The constitutional law professor Michael Seidman likes to tell this story to his first year students:
"There was a man in DC a couple of decades ago who was up on trial for armed robbery. His lawyer put him on the stand, and the prosecutor put him through an excruciating cross-examination. He was really tearing this guy apart, making him contradict himself, just making him look as guilty as hell. Finally, the guy got sick of it.
"And so he stood up, said "Fuck this shit," and left the witness stand.
"Now," says Seidman, "that didn't work out so well for him. But, in a very important way, in that moment he was a free man."
Why am I repeating this story?
I respect the law more than most people. To be honest, I revere it. I believe that the rule of law is vastly important. And, if I sometimes fear that the concepts of "rights" and "duties" are merely noble lies, I believe those noble lies are at least the work of humanity's better angels.
But I also believe that, when it comes to the law, everyone has a limit. You might call it "natural law," or "higher principles." Or you might call it a sort of weighted utilitarianism. Whatever the name, it's the point at which you can no longer follow the law, or its constraints and procedures, and remain a human being.
Here's an example. Most people don't think we should torture people. But most people can only take that so far. What if it's a terrorist who knows the location of the bomb that's going to take out NYC? What if a mad dictator will torture 1000 people if we don't torture this one person? What if our family's lives are on the line?
Another example. You don't think people should steal. But should Jean ValJean really be punished for stealing a loaf of bread, when his sister's family was starving?
In the law, we often use this kind of extreme argument to discredit interpretive rules. And, when presented with such arguments, people inevitably try to distinguish the situation presented from their argument--they weasel out of it by saying "it's different," or "that would never happen."
But most of the time, the real answer is this: Neutral principles only take you so far. Eventually, your principles will run against something they can't deal with, and you just have to make an exception.
Or, more succinctly, "Fuck this shit."
I am not a legal realist by inclination. I don't think judges should use their political preferences when deciding cases, and (unlike the cls crowd) I don't think they have to, most of the time. Easy cases are the rule. And in the hard cases, we should follow the law to the best of our ability to discern it.
But, whether it's "the constitution is not a suicide pact" or Brown v. Board, even the justices of the Supreme Court have limits. We should realize that, and accept it, and maybe even embrace it. It isn't a failing, unless it's a universal human failing. And maybe we wouldn't want them to be any other way.
After all, the law exists, first and foremost, to serve humanity's needs. And, yes, it should be noble, and consistent, and true to its first principles. But it should also be human.
Subscribe to:
Post Comments (Atom)
2 comments:
The law is different from justice. One is elementally human, a genuinely potential condition in all human situations. The other is an attempt to incorporate the habits and customs of men into a normative maxim that, by our best lights, ought to cover most situations, but never can apply to all. Justice may be done within the law's constraints, but frequently they are entirely separate.
So, I'd just say that the limit you speak of is when our own frail but real sight of justice tells us that the law is vastly failing to approximate the truly just result in a particular case. And we must trust this sight, as you urge, and say fuck, when necessary, to the shitty situations the law can produce. We must do this because justice is found in particulars, as every trial lawyer and judge knows; and the law can only offer to cover generalities.
I think this depends on what you mean by interpretive. Do you mean a) that the law really should be interpreted in the way that most accords with justice b) that every law has a kind of built in opt-out clause for the point at which it becomes too oppressively unjust such that its appropriate interpretation incorporates that point and it no longer applies in the say way once a judge feels that point is reached or c) that every JUDGE (but not every law) has a opt out point at which point she (rightly) thinks that what the law per se says is no longer action guiding?
I'll endorse some variations of a and c. B seems unlikely, though you could imagine a legal structure that has this premise. It would be odd however, because we often seem to think of the law as dealing less with justice tha legitimacy--and when the very thing we disagree about is the nature of justice, appealing directly to it doesn't seem to get you anywhere. In the first category (a) it seems clear that at least SOME laws have a built in response-to-justice aspect. Cruel and unusual punishment is perhaps the most famous of this sort thing. As to C it also seems clear that there can come points in an individuals life where the specific obligations of a role that they hold (in this case being a judge) can be swamped by the fact that great injustice is occurring. In these circumstances it seems to me you normally have two options, and your choice of appropriate option depends less on the justice of the law than your sense of the justice as a whole of the state under which you live. If the LAW but not the STATE is severely unjust, civil disobediece (open, recognising the consequences) may be morally obligatory---judges perhaps SHOULD rule that that the law is what justice requires----but not (since a or b is not true in these cases) because the law actually said so. Otherwise judges should resign, in protest, publicly. If the system and the law are both unjust, then the judges should perhaps interpret the law in that fashion- but that isn't because the law says so but because that the law says so is no longer duty-creating. God forbid that "I was following orders" ever again be full justification. But that doesn't mean its NEVER a preliminary move.
Post a Comment