London Calling: H.L.A. Hart on Place Names

H.L.A Hart devotes chapter 10 of The Concept of Law to international law, and in particular to the question of whether international law counts as a genuine case of law. Though I’m open to persuasion on the topic, I’m somewhat skeptical of the idea that international law is genuine law, and find Hart’s arguments in favor of its validity as law rather confused. That said, this post is devoted to a small and all-things-considered inconsequential confusion in Hart’s discussion, not the larger issue at the center of the chapter. So the point I’m making is a semi-pedantic one, but I’m going to make it anyway.  Continue reading

Hart, Nationalism, and the “Invention of Tradition”

After a hiatus of a few months, we’re back to discussing H.L.A Hart’s The Concept of Law in our MTSP Discussion Group, so I thought I’d throw out some ideas I’d had on the past few discussions on chapters 8 and 9 of the book, “Justice and Morality,” and “Law and Morals,” respectively. This post is on chapter 8. I’m hoping to revisit chapter 9 at some point. Continue reading

“An Unjust Law Is Not a Law”

According to Augustine, Aquinas, and Martin Luther King, Jr., an unjust law is no law at all. I’ll call this thesis ULNL, relying more on Aquinas’s version of it than Augustine’s or MLK’s. ULNL is, famously or notoriously, a staple of natural law theorizing. Though sympathetic to what he calls “the minimal content of natural law,” H.L.A. Hart takes issue with ULNL in The Concept of Law on both theoretical and deliberative grounds. Continue reading

I Am the Law: Hart and Self-Legislation

According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law,  p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94). Continue reading

H.L.A Hart on Commands and Consent

In a previous post on H.L.A. Hart’s Concept of Law, I had taken issue with the idea, expressed by Hart, that the criminal code consists of “commands” or “imperatives.” I don’t think it does, and regard both Hart’s discussion and much discussion based on it, as fundamentally confused as a result. This was the topic of a Zoom conversation we had last Sunday, and then an email missive I sent out and promised to post. I was originally going to make it a comment on my last post, but it’s too long, so I’ve made it a post of its own. I’ve cleaned it up slightly, but not (I think) in ways that anticipate the criticisms that were made of it in the email discussion. Continue reading

H.L.A. Hart’s “The Concept of Law”: An Overview

As I mentioned in the preceding post, the MTSP discussion has moved from discussing George Sher’s Desert (my choice) to HLA Hart’s The Concept of Law (Roderick’s). Since I’m not even close to done summarizing and commenting on Sher, I’m obviously not going to commit to writing a series of essays on Hart. But I don’t want our discussions to disappear into the Zoom void, either, so I thought I’d just mention some of the themes of the discussion, using this post as a placeholder for any further discussion that might take place (whether among the Zoom discussants or anyone else who wants to join in).

At Roderick’s suggestion, we read the first two chapters of The Concept of Law–the first on “persistent questions” that arise in defining the concept of “law,” the second on “laws, commands, and orders.” Unfortunately, each one of us had a different edition of the book, which made “citation” difficult, but for this post, I’ll be using the Second Edition. As I see it, three basic issues came up. Continue reading

Reason Papers 39:2 Out (Winter 2017 Issue)

The latest issue of Reason Papers is now out–Volume 39, Number 2 (Winter 2017). The issue includes a symposium on Tara Smith’s Judicial Review in an Objective Legal System, as well as Part II of a symposium on Den Uyl and Rasmussen’s newest book, The Perfectionist Turn. There’s also a revised version of a piece I posted here at PoT on teaching Osama bin Laden’s “Letter to the Americans” (scroll all the way down to “Afterwords”). And other stuff as well–psychological egoism, Nozick on patterned theories of justice, interviews with Nazi filmmakers, commentary on a theatrical production of Ayn Rand’s Fountainhead. Enjoy.  Continue reading

Law Enforcement, Philosophy, and the Ethics of Belief

From an article on the recent “swatting” case in Wichita, Kansas:

The law allows the police to use deadly force when an officer reasonably believes, given the information at the time he pulls the trigger, that his life or someone else’s life is in imminent danger. The Wichita officers had been told, wrongly, that they were encountering an armed hostage-taker who had already killed one person and was threatening to burn the house down.

“Nine-one-one is based on the premise of believing the caller: When you call for help, you’re going to get help,” Chief Livingston said. The prank call, he added, “only heightened the awareness of the officers and, we think, led to this deadly encounter.”

The antinomies of legalistic reason: The first paragraph tells us that the 911 caller made an accusation of criminal activity. But according to one prominent line of legal reasoning, an anonymous telephone-based accusation at best establishes reasonable suspicion of the commission of a crime–and usually requires a “totality of circumstances” test that conjoins the claims made in the call with facts observed or gathered independently of the call (see Lippmann, Criminal Procedure, pp. 107-109, 139-40, 2nd ed.). Continue reading

AUMF, ISIS, and Imperialism

I rarely if ever agree with Bruce Ackerman on political matters, but the politics of warfare, I suppose, makes for strange bedfellows. What Ackerman says in this Op-Ed, pointedly titled “Obama’s Betrayal of the Constitution,” seems to me exactly on target:

Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.

