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SecularizationOfTheLaw 9 - 21 Jan 2008 - Main.EbenMoglen
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I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread. | | | -- JesseCreed - 20 Jan 2008 | |
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< | It will be interesting to think about how the law is bound by the past as we begin to study Constitutional law. Precedent and doctrine remain significant in all areas of the law (though thankfully, no judge would ever write an opinion blindly adhering to either), but where a Constitutional question is explicitly involved, there's the weighty presence of an incontrovertible "Bible." The meaning of the Constitution, like that of any Bible, shifts over time and can be used to justify a range of activities and their opposites. Still, certain things are the way they are in law "because the Constitution says so," and no amount of reason, instinct, or policy rationale can change that (my ConLaw? casebook gives a number of clear examples, such as a foreign born candidate - Ahnold, anyone? - seeking to assume the presidency after having been voted in by a majority of the electors). Holmes says, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." But the only reason a 34 year old can't be president is that so it was laid down in the time of George the Washington, and no inquiry into the rationale for the rule (that only experienced people should lead) and whether it is breached in the particular instance (this particular 34-year old is omnicompetent and the best choice for president) is permitted. | >
> | It will be interesting to think about how the law is bound by the past as we begin to study Constitutional law. Precedent and doctrine remain significant in all areas of the law (though thankfully, no judge would ever write an opinion blindly adhering to either), but where a Constitutional question is explicitly involved, there's the weighty presence of an incontrovertible "Bible." The meaning of the Constitution, like that of any Bible, shifts over time and can be used to justify a range of activities and their opposites. Still, certain things are the way they are in law "because the Constitution says so," and no amount of reason, instinct, or policy rationale can change that | | | | |
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< | So we seem to have a system where certain questions of law can be answered only with reference to the text of a document out of the shadowy past. And, of course, any case that turns on a statute is similar in that, while a range of interpretations is allowed, all argument must be conducted with reference to the statute and free-floating policy rationale is barred (though non-free floating policy rationale, i.e., policy dictates that we adopt this particular interpretation, is permitted). Holmes seems to be referring to cases of common law where judges are not bound by a particular Contitutional provision or statute. But there are many Constitutional or statutory cases, and judges find themselves bound by the opinions of august bodies from the past every time they decide such cases. One difference is that the bodies that pass statutes are legislative bodies answerable to the people, and judges are not supposed to feel free to contravene the authority of the people's legislative representatives by themselves legislating. But what about a case where a statute on the books was passed in 1830 and hasn't been thought about since? A judge would still be bound by it, even though there would be no basis for his decision other than that "so it was laid down in 1830 [when the people had different concerns and wouldn't necessarily have thought about today's conditions]." The more I think about it, the more I see examples where legal questions continue to have their answers depend on the past and nothing more. Should courts then be free to disregard the weight of history, and instead inquire only into the reasons behind the historical statute? But no one thinks we should do this with the Constitution - a 34 year old can't be president, period, even if the reasons for the Constitutional provision are not in play vis a vis a particular candidate. How can this blind respect for the Constitution be reconciled with a theory of law that seeks to get beyond blind respect for the past? | >
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- But is this actually any more true than the opposite conclusion, embodied in the statement Chief Justice Hughes made to the young Justice Douglas that "the Constitution means what five votes on the United States Supreme Court say it means"?
-- EbenMoglen - 20 Jan 2008
(my ConLaw? casebook gives a number of clear examples, such as a foreign born candidate - Ahnold, anyone? - seeking to assume the presidency after having been voted in by a majority of the electors). Holmes says, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." But the only reason a 34 year old can't be president is that so it was laid down in the time of George the Washington, and no inquiry into the rationale for the rule (that only experienced people should lead) and whether it is breached in the particular instance (this particular 34-year old is omnicompetent and the best choice for president) is permitted.
- But that's not true. You had a reason, and you gave it. You are confusing a definitional property of law, that it commands something, with the quality of prescriptive law, that it derives its authority from its antiquity. You haven't heard Holmes clearly.
-- EbenMoglen - 20 Jan 2008.
So we seem to have a system where certain questions of law can be answered only with reference to the text of a document out of the shadowy past. And, of course, any case that turns on a statute is similar in that, while a range of interpretations is allowed, all argument must be conducted with reference to the statute and free-floating policy rationale is barred (though non-free floating policy rationale, i.e., policy dictates that we adopt this particular interpretation, is permitted).
