Dumb Legal Philosophy Arguments #1
Since I’ve been reading about the legal system, I think I’ll start a series of posts on Dumb Arguments in Legal Philosophy. These are arguments that are extremely bad, but that are seriously advanced by real people in defense of aspects of the status quo and/or conventional legal ethics. Before I give you the first of these awful arguments, some background:
Background: I hold that agents in the legal system have a primary duty to do justice. Thus, (i) jury members should decide to acquit or convict based on which decision is more just; (ii) judges should interpret (or misinterpret) the law according to what justice demands; and (iii) lawyers should decline to pursue legal outcomes that are unjust. Conventional legal theory disagrees with me on these points; the conventional view is that juries and judges should just enforce the law, and lawyers should just pursue their clients’ interests.
Now, here is Dumb Argument #1:
People in the legal system should not attempt to pursue justice, because they don’t know what is really just or unjust. For example, juries don’t know what is objectively just; therefore, they should just apply the law as explained to them by the judge. Judges don’t know what is really just, so they should just interpret and apply the law as written by the legislature. And lawyers don’t know whether their clients are guilty, or in general what justice requires in a given case, so they should just pursue the interests of their clients.
The famous conservative judge Robert Bork invoked something like this (plus some other terrible arguments) in his essay “Thomas More for Our Season” (https://www.firstthings.com/article/1999/06/thomas-more-for-our-season). In it, he approvingly quotes the character of Thomas More in the play A Man for all Seasons:
“I know what’s legal, not what’s right. And I’ll stick with what’s legal. … I’m not God.”
I assume most of my readers would not be tempted by this sort of argument. But maybe you’d like an explicit statement of the reasons why this argument is so incredibly bad. So:
Problem #1: Pursuing goals does not require certainty.
Say I value wealth. I can rationally pursue it by investing in the stock market, even though I don’t know that this will get me more wealth. I only need some reasonable opinions about what things are more and less likely to get me money.
Similarly, I do not need to know for certain what justice requires in all cases, or even in any cases, to rationally pursue justice. I only need to have some reasonable opinions about what things are more and less likely to be just.
Problem #2: I know some things that are unjust.
Real case: In 2007, Anthony Crutcher was arrested in Mississippi for selling $40 worth of cocaine to a police informant. In view of his two prior drug convictions, Crutcher was sentenced to 60 years in prison. Was this a just sentence?
We are not in the dark about that. I know the answer: No, that was not a just sentence. Any normal person would know this, and there is no serious case against this, unless one is a metaethical nihilist, skeptic, or something like that.
Granted, there may be other cases in which one really does not know what is just. But as long as there are some cases in which we know that a legally prescribed outcome is unjust, then there is scope for jury nullification (and judicial nullification, and prosecutorial discretion) – i.e., in those cases, these agents should decline to enforce the unjust outcome.
Problem #3: Skepticism proves too much.
In the Man for All Seasons quotation, Thomas More insists that he is not God. But note that the people who made the laws are not gods either. They are politicians, which is something rather far from a god, as a matter of fact. If jurors and judges don’t know what is morally right or just, then there is no reason why politicians would know either, so there is no obvious reason for following the law or punishing people who break it.
Also, if you don’t know in general what is just or moral, then you don’t know whether following the law is just or moral. If you don’t even have reasonable beliefs about what is more and less likely to be just, then you must not even have a reasonable belief that enforcing the law is likely to be just. So, again, there would be no reason to enforce the law.
Merely knowing what things have feature F does not give you a reason for favoring actions that have F – not unless you have reason to think that F is good, or right, or something like that.
Problem #4: The law can be uncertain.
Sometimes, we also don’t know what is legal or illegal. Sometimes the law is vague, ambiguous, incomplete, or even inconsistent. Even judges may be uncertain as to what the law requires. But notice that no one says, even in these cases, that this means that agents should not even attempt to uphold the law. No one claims, e.g., that if the judge doesn’t know what the law requires, then he should forget about trying to uphold the law and just pick some other goal, like convenience or self-interest, to pursue.
Similarly, sometimes a jury does not know whether a defendant violated the law. Often, they also do not know whether the evidence constitutes proof beyond a reasonable doubt or not. Yet again, no one claims that if that happens, the jury should forget about applying the law, or forget about applying the reasonable-doubt standard, and pick some other goal that they have better knowledge about.
Problem #5: The law refers to morality.
Often, the law, especially the U.S. Constitution, directly invokes morality. E.g., the Constitution prohibits the taking of private property “without just compensation” (emphasis added); it prohibits “unreasonable searches and seizures”; and the Ninth Amendment famously tries to protect people’s unenumerated rights. It does not, in any of these cases, contain any further, descriptive guidance; it doesn’t say what is just, what is reasonable, or what the unenumerated rights are.
Therefore, in order to faithfully apply the law, at least in many important cases, one is required to rely upon moral judgments. Furthermore, since the Constitution is the supreme law of the land, which constrains what statutes are legally valid, one must often deploy moral judgments in order to evaluate statutory questions.
So the skeptical argument (“we don’t know what morality requires…”) also cuts against the very position that the argument’s proponents want to defend (that agents in the justice system should always faithfully uphold the law).
Now you may be wondering: "Are all arguments against jury nullification this bad?" We shall see. I'll have another one next time.