This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.

But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.

Mr. Obama is rightly proud of his success in killing Osama bin Laden in 2011 and dismantling the Qaeda network he built up. But it’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq.

To suggest that a Congressional vote 13 years ago responding specifically to the 9/11 attack can be used to legalize new warfare in Syria is to flout the plain meaning of the words of the original Authorization of the Use of Military Force, and to suggest by implication that words have no meaning. It’s about as obvious a violation of the rule of law as can be imagined–a paradigm case of violation staring us straight in the face, while masquerading as law. It also marks another sad milestone in the United States’s childish, eyes-wide-shut descent into imperialism.

Law and Disorder: Blame and Redemption in the American Justice System

A pair of stories in this morning’s New York Times offers an instructive glimpse into the mentality of the officials–judges, prosecutors, police officers–who preside over America’s criminal justice system. And I don’t mean that in a good way. Both stories concern criminal cases in New York–one in Manhattan, the other in Nassau County on Long Island. One describes a miscarriage of justice, the other what seems and probably is a just verdict and just sentence. And yet both reflect poorly on the system and the people who sit at its helm.  The first story concerns the exoneration of the so-called “Central Park Five.” The second concerns (if I can put it this way) a run-of-the-mill murder case.

The headline of the first story tells the tale: “Settlement Approved in ’89 Jogger Case; City Deflects Blame.” Feel free to read the whole thing for  details.

The gist of the story is this: Sometime in 1989, a woman went jogging one evening in Central Park, was viciously raped and beaten there, and left for dead. Suspicion immediately fell on five teenagers, all of them black or Hispanic, who were described in the media back then as “wilding” in the Park around the time that the jogger had been attacked–i.e., “going wild,” and thus presumptively the suspects in the case. (The jogger was white.)

I remember the case, and followed it pretty closely in real time. What I distinctly remember about it is the rhetorical work done by the slang term “wilding” in discourse about the case, an aspect of it now largely forgotten. No one (in the suburbs where I lived and went to school) really knew what “wilding” meant, and no one bothered to ask. What was axiomatic was that the term was an example of the newest urban slang, that everyone ought to know what it meant, that anyone who knew what it meant knew that “if x is wilding, x is a plausible rape suspect,” and that only a white-bread suburban dork would ask for a definition of “wilding” or query inferences in claims about it. Wilding just seemed like the kinda thing that happened in the urban jungle across the river–and to be fair, New York was a more dangerous place in the 80s than it is now–and everyone knew that the kinda thing that happens in urban jungles is the kinda thing characteristically engaged in by idle black and Hispanic youth. From there, it was just a few simple steps to a verdict of guilt. Where you have a rape victim, and you have wilders in custody, you have rapists, and once you have rapists, you convict and sentence them. QED.

It’s hard to recreate the atmospherics of the time: its hysterics, especially its racial hysterics, were sui generis, and all seemed to lead inexorably to the certainty that the Central Park Five were guilty, that the legal system was babying them, and that the law was taking too damn long to find them guilty and sentence them. The indignation expressed for the Central Park Five really felt like something out of E.M. Forster’s Passage to Indialike the English reaction to Aziz, the Indian doctor who’s suspected of having raped Adela Quested, the newly-arrived English visitor. (I don’t mean to be implying, by the way, that whites were the only villains and blacks the only victims in the racial atmospherics of the time. It was a complex, sickening dynamic involving both parties. One of the great merits of Forster’s book is that it lays bare the pathologies and complexities involved in racial animosity, undermining the pious common belief in self-evident verities about it without licensing facile moral equivalences, either.)

But I digress. So the Central Park Five were convicted of the rape and the beating. In fact, they confessed to the crime. Even at the time, if I remember correctly (and I may not), there were stray whispers in the press about the possibility that the confessions were coerced, but this conjecture was lost in the hysteria of the moment, and eventually just forgotten altogether in the amnesia that settles in after any case is officially decided. But they did confess, and as a result they each served between seven and thirteen years in prison for the crime.

As the story about the settlement makes clear, it turns out that they were innocent.

In 2002, the convictions were vacated after the office of the Manhattan district attorney, Robert M. Morgenthau, found DNA and other evidence that the woman had been raped and beaten by another person, Matias Reyes.

The Bloomberg administration had fought the [Central Park Five’s] lawsuit, which was filed in 2003; after Mr. de Blasio took office, the city reversed its position.