- Hence, from an uncertain major premise and a disestablished minor premise, a doubtful conclusion. Do we seem to have such a system? Not to me. Precisely on the basis of Holmes' realism, I see both courts and administrative agencies exercising law-making power based entirely on the rationalization of policy judgments exogenously arrived at. The seeming you seem to wish on Holmes is actually the opposite of how things seem to have seemed to him based on what he wrote.
-- EbenMoglen - 20 Jan 2008.
Holmes seems to be referring to cases of common law where judges are not bound by a particular Contitutional provision or statute. But there are many Constitutional or statutory cases, and judges find themselves bound by the opinions of august bodies from the past every time they decide such cases. One difference is that the bodies that pass statutes are legislative bodies answerable to the people, and judges are not supposed to feel free to contravene the authority of the people's legislative representatives by themselves legislating. But what about a case where a statute on the books was passed in 1830 and hasn't been thought about since? A judge would still be bound by it, even though there would be no basis for his decision other than that "so it was laid down in 1830 [when the people had different concerns and wouldn't necessarily have thought about today's conditions]." The more I think about it, the more I see examples where legal questions continue to have their answers depend on the past and nothing more. Should courts then be free to disregard the weight of history, and instead inquire only into the reasons behind the historical statute? But no one thinks we should do this with the Constitution - a 34 year old can't be president, period, even if the reasons for the Constitutional provision are not in play vis a vis a particular candidate. How can this blind respect for the Constitution be reconciled with a theory of law that seeks to get beyond blind respect for the past? | | | | |
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< | --MichaelBerkovits - 21 Jan 2008 | | | -- MichaelBerkovits - 21 Jan 2008
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SecularizationOfTheLaw 8 - 21 Jan 2008 - Main.MichaelBerkovits
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I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread. | | |
-- JesseCreed - 20 Jan 2008 | |
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> |
It will be interesting to think about how the law is bound by the past as we begin to study Constitutional law. Precedent and doctrine remain significant in all areas of the law (though thankfully, no judge would ever write an opinion blindly adhering to either), but where a Constitutional question is explicitly involved, there's the weighty presence of an incontrovertible "Bible." The meaning of the Constitution, like that of any Bible, shifts over time and can be used to justify a range of activities and their opposites. Still, certain things are the way they are in law "because the Constitution says so," and no amount of reason, instinct, or policy rationale can change that (my ConLaw? casebook gives a number of clear examples, such as a foreign born candidate - Ahnold, anyone? - seeking to assume the presidency after having been voted in by a majority of the electors). Holmes says, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." But the only reason a 34 year old can't be president is that so it was laid down in the time of George the Washington, and no inquiry into the rationale for the rule (that only experienced people should lead) and whether it is breached in the particular instance (this particular 34-year old is omnicompetent and the best choice for president) is permitted.
So we seem to have a system where certain questions of law can be answered only with reference to the text of a document out of the shadowy past. And, of course, any case that turns on a statute is similar in that, while a range of interpretations is allowed, all argument must be conducted with reference to the statute and free-floating policy rationale is barred (though non-free floating policy rationale, i.e., policy dictates that we adopt this particular interpretation, is permitted). Holmes seems to be referring to cases of common law where judges are not bound by a particular Contitutional provision or statute. But there are many Constitutional or statutory cases, and judges find themselves bound by the opinions of august bodies from the past every time they decide such cases. One difference is that the bodies that pass statutes are legislative bodies answerable to the people, and judges are not supposed to feel free to contravene the authority of the people's legislative representatives by themselves legislating. But what about a case where a statute on the books was passed in 1830 and hasn't been thought about since? A judge would still be bound by it, even though there would be no basis for his decision other than that "so it was laid down in 1830 [when the people had different concerns and wouldn't necessarily have thought about today's conditions]." The more I think about it, the more I see examples where legal questions continue to have their answers depend on the past and nothing more. Should courts then be free to disregard the weight of history, and instead inquire only into the reasons behind the historical statute? But no one thinks we should do this with the Constitution - a 34 year old can't be president, period, even if the reasons for the Constitutional provision are not in play vis a vis a particular candidate. How can this blind respect for the Constitution be reconciled with a theory of law that seeks to get beyond blind respect for the past?
