Swimming in transcendental nonsense

-- By AbbyCoster - 15 Feb 2012

Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic.

I’m not a saint, but I consider myself an ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical—a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither.

Good Samaritan Law is void of morality

Each course has taught me doctrines I completely disagree with on moral grounds, yet the decisions crafting these doctrines are rife with justifications for them; like Cohen says, they are only based in “the eyes of faith.”

Both civil law and criminal law excuse bystanders who fail to help someone in need. for example, in Pope v. State, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges. The court based its reasoning on the fact that Pope did not fall neatly into one of its four categories of people responsible for another party. This legal rule is clearly one, in line with Cohen’s proposition, that isn’t based on logic or morality. It seems highly logical, and undoubtedly moral, for someone to assist an innocent baby from being battered, whether by taking the child, restraining the mother, or, to avoid harm to self, calling the police.

Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality.

You don't actually mean "Good Samaritan Law." That would involve imposing liability on those who offer help but do so negligently, or in a fashion that causes further harm. Here you are discussing a duty to rescue, or a duty to interfere with crimes, or to call the police. One question you might have wanted to ask if you were going to announce that the existing situation is senseless or immoral, is how wide the resulting duty should extend. If someone in an urban setting is attacked or killed, do you prosecute everyone within earshot who didn't call the police? If not, how do you justify selecting the particular people you prosecute? With respect to your child abuse case, do you actually interfere in every case of parental overdiscipline you come across in life? Current law charges some parties with that duty, or at least a duty to report, given their social rules and presumable training. A broad imposition of duty, which presumably also implies limited immunity from liability for the resulting actions, might cause more harm than it prevented. As you yourself say, the question of duty will require resolution in light of facts in particular cases, so what is under discussion here is whether the rule should begin from an imposition of general duty subtracted from in individual cases, or a general imposition of no duty, added to legislatively or by judicial determination under common law adjudication. In the criminal law, the principles of power restraint and fair warning certainly seem to militate strongly against general duties, while—as you say—conversation over a general civil duty to rescue can be waged with great fervor on both sides, and is.

Many civil law doctrines have no rational basis

In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death?

I'm not sure why the mourning is relevant. Surely the claim is not for the sorrow of the mourners, but for the harm done to the people who lost their lives. Or why bringing suit where the parents live is so obviously important. Is the rule that relatives should always be allowed to sue where they live, even though the action they are bringing is not for the vindication of their own legal interest? Or that wrongful death actions should always be maintainable in the domiciliary jurisdiction of the deceased? "Where" that harm happened is indeed a matter of mere metaphysics, but this is about whether the explanation for the decision about where to sue is logical. If North Carolina extends its law of personal jurisdiction to the 14th amendment limit, it is more than likely it can exercise jurisdiction over the lawsuit. But why, for example, if a child from Guam is killed in an accident in a mom-and-pop store in North Carolina, would you subject the defendants to the burden of a lawsuit in Guam? Your real point was about the balance of hardships between Goodyear and the Brown parents. So why are you talking about where the injury "really" occurred (which is also nonsense), rather than stating that in all fairness and justice, considering the balance of the hardships and the nature of the interests, it is reasonable for Goodyear to be sued in North Carolina?

In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.

Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless.

That depends on how the reduction in value occurred. And you haven't explained how you meet the objection on the other side. Is it ethical for property-owners in a society to be given veto power over all social regulation, through a requirement that government compensate fully everyone whom the regulation costs? When Holmes said that "regulation could hardly go on" if all regulatory diminutions in value were compensable, he was not wrong. You had at least to explain how you determined this is not a problem.

This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.

This isn't meaningful. You should drop it. The value of "just compensation" in judicial proceedings in the US is a fact matter: fair market value determined (at the plaintiff's desire) by a jury.

Don't Start Believin'

Aristotle said “the law is reason free from passion.” The amoral character of legal principles showcases the truth of this statement. Most, if not all, doctrines I have learned in law school consist of rules that are too rigid. Granted, they do make judicial proceedings easier and faster. However, they fail to recognize people and situations on an individual basis. The social outcomes of decisions are not considered, and instead these decisions are based on transient principles. We need to stop being the “eyes of faith” that pay homage to these rules. Without our faith, these concepts will lose relevance, and hopefully morality will find its way into the law.

If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing.

This is not a warranted conclusion. Whether law is a weak or strong form of social control doesn't depend on whether the results seem logical or ethical to you. If the results in all the classes of cases you discuss where what you think you want them to be, the strength of the law as social control would not have changed at all.

This draft benefits from vigor of argument, but the breadth and precision are not equal to the vigor. Your examples are themselves subject to more careful analysis: the two not actually drawn from Cohen have not been argued out with due attention to the arguments on the other side.

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