FIRST YEAR LAW TEACHING AS POLITICAL ACTION
By Dunkan Kennedy
- It is an exploration of the possibility of teaching law as a form of
political action.
- Teachers should develop first year courses into systematic
embodiments of their views about the present and future organization
of social life.
- There are two different lines of objection to the proposal green and
the blue critique
- Green critique arguments:
o First year law students are committed to career patterns
and lifestyles that are incompatible to any form of genuine leftism;
therefore it is hard to look for converts.
o Even if the students were not committed to the status quo,
activism implies an engagement with the mass strata of the
population capable of action that would transform the system. The
target should then be a mass stratum and deprived.
o To focus on law students is double betrayal as they could
not change the political system and no benefits that accrue to
them from political action could be deserved.
o The moral qualities of the activist are simply incompatible
with the nature of university teaching.
- Blue critique arguments:
o There is no subscription to any single system. No
subscription to absolutes.
o It is hard to teach from scratch.
o The students may not believe anyway.
o Developing ways to convert students the teacher’s political
ideology may not be consistent with the idea of a university.
o There is no prestige (open acceptance to speaker’s ideas)
- Green critique claims to be too easy and an abdication of
responsibility, while the blue critique, impossibly difficult and even
dangerous.
- Actions taken by teachers do not necessarily mean desired and
foreseeable results
- Law profession paves way to radically change the system and
overturn corruption and unjust hierarchy
- Steps in actualizing commitment:
o List alternatives in trying to create an intense form of
political education. It is not true that the only meaningful
opposition is underground
o Abandoning grandiosity / Admitting to oneself that there
our politics is theoretically impoverished. There is no grandiosity in
creating an opposition. – Not expecting big reforms right away
- Response to the Blue Critique:
LEGAL METHOD - HILBAY A2010
o There is something to teach: the critique of liberal,
bourgeois legalism of considerable systematic quality
o Creating materials is difficult since the mass of private law
rules defines the capitalist system, and all of such may be used
against it.
o Since the critique of liberalism holds the key in ripping off
the system, it can be turned into the something of crucial interest.
o The critique of liberal legalism is true, and to suppress it is
immoral, violation of the teacher’s responsibility to his students
o No one is going to purge someone with tenure who
espouses this line with an intelligent sense of it limitations. There is
impotence as it is afflicted with partiality and obscurity, it is
difficult to distinguish from all other forms of liberalism, and it lacks
the systematic character of the critique of liberalism.
o There is a lacking of the intellectual and political force to
control the minds of the young.
- Response to Green critique
o Students may be informed of the leftist way of thinking
about law – don’t undermine teacher’s impact on students.
Teaching them to analyze and be critical of legal doctrines that
they accept; if its explicit and realistic
o Complacent centrism of the students may be challenged,
by reducing their political self confidence by training them to
analyze legal doctrine in a way that is simultaneously correct with,
useful to them, and delegitimating of the established order.
- First year teaching is a way to confront the students with the
partial and confusing quality of the radical critique of bourgeois
legalism.
- Isolation is a fundamental condition of intellectual existence.
Denial is not the answer
HOW THE LAW SCHOOL FAILS: A POLEMIC
By Dunkan Kennedy
The teachers
- Students have a general perception of hostility from their
professors. They feel that the Socratic method is an assault. This is
often concluded to be a yearning on the part of the professors to hurt
the students. However, Duncan says that a professor who lectures gets
across as effectively as the professor who uses the Socratic method.
- Most professors are unaware of the effect of their behavior
towards their students. The professors act differently inside and
outside the classroom; however, very few students, generally those
academically successful, get to encounter the consolation in knowing
the professor outside class.
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 - It is asserted that the professors treat each other with the same
straightforwardness as they treat their student. Then again, the
professor makes distinctions in the way they deal with their students,
some with more hostility than others. It is also crucial for the professor,
knowing that he has the power to affect the lives of students, to be
aware of the meaning of his conduct in the eyes of another.
- The faculty’s hostility due to a change in the way the students are
over time. They believe that there is an epidemic of radical student
criticism of the law school and dark rumors of student rebellion.
- Some professors feel that they need to be tough in order to control
their classes in order to restrain the students from disintegrating the
discussion into irrelevance.
- His grim conclusion: The element of terrorism in teaching law
seems to be “psychologically good” for the teacher.
The students
- Law students are more aggressive than students in other
professional disciplines due to their past academic successes or their
prestige at other institutions.
Two student types:
The one who wants to become a lawyer:
- He is likely to have been successful at academic competition but
he has not developed an overwhelmingly aggressive manner. He is
initially eager to learn and more ready to contribute. However, he
is uncertain of himself compared to the brilliant student body. This
type fairly goes to class and does solid minimum of studying. He
eventually loses seriousness and adopts indifference to the law
school and the law. In the future, he would claim that law school
teaches nothing of what is of any use in the real world.
- The first cost to the individual is that he is brainwashed in law
school, as his head is filled with notions he barely understands. The
second is that he is driven into passivity and cynicism.
The one who is the in the top of the class:
- He is a success, which justifies whatever unpleasantness there is in
law school. This kind of student operates through distinctively
publicly and privately. His public life is more controlled and
aggressive, often more dishonest, and less emotionally satisfying,
while his private life is invested with vast quantities of intense
feeling and sentimentality, idealism and protectiveness.
- This kind compartmentalizes because he believes that the law is
cold and inhuman. His cost is that such division of life lead to the
deformations in both areas.
The changing “intellectual response” at Law School
- The problem is not that students do not know if they want to be
lawyers, rather they’re not sure of what kind of people they want to
become.
LEGAL METHOD - HILBAY A2010
Radicalism and Apathy
- Radicals in law school are generally activists. They identify
themselves in terms of their commitment to political and institutional
change. They generally denounce competition and they obsess with
the problems of “selling out”.
- Unlike the radicals, Kennedy believes that neither the distribution
of power nor the content and organization of study at the law school is
relevant in giving the law school its peculiar atmosphere.
- However, he says that the fact that radicals have had the courage
to question the law school has been of great benefit as they have
demonstrated that deficiencies of the institution need not be accepted.
- The danger for the radicals lies on their fixation on the “system”.
On the other hand, it can be said that they are aware of a fundamental
problem and committed to using all of their faculties to solve it the
best they can.
Academic and Professional Values
- 2 objections in desiring change in law school: the capacity to turn
out highly successful professionals must not be endangered and that
the current organization of the school maximizes the intellectual
quality of the work done there.
- Improving lawyerly virtues of the student is met by the claim that
academic standards are all important.
The Professional Model
- Professional success, in the view of the protector of the status quo,
is giving ones life to maintaining the efficiency and stability of a
corrupt social order.
- For Kennedy, it is that the power to be exercised is used to
improve the human quality of society.
- There are two kinds of success: the contribution of Yale to top
policy formulation and the practitioners who contribute to the
community through legal and business skills.
- Kennedy: the law school is justified in emphasizing professional
success only to the extent that the success is beneficial to the
community.
The Academic Model
- What is absent from the law school is the feeling of intellectual
tension from the confrontation of ideas in the process of growth.
There is a need for the feeling of existence of problems unexplored
not because no one has bothered to think about them but because
the light of a new theory has only recently been turned on them.
- Contrary to the academic model argument, teachers virtually
never treat their students as their exact intellectual equals in class.
However, it a far more important objective to see to it that within
their respective roles, students and teachers treat each other
differently.
Conclusion
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“If there is revolution in the air, it is not primarily institutional, but psychic
territory which is at stake, or the whole thing is a waste of time”
LANGDELL’S ORTHODOXY
By Thomas Gray
Classical orthodoxy - set of ideas to be put to work from the inside by
those operating institutions, not a set of ideas about those institutions
reflecting an outside perspective
- ideal inside theory -> would contain an accurate account of legal
institutions, a method for operating them, a creed for legal professionals,
and a justification of the institutions for the outsiders
1. Five criteria for analyzing legal systems
A. Comprehensiveness = degree to which judges must decide
all cases within their jurisdictions, comprehensive if the system
provides an institutional mechanism for the unique resolution
of every case
B. Completeness = degree to which rules preordain a "right
answer" to all possible legal questions, when its substantive
norms provide a uniquely correct solution, incomplete when
containing substantive gaps or inconsistencies between
overlapping norms
C. Formality = degree to which outcomes are determined by
transparent reasoning process, formal when its outcomes are
dictated by demonstrative, rationally compelling, reasons, (not
a necessary reason for completeness, there is a right answer
for every case, but no demonstrative reasoning to hard cases)
D. Conceptual order = degree to which bottom-level rules can
be traced back to relatively small number of abstract
principles, which form a coherent system, one can distinguish
categories that demarcate bodies of law (e.g. tort, contract,
crime) from operative concepts used in principles, from which
decisive rules are derived (e.g. consideration, proximate cause,
malice)
* completeness, formality, and conceptual order <-- values
of legality which allow us to give a clear meaning to vague
terms used in debates about legal theory
* formalism - describes legal theories that stress the
importance of rationally uncontroversial reasoning in legal
decisions
* conceptualism - describes legal theories that place a high
value on creation or discovery of a few fundamental
principles or concepts at the heart of the system
E. Acceptability = normative attractiveness, fulfills the
ideals and desires of those under its jurisdiction, fulfill
extra-legal values (debate: WON values encompassed in
LEGAL METHOD - HILBAY A2010
acceptability are to be viewed as extra-legal considerations
or values that are themselves part of the law)
2. Langdellian formalism aspired that the legal system be made
complete through universal formality, and universally formal
through conceptual order. A few basic top-level categories and
principles formed a conceptually ordered system above a large
number of bottom-level rules. Rules, ideally, hold estavlished
precedents, upon which analysis could be seen to be derived from
those principles.
*Doubly formal system: 1st, specific rules were framed in such
terms that decisions followed from them uncontroversially when
they were applied to readily ascertainable facts (sought objective
tests and avoided vague standards); 2nd at the next level up one
could derive the rules themselves analytically from the principles.
* Example: the mailbox rule, (using top-level principles) that a
contract cannot be formed until there is bargained-for-
consideration, which is either promise or performance (definition).
In a bilateral contract case, there is no performance, and the only
promise contained is contained in the offeree's acceptance
(definition). But a promise requires communication of its content
to its promise (analytical truth). And when the promise is by letter,
the content is not communicated until the letter is received and
read. Therefore, the contract is not formed until the letter is
received and read. (If bottom-level principles were to be used,that
the acceptance letter had to be received, read and understood, the
requirement of rule-formality would not be met).
*Crucial to completeness of a system that it be conceptually
ordered and fundamental principles and constitutive concepts be
sufficiently abstract to cover a whole range of possible cases.
Bottom-level rules, which are specific, could not be available in
advance to deal with all new fact situations; if the law were only a
collection of specific rules it would not be complete. (Centrum ad
ba ito?)
*The law considers a mass of haphazardly arranged cases: a
"chaos with a full index." Langdell: "Law, considered as a science,
consists of certain principles or doctrines. To have such mastery of
these as to be able to apply them with constant facility and
certainty to the ever-tangled skein of human affairs, is what
constitutes a true lawyer..."
*Omitted factor: role of acceptability in classical orthodox system.
Examination of Langdell's work shows that he did not hold the view
that substantial justice and interests of parties in the cases were
irrelevant to the validity of the mailbox rule. Throughout his work,
Langdell appealed to considerations of justice or policy. "The law
adopts fictions only to promote justice, i.e., in order to prevent
some injustice..."ALthough not the bulk large in the Langdellian
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 corpus, he clearly regarded the appeal to justice or convenience
(acceptability) as legitimate in at least some circumstances.
* Example: the flagpole hypothesis: (unilateral contract cases,
where offeror promises something in exchange for performance by
the offeree rather than for a return promise). Langdell argued that
there was no consideration and hence could be no contract until
the performance was actually completed. Like when A offers B one
hundred dollars if he will touch the top of a flagpole; B then
laboriously climbs the pole and just as he was about to touch the
top, A shouts, "I revoke." On Langdellian doctrine, A owes B
nothing. (**Considerations of justice and convenience were only
relevant insofar as they were embodied in principles that were
consistent with the other fundamental rules of the system.
3. Law as science. Langdell's theory is neither Benthamite nor
deductive natural law but claims to be empirical yet its practice is
highly conceptual. It delivers normative judgments yet proclaims the
positivist autonomy of law from morals.