--MichaelBerkovits - 21 Jan 2008
-- MichaelBerkovits - 21 Jan 2008 | | |
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SecularizationOfTheLaw 7 - 21 Jan 2008 - Main.JesseCreed
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I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread. | | | | |
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< | I appreciate all your feedback, Kate and Eben. These are definitely historical generalities in need of more focus and precision. It is less the precise subject of the King's Two Bodies, more the fictional nature of this transcendental myth, that I hoped, persuasively or poorly, to address. I did not intend to mean that Holmes put an end to the theological conceptualization of the Law with respect to the King's Twin Bodies. The King's Two Bodies is exemplary in showing the absurdity of fabricating these legal fictions for the sake of logical clarity. Holmes asks us to put aside, should one truly want to grasp the law, any illusion of certainty in the law's ability to absorb both logic and morality. By their very nature, such legal fictions as the King's Two Bodies function in both logical and moral capacities to preserve and perpetuate this illusion, to introduce symbolic fictions to reach 'true' or 'right' decisions. Hence, I posed the question of legal fictions in contemporary society at the very end.
With respect to secularizing the law, I am still persuaded that, while it might be a historical question of the 16th century, it is indeed a philosophical question of the 19th century and, perhaps, beyond. The Italian philosopher Giorgio Agamben has translated these historical events to the modern philosophical discussion of the 21st century. In light of the general 'cultural mood' in the 19th century, I aligned Holmes with Marx, Freud, and Nietzsche as the three most well-documented critics of the onto-theological tradition tightly fastened to Western metaphysics since its beginning. Jacques Derrida groups these three intellectual giants together likewise. | >
> | I appreciate all your feedback, Kate and Eben. These are definitely historical generalities in need of more focus and precision. It is less the precise subject of the King's Two Bodies, more the fictional nature of this transcendental myth, that I hoped, persuasively or poorly, to address. | | | On an entirely different note, I really liked Eben's neologism "Nietzscheland," presumably a place where the cultured man would be excluded, and other visitors would see themselves transformed into double-bodied satyrs while wining and dancing with their brethren. |
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SecularizationOfTheLaw 6 - 20 Jan 2008 - Main.JesseCreed
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I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread.
I want to discuss the secularization of the law, which, in my opinion, is at the heart of Holmes's discussion. It seems that Holmes is putting the nail in the coffin on a theological conceptualization of the Law to form something informed by both morality and logic, yet distinctly different from either - and therefore neither. It at once falls short of society's moral limits, yet surpasses the constraints of logic. This intermediary role that the law plays between morality and logic is what most people call "policy" - that is, some result influenced by our cultural values (i.e. morality) and empirical analysis (i.e. logic). The reason why I have termed this delicate balance between the two poles the "secularization of the law" is that either extreme represents a theological category. Put differently, both morality and logic rest on abstract principles or dogmas usually without comprehending the practical considerations involved. | |
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< | It does not seem surprising to conceptualize the Law as theological. After all, the 10 Commandments are "legal." Yet, what is surprising is the fact that around the time of Holmes this theological view of the Law had not entirely disappeared. Only a century before, at the time of the American Revolution, the absurdity of the theological conceptualization of the Law came to the fore. I remember reading in a history book (written by Maitland, I think) how George III went to Parliament to ask permission from the MPs to own land as a private person. In the cultural thinking of only a century before Holmes, the King was, as Shakespeare terms it in Richard II, "twin bodied" - he had at once his natural body and body politic. The former was aging, temporal, and natural whereas the latter was sempiternal, incorruptible, and largely theological. Hence the phrase "The king is dead. Long live the King" (notice the caps!) or the English Civil War's paradoxical charge of "fighting the king to save the King." In Shakespeare's Richard II, many critics analyze Richard as at once God, King, and Fool, representing at once the divine, doubled (i.e. divine and temporal), and temporal nature of the King, respectively. Likewise, being at once corporate yet individual, King George III as simply George of Hanover had to ask permission to hold a piece of land as a private person - his body natural, and not in his status as the body politic. In short, only a century before Holmes, the English legal system still maintained these fictions of the King's two bodies to preserve the logical structure of the Law. The logic followed from the fiction, the Law from the logic. At the root of these fictions is discovered a long history of mythologizing and mystifying the role of Kingship from being at once above and below the Law, at once legislator of positive law yet the servant or subject of natural law. | >
