Category Archives: Law’s Empire

Relation Between Positive and Natural Law

Out of the three branches of government, the legislature is often considered to be "first among equals." What does this mean?

If it means that any positive law overrides any natural law, then clearly, the legislature would by that very fact neuter the judicial branch. No judge would have the power to disqualify as unjust even the most atrocious bill, such as one that commands all Jews to report to gas ovens.

And of course, if vice versa, then it is judges who would be made into tyrants.

What is to be done?

One attempted solution is the American system of federal government. The Constitution defines a government by enumerating its powers and promulgates an elite-made natural-law system.

It codifies, as the best minds of the time figured it, several fundamental principles of justice that serve as law of the land.

Within that system, the legislature is made supreme, and judges are not allowed to override Congressional statutes, however immoral. At the same time, no bill may contradict the Constitution. As long as that happens, a Congressional action is allowed to prevail over any judicial tradition. So, the Congress works under the Constitution but over judges.

Another solution may be discerned by studying the British system. The House of Lords is -- or was until recently -- an equivalent of the Supreme Court. A working system would then be to prevent any bill from passing until it is approved both by the legislature proper -- the House of Commons -- and by the chief judges -- the members of the House of Lords.

In this case, a law that clears both Houses acquires the dual status of both efficient (from Commons) and just (from Lords). Here the two branches are fully equal.

Under a functioning monarchy, the king would also have to consent to a law if it is to be passed, though on what grounds this power would belong to him I do not understand at this moment.

Absurdity of Judicial Pragmatism

This post continues live blogging Dworkin's Law's Empire, picking up after the latest post.

Let's begin with two quotes. First is from David Friedman's Law's Order:

You live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence.

A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment. A legal philosopher asks whether this is just.

An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero -- and asks whether you really want to make it in the interest of robbers to murder their victims. (8)

Second, a point made by Mises I already blogged on, namely that any unified and coherent "government policy" under our massively interventionist system long ago disintegrated.

Now positive law made by the legislature (as opposed to natural law) will apply to at least two areas: (1) rules governing the use by the public of government properties and (2) punishments for crimes. If we admit that government should also set economic policy, however limited its power there we as libertarians want to see, then this will be the third aspect of human affairs where positive laws will be in force.

Whatever area we pick, however, as Friedman and Mises make profoundly clear, positive laws constitute a coherent and complex system in which every part depends on, conditions, and influences every other part -- or at least are supposed to do just that. It's a system that is ideally balanced so as to promote human happiness most efficiently.

This system is made via a deliberative process, perhaps even by the entire citizen body in a town meeting. The lawmakers have the entire system in view and seek to fine-tune it appropriately.

A judge, quite on the contrary, has only a single case before him on which he is supposed to rule. He has no vision of the entire legal system, however high his personal IQ is. This focus on one case makes the judge narrow-minded, unable to determine how his decision will affect the entirety of the legal system. If he by his own fiat proclaims what is best (e.g., "least inefficient practice or the fewest occasions of injustice in the future" (163)), he risks ignorantly upsetting and unbalancing the legal code as a whole.

A judge is uniquely qualified to decide on natural law, i.e., basic morality made difficult in hard cases yet matched and able to be discerned by the judge's wisdom.

But the overall legal system cannot lie within his purview by virtue of the limitations on any one man's intellect and absence of essential-for-positive-lawmaking data presented to him, such as people's ideologies and interests.

Dworkin on Pragmatism

Our author reasonably considers legal pragmatism to be "shocking." A pragmatic-minded judge "denies that past political decisions in themselves provide any justification for either using or withholding the state's coercive power. He finds the necessary justification for coercion in the justice or efficiency or some other contemporary virtue of the coercive decision itself, as and when it is made by judges, and he adds that consistency with any past legislative or judicial decision does not in principle contribute to the justice or virtue of any present one. If judges are guided by this advice, he believes, then unless they make great mistakes, the coercion they direct will make the community's future brighter, liberated from the dead hand of the past and the fetish of consistency for its own sake." (151)

It is obvious that pragmatism grants an enormous amount of power to judges vis-à-vis the legislative branch of the government, power that they cannot handle responsibly, and to such an extent that the legislature is rendered almost entirely ineffectual.

Again, a judge is wise (the 7th virtue) but his understanding (the 6th virtue) of society is woefully deficient when compared to that of a deliberative lawmaking body. As a result, judges are not qualified to "invent new rules for the future in accordance with their convictions about what is best for society as a whole." (159-60)

Of course, if we take a rather extreme anarcho-capitalist position that no positive law is just and that there should be no such thing as public legislatures at all, then judicial pragmatism becomes a natural fallback alternative.

Otherwise, pragmatism turns judges into veritable tyrants. And this is unfitting and indeed, shocking.

Conventionalism, 3

Dworkin calls the version of conventionalism outlined in the previous posts, "unilateralism." Unilateralism, he goes on, is in fact the prevailing doctrine in criminal law: "no one should be found guilty of a crime unless the statute or other piece of legislation establishing that crime is so clear that he must have known it his act was criminal, or would have known if had made any serious attempt to discover whether it was." (143)

He distinguishes (strict) conventionalism from unilateralism, because the former allows and even insists that judges make brand-new law in hard cases rather than as I proposed in previous posts, simply rule for the defendant.