*Analogy between law as science and Geometry - geometric ideal
pervades literature of the whole rationalist movement to create
exact sciences of ethics, politics, and law; Euclidean geometry is
simply an uninterpreted formal system of terms and inference
rules. Euclidid's axioms not mere human constructs but indubitable
physical truths which can be proved by sequences of deductive
steps. The arrangement of inductively derived generalizations into
a deductive system vastly extends our use of resources of
experience, by spreading long and difficult chains of deductive
inference. When this structure is applied to law, it helps clarify the
otherwise baffling talk of observation, experiment and the like that
appeared in Langdellian literature.
*The universe of data was not the totality of sense experience of
the physical world, but rather the restricted set of reported
common law decisions. "All materials of legal science were to be
found in printed books."
**Circularity - failure of analogy between legal science and
geometry. Geometry eventually derives authority from general
trust of direct experience from the senses while legal science's
authority is from precedent which follows rules and principles, but
in the classical conception of legal science, these rules and
principles are themselves inductively derived. TWO RESPONSES: 1.
) "Confession and avoidance" ->Admit that legal science is circular,
while natural science is itself circular. 2.) Break out of the circle by
finding a source of validity for judicial decisions independent of the
rules and principles.
**Precedent - Stare decisis as an independent source of validity.
Whether a judicially decision was substantively correct, and
whether it was jurisdictionally and procedurally correct. Science
LEGAL METHOD - HILBAY A2010
sets its own jurisdiction while a judge must decide a case over
which he has jurisdiction, whether or not he is satisfied that his
decision is scientifically correct. The common law doctrine of stare
decisis gives a decided case authoritative force with respect to
future decisions in other cases. It thus provides the outside source
of validity for decided cases that was necessary to save classical
science of law from the vicious circularity. In law, unlike science,
error, if persisted in, at some point became truth; and where that
point lay could only be determined according to considerations of
acceptability that were never satisfactorily formalized. (A lie told a
thousand times becomes the truth, unless our sense of justice
refuses to accept it.)
*Tension among principles of precedent and acceptability: Langdell
"if they cannot be pronounced erroneous, they must at least be
deemed anomalous." The geometric structure of law's universally
formal conceptual order caught in the ever-tangled skein of human
affairs.
**Under formalism, progress occurred when a scholar discovered
a previously unrecognized principle in the appellate opinions.
Under geometric analogy, legal principles should be universal and
eternal; history would be simply a record of their gradual
discovery. Legal doctrine as a growth extending through centuries
suggests an analogy between classical legal science and
evolutionary biology - and a connection between classical legal
science and the historical school of jurisprudence (whose central
thesis was that a nation's law is necessarily rooted in the
contingent and evolving traditions and customary practices of its
people.) History provides the necessary raw material - the cases -
on which reason operated in extracting legal principles.
*** Vehicle for legal change in classical theory was legislation, but
this was viewed by classical writers as haphazard and anomalous
incursions into the body of common law, not fit for scientific study.
**The classical system could not in the end make too much of a
virtue of its flexibility without undermining its promise of
determinate geometric order.
4. The special appeal of classical orthodoxy was its promise of
universal formality - "every cases an easy case." A predictable system
that appealed to businessmen and ascendant groups which had special
needs for legal predictability and drawn to the "rule of law" concept of
freedom. The dry geometry of classical legal orthodoxy had a certain
paradoxical quasi-religious appeal to the educated elite as it promised
a complete and universally formal system of norms and so offered
determinate answers in an increasingly incomprehensible world.
Conceptual jurisprudence was revered when secular science and major
universities replaced the prestige and spiritual value of the church.
Classical science bridged the practice of law as a profession and the
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need of the new universities for an alliance with the rich influential bar.
5. Classical orthodoxy did fall from its position of explicit dominance
because of : perceived political bias as Langdellian legal science
reinforced the view of common law contract and property system as a
"brooding omnipresence in the sky" rather than as a contingent
allocation of power and resources; and it was not readily adapted to a
period of rapid social change.
*Critiques
- The why considerations of acceptability should not be considered
in formulating bottom-level rules and in deciding individual cases -
to do so would allow ad hoc practical judgement, which meant
abandoning legal science (which meant abandoning certainty,
predictability, and accountability generally).
- Impossibility of the central classical project of formal conceptual
ordering (to have relatively few and consistent principles)
-Once disputes are settled in a procedurally final way, they are
generally left alone by the law, even if later shown to have been
decided incorrectly. (Same as the force of the principle of res
judicate, which has no counterpart in science).
-Unresolved jurisdictional conflicts - threats to comprehensiveness
- within the legal system are perceived as serious crises.
-The courts are primarily dispute-setlers rather than scientific
authorities. Given this practical function, is it not natural to judge
their work by the practical standard which is the standard of
acceptability? The values of legality must be subject to the
ultimate test of acceptability but it does not mean that this is to
direct the courts to decide every dispute in the most acceptable
way.
The boldest claims of classical orthodoxy that the number of
fundamental legal doctrines is much less than is commonly
supposed were empirically undermined when toward the end of
the '20s, the failure of the great classical Restatement project
(wherein Langdell and his followers set out to realize the claim with
impressive ability and energy in writing articles and organizing
cases) became obvious.
*Holmes, who himself valued both conceptual order and formality,
insisted on the disjunction between them when he observed that
"general principles do not decide concrete cases." The actual
decisions of hard cases required drawing a line, arbitrarily, on a
continuum between competing concepts. Judges could establish
rules in such situations by observing the clustering of decided
cases and then imposing artificially sharp boundaries around the
fuzzy clusters formed. These rules, though arbitrarily, could
provide useful predictability if imposed uniformly by judges in later
cases.
*Realists: - formality itself does not always produce predictability.
LEGAL METHOD - HILBAY A2010
In many situations decisions would be both more predictable and
more acceptable if the ruling norm were a vague standard that
allowed judges or juries to apply their intuitive sense of fairness
case-by-case, rather than a clear rule that was sporadically and
covertly evaded.
- The pursuit of generality principle leads legal scientists to miss
altogether lines of doctrine that were acceptable and that could
produce predictable results once recognized. Special case to the
mailbox rule (when does a contract accepted by mail become
effective? Langdell: when received and read): Courts were
frequently holding certain contracts to have been formed before
the acceptance was mailed. In cases involving life insurance
policies, where applicants (offerors) submitted applications subject
to approval by the central office of the company, and then died
after the central office approved the application but before the
signed policy (the acceptance) was mailed, courts often held that
the policy had gone into effect and the benefits must be paid.
-->Special rule for life insurance cases, not announce by the courts
because it conflicted with the orthodox "established law." but
based on a sensible biases toward compensating survivors and a
feeling that no injustice was done once the insurer had decided to
issue the policy.
6. Even in its fall classical orthodoxy achieved a secret triumph. In their
pursuit of logical order Langdell and his colleagues had actually
created a new conceptual structure that effectively replaced the older
Blackstonian outline of the law in the discourse of the profession. The
classical scientists drew a basic line between substantive law on the
one hand and the procedure and remedies on the other, with the
former treated as the primary and the latter merely instrumental.
Within law they public law from private, treating private as the core
and public law as the peripheral anomalous hybrid of law and politics.
The roles of such schemes in elementary pedagogy and indexing legal
materials seem relatively trivial but categorical schemes have a power
that is greatest when it is least noticed. They channel the attention of
those who use them, structuring experience into the focal and the
peripheral. In so doing, they influence judgement as much as the
agenda.
7. Post-classical critics sought to replace classical science of legal
principles with a Benthamite policy science (remember legal
empiricism) but it is striking how little progress has been made toward
basing law on accurate measurement of desires. The main
accomplishment on behalf of this policy seems to have been that in the
recent years lawyers and judges have come to invoke the comforting
metaphor of "balancing" when they discuss choices that involve the
conflict of immeasurable values - the choices that less comforting
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modernist discourses call "political" or "existential." Apart from a. Degree of insistence on compliance with formalities (what
balancing, legal discourse largely retains its orthodox form. A exceptions are permitted?)
movement in legal theory that has closer links to the dream of b. Degree of absoluteness of the sanction of nullity for failure
Benthamite policy science is the school of law and economics (Leader: to comply (what remedies, if any, for a person who fails to
Posner, critique: upon closer inspection it turns out to be neo-orthodox comply?)
too). The neo-orthodoxies drawn from economics and moral
philosophies resemble classical legal science in their capacity to Note: What is common is a willingness of the formalist to
promote structured puzzle-solving of a sometimes interesting kind. But sacrifice substantive justice (or `equity') in the particular case.
in contrast to the classical theory, they dilute the autonomy of the law
by shifting research outside the law library. Apart from their conceptual 2. Formalism as a range of techniques of legal interpretation
ordering of the law, the classical scientists' main achievement was to - based on the meaning of norms, and
articulate better than have any other Anglo-American lawyers the - refusing reference to the norms' purposes, the general policies
curious second-best utopia that animates the legalist mind. underlying the legal order, or the extrajuristic preferences of the
interpreter.
LEGAL FORMALISM
By Duncan Kennedy a. Textual interpretive formalism – decides by
identifying a valid norm applicable to the case and then
applying it by parsing the meanings of the words that
“Legal formalism”
compose it.
- Contested concept, rather than a well-established term with a clear
b. Textual formalism – literalist to the extent that it
meaning
refuses to vary meaning according to context, and
1. Primitive formalism – the practice of deciding disputes through
originalist to the extent that it finds meaning only through
devices such as oracles and trial by battle, regarded as `irrational.'
the context at the time of enactment
2. Ancient Roman and medieval English system of `formulary justice'
c. Conceptual interpretive formalism – `constructs'
or `strict law'
general principles thought necessary if the legal system is
a. A claimant could get redress through the legal system only
to be understood as coherent. It uses the principles to
by fitting his case into a closed class of `actions.'
resolve uncertainty about the meaning of extant valid
b. No overarching principles were available to deal with cases
norms, and applies the principles according to their
that fell outside the class, but within generally held ideas
meaning to fill apparent gaps
of moral responsibility.
d. Precedential interpretive formalism – interprets
3. Modern law – movement beyond both primitive formalism and
according to the meaning of norms derived as the holdings
formulary justice, but had to find a way to preserve some of the
of prior cases
virtues of the earlier systems
Note: Gaplessness requires the interpreter to apply in every
Formalism as a Descriptive Category
case, according to their meanings, the legal norms he or she
1. “Formality” as a dimension along which we compare legal can derive textually, conceptually, or through precedent.
regimes as “more or less formal” Reference to purposes and policies are categorically forbidden
a. Procedurally formalist – makes the success of a substantive
legal claim depend on following procedural rules 3. Formalism as theories that purport to derive particular rules of
b. Transactionally formalist – requires specific formalities for
law, from a small group of internally consistent abstract principles
transactions such as contracts or marriages
and concepts (e.g., corrective justice, fault) understood as morally
c. Administratively formalist – surrounds the exercise of state
binding on legal actors
power with procedural and transactional formalities.
d. Rule formalism – general preference for rules over
Formalism as a Critical Category
standards.

Dimensions

LEGAL METHOD - HILBAY A2010 -6-

 1. Mainstream – law as having a strong internal structural coherence
based on the two traits of `individualism' and commitment to legal
interpretive formalism. These traits combined in `the will theory.’
2. Sociological jurists
- advocated interpretation on the basis of `scientifically'
established social desiderata, as well as or instead of according to
meaning
- version of Will Theory that the private law rules were well
understood as a set of rational derivations from the notion that
government should help individuals realize their wills, restrained
only as necessary to permit others to do the same.
- presupposed consensus in favor of the goal of individual self-
realization justified by a specific, will-based, and deductive
interpretation of the interrelationship of the dozens or hundreds of
relatively concrete norms of the extant national legal orders, and
of the legislative and adjudicative institutions that generated and
applied the norms
- critiqued Mainstream Will Theory
> individualist premises of the will theory in the name of
`social law'
> methodology
 widespread abuse of deduction, meaning that jurists
habitually offered deductive justifications for
interpretations that were in fact logically underdetermined
 falsely assumed the possibility of constructing the legal
order in such a way that it would be gapless in fact, and
therefore susceptible to exclusively meaning-based
interpretation.