> | It does not seem surprising to conceptualize the Law as theological. After all, the 10 Commandments are "legal." Yet, what is surprising is the fact that around the time of Holmes this theological view of the Law had not entirely disappeared. Only a century before, at the time of the American Revolution, the absurdity of the theological conceptualization of the Law came to the fore. I remember reading in a history book (written by Maitland, I think) how George III went to Parliament to ask permission from the MPs to own land as a private person. In the cultural thinking of only a century before Holmes, the King was, as Shakespeare terms it in Richard II, "twin bodied" - he had at once his natural body and body politic. The former was aging, temporal, and natural whereas the latter was sempiternal, incorruptible, and largely theological. Hence the phrase "The king is dead. Long live the King" (notice the caps!) or the English Civil War's paradoxical charge of "fighting the king to save the King." In Shakespeare's Richard II, many critics analyze Richard as at once God, King, and Fool, representing at once the divine, doubled (i.e. divine and temporal), and temporal nature of the King, respectively. Likewise, being at once corporate yet individual, King George III as simply George of Hanover had to ask permission to hold a piece of land as a private person - his body natural, and not in his status as the body politic. In short, only a century before Holmes, the English legal system still maintained these fictions of the King's two bodies to preserve the logical structure of the Law. The logic followed from the fiction, the Law from the logic. At the root of these fictions is discovered a long history of mythologizing and mystifying the role of Kingship from being at once above and below the Law, at once legislator of positive law yet the servant or subject of natural law. | | | | |
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< | My point is this: Holmes understands morality and logic as being precisely similar to these fictions of kingship, these metaphysical rationalizations of the symbolic state as the body politic of the King. By the Holmesian view, in no sense were they more than fictions to which the Law was subject. The secularization of the law balances the theological polarities of morality and logic to form a hybrid based on policy to affect social action. In the end, the Law becomes something in between philosophy and religion (the onto-theological epistemological categories) and mathematics (the logical category). This, in my opinion, is Holmes's most groundbreaking thesis. And as a man of his time, he was following the American school of pragmatism or thinking in the vein of the European critics of the Western metaphysical tradition in the 19th and early 20th centuries -- namely, Nietzsche, Freud, and (I daresay!) Marx. This secularization, so my running thesis goes, is legal realism. | >
> | My point is this: Holmes understands morality and logic as being precisely similar to these fictions of kingship, these metaphysical rationalizations of the symbolic state as the body politic of the King. By the Holmesian view, in no sense were they more than fictions to which the Law was subject. The secularization of the law balances the theological polarities of morality and logic to form a hybrid based on policy to affect social action. In the end, the Law becomes something in between philosophy and religion (the onto-theological categories of epistemology) and mathematics (the logical category). This, in my opinion, is Holmes's most groundbreaking thesis. And as a man of his time, he was following the American school of pragmatism or thinking in the vein of the European critics of the Western metaphysical tradition in the 19th and early 20th centuries -- namely, Nietzsche, Freud, and (I daresay!) Marx. This secularization, so my running thesis goes, is legal realism. | | | Perhaps a most interesting question, therefore, would be: what legal fictions still exist in our legal thought and why? One comes to mind - the "renewed" motion for judgment as a matter of law after the jury verdict comes out. What logical or moral principles does this fiction serve? | | | -- EbenMoglen - 20 Jan 2008 | |
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> |
I appreciate all your feedback, Kate and Eben. These are definitely historical generalities in need of more focus and precision. It is less the precise subject of the King's Two Bodies, more the fictional nature of this transcendental myth, that I hoped, persuasively or poorly, to address. I did not intend to mean that Holmes put an end to the theological conceptualization of the Law with respect to the King's Twin Bodies. The King's Two Bodies is exemplary in showing the absurdity of fabricating these legal fictions for the sake of logical clarity. Holmes asks us to put aside, should one truly want to grasp the law, any illusion of certainty in the law's ability to absorb both logic and morality. By their very nature, such legal fictions as the King's Two Bodies function in both logical and moral capacities to preserve and perpetuate this illusion, to introduce symbolic fictions to reach 'true' or 'right' decisions. Hence, I posed the question of legal fictions in contemporary society at the very end.
With respect to secularizing the law, I am still persuaded that, while it might be a historical question of the 16th century, it is indeed a philosophical question of the 19th century and, perhaps, beyond. The Italian philosopher Giorgio Agamben has translated these historical events to the modern philosophical discussion of the 21st century. In light of the general 'cultural mood' in the 19th century, I aligned Holmes with Marx, Freud, and Nietzsche as the three most well-documented critics of the onto-theological tradition tightly fastened to Western metaphysics since its beginning. Jacques Derrida groups these three intellectual giants together likewise.
On an entirely different note, I really liked Eben's neologism "Nietzscheland," presumably a place where the cultured man would be excluded, and other visitors would see themselves transformed into double-bodied satyrs while wining and dancing with their brethren.
-- JesseCreed - 20 Jan 2008 | | | |
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