Archive for January 2007

Response to Aristotle and Austin on Responsibility

January 31, 2007

Aristotle is like a breath of fresh air.  His treatment of the responsibility that drunks have for their actions reminds me of a most interesting phenomenon: the “blackout.”  One of the reasons we exempt infants from responsibility is that we do not consider them conscious of their actions.  Our standard for self-consciousness, however, is strongly tied to memory: I do not remember anything from my first year of life, and thus I feel removed from what I did then.  Drunkards who are blacked out are like infants again.  They can make a case afterwards that because they don’t remember what happened, they were not self-conscious and thus not responsible for their actions.

Aristotle’s response to this quandary is that a drunkard is in fact responsible for everything he does because he chose to put himself in that condition in the first place.  I have asked some students this question in the past, and they agree with Aristotle’s conclusion but take a different logical path.  They say that a drunkard’s actions are an expression of his subconscious personality; thus he is always being himself, even if he does not remember it in the morning.  Either way, he shall have trouble in court.

Aristotle’s treatment of emotions also interests me.  He says that one should be held responsible for decisions made for emotional reasons as well as decisions made for logical reasons because feelings are as integral to the human psyche as rational thoughts.  No longer can one justify behavior with leftover psychic damage from something that happened five years ago.  It would be interesting to see this principle applied strictly in domestic abuse cases, or in cases in which the defendant bases his arguments on his terrible past (“Antwone Fisher” comes to mind).

Austin’s work highlights the difficulty of making generalizations in the field of responsibility.  He notes that subtle differences in the choice of words, or even the order of words in a sentence (“clumsily he trod on the snail” vs. “he trod on the snail clumsily”), can alter its meaning.  Even then, a sentence can be unclear; for instance, “he ate deliberately” could either signify that he chose to eat or that he ate slowly and steadily.  His treatment of Regina v. Finney also demonstrates this problem: the counsel and judge bandy about several terms haphazardly, and their arguments are less clear than that of the defendant himself, who is unschooled in law.

Perhaps the judge and lawyer were so reckless with their vocabularies because they didn’t want to be redundant.  Since legal cases affect the lives of real people, however, there is nothing wrong with repeating the same word many times over for the sake of clarity.  Save poetry for the lovers, I say, and let the lawyers sound like Aristotle.

Before Austin turns his attention to words, he points out a greater problem with responsibility: the impetuses for an action can be so disparate, or so subconscious, that one cannot even express why one did it.  Conversation is one example.  On many occasions, when asked why I said something (especially something random), I give a quick and dirty explanation rather than detailing the series of loosely connected thoughts that lead from point A to point B.  I would not be surprised if this were an issue in some negligence cases.  It is more convenient for a defendant and his lawyer to invent a simple and reasonable excuse for a person’s errors than to tell of his tortuous train of thought.  Indeed, I doubt that anyone ever acts completely rationally for more than a minute at a time.

Responses to “The Common Law” and “Legal Responsibility and Excuses”

January 24, 2007

Holmes’s argument that vengeance is the traditional basis of the legal system is an intriguing one; I am inclined to agree with him.  The Code of Hammurabi certainly corroborates this claim, as do many of the minor Mosaic laws.  The Ten Commandments do not follow this pattern, but they are abstract moral laws more than technical ones.

It is very interesting that this kind of thinking survived into the Christian era because Jesus explicitly rejected it:

You have heard that it was said, ‘An eye for an eye, and a tooth for a tooth.’ But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you. (Matthew 5:38-42, NIV)

St. Paul adds, “Do not take revenge, my friends, but leave room for God’s wrath, for it is written: ‘It is mine to avenge; I will repay,’ says the Lord” (Romans 12:19).  Yet unconditional forgiveness was not subsequently codified into law.  Practical considerations won out in the Christian kingdoms.

Holmes notes that revenge has become less important in recent years because we live in a more complex society in which “an eye for an eye” isn’t nuanced enough.  Vengeance is still a powerful force in one particular branch of the law, however: capital punishment.  It seems that behind every man on death row is a murder victim’s family which wants to see the criminal suffer the same fate.  Certain cases of embezzlement also allow for revenge: a person convicted of some such charges must pay treble damages plus legal fees to the plaintiff.