3. New Legal Theoretic Avant-Garde
- including both the American legal realists and Kelsenian
neopositivists
on the Continent
a. `policy analysis'- process of reconciling or balancing
diverse legal desiderata on the basis of information about
the social context;
- critiqued as `social conceptualism' or `policy formalism,'
because it selected policies arbitrarily, underestimated the
conflicts among them, and offered no defense of balancing as
a rationally determinate procedure.
b. civil libertarianism
- critique: abuse of deduction from personal rights
- critiqued sociologists on the ground
c. that its proponents confused facts from values, scientific
versus normative judgments.
d. that the social purposes or functions the sociological jurists
used to base their rational derivations of legal rules were
either vague or conflicted, so that the claim to a scientific
LEGAL METHOD - HILBAY A2010
method was no more than a screen for a new form of
politically progressive natural law
4. Modern Legal Theory
- Modern legal theory (with the exception of natural law theorists)
is antiformalist, in the sense of denying the possibility of strictly
meaning based gaplessness.
- Positivism affirms that discretion in adjudication is inevitable,
while limiting it to the `penumbra' or to the area inside the `frame'
provided by the norm in question
5. American Legal Theory
- American legal theory is antipositivist, and affirms gaplessness,
but on the basis of policy, purpose, rights, or principles, rather than
on the basis of textual, conceptual, or precedential formalism
formalism
6. The Common law world
- critique of precedential interpretive formalism
a. that policy argument is always necessary in order to
determine the relevance of a precedent for a new case
b. that common law theory, if it is to be coherent, must
authorize the creation of an exception to a precedentially
established rule in any case where an exception would
serve the policies animating the system as a whole
7. On the Continent (I have no idea what “Continent”)
- rhetorical and hermeneutic theories of legal interpretation assert
that outcomes are always relative to horizons, no matter how
superficially deductive (and then reground interpretation in the
supposedly shared horizon of liberal faith)
8. Postmodern Theorists
- Skeptical theories gain support from comparative law scholarship
showing diametrically opposed interpretations of identical code
provisions, and identical case law derived from contradictory code
provisions.
Formalism as a Category in the Sociology of Law
1. Law as essential building block
- The role of formalism, in this context, means that the general
theory represents law as having a gapless, meaning-based internal
structure, responsive to outside imperatives of some kind.
- In fact, according to the critics, the contradictory internal
structure of Western legal systems leaves adjudicators and other
legal administrators great discretion in the interpretation of norms.
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 - It follows that neither the legitimacy of the legal order, nor its
content, nor the effects of legal institutions, can be inferred from
the external imperatives the theorist imagines animate them.
2. Law as the weak link in the general sociological construction.
1. Sociologies that include law as one of the elements in an
integrated representation of society
2. Sociologies that take law as their (very) object, bringing to bear
on it the variety of instruments of sociological investigation
- A logically formal rational system–is a collection of norms that are
internally consistent and that officials apply to particular fact
situations according to textual and conceptual formalism premised
on gaplessness,
- Interpretation is the `logical analysis of meaning.' Despite the
superficial
resemblance, this ideal type is not just Will Theory under another
name, because
a. not intrinsically associated with either the concept or the social
reality of individual freedom
b. contingent product of Continental legal history, rather than
implicit in a larger normative conception.
Matters for investigation
a. how an order claiming these types of legal rationality operates
through officials at the level of practice, how state law interacts
with other normative orders, and what effects are plausibly linked
to a type
b. whether it is ever plausible, given the critique of gaplessness and
the ever-present possibility of the abuse of deduction, that a legal
order operates in practice in a way usefully described as logically
formal rationality.
c. the legal/bureaucratic mode of legitimation no longer relies on the
claim of logically formal rationality, but rather on a complex
mixture of claims of local meaning-based closure, claims of policy
rationality (substantively rational, in Weber's terminology), and
claims of democratic procedural legitimacy. These have not
precluded a `legitimation crisis.'
Conclusion
- Descriptively formal law – both formal rule systems and formal
techniques of interpretation – involves the morally delicate refusal to
respond to the call for justice in the particular case, for reasons that may
be good or bad according to the circumstances.
- Formal law is part of the drama of governance, the trivial or murderous
drama of breaking eggs to make omelettes.
LEGAL METHOD - HILBAY A2010
The summary I made for Lessig's article was much too long. There are
more important things for you to do with your time, so I'm just posting
these reviews and summaries I found on the net. They're far shorter and
anyway you only need the general idea with Hilbay. The details aren't
important.
THERE IS NO TEXTUALIST POSITION
By Stanley Fish
The intentionalist position is not a method, it is simply the right
answer to the question (what is the meaning of a text?) It does
not tell you what to do; it just tells you what you are doing.
**Distinction between sentence meaning and speaker’s meaning, -
between the meaning an utterance has by virtue of the lexical items and
syntactic structures that make it up, and the meaning a speaker may have
intended but not achieved - is possible because they are distinguishable
entities, and they can come apart. When they do, one can say that the
words, literally construed, say one thing, but the speaker’s purpose is to
say something else. One can choose between the two – it is an act of
choice made available because it is possible to distinguish between the
two.
Ex: Spoken: “Go through the light.”
Assumptions: (at an intersection with a stoplight turned
red)
1. Beat the red light. Break the law to make it to an appointment
on time?
2. Beat the red light because of a medical emergency?
3. Simply giving directions?
4. Just wanted to flout authority and take minor risks?
Finally interpreted as: “After the light turns green, go straight and
don’t make any turns.”
Arguments:
Here, the words “Go through the light” are attached to an
assumption of an intention because they cannot be heard apart from an
intention within which they were uttered. The text is not independent; it is
an entirely derivative entity. Once one construes words, the instant one
hears sounds as words and treats them as language, they acquire
meaning. Purpose will have already been put in place – to give directions,
to give orders, to urge haste, to urge outlaw behavior – in the light of which
the sounds become words and acquire sense. The specification or
assumption of intention therefore comes first; the fact of a text with
meaning comes second.
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 Text alone, no matter how long and dense, can never yield
meaning, whereas intention, whether assumed, discovered, or revealed,
can always alter a meaning that had previously been in place; not because
what had been said has been trumped by what was intended, but because
one understanding of what was intended has been dislodged by another. It
is therefore not a matter of choosing between what was said and what was
meant but rather between specifications of what was meant.
**In the arena of legal interpretation, Justice Antonin Scalia declared: Ours
is a government of laws - of texts written down - not men, and therefore it
would simply be undemocratic “to have the meaning of a law determined
by what the lawgiver meant, rather than by what the lawgiver
promulgated.” It is what is “said” not what is “intended” that is the object
of our “inquiry.” “Men may intend what they will; but it is only the laws
that they enact which bind us. Words are material and available for
inspection, intentions are not, and because they are not, they provide an
insufficient constraint on judges who might be tempted to rewrite the law
in the guise of interpreting it.
**It is simply a matter of choice between something materially available
(text) and something absent and speculative (the intention of its author)
Intention cannot be separated from meaning or thought of in
conflict with it. If there were no intention, not only would there not be a
meaning; there would be no reason to seek one. Again, it is not choosing
between what was said and what was meant but really which of the
possible meanings.
In the matter of choosing between an utterance (text) and what is
intended, first, for there to even be a choice, any choice, there must be
distinguishable entities to choose between. There must be a textual
meaning – a meaning a sentence has as its property – which one could
either adhere to or depart from; for only then could this textual meaning
be chosen or chosen against. But words alone, without an animating
intention, do not have power, do not have semantic shape, and are not yet
language; they do not have any textual meaning that one could readily
adhere to or depart from, in order for it to be chosen or chosen against.
**Textualists do not inquire what the legislature meant; only what the
statute means
One who does not want to know about intention does not want to
know about meaning. They do not simply go together; they are inseparable
from one another.
**The “pluralist” or “synthetic” textualist approach: Meaning can be
decoded by looking to the combination of lexical items and grammatical
structures, with a little help, in the case of ambiguity or obscurity, from
legislative history or judicial precedent
LEGAL METHOD - HILBAY A2010
Lexical items and grammatical structures will yield no meaning –
will not even be seen as lexical items and grammatical structures - until
they are seen as having been produced by some intentional agent. A text
that seems obvious is a text for which an intentional context has already
been assumed. In short, the text has no independence; it is an entirely
derivative entity – something else must be in place before it can emerge as
text and being merely derivative, it therefore cannot be the source of
location or meaning. There can be no middle position in which text is a
partial source of meaning because one cannot anchor a method in a
nonentity, in a notion – the text - that can neither produce nor constrain
anything.
**Concession to Intentionalism’s appeal:
A. Maximizing intentionalism - searching for a texts meaning because it
neglects the direct costs and opportunity costs of searching further afield
for evidence of legislative intentions.
B. Optimizing intentionalism - employing a stopping rule: declining to
search further afield if expected benefits of further search are less than
the costs, therefore providing justification for considering less than all
probative information bearing on legislative intentions.
Both views represent a choice between interpreting and doing
something else (a cost/benefit analysis). Choosing in the direction of either
will force one to now be asking the question “what can we do with the
text?” as opposed to “what does this text mean?” which leaves open a
space where an “interpreter” (no longer one) is free to determine how best
to reach a conclusion that reflects his/her policy preferences or a way of
legitimizing his/her desires. There are instances when the search of
meaning is either too difficult or subversive that insisting on it would be
perverse making stopping rules necessary. Stopping rules are not rules of
interpretation however, they are rules that tell you when the effort to
interpret should cease (because of reasons stated) and something else
should take over, nevertheless, acknowledging such obstacles to the
specification of meaning does not change the fact that the answer to the
question “what does a text mean?” is that a text means what its author
intends it to mean.
C. The interpreters or readers decide principle: the meaning taken to be as
how it is understood by the community
The assumption in the readers decide principle is that people have
decided to “go beyond” whatever the author may have intended whether
in search of the actual authorial intention or just in exercise of their right to
go beyond it. However, this is an interpretative game wherein there are no
rules, it is that of coming up with a reading that best serves one’s present
purposes and needs and hence, it provides no possibility of coming up with
an answer to the question “what does a text mean?”
**Objections to intentionalism:
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A. Epistemological objection: because evidence of intention is often By Larry Alexander and Saikrishna Prakash
equivocal, incomplete or obscure, it is difficult to offer convincing
justification for the claim that the a certain interpretation corresponds to
Introduction
an author’s actual intention
On the one hand, Full Blooded Intentionalists consider all available
This is not an objection to the thesis that a text means what its
evidence of the actual author’s intended meaning. He might exclude
author intends, it is a complaint that determining exactly what that
certain evidence of intent on grounds of general unreliability, but he
intention is may prove difficult. What intentionalism is involved with is in
nonetheless would allow consideration of all reliable evidence of authorial
answering the question “What must be the case – what must we
intent. This is the “wholeheartedly faithful agent” position. On the other
presuppose – if notions like agreement, disagreement, error, correction
hand, Intention Free Textualists (I.F. Textualists) who espouse that texts
and revision – are to make any sense?” not in answering “What is going on
can be interpreted without any reference, express or implied, to the
in the interpreter’s mind?” – a question that would require research into
meaning intended by the author of the text.
brain waves, cognitive processes, institutional practices and much more.
The dispute between Textualists and Intentionalists boil down to
whether interpreters should look to the intentions of actual authors or
B. Non-existence objection:
hypothetical ones, and when, if we are to look to actual intent, policy
In the case of groups like legislatures, individuals within the majority have
considerations such as rule of law concerns should lead us to ignore
different aims and intentions in mind. How should individual intentions be
certain evidence of that intent.
combined to form a group intention that is plausibly the intention behind
the legislation?
Part 1: The Conceptual Impossibility of Intention Free Textualism
This question confuses intention with motive; while different
(I.F. Textualism)
legislators have different motives for signing on to a piece of legislation,
I.F. textualism is a conceptual impossibility. One cannot interpret texts
they could collectively form the intention to put the legislation on the
without reference to the intentions of some author.
books.
Argument 1: Texts Cannot Declare the Language in Which They are Written
C. Indeterminacy objection:
> Words in text mean different things across languages, e.g. canard in
When one person has different intentions
English means a lie; in French, a duck. It can also mean different things
Authors often have several intentions at the same time. But this
within the language, e.g. chips can mean potato chips, poker chips,
may be when an author may have in mind specific examples of the
microchips.
application of a clause and a general aim. Such an author would not have
> If we are unaware of or indifferent to the author’s usual tongue (and
two intentions, but one: the application of the general aim.
likely intentions), we may imagine what we would have meant had we
spoken the term, imagining ourselves as the authors.
