Category: Law and Policy

Someone on the ASA list made the following comment about the role of law:
the primary purpose of laws should be individual rights and group issues should be secondary.

Here are some thoughts I have concerning that commonly held proposition:

I’m not sure I can fully agree with this as a general principle. I’d agree that individual “rights” are important — thought I’d prefer terms I might consider more Biblical, such as “personal dignity.” However, I think the Enlightenment tradition (and its libertarian offshoots) overemphasizes this notion of individual “rights” and tends to deify the individual. It’s an unfortunate quirk of American Evangelicalism, I think, that Western Christianity has come to be so tightly identified with an essentially libertarian ethic and jurisprudence.

It seems to me that the Biblical pattern is to emphasize the community to a greater extent than the individual. Certainly this is true within the Church: “Do nothing out of selfish ambition or vain conceit, but in humility consider others better than yourselves.” (Phil. 2:3). I think a similar principle is reflected in Biblical social ethics, from things like the OT jubilee laws to Jesus’ teaching in the Sermon on the Mount.

So, I’d suggest that a thoroughly Christian jurisprudence has to account for the dignity of each individual as created in the image of God, but cannot have as its focus an individualistic focus on personal autonomy and rights.

The Cobb County, Georgia School Board has settled a case concerning text book stickers with disclaimers about the theory of evolution. The Board agreed not to continue the sticker policy, which had already been abandoned.

I haven’t studied this case in any depth and don’t know the politics that led up to this settlement, so I’m only going to make a couple of provisional comments. My initial reaction is that I find some aspects of the Consent Order settling this case disturbing.

For example, paragraph 2(a) of the order enjoins the school board and its agents, employees, and successors from “making any disclaimers regarding evolution orally, in writing, or by any other means.” Paragraph 3 of the Order states that it is binding on the school board “and its officers and members in perpetuity, notwithstanding any changes to the Board’s membership that may result from further elections, appointments, vacancies, or other changes to the Board or its composition.” The trial court retains perpetual jurisdiction to enforce these provisions.

If this broad language is interpreted literally, depending on what “disclaimers” means in Paragraph 2(a), no teacher in Cobb County can ever criticize the theory of evolution in any way, nor can the citizens of Cobb County vote to adopt a policy that would allow teachers to criticize the theory of evolution in any way, even in a philosophy or history class.

When Kitzmiller was decided, I took lots of heat for arguing that, even if the end result was right (which I believe it was), the fact that a federal trial judge took it upon himself to provide a philosophical definition of “science” was bad for science as a discipline. This Consent Order seems to me like another step towards control over the philosophy of science by the federal trial courts. I can’t see how this is good for science or for democracy.

Footnote: I would note here two aspects of my initial thoughts on this that makes them provisional: (1) I’m not sure how a different judge or an appellate court a few years from now might interpret the term “disclaimers” in this Order. A court could give it a narrow interpretation that means only “officially endorsed statements of policy,” which makes the Order somewhat less problematic though still troubling; (2) In the event a court gave the term “disclaimers” a broad interpretation — or even if a more narrow interpretation were adopted — it seems to me that these provisions would be subject to a strong first amendment free speech challenge. A free speech challenge, however, would face some difficult procedural hurdles, since this is an Order entered by consent, which would make a challenge by a later-elected school board or its agents or employees difficult on grounds of claim or issue preclusion. (Claim and issue preclusion is a doctrine that says a party generally cannot relitigate claims or issues that were raised or could have been raised in an earlier proceeding).

To show y’all that I’m not just making up my position on “plagiarism,” I here is a quote from the U.S. Supreme Court on this very issue:

“even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. “ Anderson v. City of Bessmer City, 105 S.Ct. 1504 (1985).

The Third Circuit, the circuit in which Judge Jones sits, also specifically recognizes that a trial court can adopt a party’s proposed findings verbatim. See Landsford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1215 (1993)(stating, “[w]e similarly reject the [plaintiff’s] argument that the district court’s verbatim adoption of many of [the defendant’s]proposed factual findings contravened the purposes of Fed.R.Civ.P. 52(a) such that they do not warrant review under the clearly erroneous standard. This argument has been rejected by the Supreme Court….”)

Will those who have been trying to make political hay out of this aspect of Judge Jones’ opinion now acknowledge that they are wrong on this point?

A story making the rounds of the conservative email and blog circuit suggests that Judge Jones copied most of the findings of fact in the Kitzmiller opinion from an ACLU submission. I spent 13 years as a litigator in a major firm, where I was a partner, and now I teach law. I have serious problems with the Kitzmiller opinion, which I’ve written about on my blog and also in a letter published in First Things.