It seems to me, however, that even unilateralism allows lawmaking by the judicial branch, if it is limited to discovery and application of natural law, as suggested below. Expectations are still fully protected for the reason given.

But Dworkin may be mistaken in arguing that a judge "must do his best for the community as a whole." This point is, as seems to me at this page in the book as I am live blogging it, at the heart of Dworkin's vision, namely, that it is the task of judges to harmonize the law, make it coherent. I agree that if judges can or are qualified to harmonize the law as per the nature of their trade, then they most certainly ought to do just that. But can they? We shall see which arguments Dworkin will adduce next.

Conventionalism, 2

There is a way to square judicial lawmaking with the idea that "protected expectations" should be, well... protected. It is to say that judges legislate natural law and its consequences. One difference between natural and positive law is that natural law need not be promulgated, i.e., publicly announced by the authorities. It's already written on people's hearts; even children know that "you shall not steal."

That's not to say that discovering and applying natural law is trivial, for it takes wisdom to do so correctly, and I have already suggested that it is precisely wisdom that determines the quality of a judge; only that a single man can be up to the task. The legislature is a deliberative body, where a long conversation can be had about the utility of a particular positive law. The legislature can providentially care for the entire legal system, so balancing it as to nudge society toward the greatest good for the greatest number. A judge is a single man, yet individual natural laws are within his purview.

But it is the feature of natural law then that if one is in violation of it, then even if the law is not on the books, nevertheless, he should have known and obeyed it from the beginning. The "legislation" does not upset protected expectations, because the natural law has always been in force and should have been followed by the parties involved in the dispute as faithfully as any positive law requires. If one broke the natural law, then he is guilty even if the law has never been stated explicitly or promulgated.

This is unlike some government regulation which no individual could possibly have foreseen.

As for punishment, we can follow Rothbard and make it proportional to the crime.

Dworkin on Conventionalism

This is the idea that laws exist to guide behavior via threats of punishment and, when broken, authorize the use of state coercion and compulsion; there are social convention about who is authorized to make forward-oriented law and how; moreover, everything that the conventionally recognized authorities produce is law and nothing they do not produce is law.

Judges are then excused from lawmaking entirely. What, however, shall they do in hard cases?

In Elmer's case, there was no positive law that mandated that his inheritance be taken away from him. In this and other such cases, there is a simple conventionalist solution: always decide for the defendant. For whatever is not explicitly forbidden is permitted. If no law forbids Elmer to keep the loot, then Elmer is permitted to keep the loot. That's it.

Same with the McLoughlin case: if it is forbidden by an explicit law to cause emotional damage to a person in the specific circumstances of the case, then the wife is entitled to damages; if no such law is on the books, however, no damages should be awarded.

In the snail darter case, there were two laws that contradicted each other. In such cases, if there is a way to determine which law has precedence and ought to prevail, then it should be utilized. For example, a state law may nullify a federal law; or, on the contrary, a federal law may override a state law. A new statute always reliably overturns an old precedent. Etc., fine. If, however, no reasonable way of choosing between two contradictory laws exists, then a rational decision cannot be rendered, and the court should either refuse to decide at all, or again decide in favor of the defendant.

We might say that both laws cancel each other out and lose force. This is an unfortunate situation, as the people building the dam and the people seeking to protect the fish come to be at war with each other, with neither knowing whose will shall prevail. At that point, the appropriate legislature should be speedily convened and the contradiction resolved.

Judges and Law

Dworkin argues that sometimes, judges and lawyers argue about "what the law is."

My take on this is that in a complex society such as ours, there are numerous lawgivers and sources of law, as well as types of law. For example, there is natural law vs. positive law, tort / contract / criminal law, family law, nuisance law, law and economics, federal / state / local law, constitutional law, case law, government regulations, and others.

It may happen that some of these laws contradict each other. It may also happen that a certain lawgiver is not recognized as such in a case; his authority for whatever reason is questioned. Finally, judges themselves make or discover law.

As a result, (1) judges may disagree with each other as to what constitutes proper natural law; and (2) each lawgiver is supposed to integrate any law he promulgates into the totality of the legal system such as to keep it coherent, and this process is rife with difficulties.

These considerations entail that "What is law?" may be a non-trivial question for a judge deciding a particular case.

Restitution, 2: Elmer’s Case: The Verdict

I see two differing visions in this case about how law shall be made.

On the one hand, I'd like to side with Rothbard and argue that all or almost all of positive law is junk, harmful to society, and as to natural law, it is precisely the judges who should "discover" it. Now everyone is more or less aware of natural law (such as "you shall not kill"), but the basic commandments' elaborations should be entrusted to those who are wise. And wisdom is the proper trait precisely of a judge.

A cynic, however, may point out that whenever a real living and breathing judge legislates, he seems to pull his favored law out of his ass, law that is both arbitrary and bad.

On the other hand, I'd like to preserve the sovereignty of the people to govern themselves rather than have a small elite of judges rule them. Law, including custom, in all its complexity should be what the people find convenient and expedient to live by.