Conclusion
Argument 2: Texts Cannot Declare That They Are Texts
There is only one coherent answer to the question “what does a
> One cannot look at the marks on a page and understand those marks to
text mean?” It cannot mean what its readers take it to mean, for then the
be a text (that is, a meaningful writing) without assuming that an author,
interpretive game would have no rules (and no possibility of victory). Nor
real or hypothetical, made those marks intending to convey a meaning by
can it mean what the words alone man because the absent the assumption
them.
of intention, the words alone do not mean anything. Nor does it mean what
Argument 3: Meaning Cannot be Autonomous From Intent – One Must
the dictionary tells us because it only gives us a record of the intentions
Always Identify an Author
previous speakers have had when using a word, a record of possibly and
> If text has no intent, there is no meaning; they would be mere marks.
multiple meanings absent any way of specifying which the right one is. Nor
> “Texts” without authors and intended meanings are not texts; and texts
does a text mean what is specified by the conventions of the day because
with intended meanings are texts only with respect to the intended
conventions do not have intentions and they do not author texts. Nor does
meanings.
it mean what the ordinary or ideal or reasonable interpreter would mean
> a marking on the floor as follows: c – a – t can mean a “domestic tabby
by the words because none of those authored the text either, and
cat,” “any feline”, “jazz musician,” or simply markings for the contours of
declaring any of them the author by fiat would amount to rewriting, not
patches of a vegetable garden, depending on what the author intended it
interpreting. There is only one candidate left and one answer to the
to mean.
question: a text means what its author intends.
Argument 4: Texts Can Have “Deviant” Meanings Because Those Meanings
Are Intended
IS THAT ENGLISH YOU’RE SPEAKING?

LEGAL METHOD - HILBAY A2010 - 10 -

> How did “cat” come to mean jazz musician? Because it was used by
some people with the intent that it be understood as referring to a jazz
musician. And the word “cat” meant jazz musician the very first time it
was used with such an intention, even before it was listed as a definition in
the dictionary.
Argument 5: Unexplained Exceptions to I.F. Textualism: The Use of
Context, the Avoidance of Literal Absurdities, and Casualness Regarding
Punctuation
> On The Use of Context
Textualists admit that texts must be read in context. The additional
contextual information is, unsurprisingly, information that provides
evidence of the intent of the actual author. The commonplace truth that
all understandings of texts are contextual just demonstrates that all texts,
as text, acquire their meaning from the presumed intentions of their
authors.
> On the Avoidance of Literal Absurdities (Absurdity Doctrine)
This is a way that textualists bring authorial intentions thorough the
backdoor. For to say that some reading is absurd and therefore ought to
be rejected is to say nothing more than that the author of the text could
not have intended such a reading.
> On Casualness Regarding Punctuation (Scrivener’s Error Doctrine)
To speak of errors, mistakes, or of a “legislature that obviously
misspoke” is to have a baseline of legislative intent, for it is only against
that baseline that it is possible to speak of legislative misspeaking. But
then again, so far as the IF textualist is concerned, there can be no
“errors” in statutory text. The text results from clashes of interests, and it
is whatever it is, warts and all. So if the text says “emission testing of
carps,” it means emission testing of fish.
Part 2: The Real Issues in Interpretation
If I.F. Textualism is an impossibility because one must always have
recourse to some author, real or otherwise, what other positions could
textualists be advocating?
Position 1: Textualism as Rule of Law Restricted Intentionalism
> The interpreter should seek out authorial intent, but in doing so should
refuse to consider certain kinds of evidence thereof, even if reliable, using
a set of norms, for example, rule of law as justification for the same.
> Critique: Because evidence is excluded, especially so when it is reliable
the interpreter will end up in a situation in which the authoritative meaning
of the law is different from what the interpreter knows was the meaning
intended by the lawmakers. There is a gap between what the interpreter
knows the lawmakers actually intended and what, per the norms (e.g. rule
of law), the interpreter will deem them to have intended.
Position 2: Textualism as Man on the Street Interpretation
> Interpreting legal texts as would a sample of average members of the
public provided a certain context.
LEGAL METHOD - HILBAY A2010
> Advantage: Rule of law benefit in that the average citizen is given clear
notice of what the law means
> Critique 1: Let us take the extremes. Providing almost no context except
that the authors were English speakers – this wouldn’t be different from
simply getting the dictionary meaning of the text. On the other hand,
providing them with additional contexts, their readings might:
a. converge with the authoritative interpreter’s (e.g the judge’s), in
which case, why poll from the sample?
b. vary from one person to the next, in which case, there will be no
authoritative meaning.
> Critique 2: If polling a sample will yield Critique 1, then why not ask one
median member of the public instead of several? The problem then arises
as to who is the “median” member of the public, which is an indeterminate
concept considering that there is an indefinite number of dimensions on
which one can identify a “median” member of the public.
Position 3: The Idealized Reader
> Textualists have recourse to the construct of an idealized
contemporaneous (with the statute’s enactment) reader – interpreting
language by asking how “a skilled, objectively reasonable user of words”
would have understood the text, or “as any ordinary Member of Congress
would have read them,” and also considering the context of the statute
and taking into account background legal convention. In sum, the idealized
reader is a lawyer.
> Critique: Supplying the idealized reader the “context” of the statute is
but a backdoor means of reintroducing the author’s intent. When asked to
interpret something, the idealized reader will seek the actual author’s
intent as a source of meaning. In creating this construct of idealized
reader to generate an ”objective” meaning, textualists have instead just
created an abstraction that merely filters authorial intention.
Moreover, even if the textualist forbids the idealized reader from
seeking the intent of the actual author, the idealized reader will still have
to search for some intent. If we are correct that one must envision an
author whenever attempting to make sense of text (indeed, to even
identify it as such), the idealized reader will have to imagine a hypothetical
author/s.
> Note: The benefit of this approach is that with the selection of one
hypothetical author even though it was a multi-member body that created
the text, it becomes much more likely that every statute has a meaning.
After all, the more authors a text has, the more likely it is that there is no
shared intent as to the meaning of the text.
> Critique of “Note”: Precluded as the idealized reader is from looking to
all the evidence of actual authorial intent, the idealized reader may
conclude that a text has two or more meanings that are equally supported
by the evidence to which he is restricted. There is no deeper metaphysical
fact, like intent, of which these multiple meanings are merely evidence.
Position 4: The Idealized Author
- 11 -
> Legal text should be interpreted to mean what they would have meant
had they been authored by this single idealized lawmaker rather than by
the one or several actual lawmakers.
> Critique: In order to yield interpretations, we need to specify the
attributes of the idealized author. This will lead in effect to the reauthoring
of the law by the interpreter.
Conclusion
Everybody, textualist or otherwise, looks beyond the four corners of
statue to discern its meaning. These “extratextual” factors are legitimate
for the reason that a statue is not simply (or even primarily) its text but is
principally its meaning. The text is just a means of conveying meaning.
The extratextual factors illuminate a statute’s meaning; and therefore,
though they are extratextual, they are not “extrastatutory.”
An intentionalist may choose to exclude some evidence about authorial
intentions on the theory that the evidence may be more prejudicial than
probative or may be prone to manipulation. Hence, textualists of Position 1
may be correct in concluding that one ought not examine, for example,
legislative history in finding statutory meaning. They would be correct for
the wrong reasons. They would be correct not because intent (including
legislative history) is irrelevant to statutory meaning, but because
legislative history might be an unreliable indicator of authorial meaning.
Appendix 1: Textualism and the Faithful Agent Premise
Textualists have claimed that textualism “starts from the faithful agent
premise – that a federal court is responsible for accurately deciphering and
implementing the legislature’s commands.” However, “textualists believe
that when a statutory text is clear, that is the end of the matter.”
Textualists acknowledge that Congress has the right to place a set of
marks on a page. But they forbid Congress form selecting the meaning of
those marks. Instead, the meanings of those marks are supposed to be
fixed according to a set of rules that are (relatively) independent of
Congress, interpreted on the basis solely of the text independent of
intention. Should Congress intend secondary or nonstandard meanings, it
may well have its will thwarted; for the reasonable reader, if so
constructed, may generate an objectified meaning that ignores Congress’
intended secondary or tertiary meanings. Whatever the merits of
textualism, it does not strike us as a theory where the interpreter acts as a
faithful agent of Congress.
Appendix 2: The Lawmaker’s Intended Meaning Versus the Lawmaker’s
Intended Goals
Legal texts not only have intended meanings; legal texts are meant to
achieve certain goals. But the goals they are meant to achieve are not the
same thing as the meanings they are intended to convey.
There are two types of mistakes a lawmaker makes: lapses in
expression (as to meaning) pertaining to mistakes in conveyance when
words are ill chosen, vis-à-vis lapses in foresight (as to goal) pertaining to
mistakes of fact that leads one to think that with a specific law s/he might
LEGAL METHOD - HILBAY A2010
achieve a specific goal. Intentionalists do not advocate departing from the
intended meaning whenever the interpreter concludes the lawmaker made
a mistake regarding what that meaning would accomplish or how well that
meaning serves the lawmaker’s values. In my understanding, the Judiciary
as intentionalists advocate honoring the intent of the law as it is but do not
question the wisdom (of the Legislature) as to why such law has been
passed.
TYRANNOSAURUS TEXT AND THE DOCTRINAL SLIP:
PP1017 AND THE PROBLEMATICS OF EXECUTIVE
LEGISLATION
By Florin Hilbay
FLORIN’S OBJECTIVE IN THIS ARTICLE: By showing the doctrinal and
interpretive mistakes of the Supreme Court in the decision of David vs.
Arroyo, he hopes to promote a dialogue on the tools of judicial decision-
making that inform the decision itself.
I. THE DOCTRINAL SLIP
Argument No 1.
The distinction between facial and applied challenges that the Court
used in scrutinizing PP 1017 is founded on the separation of powers
principle that relies on a conceptual distinction between rule-making and
rule-execution. It derives strength from the institutional play between the
Court as interpreter of the Constitution, and the Congress, as the body with
authority to legislate on matters affecting the guarantees in the Bill of
Rights. Because presidential authority is only marginally implicated in the
analysis of the need for careful drawing of statutes and their compliance
with constitutional principles—the salient feature of facial analysis—then
the application of this kind of scrutiny to presidential proclamation (an
altogether different species of policy) is inappropriate.1
Facial invalidation is a slap on the legislature, while as applied
invalidation is a slap on some arresting officer. In both instances, high-level
executive officials are invisible to the reach of the doctrines.
Argument No. 2.
The Court should not have uncritically applied doctrines in the case.
Doctrines do not come out of a judicial toolbox ready for use in every
apparently similar occasion. Doctrines are always situated temporally and
spatially.
1
COMMENT: Hilbay is too verbose. His argument is really simple: Facial and applied
challenges applies only to congressional enactments and not to presidential
proclamations. Hence, the doctrinal slip.
- 12 -
 Overbreadth doctrine for instance, is a product of politics of judges in
the United States as particularly shown in the Warren Court’s attitude
towards facial invalidation. The doctrinal debate was and still is part of the
larger political debate over the role of the US Supreme Court in enforcing
its views on the Constitution and its relationship with both federal and
state legislatures.
II. THE TYRANNY OF TEXT
Hilbay attributes the doctrinal slip partly on the Court’s penchant
for privileging the textual interpretation over intentionalist interpretation.
Argument No. 1
The intent behind PP 1017 can easily be identified considering that the
President was the single author of the proclamation. The interpretive issue
therefore that should be determinative of the constitutional argument in
David is not difficulty of linking text with intention but of the manipulation
of text to suppress an otherwise illicit intention already bare to the public
sight.2
Argument No. 2
Textualism as an ideology of reading applied to PP1017 made the Court
conclude that there is nothing in its text that allowed the constitutional
violations that actually occurred despite the vulgarity of the contradictory
context that surrounded it. To look for something in the text that says
police may arrest anyone who exercises her freedom of speech, and that
they may invade premises of publications critical to the government, is to
search for the right of abortion in the Ten Commandments. 3
The tyranny of text is the formalist search for understanding in
material marks—texts—that have no presence in the absence of context,
of the conditions that make them comprehensible and allow for the
emergence of meaning.
