firmly believes that the new legal history can enrich and revitalize the investigations of Constitutional historians. He cites two examples where the new legal history has already made such contributions.
The first example involves research on nineteenth-century implementation of the Commerce Clause. From investigations in state archives, scholars have learned the ways in which state canal officials rigged tolls to disadvantage out-of-state interests—a violation of the Marshall Court's nationalistic doctrines which went unchallenged until the railroad era. Research by Charles W. McCurdy, Gabriel Kolko, and Albro Martin on big business objectives and tactics in state and federal courts has considerably altered our understanding of the Commerce Clause in Constitutional law and of the actual exercise of power in the states.
A second example concerns the new legal history's contribution to our understanding of property law. Through close analysis of doctrinal areas in which enormous discretion was left to state judges—nuisance law, trespass, torts, eminent domain—we can identify differences among the states, thereby obtaining a much more accurate sense of working federalism.
In Prof. Scheiber's view, achievements already on the record, together with logical and evidentiary requirements of public-law study, promise a new phase of interest in legal and Constitutional history as vitally interrelated fields. Once integrated, research in these two areas of interest will attain much of the former status and influence of Constitutional history within the historical profession.
Legal Realism & A Science of Law
“American Legal Realism and Sociological Jurisprudence: The Methodological Roots of a Science of Law.” Journal of the History of the Behavioral Sciences 17 (October 1981): 490–503.
Despite the existence of a growing body of literature on the American legal realism of the 1920s and 1930s, there remain many difficulties in defining and evaluating that movement's effort to demythologize the study of law. The designation “legal realism” has meant many things in existing scholarship, primarily because legal realists formed no school and recognized but a few common prophets.
At its inception, the realist movement participated in the much wider intellectual ferment of the period. The “revolt against formalism” which began just before the turn of the century involved numerous attempts to reformulate the methodology and subject matter of philosophy, government, economics, history, and the law.
John W.Bingham's 1912 article “What is the Law?” signaled the birth of the legal realist movement. In this paper, Bingham advanced four general arguments which were to become central to the realist persuasion: (1) the study of law is within the purview of the general science of government; (2) objectivity is the desirable trait in attempting the study of legal institutions. The outside observer of the legal process can be objective in the best sense of scientific methodology; (3) judges make law rather than discover it; (4) rules and principles are but mental tools used to classify and communicate economically the accumulated knowledge of the law, much as generalizations are used in the natural sciences.
The legal realists generally thought of the law as in flux and as “good” only in so far as it suited the society it purported to serve. In this, they did not differ substantially from the school of sociological jurisprudence as set forth by Roscoe Pound in 1906. However, one plank of the realists' platform did clearly separate them from the supporters of sociological jurisprudence: the realists' call for a temporary divorce of Is and Ought.
While Roscoe Pound and his followers sought a purely descriptive sociology of law in the pragmatic tradition, Pound was always quick to point out that any investigation into legal actuality could not be conducted without regard to the goals of law—or without the selection and organization of facts with some end in mind. “What ought to be,” he wrote, “has no place in physical science. It has first place in the social sciences.”
The realists specifically rejected the “confused” Poundian position on Is and Ought and appealed to the positivist position to justify their temporary separation of fact and value. The empirical investigations of the realists were to be just the first stage in a process of producing better standards for judicial decision making. What they did insist upon was that any theory of justice or conception of proper judicial function be relevant to the necessities and everyday practices of law. Values such as utility and necessity were indeed important, but any evaluation process must be based upon factual information obtainable only through a truly value-free empirical investigation of the legal process.
In the final analysis, the realist movement's claim to true realism lay in its ability to formulate generalizations through the use of modified scientific methods. Those proved more accurately descriptive of judicial behavior than were the ones to be found in traditional analyses. In attempting to achieve this end, the movement concentrated on the observation of official activity and on the social effects of that activity. The ultimate objective of such an endeavor was to build up a set of generalizations descriptive of the legal process—a crude science of law.