What I find remarkable about the story, and instructive about our legal system, is this statement, which is part of the settlement:

The City of New York has denied and continues to deny that it and individually named defendants have commited any violations of law or engaged in any wrongful acts concerning or related to any allegations that were or could have been alleged.

Legally speaking, that may all be correct, but in moral terms, it sounds like a lot of incoherent bullshit. How is it possible to coerce confessions out of teenagers, imprison them for years, agree that you imprisoned them for a crime they didn’t commit, spend years disdainfully rejecting the idea that the confessions were invalid, fight their lawsuit, effectively lose the suit, pay a $41 million settlement to settle their claims, but not have done anything wrong?

Two lessons here: (1) Clearly, the gap between legal and moral language, and legal and moral judgments, is a yawning chasm. Even if the City of New York bears no legal liability for what it did, it bears a heavy burden of moral liability, so that if we focus on the legal at the expense of the broader moral issue, we’re completely missing the real significance of the case. (2) Anyone who believes in the legitimacy of government (as opposed to being an anarchist) has to accept that there ought to be some asymmetry between the legal rules that apply to law enforcement officers in the course of doing their jobs, and of ordinary citizens confronting law enforcement as suspects in a given case. The question is what that asymmetry amounts to, and evidently in this case, it amounts to the City’s right never to have to to say that it’s sorry no matter what it’s done, and no matter what, by its actions, it’s implicitly conceding. You don’t have to be an anarchist to think that we can do better than that.

Now consider the second case, “Man Gets Life in Prison for Killing Officer and a Driver.” Strictly speaking, there’s no legal miscarriage of justice here, and not that much of a moral miscarriage, either. The case concerns two murders committed by one Daniel Fuller. The crimes are heinous, and it’s almost certainly the case that Fuller committed them. The evidence isn’t summarized in the article, but it seems to have satisfied the “reasonable doubt” standard, and Fuller himself doesn’t dispute that he committed the murders (and the rest of it: read the article for details). There’s no evidence that he was coerced into acquiescence in the verdict, or coerced at any other stage of the case. Morally speaking, it doesn’t take much acumen to see that Fuller’s acts were evil, and that the man himself is evil. Still, I question the moral right of the judge in the case to say the sorts of things he said to Fuller in court.

“There is absolutely nothing redeemable about you,” Judge Jerald Carter of Nassau County told Mr. Fuller after several of the victims’ relatives, some in tears, stood to extol their loved ones and denounce Mr. Fuller. …

The judge forced Mr. Fuller to look at photos of his victims, including one borrowed from Mr. Facey’s widow. He called Mr. Fuller “despicable you.”

Then he imposed the sentences and said they would be “a prelude to the hell that may await you.”

Since Fuller received a double life sentence, the reference to “the hell that may await you” is a reference to Hell, the supernatural location.

It is possible that there is nothing redeemable about Fuller. It is clear that he is despicable. But is it the place of a criminal court judge to make these assertions in a court of law?

Obviously, court verdicts and sentences are moral judgments of a certain kind. I’m not a legal positivist, so I don’t think that legal interpretation can entirely be divorced from moral judgment. That’s particularly obvious in the criminal context, and perhaps most obvious in the case of sentencing. A judge engaged in sentencing has to make a judgment about what the offender deserves. Sentencing guidelines guide that decision but can’t determine it. Ultimately, part of the judgment is a moral judgment, and it’s up to the judge.

No quarrel there. But sentencing is a specifically legal act, and what the offender deserves has, at some level, to be specified by law. What legal purpose is served by turning a courtroom into an all-purpose forum for moral judgments that go well beyond what the law requires? You can say that an offender deserves a life sentence without describing him as irredeemable. The length of the sentence has nothing to do with irredeemability; it has to do with the moral turpitude of what the offender has done. The one judgment concerns the future, the other concerns the past. They’re different kinds of judgments and nothing ties them together in any obvious way.

Whether they accept this or not, judges are not experts in moral philosophy, counseling psychology, or psychiatry. Their knowledge of human psychology is, at best, anecdotal and sometimes not even that. Most philosophers, psychologists, or psychiatrists would hesitate before pronouncing a verdict of “irredeemability” on someone. A person’s acts may be evil, but since his future lies ahead of him, he may well have the capacity to change his character so as to become a different kind of person. Who could know what the future might bring? What evidence or argument could justify a judge in offering judgments about the future? And what legal purpose is served by doing so?

The judge, we’re told, forced Fuller to look at photos of the victims. In and of itself, I see nothing wrong with that. But was it a formal part of the sentence? If not, is it legitimate for a judge to depart from the sentence in any particular and force the offender to suffer ad hoc punishments simply because doing so expresses the righteous indignation of the moment?

Finally, should a judge who operates under the U.S. Constitution be permitted to make reference to Hell in a court proceeding pertaining to the sentencing of a criminal offender?