III. HOW THE COURT SHOULD HAVE DECIDED THE CASE
Who is responsible for the Constitutional Violence? Florin’s answer: the
President.
Reason
The reason why laws, in general, may not be declared unconstitutional
on the basis of the implementer’s misdeed is that the legislature cannot be
faulted for the blunders of law enforcement agencies. The Anti-Rape
statute should not be invalidated just because the accused was arrested
without warrant. The structure of our constitutional government limits the
power of the legislature to compel the executive department to follow its
intended meaning. But this is the extent to which logic may carry us.
2
Here, Florin’s bias is shown. He contends that the intent of PP 1017 is illicit from the beginning
and that this intent is known by the public.
3
Florin admittedly, has excellent insights on judicial interpretation. However, if you notice, he
doesn’t substantiate his alternative views very well (all rhetoric), which leaves the credibility of
his assessment questionable. Significantly, petitioners in David v. Arroyo did not discount the
factual basis of the issuances, which to mind casts serious doubt on Florin’s argument that there
was such “vulgarity” of the context which surrounded the issuance of PP 1017.
LEGAL METHOD - HILBAY A2010
The matter is different when the question of meaning is confined in
the President. The President, as commander-in-chief and as chief executive
had full control of her own text, that is, she had the constitutional authority
to author—enforce—what she had intended to carry our, as she did, her
purpose.4
DAVID V ARROYO
SANDOVAL-GUTIERREZ; May 3, 2006
NATURE OF THE PETITION
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
THE FACTS
On February 24, 2006, as the nation celebrated the 20 th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: “The President. .
. whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . .,” and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
The declaration is premised military and police intelligence containing
concerted efforts of Left and Right wing factions to bring down the Arroyo
Government.
On the same day, the President issued G. O. No. 5 implementing PP 1017
(hence, the same premise as PP1017), thus:
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic
of the Philippines, and Commander-in-Chief of the Republic of the
4
In short, the President must be accountable.
- 13 -
 Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry
out the necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the
President lifted PP 1017.
ARGUMENTS OF THE GOVERNMENT
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of the
political opposition in a plot to unseat or assassinate President Arroyo.5[4]
They considered the aim to oust or assassinate the President and take-
over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
SIGNIFICANTLY, THERE WAS NO REFUTATION FROM PETITIONERS’
COUNSELS.
The Solicitor General argued that the intent of the Constitution is to
give full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he
explained that it is not respondents’ task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated
hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of
the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon
the people to “show and proclaim our displeasure at the sham regime. Let
us demonstrate our disgust, not only by going to the streets in protest, but
also by wearing red bands on our left arms.” 6[5]
On February 17, 2006, the authorities got hold of a document entitled
“Oplan Hackle I ” which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The plot
was to assassinate selected targets including some cabinet members and
President Arroyo herself.7[6] Upon the advice of her security, President
5 [4]
Respondents’ Comment dated March 6, 2006.
6 [5]
Ibid.
7 [6]
Ibid.
LEGAL METHOD - HILBAY A2010
Arroyo decided not to attend the Alumni Homecoming. The next day, at
the height of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of the
Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents. 8
[7]
Prior to his arrest, Lt. San Juan announced through DZRH that the
“Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of
Edsa I.”
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were planning
to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to “disavow” any defection. The latter promptly
obeyed and issued a public statement: “All SAF units are under the
effective control of responsible and trustworthy officers with proven
integrity and unquestionable loyalty.”
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
group’s plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army’s elite Scout Ranger. Lim said “it was all systems
go for the planned movement against Arroyo.”9[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a
critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no
way they could possibly stop the soldiers because they too, were breaking
the chain of command to join the forces foist to unseat the President.
However, Gen. Senga has remained faithful to his Commander-in-Chief and
to the chain of command. He immediately took custody of B/Gen. Lim and
directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA
spokesman Gregorio “Ka Roger” Rosal declared: “The Communist Party
and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of
8 [7]
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex “I” of
Respondents’ Consolidated Comment.
9
[8]
Respondents’ Consolidated Comment.
- 14 -
bringing down the Arroyo regime; of rendering it to weaken and unable to
rule that it will not take much longer to end it.”10[9]
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
“Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency
operations in the field.” He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties,
coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the President’s ouster is nearing its concluding stage in the
first half of 2006.
Respondents further claimed that the bombing of telecommunication
towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the
Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.11[10]
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
PETITIONER’S ARGUMENTS
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDG’s act of raiding the Daily Tribune
offices as a clear case of “censorship” or “prior restraint.” They also
claimed that the term “emergency” refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is “absolutely no
emergency” that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute “usurpation of legislative powers”; “violation of
10 [9]
Ibid.
11 [10]
Ibid.
LEGAL METHOD - HILBAY A2010
freedom of expression” and “a declaration of martial law.” They alleged
that President Arroyo “gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the possibility of
lawless violence and a showing that there is necessity to do so.”
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2)
their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress
their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 412[15] of Article II, (b) Sections 1,13[16] 2,14[17] and 415[18]
of Article III, (c) Section 2316[19] of Article VI, and (d) Section 1717[20] of
Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that
PP 1017 is an “arbitrary and unlawful exercise by the President of her
Martial Law powers.” And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that “it amounts to an
exercise by the President of emergency powers without congressional
approval.” In addition, petitioners asserted that PP 1017 “goes beyond the
nature and function of a proclamation as defined under the Revised
Administrative Code.”
12
[15]
The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal military or
civil service.
13 [16]
No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
14 [17]
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
15
[18]
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances.
16 [19]
(1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state
of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
17 [20]
In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over
or direct the operation of any privately owned public utility or business affected with public
interest.
- 15 -
 And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained
that PP 1017 and G.O. No. 5 are “unconstitutional for being violative of the
freedom of expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public concern,
all guaranteed under Article III, Section 4 of the 1987 Constitution.” In this
regard, she stated that these issuances prevented her from fully
prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents’ Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being moot;
second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483
(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and
legal basis; and fifth, PP 1017 does not violate the people’s right to free
expression and redress of grievances.
ISSUES
PROCEDURAL
1) WON the moot and academic principle precludes the Court from
taking cognizance of the cases 18
2) WON the petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and
171424 (Legarda) have legal standing.
SUBSTANTIVE
1) WON the Supreme Court can review the factual bases of PP
1017.
2) WON PP 1017 and G.O. No. 5 are unconstitutional.\
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
RATIO DECIDENDI
PROCEDURAL
1. NO. Courts will decide cases, otherwise moot and academic, if:
first, there is a grave violation of the Constitution;19[31] second, the
exceptional character of the situation and the paramount public
interest is involved;20[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and
18
BRYAN_SJ: I REFORMULATED THE ISSUE SO THAT THE RATIO DECIDENDI WILL BE RESPONSIVE
TO IT. THE ORIGINAL QUESTION WAS TO THIS EFFECT: “WERE THE PETITIONS MOOT AND
ACADEMIC?,” WHICH WAS ANSWERED BY THE COURT IN THE AFFIRMATIVE, ONLY TO REPUDIATE
THE PRINCIPLE LATER.
19[31]
Province of Batangas v. Romulo, supra.
20 [32]
Lacson v. Perez, supra.
LEGAL METHOD - HILBAY A2010
the public;21[33] and fourth, the case is capable of repetition yet evading
review.22[34]
2. YES. The requirement of Locus standi which is the right of
appearance in a court of justice on a given question shall be set aside
by the Court whenever it is shown that the case is of transcendental
importance.
SUBSTANTIVE
1. YES. Notwithstanding the discretionary nature of the constitutional
exercise of the President of his/her calling out of power, the Courts
shall have authority to inquire into the factual basis of such exercise to
determine whether it was within the constitutionally permissible limits
or whether grave abuse of discretion attended its exercise. (This
interpretation was based on Article VIII, section 1)23
2. A. Facial Challenge. Facial invalidation of laws (overbreadth
doctrine) shall not be resorted to in the absence of clear showing that
(1) the law involves the exercise of free speech; (2) that there can be
no instance that the assailed law may be valid; and that (3) the Court
has no other alternative remedies available.
Under the void-for-vagueness doctrine, a law shall be facially invalid
only if men of common intelligence must necessarily guess at its
meaning and differ as to its application
B. Constitutional Basis. The authority of the President to exercise his
calling out power to suppress lawless violence shall not be deemed to
include the power to authorize: (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media
and agencies and press censorship; and (d) issuance of Presidential
Decrees, as these powers can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial
Law or suspension of the writ of habeas corpus.
The take care power of the President, which includes the power to
enforce obedience of laws shall not be deemed to include calling the
military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations and
contracts and the like.
The ordinance power of the President shall not include the power
to make “decrees” with the same force and effect as those issued by
President Marcos.
21 [33]
Province of Batangas v. Romulo, supra.
22 [34]
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98,
Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive
Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
23
BRYAN_SJ: PAY ATTENTION TO THE COURT’S REASONING LATER ON, WHERE THE COURT
CLARIFIED THAT THE BURDEN OF PROVING THE FACTUAL BASIS, LIES IN THE PETITIONERS. THE
COURT’S POWER TO INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE DECLARATION DOES
NOT INCLUDE THE CREATION OF AN INDEPENDENT BODY TO INDEPENDENTLY INVESTIGATE THE
FACTUAL BASIS.
- 16 -
 In the absence of delegated authority from Congress, the authority of
the President to declare a state of emergency shall not be deemed to
include the power to temporarily take over or direct the operation of
any privately owned public utility or business affected with public
interest.
Acts of terrorism no matter how repulsive shall not be deemed to be
punishable in the absence of legislation clearly defining said acts and
providing specific punishments therefor.
C. Applied Challenge. The Court shall not declare laws as invalid solely
on the basis of their misapplication or abuse or susceptibility to abuse
by the people tasked to implement them.
The arrest of Randy David and other acts done by the authorities
pursuant to the parts of the laws herein considered unconstitutional
are also deemed unconstitutional without prejudice to the filing of
necessary administrative, criminal or civil actions against specific
abuses committed by authorities.
REASONING OF THE COURT
PROCEDURAL
1. The “moot and academic” principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;24[31] second, the exceptional character of the situation and
the paramount public interest is involved;25[32] third, when constitutional
issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; 26[33] and fourth, the case is capable of
repetition yet evading review.27[34]
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged
that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines
or rules. It has the symbolic function of educating the bench and the bar,
and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.28[35] And lastly,
respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review. In their attempt to prove the
24[31]
Province of Batangas v. Romulo, supra.
25 [32]
Lacson v. Perez, supra.
26 [33]
Province of Batangas v. Romulo, supra.
27 [34]
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98,
Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive
Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
28 [35]
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
LEGAL METHOD - HILBAY A2010
alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.29[36]
However, they failed to take into account the Chief Justice’s very
statement that an otherwise “moot” case may still be decided “provided
the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance.” The present
case falls right within this exception to the mootness rule pointed out by
the Chief Justice.
2. Locus standi is defined as “a right of appearance in a court of justice on
a given question.”30[37] In private suits, standing is governed by the “real-
parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that “every action must be
prosecuted or defended in the name of the real party in interest.”
Accordingly, the “real-party-in interest” is “the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.”31[38] Succinctly put, the plaintiff’s standing is based on
his own right to the relief sought.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1 the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early;
and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David
and Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
“direct injury” resulting from “illegal arrest” and “unlawful search”
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
- In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of
29[36]
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
30 [37]
Black’s Law Dictionary, 6th Ed. 1991, p. 941.
31 [38]
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
- 17 -
justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
- In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez,32[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan,33[61] Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,34[62] Basco v. Philippine
Amusement and Gaming Corporation,35[63] and Tañada v. Tuvera,36[64] that
when the issue concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws.
- In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of
their members.37[65] We take judicial notice of the announcement by the
Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
- In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,38[66]
the Court held that the mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which
is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
- In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of
public funds. The fact that she is a former Senator is of no consequence.
She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No.
5. Her claim that she is a media personality will not likewise aid her
because there was no showing that the enforcement of these issuances
32 [60]
235 SCRA 506 (1994).
33 [61]
Supra.
34 [62]
Supra.
35[63]
197 SCRA 52, 60 (1991).
36 [64]
Supra.
37 [65]
See NAACP v. Alabama, 357 U.S. 449 (1958).