Again, however, our cynic will whisper that it is tyranny of the majority for the people to be bound by no higher law that what they find suitable to their fancy to concoct. "You shall not steal" is no joke, and even the legislature is unable, when all is said and done, to repeal this higher law by which all of mankind is bound. But it was precisely the superhero judge Moses who gave this particular law. Shouldn't we imitate him?

There are dangers of abuse of both the discovery of natural law by the natural aristocracy and creating positive law by the masses of common people. How to guard against both?

This discussion centers on the best procedures for lawmaking. I argued that neither is beyond the pale. Could this be one subtle rationale behind "checks and balances"?

That point aside, in the Elmer's case, I would probably side with the majority view, because the natural law discovered and asserted by the judges, namely that "no one should profit from his own wrong," seems to me to be correct.

Restitution, 2: Elmer’s Case: Dissent

My argument in favor of the dissenting view (Gray's) is this. When Elmer murdered his grandfather, the law prohibiting this has already failed in its function, viz., to deter murders.

In fact, it is possible that Elmer knew all the ins and outs of this part of criminal law and counted deviously on the very fact that even if he is caught, the judge would have to, as per the letter of the law, let him keep the inheritance!

We may imagine Elmer making this calculation and deciding to proceed with his evil scheme.

Therefore, the failure lies in the higher ruling principle of the defective legal system. But it is not the task of judges to repair laws by laying down their own arbitrary notions. Laws are made by the people and their representatives, not by the judicial aristocracy.

It would seem that Elmer would have gotten away with his crime. But it would merely have been a symptom of the disease. What could have happened was that Elmer'd be allowed to keep the money, and then the legislature, in the next session, scandalized and embarrassed by the case, would so alter the law as to take future Elmer wannabes into account. By trying to "fix" the defect, the judges treated the symptoms, seemingly satisfying our sense of justice but also eliminating the incentives for the legislators to improve the law.

The judges should have used precisely "mechanical" jurisprudence and left lawmaking to the lawmakers. Elmer would keep his ill-gotten gains on a technicality, but it would alert the legislative branch of the state of the problem and thrust them into action to repair the legal system.

Restitution, 2: Elmer’s Case

First, read the Riggs v. Palmer case.

The purpose of restitution from the criminal or tortfeasor to the victim is to restore the latter to the state he was in before he was wronged.

As indicated in the first part, for torts, restitution acts as the sole deterring punishment, as well. In such a case, two birds are killed with one stone which is pleasant.

For crimes, we have to decide whether restitution serves only one purpose, namely, to make the victim whole or also the additional purpose as part of the overall punishment.

Again, Elmer's grandfather, Francis, was dead. No restitution was possible. There was no indication that Francis "would have wanted" to avenge his own murder by depriving Elmer of the inheritance. Elmer thought that Francis might change his will, but this was not certain. But then it was not clear whether Elmer "profited from his own wrong" or just "profited."

(It is a bad idea to second-guess Francis as to what he would have wanted. Let this case be a lesson to whoever it may concern to make their wills clearer and more precise, such as by specifying what is to be done if the testator is murdered, etc. Dworkin argues as much, too.)

However, Elmer certainly intended to profit from a wrong. His own belief in the high probability of losing the inheritance may be used to condemn him.

The question then is, should the gains from a criminal act be taken away from the criminal even if these gains are not used as restitution to the victim?

For example, Rothbard would say yes.

This also makes sense from the utilitarian point of view. Why are the punishments for crimes relatively harsh, anyway? To compensate for the fact that not all criminals are caught or that for any person contemplating a crime there is some possibility that he will get away with it.

A potential criminal would then think: "There is an 80% chance that I'll evade capture if I steal $100,000. But if I am caught, then I'll both lose the loot and get 5 years in prison." It is intended by the legislature that this choice be tough. If Elmer keeps the inheritance, then the whole crime might just be worth it for him, the punishment imposed by the court notwithstanding. This defeats the purpose of criminal law to make it so that crime does not pay. The legislators are undone. And we don't want that.

Restitution and Punishment

Let's consider three scenarios.

1. A tort. A hurts B accidentally or due to mild negligence. B has been made worse off, but A did not benefit at all from the damage to B. In fact, A may be genuinely distraught that he harmed B. In such a case we have restitution alone with no punishment attached to it. If a judge rules that B must make A whole or "restore" him, then B is thereby harmed which may very well be sufficient punishment and therefore deterrent.

2. A property crime. A steals a TV from B. B is made worse off; A is made better off. If B is caught, etc., and a restitution is ordered, then A and B return to their previous positions. B returns the TV and otherwise is not harmed by the restitution. Clearly, the deterrence stimulus is insufficient: if B is not caught, then he becomes better off; and if he is caught, then a status quo is maintained: B is no worse off than before the crime.

Therefore, an extra punishment beyond restitution is legislated for B so that theft can be deterred.

3. A murder. A kills B. Since B is dead, there can be no restitution: B cannot be resurrected. At the most, A can be forced to pay for B's funeral expenses.

This is a case of punishment alone with no restitution being ordered.