I think the answers to my semi-rhetorical questions are fairly obvious. No legal purpose is served by offering judgments about irredeemability, and it’s not even clear what evidence would suffice for such a judgment, much less that judges are equipped to offer it. It’s not legitimate for a judge to add ad hoc punishments over and above the ones actually described in sentencing. And to my mind, a judge who invokes the supernatural in a sentencing proceeding is violating the First Amendment: there is no more obvious “establishment of religion” than the invocation of God’s will and judgment in the sentencing phase of a criminal trial (even when the person invoking God hedges his bets by using the word “may”). First Amendment lawyers may or may not agree with that, but if they disagree, it seems to me that they’re flouting the obvious meaning of the words that constitute our Constitution as its citizens understand it. What they’re defending at that point is specialized sophistry, rather than something recognizable to citizens as constitutional law.

Above all, these cases leave us with a sense of the problematic moral incongruities of our vaunted legal system. Consider the deference accorded to members of the legal profession. Is it really earned? The President of the United States does his work in ordinary civilian clothes. Meanwhile, judges do their work in robes. Why, exactly?

The President is held accountable for virtually every word he utters in public. Is that true of the average judge? I once stood before a judge who had the audacity to tell me that I was guilty of a traffic violation (failing to stop at a stop sign) because he knew the intersection in question “very well,” and “knew” that “no one” stopped at that stop sign–no one, that is, besides him. So he concluded that I hadn’t stopped because I was no different from anyone else in town (besides him). Uh, not exactly a valid argument, your Lordship. Not that one could say that.

The same judge had, twenty minutes earlier, chided a different defendant in a different case for invoking his (the defendant’s) previously spotless driving record as a defense against the charge that he was currently facing. “Your previous driving record is not at issue here, and not a defense against the charges you’re facing here and now,” the judge piously intoned. The blank, hypocritical incoherence of this combination of claims was lost on His Honor, and was not something for which he would ever be called to judgment. Not that one could say that, either.

The kind of loose talk indulged in by my judge is the currency of practically every courtroom in the land, and it happens every day, dozens of times a day. We’re obliged to refer to judges by titles (“Your Honor”), as though they were some kind of self-appointed aristocracy.  But in what way is being a judge more intrinsically honorable a profession than being, say, a janitor? I don’t think it is, and yet: who would think of bowing and scraping before a janitor, and referring to him by title as he mopped the floor? (“Your Honor, I see that you are mopping thine floor; do I have permission to tread the floor and pass?”) Incidentally, academics and physicians have the same disease as judges and lawyers in this respect–we’ve all encountered the person who insists on being called “Doctor So-and-So”–but that’s a different topic and different post.

But take it further back: consider how lawyers get made. As the pre-law advisor at Felician College, every week I get advertisements for law schools inviting students to study law at this or that law school and “change the world.” In seven years of doing the job, and of having to peruse the unbelievably self-congratulatory literature of Law School Admissions (and of having to attend equally self-congratulatory Law School Admissions Forums), I have yet to read a blurb or an article written by a law school admissions officer or law professor that suggests that there are limits–strict moral limits–to what lawyers and judges ought to be allowed to say or do in their cosmic quest to “change the world.”  I always feel like responding: Instead of dreaming of new ways in which you might force people to do your bidding in the name of “justice,” how about recognizing how much harm you’ve done in the world, and thinking about how you might ratchet back the force you wield just a bit? Unfortunately, a message of that sort would fall on deaf ears–whether of law school candidates, law students, law professors, lawyers, or judges. After all, few people go to law school to diminish the power that lawyers have over the rest of us.

But maybe they should start. No one of law-school-level intelligence can really believe the puffery behind law school advertising, so what’s the point in indulging the bad faith involved in going along with it? Anyway, since we live in a regime that professes adherence to limited constitutional government–and professes eternal hostility to aristocracy–it might be a salutary exercise to figure out what those commitments mean for law students, and how to inculcate the next generation of law students in the idea there are limits to observe in the uses of law to effect social change. It might be nice, as well, to ditch the self-conception of lawyers as a kind of democratic aristocracy, and ditch the sense of noblesse oblige often conjoined with that assumption.

It’s a tall order, I realize, but it might prove redemptive for them–assuming that they are redeemable. Of course, unlike Judge Carter of Nassau County Court, I don’t pretend to know about redeemability in advance of the redemption or non-redemption itself. The wisdom I invoke is less cosmic than his: By their fruits ye shall know them. The proof is in the pudding. Etc. Our legal profession might give that homespun wisdom a try. It’d be nice to see some of them descend the Olympian heights they seem to inhabit, and come back down to earth.

Postscript, September 8, 2014: I couldn’t have invented a better postscript to this post than an article in today’s Times, “As Two Men Go Free, A Dogged Ex-Prosecutor Digs In.”