38[66]
G.R. No. 141284, August 15, 2000, 338 SCRA 81.
LEGAL METHOD - HILBAY A2010
prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more
the transcendental importance of the issue involved, this Court may relax
the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the “liberality doctrine” on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits with
bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the “transcendental importance”
doctrine, a relaxation of the standing requirements for the petitioners in
the “PP 1017 cases.”
This Court holds that all the petitioners herein have locus standi.
Incidentally, IT IS NOT PROPER TO IMPLEAD PRESIDENT ARROYO AS
RESPONDENT. SETTLED IS THE DOCTRINE THAT THE PRESIDENT, DURING
HIS TENURE OF OFFICE OR ACTUAL INCUMBENCY,39[67] MAY NOT BE SUED IN
ANY CIVIL OR CRIMINAL CASE, AND THERE IS NO NEED TO PROVIDE FOR IT
IN THE CONSTITUTION OR LAW. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him
to fully attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by
the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people 40[68]
but he may be removed from office only in the mode provided by law and
that is by impeachment.41[69]
SUBSTANTIVE
1. Review of Factual Bases
39
[67]
From the deliberations of the Constitutional Commission, the intent of the framers is
clear that the immunity of the President from suit is concurrent only with his tenure and not
his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
40 [68]
Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and
lead modest lives.
41
[69]
Ibid., Sec. 2.
- 18 -
 The Integrated Bar of the Philippines v. Zamora42[80] -- a recent case
most pertinent to these cases at bar -- echoed a principle similar to
Lansang vs Garcia.43 While the Court considered the President’s “calling-
out” power as a discretionary power solely vested in his wisdom, it
stressed that “this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion.” This
ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in
an appropriate action the validity of the acts of the political departments.
Under the new definition of judicial power, the courts are authorized not
only “to settle actual controversies involving rights which are legally
demandable and enforceable,” but also “to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.” The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of
the government.44[81] It speaks of judicial prerogative not only in terms of
power but also of duty.45[82]
As to how the Court may inquire into the President’s exercise of power,
Lansang adopted the test that “judicial inquiry can go no further than to
satisfy the Court not that the President’s decision is correct,” but that “the
President did not act arbitrarily.” Thus, the standard laid down is not
correctness, but arbitrariness. 46[83] In Integrated Bar of the Philippines, this
Court further ruled that “it is incumbent upon the petitioner to show that
the President’s decision is totally bereft of factual basis” and that if he
fails, by way of proof, to support his assertion, then “this Court cannot
undertake an independent investigation beyond the pleadings.”
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual basis. A
reading of the Solicitor General’s Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the
issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of
the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security
42 [80]
Supra.
43
BRYAN_SJ: LANSANG VS. GARCIA IS RELEVANT ONLY TO THE EXTENT THAT THE COURT MAY
INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE ACTION. THE SIMILARITY ENDS THERE
BECAUSE LANSANG WAS SPECIFICALLY APPLIED TO MARTIAL LAW. DAVID VS. ARROYO
CONCERNS THE FACTUAL BASIS FOR THE CALLING OUT POWER.
44 [81]
Cruz, Philippine Political Law, 2002 Ed., p. 247.
45 [82]
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
46 [83]
Supra, 481-482.
LEGAL METHOD - HILBAY A2010
Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
2. CONSTITUTIONALITY OF PP 1017 AND G.O. NO. 5
A. “Facial Challenge”
Petitioners contend that PP 1017 is void on its face because of its
“overbreadth.” They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a “chilling effect” to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled
for. First and foremost, the overbreadth doctrine is an analytical tool
developed for testing “on their faces” statutes in free speech cases, also
known under the American Law as First Amendment cases.47[103] A plain
reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,48[104] the
US Supreme Court held that “we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First Amendment” (freedom of
speech). Moreover, the overbreadth doctrine is not intended for testing
the validity of a law that “reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct.” Undoubtedly, lawless violence, insurrection and rebellion are
considered “harmful” and “constitutionally unprotected conduct.”
Second, facial invalidation of laws is considered as “manifestly strong
medicine,” to be used “sparingly and only as a last resort,” and is
“generally disfavored;”49[107] The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge
a law on the ground that it may conceivably be applied unconstitutionally
to others, i.e., in other situations not before the Court.50[108]
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether this
situation exists.
Related to the “overbreadth” doctrine is the “void for vagueness
doctrine” which holds that “a law is facially invalid if men of common
47
[103]
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No.
148560, November 19, 2001, 369 SCRA 393.
48[104]
481 U.S. 739, 95 L. Ed. 2d 697 (1987).
49[107]
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
50[108]
Ibid.
- 19 -
intelligence must necessarily guess at its meaning and differ as to its
application.”51[110] It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing “on
their faces” statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show that
PP 1017 is vague in all its application. They also failed to establish that
men of common intelligence cannot understand the meaning and
application of PP 1017.
B. Constitutional Basis of PP 1017
Calling-out Power
The Constitution grants the President, as Commander-in-Chief, a
“sequence” of graduated powers. From the most to the least benign,
these are: the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law. Citing
Integrated Bar of the Philippines v. Zamora,52[112] the Court ruled that the
only criterion for the exercise of the calling-out power is that “whenever it
becomes necessary,” the President may call the armed forces “to prevent
or suppress lawless violence, invasion or rebellion.” Are these conditions
present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue
PP 1017. Owing to her Office’s vast intelligence network, she is in the
best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and rebellion.
This involves ordinary police action. But every act that goes beyond the
President’s calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser
power. There lies the wisdom of our Constitution, the greater the power,
the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
President’s authority to declare a “state of rebellion” (in Sanlakas) and the
authority to proclaim a state of national emergency. While President
Arroyo’s authority to declare a “state of rebellion” emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made
to depend, shall be promulgated in proclamations which shall have the
force of an executive order.
51 [110]
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-
24693, July 31, 1967, 20 SCRA 849 (1967).
52[112]
Supra.
LEGAL METHOD - HILBAY A2010
President Arroyo’s declaration of a “state of rebellion” was merely an
act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the State’s extraordinary power to take over
privately-owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously,
such Proclamation cannot be deemed harmless, without legal significance,
or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
In his “Statement before the Senate Committee on Justice” on March
13, 2006, Mr. Justice Vicente V. Mendoza, 53[114] an authority in constitutional
law, said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is placed
in the keeping of the President for the purpose of enabling him to secure
the people from harm and to restore order so that they can enjoy their
individual freedoms.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any
act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c) take-
over of news media and agencies and press censorship; and (d) issuance
of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of
Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President Arroyo’s
calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.
“Take Care” Power
53[114]
Retired Associate Justice of the Supreme Court.
- 20 -
 The second provision of PP 1017 pertains to the power of the
President to ensure that the laws be faithfully executed. This is based on
Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
As the Executive in whom the executive power is vested,54[115]
the primary function of the President is to enforce the laws as well
as to formulate policies to be embodied in existing laws. He sees
to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he
will, among others, “execute its laws.” 55[116] In the exercise of such
function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed
forces of the country,56[117] including the Philippine National
Police57[118] under the Department of Interior and Local
Government.58[119]
Is it within the domain of President Arroyo to promulgate “decrees”?
PP 1017 states in part: “to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my direction.”
The President is granted an Ordinance Power under Chapter 2, Book III
of Executive Order No. 292 (Administrative Code of 1987), which allows her
to issue executive orders, administrative orders, proclamations,
memorandum orders/circulars, general or special orders. President
Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the
1973 Constitution.59[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as
it grants President Arroyo the authority to promulgate “decrees.”
Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that “[t]he legislative power shall
be vested in the Congress of the Philippines which shall consist of a Senate
54[115]
Section 1, Article VII of the Constitution.
55[116]
Section 5, Article VII of the Constitution.
56
[117]
Section 18, Article VII of the Constitution.
57
[118]
Section 6, Article XVI of the Constitution.
58
[119]
See Republic Act No. 6975.
59 [121]
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of
Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission
on Election, supra.
LEGAL METHOD - HILBAY A2010
and a House of Representatives.” To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify President Arroyo’s
exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through
the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to “laws,” she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty
to suppress lawless violence.
Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees,
orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the Constitution
do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to
enforce obedience “to all the laws and to all decrees x x x” but also to act
pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public
interest.
What could be the reason of President Arroyo in invoking the
above provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority
or delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the “martial law” thinking of the 1971 Constitutional
Convention.60[122] In effect at the time of its approval was President Marcos’
Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over “the management, control and
operation of the Manila Electric Company, the Philippine Long Distance
60 [122]
Section 17, Article XIV of the 1973 Constitution reads: “In times of national
emergency when the public interest so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected with public
interest.”
- 21 -
Telephone Company, the National Waterworks and Sewerage Authority,
the Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency.”
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo’s inclusion of Section 17, Article XII in PP 1017
is an encroachment on the legislature’s emergency powers. This is an
area that needs delineation.
A distinction must be drawn between the President’s authority to
declare “a state of national emergency” and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above
provision refers not only to war but also to “other national emergency.” If
the intention of the Framers of our Constitution was to withhold from the
President the authority to declare a “state of national emergency”
pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend that
Congress should first authorize the President before he can declare a
“state of national emergency.” The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are
to be construed together. Otherwise stated, different clauses, sections,
and provisions of a constitution which relate to the same subject matter
will be construed together and considered in the light of each other. 61[123]
Considering that Section 17 of Article XII and Section 23 of Article VI,
61[123]
Antieau, Constitutional Construction, 1982, p.21.
LEGAL METHOD - HILBAY A2010
previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies, it
may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress
to grant emergency powers to the President, subject to certain conditions,
thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.62[124]
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17
states that the “the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected
with public interest,” it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent
on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof.
Petitioner Cacho-Olivares, et al. contends that the term “emergency”
under Section 17, Article XII refers to “tsunami,” “typhoon,” “hurricane”
and “similar occurrences.” This is a limited view of “emergency.”
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are
the elements of intensity, variety, and perception. Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have
been occasioned by a wide range of situations, classifiable under three (3)
62[124]
Cruz, Philippine Political Law, 1998, p. 94.
- 22 -
principal heads: a) economic, b) natural disaster,63[129] and c) national
security.
“Emergency,” as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.64[131] This is evident in the Records of the Constitutional
Commission.
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such Proclamation
does not authorize her during the emergency to temporarily take over or
direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business affected
with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased. Likewise,
without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of
the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
C. “AS APPLIED CHALLENGE”
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the
basis of these illegal acts? In general, does the illegal implementation of a
law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused65[135] and may afford
an opportunity for abuse in the manner of application.66[136] The validity of
63
[129]
The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency
and necessity for relief in stricken agricultural areas and in another section referred to “the
present drought emergency.”[129] The India Emergency Food Aid Act of 1951 provided for
emergency shipments of food to India to meet famine conditions then ravaging the great
Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the
President certain powers in time of “public peril or disaster.” The other statutes provide for
existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone,
hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April 1937. It
made “funds available for the control of incipient or emergency outbreaks of insect pests or
plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315,
July 1, 1952, Sec. 2 [a]) Supra.
64[131]
Cruz, Philippine Political Law, 1998, p. 95.
65 [135]
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
66 [136]
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261,
cert den 280 US 610, 74 L ed 653, 50 S Ct 158.
LEGAL METHOD - HILBAY A2010
a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a particular
case.67[137] PP 1017 is merely an invocation of the President’s calling-out
power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on
the ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.68[138] This is logical. Just imagine
the absurdity of situations when laws maybe declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were
so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of
PP 1017. General orders are “acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.”
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them.69[139] They are based on and are the
product of, a relationship in which power is their source, and obedience,
their object.70[140] For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
“necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.”
Unlike the term “lawless violence” which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
“invasion, insurrection or rebellion,” the phrase “acts of terrorism” is still
an amorphous and vague concept. Congress has yet to enact a law
defining and punishing acts of terrorism.
The absence of a law defining “acts of terrorism” may result in abuse
and oppression on the part of the police or military. An illustration is when
a group of persons are merely engaged in a drinking spree. Yet the
military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only
67 [137]
Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY
309, 105 NE 548.
68 [138]
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
69 [139]
De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
70 [140]
Ibid.
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be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word “terrorism” appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled “Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations.” The word “terrorism” is
mentioned in the following provision: “That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x.”