However, I have to say that this particular criticism of Judge Jones is terribly misplaced. Trial judges routinely copy from the findings of fact and conclusions of law submitted by the parties — this is exactly why they ask the parties to submit such documents. It is not plagiarism, because the ethical norms governing journalists and scholars simply don’t apply to trial judges in this context.

Trial judges are supposed to decide cases based on the submissions of the parties. This is their job. Anyone who has spent time handling cases at the trial level will immediately see that those making this particular criticism either don’t know what they’re talking about or are trying to make political points out of a non-issue. I sincerely hope they will back off of this non-issue and focus on things of substance.

If you’re serious about understanding and critiquing legal theory, you should buy this book:

It’s big, it’s dense, but becoming familiar with some of the theorists and schools of thought represented in this collection is necessary if you want to write and think carefully about jurisprudence. It’s here on my desk, and I’m resolved to work through those essays I haven’t read before, or haven’t read in a while, over this winter break!

My friend Jeff started a series on thinking about the law, with a post titled “What is Law?” Jeff summarized a basic approach to law as follows: the law is a collection of rules.

This is a popular understanding of “law,” but it’s a rather reductionist, formalist definition. See legal scholar and Legal Theory Lexicon maven Larry Solum’s definition of formalism, which just about exactly describes law as a collection of legislated rules that judges must apply more or less directly.

Formalism is of course a viable theory of law, and it figures prominently in neconservativism. But it is subject to some compelling critiques from legal realism and instrumentalism. Legal realism says that even when judges purport to act according to formalism, they really are making the law as they want it to be. Instrumentlism says that the encoded law should be interpreted and applied according to its purposes rather than strictly according to its encoded language. Instrumentalism and realism, then, would not see law primarily as a set of written, encoded rules, but would see it more in terms of what judges and juries actually do in application.

If you are looking for a descriptive theory of what actually happens in the legal system rather than a prescriptive theory of what should happen, I’d suggest that you have to pay careful attention to realism and instrumentalism.

Of course, formalism and realism are only two ways to look at law. You also need to consider social contract theory, as expressd by Hobbes, Locke and Rousseau, and as presented in a contemporary Kantian form by Rawls. Rawls’ view is more prescriptive than descriptive, but in many ways it also decribes the deep Lockean roots of U.S. law as found in the U.S. Constitution. Essentially, Rawls’ view is that law should reflect what individuals who know nothing of the circumstances of other members of society would want for themselves. This basic core of rights and protections then forms the minimal social contract rules required for a just society.

Then there’s Ronald Dworkin’s “legal holism.” For Dworkin, law is not a set of discrete rules, but is a “seamless web” of social relations, such that the judge must go beyond a particular set of propositions to decide any given case.

All of these theories are essentially liberal theories of law (liberal here meant in the classical sense of essentially democratic). You also have to consider theories of law that primarily derive from notions of authority, particularly the medieval concept of the divine right of kings, and eastern concepts of law that derive authority from the social order. And, you need to consider dialectical theories of law drawn from Marxism, as well as the dialectical theories represented by the critical legal studies movement.

If you are looking for a particularly Christian jurisprudence, I’d suggest that you can’t stop at formalism, realism, social contract theory, legal holism, or authority or dialectical theories. You need to consider the Thomistic natural law tradition. In that tradition, law is not a set of man-made rules. True law is that which conforms to the deeper divine law woven by God into creation. In my scholarship, currently I’m exploring what I think is a deeper and perhaps even more truly Thomistic and Aristotelian rendition of natural law theory, which is called virtue jurisprudence. But then of course you need to consider some of the Reformed critiques of natural law theory and the common grace jurispurdence of Kuyper and others. And then there are anabaptist and other peace traditions, reflected in folks like Hauerwas and Glen Stassen. (An excellent anthology on Christian legal theory came out last year for intrepid readers.)

This little survey is only the tip of a big iceberg. Legal theory and jurisprudence is endlessly fascinating, and for the Christian thinker, demanding subject. Unfortunately, evangelicals are often quick to settle on formalism as the “right” theory of law. Formalism has advantages and disadvantages, and can’t be seen as the end of the discussion.

I’m heading down to Baylor University today for the World and Christian Imagination Conference, where I’m presenting on law and virtue ethics. I hope to live blog it. Also I hope to have some thoughts on the elections, for whatever they’re worth. Stay tuned!

Today I’m giving a talk to the Baruch College Pre-Law Society on “Intellectual Property Careers for Business Majors.” The powerpoint is available here.