In his essay, Hart probes the distinction between legal and moral wrongdoing.  He does not accept the argument that only those who have committed moral wrongs should receive legal punishment.  Our legislatures have certainly followed Hart’s lead.  According to the letter of the law, driving 41 miles per hour in a 40-mph zone is illegal, but I would certainly not call it immoral.  In most situations, it is not even reckless.  Many regulations of businesses are the same way.  There is a cap on how much of the media a telecommunications company can own, not because it is wrong for a company to own too much, but because this situation could lead to future wrongdoing.

Much of Holmes’s and Hart’s essays touch on the same subject: the legal admissibility of excuses for one’s actions.  According to Holmes, the law does not accept excuses: it judges the action rather than the intent.  Entrepreneurs are even held responsible for the crimes of the employees they hired.  Though strict liability is a harsh standard, it is likely an effective mode of prevention because it requires constant vigilance by all parties.

Hart rejects Holmes’s theory.  He says that if put into practice, it would endanger legal devices such as contracts and wills because a party could then freely coerce a weaker party into unfavorable agreements.  He makes infantilism and insanity, if proven, acceptable excuses for all cases because we cannot use the same laws on people who act rationally.  If the standards for these two excuses are stringent, they should not have an adverse effect on law and order.  I agree with Hart, but I imagine that Holmes, if he had considered the same cases that Hart does, would have sided with him as well.

Response to “The Path of the Law”

January 17, 2007

James Smyth

In “The Path of the Law,” Oliver Wendell Holmes Jr. treats a wide range of legal topics, many of which are still relevant today.  Among them:

Morality and Law.  Holmes champions a separation of the legal code from the moral code.  Completely immoral people, for instance, still follow the law because they wish to avoid punishment for breaking it.  Words such as “malice” have divergent moral and legal connotations, so clearly a jurist is not meant to determine right from wrong in the first place.

If morality is absent from our law, then it is a pragmatic undertaking; legislatures create systems of rewards and punishments in order to achieve beneficial social outcomes.  Pragmatism saves us from the clutches of sharia law, but it also weakens the legitimacy of natural rights.  What happens when the legislature seeks to curb individual rights to improve the society as a whole?  United States abortion policy is a good example of pragmatism taking precedence over arguments of natural rights.

Logic.  Roughly speaking, the purpose of law is to ensure justice.  One of our expectations is that the law will be fair, logical, and impartial.  Holmes asserts that in practice, this is not the case and can never be so.  One reason is that epistemological certainty is impossible.  A good example of this is sentencing: I would wager that never in the history of jurisprudence has a thief received exactly the amount of prison time he deserved for his crime.  The numbers, be they 5 or 10 or 20 years, are guesswork.  The author’s second claim is that the decisions of many judges and jurists are products of the zeitgeist.  His arguments for this point are strong and somewhat depressing.  They remind me of Leo Tolstoy’s opinion that the masses, not individuals, are the primary movers of history; thus every major event is out of everyone’s control.  If the times shape the laws, any of these “just” statues could change within a century or so.

Tradition.  Holmes further de-romanticizes the law in his treatment of the origin of laws.  Because so many of them were written hundreds of years ago, says Holmes, they have become confusing and meaningless.  His arguments here necessitate a redefinition of the relationship between past and present jurisprudence.  The weight of history adds legitimacy to a law in the eyes of judges and common men alike, so we ought not throw out the book and write an entirely new one as the French Revolutionaries tried to do.  Regardless, we should continuously review our code to preserve its spirit in the face of the changing times.  The failure of legal scholars to communicate the spirit of the law to their students is another subject of Holmes’s criticism.

“As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.  The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study remains to be made.”  This excerpt is prescient; the differences between the laissez-faire economy of 1897 and the highly regulated system of today, with its massive tax code, are startling.  Truly, lawyers have found a niche in business – far too much of one, according to conservatives.