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define “acts of
terrorism.” Since there is no law defining “acts of terrorism,” it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over
the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power of
the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the “acts of terrorism” portion
of G.O. No. 5 is unconstitutional.
VALIDITY OF SPECIFIC ACTS CONDUCTED BY AUTHORITIES
PURSUANT TO PP 1017 AND G.O. NO. 5
In the Brief Account71[144] submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by
policemen who “held his head and tried to push him” inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang
No. 88072[145] and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh, he was eventually released for insufficiency of
evidence.
The Constitution enunciates the general rule that no person shall be
arrested without warrant. The recognized exceptions are in Section 5,
Rule 113 of the Revised Rules on Criminal Procedure provides:
71 [144]
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
72 [145]
An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble
and Petition the Government for Other Purposes.
LEGAL METHOD - HILBAY A2010
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest
a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested
has committed it; and.
Neither of the two (2) exceptions mentioned above justifies petitioner
David’s warrantless arrest. During the inquest for the charges of inciting
to sedition and violation of BP 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts
with the invective “Oust Gloria Now” and their erroneous assumption
that petitioner David was the leader of the rally. 73[146] Consequently, the
Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing
the subject t-shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it was not
even known whether petitioner David was the leader of the rally.74[147]
But what made it doubly worse for petitioners David et al. is that not
only was their right against warrantless arrest violated, but also their right
to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.
“Assembly” means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be
held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They were
not committing any crime, neither was there a showing of a clear and
73 [146]
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
74 [147]
Ibid.
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present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers’ conduct.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that “freedom of
assembly is not to be limited, much less denied, except on a showing of a
clear and present danger of a substantive evil that the State has a right to
prevent.”75[149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that
the State may deny the citizens’ right to exercise it. Indeed, respondents
failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the power to
issue permits and to revoke such permits after due notice and hearing on
the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits. The first time they learned of it was at the time of the dispersal.
Such absence of notice is a fatal defect. When a person’s right is restricted
by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’ narration of
facts, which the Solicitor General failed to refute, established the following:
first, the Daily Tribune’s offices were searched without warrant; second,
the police operatives seized several materials for publication; third, the
search was conducted at about 1:00 o’ clock in the morning of February
25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth,
policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was “meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government.” Director General Lomibao further stated that “if they do not
follow the standards –and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’”
National Telecommunications Commissioner Ronald Solis urged television
75[149]
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553
LEGAL METHOD - HILBAY A2010
and radio networks to “cooperate” with the government for the duration of
the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates
rules set out for media coverage during times when the national security is
threatened.
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and seizure.
Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and
the witnesses he may produce. Section 8 mandates that the search of a
house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion
residing in the same locality. And Section 9 states that the warrant must
direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press.
The best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff76[152] this
Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum”
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like
the “Metropolitan Mail” and “We Forum” newspapers in the above case,
yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication,
the stationing of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government
who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.77[153] Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti-
76[152]
No. L-64161, December 26, 1984, 133 SCRA 816.
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government sentiments. This Court cannot tolerate the blatant disregard
of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.78[154]
Incidentally, during the oral arguments, the Solicitor General admitted
that the search of the Tribune’s offices and the seizure of its materials for
publication and other papers are illegal; and that the same are
inadmissible “for any purpose,”
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and
illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of this ponencia.
DISPOSITION OF THE CASE
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws
not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize
the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
“necessary and appropriate actions and measures to suppress and prevent
acts of lawless violence.” Considering that “acts of terrorism” have not yet
been defined and made punishable by the Legislature, such portion of G.O.
No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune
77
[153]
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos.
102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
78 [154]
Boyd v. United States, 116 U.S. 616 (1886).
LEGAL METHOD - HILBAY A2010
offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
THE NATURE OF THE JUDICIAL PROCESS
By Benjamin Cardozo
I. INTRODUCTION. METHOD OF PHILOSOPHY
• Deciding cases happens everyday
- Difficult to explain the language of the law to laymen
- “Brew” of judge-made law:
• Source of information
• Contribution of information to the decision
• Precedents and whether or not they should be followed
• Morals and at what point should they be considered
• Logical consistency
• William James – the steam of tendency is innate in man which gives
coherence and direction to every thought or action
• Objectively seeing things is difficult because we never see them with
eyes except our own
• Where does the judge find the law which embodies?
- Constitution or statutes
- The Constitution overrides statutes but a statute consistent with
the Constitution overrides the law of judges. In this sense, judge-
made law is secondary and subordinate to the law that is made by
legislators.
• The difficulties of interpretation arise when the legislature has had no
meaning at all, when the question which is raised on the statute never
occurred to it, when what he judges have to do is to guess what it
would have intended in a point not present to its mind.
• Tasks of system law:
o To make more profound the discovery of the latent meaning of
positive law
o To fill the gaps which are found in every positive law in greater or
less measure
• The generalities of the Constitution have a content and significance
which vary from age to age. Interpretation becomes more than the
ascertainment if the meaning and intent of lawmakers whose collective
will has been declared.
• How does the judge set about his task?
o Compares a case with precedents
o If none, fashion law for litigants before him
• The common law does not work from pre-established truths of
universal and inflexible validity to conclusions derived from them
deductively. Its method is inductive and it draws its generalizations
from particulars.
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 - What was once thought to be the exception is the rule and what
was the rule is the exception.
- The problem which confronts the judge is twofold: first he has to
extract from the precedents the ratio decidendi and then
determine the path along which the principle is to move and
develop.
• Method of philosophy – line of logical progression
• Method of evolution – line of historical development
• Method of traditions – line of the customs of the community
• Method of sociology – lines of justice, morals, social welfare and the
mores of the day
• Adherence to precedent must be the rule rather than the exception if
litigants are to have faith in the even-handed administration of justice
in the courts.
• The judge who molds the law by the method of philosophy may be
satisfying an intellectual craving for symmetry of form and substance
• Wesley Newcomb Hohfeld – while the analytical work is indispensable,
it is not an all-sufficient one for the lawyer. The analytical tool merely
paves the way for other branches of jurisprudence and that without the
aid of the latter, satisfactory solutions of legal problems cannot be
reached.
• The directive force of logic does not always exert itself along a single
and unobstructed path. One principle or precedent, pushed to the limit
of its logic, may point to one conclusion while another precedent may
point with equal certainty to another conclusion.
• We go forward with logic and analogies until we reach a certain point.
They follow the same lines at first then they begin to diverge and we
must make a choice between them.
LECTURE II. THE METHODS OF HISTORY, TRADITION AND
SOCIOLOGY
• The directive force of a precedent may involve either an investigation
of origins or an effort of pure reason.
• History is likely to predominate over logic of pure reason.
• An example is the conception of juristic or corporate personality with
the long train of consequences which that conception has engendered.
- Subject matter may lend itself naturally to one method as to another.
- Customs or utility would be present to regulate the choice.
- The judge’s personality may prove to be the controlling factor also.
• An example of a field in law where there could be no progress without
history would be real property.
- No lawgiver meditating the code of laws would have conceived the
system of feudal tenures.
- History built up the system and the law that went with it.
LEGAL METHOD - HILBAY A2010
• Another example would be the law of contract in the sense that the
distinction between debt, covenant and assumpsit are merely
historical.
• If history and philosophy do not serve to fix the direction of a principle,
custom may step in.
• In England the Common Law is distinguishable into three kinds:
- General customs – universal rule of the whole Kingdom and forms the
Common Law
- Particular customs – affect only the inhabitants of particular districts
- Certain particular laws – by custom are adopted and used by some
particular courts of pretty general and extensive jurisdiction.
• Custom is a custom of judicial decision, not of popular action. It is
doubtful whether at all stages of legal history, rules laid down by
judges have not generated custom, rather than custom generated the
rules.
• We look to custom, not so much for the creation of new rules, but for
tests and standards that are to determine how established rules shall
be applied.
• For example, in the absence of inconsistent statute, new classes of
negotiable instruments may be created by mercantile practice. The
obligations of public and private corporations may retain the quality of
negotiability, despite the presence of a seal which, at a common law
would destroy it.
• It not so much in the making of new rules as in the application of old
ones that the creative energy of custom most often manifests itself
today. General standards of right and duty are established. Customs
must determine whether there has been adherence or departure.
• The point of contact between the method of tradition and the method
of sociology: the natural and spontaneous evolutions of habit fix the
limits of right and wrong. A slight extension of custom identifies it with
customary morality, the prevailing standard of right conduct. Each
method maintains the interaction between conduct and order.
• How is it possible to choose between principles? History will give
direction to the development concepts in law which have been
historical growths. Logic and symmetry apply in concepts which
comparative jurisprudence shows to be common to other highly
developed systems. Custom tends to assert itself as the controlling
force in areas where the rules may, with approximately the same
convenience, be settled one way or the other. Finally, when social
needs demand one settlement or the other, there is a need to be bend
symmetry, ignore history and sacrifice custom in the pursuit of the
other ends.
• Welfare of society is the final cause of law.
- Ethical considerations can be no more excluded from the
administration of justice which is the end and purpose of all civil
laws.
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 - Logic, history and custom have their place but they will be shaped
to conform with the end of the law.
• An English judge once said: “Our common law system consists in
applying to new combinations of circumstances those rules of law
which we derive from legal principles and judicial precedents, and for
the sake of attaining uniformity, consistency and certainty, we must
apply those rules when they are not plainly unreasonable and
inconvenient to all cases which arise.”
• There is often graeter freedom of choice in the construction of
constitutions than in the ordinary statutes. Constitutions enunciate
general principles which must be worked out and applied to particular
conditions. There are resulting “gaps” which the method of sociology
fills by putting the emphasis on social welfare.
- Social welfare is a public policy, the goods of a collective body.
- It is the social gain that is wrought by adherence to the standards
of right conduct, which find expression in the mores of the
community.
• The will of the State, expressed in decision and judgment is to bring
about a just determination by means of the subjective sense of justice
inherent in the judge, guided by an effective weighing of the interests
of the parties in the light of the opinions generally prevailing in the
community regarding transactions like those in question. The
determination should be:
- In harmony with the requirements of good faith in business
intercourse
- In harmony with the needs of practical life, unless a positive
statute prevents it.
• Geny: Interrogate reason and conscience, to discover in our inmost
nature, the very basis of justice and on the other, to address ourselves
to social phenomena, to ascertain the laws of their harmony and the
principles of order which they exact.
• Examples of an area where the method of sociology can be applicable:
“No one shall be deprived of liberty without due process of law.”
- Liberty is not defined and there are many questions to be
answered, including whether or not the restraints that are arbitrary
today may become useful and rational and therefore lawful
tomorrow?
- The answer to that question at present is yes but in the past, it
might have been no. Events of the past (Declaration of
Independence, US Revolution, Rousseau and Locke’s philosophies,
etc.) have been responsible for the change in the answer.
- Dicey: “The movement from individualistic liberalism to
unsystematic collectivism had brought changes in the social order
which carried with them the need of a new formulation of
fundamental rights and duties.”
• The content of constitutional immunities is not constant but varies
from age to age.
LEGAL METHOD - HILBAY A2010
- Statutes are designed to meet the fugitive exigencies of the hour.
- Amendment is easy as the exigencies change. The meaning, once
construed, tends legitimately to stereotype itself in the form first
cast.
- A constitution states or ought to state not rules for the passing
hour but principles for an expanding future.
• New times and new manners may call for new standards and new
rules. The courts are free in marking the limits of the individual’s
immunities to shape their judgments in accordance with reason and
justice. That does not mean that in judging the validity of statutes
they are free to substitute their own ideas of reason and justice for
those of the men and women whom they serve. There must be an
objective standard.
LESSSON III. THE METHOD OF SOCIOLOGY. THE JUDGE AS A
LEGISLATOR.
• The method of sociology is the arbiter between the other methods,
determining in the last analysis the choice of each, weighing their
competing claims, setting bounds to their pretensions, balancing and
moderating and harmonizing them all.
• Jhering’s conception was that the end of the law as determining the
direction of its growth. This finds its instruments in the method of
sociology.
• Law is a historical growth for it is an expression of customary morality
which develops silently and unconsciously from one age to another.
• Law is also a conscious or purposed growth, for the expression of
customary morality will be false unless the mind of the judge directed
to the attainment of the moral end and its embodiment in legal forms.