Efficiency as a Common Law Norm
“The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication.” Hofstra Law Review 8 (Spring 1980): 487–507.
Efficiency—in the sense of wealth-maximization—is a desirable goal for the common law because there is implicit consent to this norm, and also because wealth-distribution cannot be effectively handled by the common law in any case. According to the Koldor-Hicks criterion, wealth (not utility) is maximized when transactions are allowed to occur which net enough wealth so that any third-party “losers” could be fully compensated.
A principle of consent is inherent in this notion, because of the prevalence of “ex ante compensation,” that is, the notion that people have already been compensated for the possibility of loss, and have thereby implicitly consented to any losses that actually occur. A person who buys a lottery ticket and loses the lottery has consented to the loss and has been compensated for that possibility beforehand in the form of the discounted price he paid for the ticket. Similarly, the landowners who lose money when a factory moves from their area were already compensated for their loss when they bought the land, since the probability that the factory would move was discounted into the purchase price they paid for the land. Even without an explicit contract, we can say that the affected parties consented to the market and wealth-maximizing solution.
An apparent counter-example to “consent” might be the negligence system where an injured party may not get “expost compensation” for his injury if, for example, neither driver involved in an accident was at fault. However, the injured party's consent may be implicit in the ex ante compensation that he had already received in the form of lower liability insurance rates, which keeps driving costs lower than would a strict liability system.
Another objection to the efficiency standard alleges that this standard could conceivably justify slavery (which is obviously not based on consent). But, Posner counters, even if we started in a society where one person owned all the others, the others could buy their freedom from that person because their output would be greater as free individuals than as slaves. (They could borrow money against their future earnings as free men to raise the needed money.) Efficient solutions are, it is asserted, therefore consistent with our general structure of rights.
Another reason why the efficiency criterion is desirable is that the courts are simply not in a position to redistribute wealth effectively. At most, courts can change only one term of a contract, and the parties could freely alter the other contract terms in the future. If the court tried to redistribute wealth from landlords to tenants, for example, by refusing to enforce the leases that poor people sign, landlords could simply charge higher rentals because of the greater risk of loss. Thus, the common law system has no systematic distributive effects, and that makes it less open to control by special interest groups. Since no group can hope to benefit ex ante from a change in the system (that is, the system is efficient) and since those few who lose out ex post are a diffuse and ineffective group, we can expect political forces to converge on the ethical goal of efficiency in common law adjudication.
“Unleashing Animal Rights: The Movement to Give New Legal Weight to Man's ‘Servants.’” The National Law Journal (January 4, 1982): 1, 20, 30.
Lawyers, academics, and political activists have banded together to limit humans' dominion over non-human animals. Two organizations—San Francisco's Attorneys For Animal Rights (AFAR) and the Pennsylvania-based Society for Animal Rights (SAR) go beyond the typical humane or animal welfare society and base their defense on the conviction that animals, like people, have rights arising from their very existence. The struggle for the rights of animals may seem laughable, but is comparable to the historical struggle for recognizing the rights of Indians, incompetents, and aliens.
Animal rights advocates are making their voices heard. For the past two years SAR has been publishing the Animal Rights Law Reporter under the editorship of Prof. Henry Mark Holzer. At the end of 1981, the same group sponsored the first national Conference on Animal Rights Law in New York. Both SAR and AFAR seek to use the legal system to improve the lot of animals by challenging the view (often written into legislation) that animals are merely man's servants. Scholars have developed arguments to grant legal status to animals and to call into question the cruelty involved in the so-called factory farming methods of animal slaughter.
Legally, advocates for animal rights have adopted the analogy of guardianship for legal incompetents to protect animals. If “incompetent human beings have rights, why should not animals, who can in some instances both reason and feel more deeply than certain incompetent, if enfranchised, human beings like Karen Ann Quinlan?” This legal defense derives from the “Magna Carta of the animal rights movement,” Peter Singer's 1975 book, Animal Liberation.