• The judge’s duty to declare the law in accordance with reason and
justice is seen to be a phase of his duty to declare it in accordance with
custom. It is the customary morality of right-minded men and women
which he is to enforce by his decree.
• Professor Gray: “Everyone will agree that a judge is likely to share the
notions of right and wrong prevalent in the community which he lives;
but suppose in a case where there is nothing to guide him but the
notions of right and wrong, that his notions of right and wrong differ
from those of the community – which ought he to follow – his own
notions or the notions of the community?
• Professor Gray believes the judge should follow his own notions.
• The hypothesis presented by Gray is not likely to be followed. A judge
would err is he were to impose upon the community his own
idiosyncrasies of conduct or belief. He would be under duty to conform
to the accepted standards of the community.
• The judicial process according to Cardozo: Logic and history, custom
and utility and the accepted standards of right conduct, are the forces
which singly or in combination shape the progress of the law. Which of
these forces shall dominate in any case must depend largely upon the
- 28 -
 comparative importance or value of the social interests that will be
thereby promoted or impaired. One of the most fundamental social
interests is that law shall be uniform and impartial.
• Holmes: “We do not realize how large a part of our law is open to
reconsideration upon a slight change in the habit of the public mind.”
• A judge ought to shape his judgment of the law in obedience to the
same aims which would be those of a legislator who was proposing to
himself to regulate the question.
• The theory of old writers is that judges did not legislate at all. A pre-
existing rule was there, imbedded, if concealed in the body of the
customary law. All that eh judges did was to throw off the wrappings
and expose the statute to our view.
• From the holding that the law is never made by judges, the votaries of
the Austinian analysis have been led at times to the conclusion that it
is never made by anyone else. Customs no matter how firmly
established, are not law, they say, until adopted by the courts. Even
statutes are not law because the courts must fic their meaning.
• Gray: “Law is what the judges declare; that statutes, precedents, the
opinions of learned experts, customs and morality are the sources of
Law.”
• Jethro Brown: “…a statute till construed is not real law. It is only
ostensible law.”
• Cardozo says that we must seek a conception of law which realism can
accept as true. Statutes do not cease to be law because the power to
fix their meaning in case of doubt or ambiguity has been confided to
the courts.
• Obscurity of statute or of precedent or of customs or of morals or
collision between some or all of them may leave the law unsettled and
cast a duty upon the courts to declare it retrospectively in the exercise
of a power frankly legislative in function.
• Judges have, of course, the power, though not the right, to ignore the
mandate of a statute and render judgment in despite of it. What really
matters is this, that the judge is under a duty, within the limits of his
power of innovation, to maintain a relation between law and morals,
between the percepts of jurisprudence and those of reason and good
conscience.
• The constant insistence that morality and justice are not has tended to
breed distrust and contempt of law as something to which morality and
justice are not merely alien, but hostile.
• “It is the function of our courts to keep the doctrines up to date with
the mores by continual restatement and by giving them a continually
new content. This is judicial legislation and the judge legislates at his
peril. ”
• The power of interpretation must be lodged somewhere and the
custom of the constitution has lodged it in the judges.
LEGAL METHOD - HILBAY A2010
• In default of an applicable, the judge is to pronounce judgment
according to the customary law, and in default of a custom according
to the rules which he would establish if he were to assume the part of a
legislator.
LECTURE IV. ADHERENCE TO PRECEDENT. THE SUBCONSCIOUS
ELEMENT IN THE JUDICIAL PROCESS. CONCLUSION.
• In the vast majority of cases, the retrospective effect of judge-made
law is felt either to involve no hardship only such hardship as is
inevitable where no rule has been declared.
• There has been a good deal of discussion whether the rule of
adherence to precedent ought to be abandoned altogether. I think
adherence to precedent should be the rule and not the exception. To
these I may add that the labor of judges would be increased almost to
the breaking point if every past decision could be reopened in every
case and one could not lay one’s course of bricks on the secure
foundation of the courses laid by others who had gone before him.
• But I am ready to concede that the rule of adherence to precedent,
though it ought to be abandoned, ought to be in some degree relaxed.
I think that when a rule, after is has been duly tested by experience,
ahs been found to be inconsistent with the sense of justice or with the
social welfare, there should be less hesitation in frank avowal and full
abandonment.
• J. Wheeler (Dwy v. Connecticut): “That court best serves the law which
recognizes that the rules of law which grew up in a remote generation
may, in the fullness of experience, be found to serve another
generation badly and which discards the old rule when it finds that
another law represents what should be according to the established
and settled judgment of society…”
• Example: parol agreements are ineffective to vary or discharge a
contract under seal. In days when seals counted for a good deal, there
may have been some reason in this recognition of a mystical
solemnity. In our day, when the perfunctory initials L.S. have replaced
the heraldic devices, the law is conscious of its own absurdity when it
preserves the rubrics of a vanished era.
• President Roosevelt: “The chief lawmakers in our country may be, and
are often, the judges, because they are the final seat of authority.”
• My duty as a judge may be to objectify in law, not my own aspirations
and convictions and philosophies, but the aspirations and convictions
and philosophies of the men and women of my time.
• The training of the judge, if coupled with what is styled the judicial
temperament, will help in some degree to emancipate him from the
suggestive power of individual dislikes and prepossessions. It will help
to broaden the group to which his subconscious loyalties are due.
Never will these loyalties be utterly distinguished while human nature
is what it is.
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 • There is no assurance that the rule of the majority will be the
expression of perfect reason when embodied in constitution or in
statute. We ought not to expect more of it when embodied in the
judgments of courts.
LAW AND THE MODERN MIND
By Jerome Frank
The Basic Myth
Lay attitude towards lawyers is a compound of contradiction: (1)
respect for the impt functions of the legal profession and (2) disdain for
lawyers who are seen as artists in double-dealing, masters of chicane.
What’s the source of these doubts? Dean Roscoe Pound says its 12 th
century clerical jealousy of the rising profession of non-clerical lawyers, an
angry rivalry kept alive by other professions jealous of the lawyer’s
prestige. But there may be something more: a belief that lawyers
complicate the law in the interest of larger fees!
However, it may not entirely be the lawyer’s fault. The law has always
been, is now, and will ever continue to be, largely vague and variable; bcoz
it deals w/ human relations in their most complicated aspects. Situations
are bound to occur w/c were never contemplated when the original rules
were made. The constant dev’t of unprecedented problems requires a legal
system capable of fluidity and pliancy. In fields other than the law, there is
a willingness to accept probabilities and to forego the hope of finding the
absolutely certain. It is surely absurd to expect to realize even
approximate certainty and predictability in law.
Since legal tentativeness is inevitable and often socially desirable, it
should not be considered an avoidable evil. But the public learns little or
nothing of this desirability of legal tentativeness. Why? Bcoz a large part of
the profession believes, and therefore encourages the laity to believe, that
legal rules either are or can be made essentially immutable.
Wurzel asks why there exists a longing for complete certainty on law
and why a pretense that it can be attained. He finds the answer in a “social
want” for a body of law w/c shall appear to be, what it can never be, an
exhaustive list of commands, issued by the State, sufficient to settle every
conceivable controversy w/c may arise. What is the source of this curious
“social want”? But the current demand for exactness and predictability in
law is incapable of satisfaction, does not arise from practical needs, and
has its roots in a yearning for something unreal; what then is the source of
this basic legal myth?
A Partial Explanation
We look at clues in the direction of childhood. The filial relation is
clearly indicated as one impt unconscious determinant of the ways of man
in dealing w/ all his problems, incldg the problem of his attitude towards
the law.
The infant strives to retain something like pre-birth serenity.
Conversely, fear of the unknown, dread of chance and change, are vital
LEGAL METHOD - HILBAY A2010
factors in the life of the child. These factors manifest themselves in a
childish appetite fore complete peace, comfort, protection from the
dangers of the unknown. He satisfies that craving, in large measure,
through his confidence in and reliance on his incomparable, omnipotent,
infallible father. Despite advancing years, most men are at times the
victims of the childish desire for complete serenity and the childish fear of
irreducible chance. When they find life distracting, they revert to childish
longings they attempt to satisfy through “the rediscovery of the father,”
through father-substitutes. Functionally, the Law apparently resembles the
Father-as-Judge. The child’s Father-as-Judge was infallible. Hence, the basic
legal myth that law is, or can be made, unwavering, fixed and settled.
Why do men seek unreliable uncertainty in law? Bcoz they have not
yet relinquished the childish need for an authoritative father and
unconsciously have tried top find in the law a substitute for those
attributes of firmness, sureness, certainty and infallibility ascribed in
childhood to the father.
The Language of the Law: Lawyers as a Profession of Rationalizers
The practice of law necessitates a special technique of speech w/c may
seem to the uninitiate to be indirect but w/c lawyers have discovered to be
vitally necessary to the effective handling of legal concepts. When courts
come up w/ differing judgments on seemingly the same set of facts, legal
practitioners won’t bluntly state that they are abandoning the earlier
decisions. Bcoz to have made such a bald statement would have been to
make too painfully clear the fact of retroactive law-making by the court.
The fact of unpredictable changes in the law would have become too
disagreeably obvious.
Sir Henry Maine: lawyers employ a double language: e.g. “intention of
the legislature” …the purposes of the actual human beings who comprised
the legislature are only to a very limited extent considered legally
pertinent. The legislators whose will the courts purport to obey are unreal
and undiscoverable persons. Also, “manifest” may mean that the man
never really had such an intention. Wurzel: lawyers have a peculiar and
distinctive verbiage w/c conceals the real nature of their reasoning
processes.
Lawyers do use a double language and entertain a double and
inconsistent set of ideas. But all human do! Ideas and beliefs of all of us
may be roughly classified as of 2 kinds: those based primarily on direct
observation of objective data and those entirely or almost entirely a
product of subjective factors (read: bias!). Biases have deeper roots far
better concealed from consciousness. They often grow out of childish aims
w/c are not relevant to our adult status. But we don’t admit these biases.
We persuade ourselves that our lives are governed by Reason. We
rationalize.
Rationalization conceals the real foundations of our biased beliefs and
enables us to maintain, side by side as it were, beliefs w/c are inherently
incompatible. This process, the normal human way of avoiding recognition
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of the conflict of incompatible beliefs is not really exclusive to lawyers. But
lawyers, more that most men, are compelled to reconcile incompatibles.
Yet for the most part, lawyers are also supposed to seek to achieve
certainty. Given the two contradictory aims of practicality and idealism, it
is the former that gets served on the long run.
Judicial Law-making
Have judges the right and power to make law and change law?
Conventional view: law is a complete body of rules. Legislatures are
expressly empowered to change the law. Judges are not to make or change
law but to apply it. Judicial opinions are only evidences of what the law is.
Contrary minority view: judge-made law is real law. Judges make and
change the law. Statutory legislation may only alter law prospectively.
Jurisprudence, on the other hand, can alter the law retroactively. The myth
that judges have no power to change existing law or make new law is a
direct outgrowth of a subjective need for believing in a stable,
approximately unalterable legal world – a child’s world.
The supposed practical importance of avoiding legal retroactivity and
uncertainty is much overrated, since most men act w/o regard to the legal
consequences of their conduct. John Chipman Gray: the law of w/c a man
has no knowledge is the same to him as if it did not exist. The factor of
uncertainty in law has little bearing on practical affairs. Retroactivity and
the resulting unavoidable uncertainty are not as great practical evils as
they are often assumed to be. The no judge-made law doctrine is not
fundamentally a response to practical needs. There is no harm in this
myth.
But the denial of the fact of judge-made law seems to resemble an
outright benevolent lie that people should believe. It actually leads to a
distrust of the judges, disrespect for their opinions. Why then do judges
deceive the public? Bcoz they are themselves deceived. The doctrine of no
judge-made law is not a lie, not a fiction, rather a myth – a false affirmation
made w/o complete knowledge of its falsity. And this self-delusion has led
to many unfortunate results.
Childish dread of uncertainty and unwillingness to face legal realities
produce a basic legal myth that the law is completely settled and defined.
Thence springs the subsidiary myth that judges never make law. That
myth, in turn, is the progenitor of a large brood of troublesome semi-myths
like “contracts implied in law,” “constructive fraud,” and “malice in law.”
Legal Realism
What is the law? What does it mean to the average man of our times
when he consults a lawyer? For any particular lay person, the law w/
respect to any particular set of facts, is a decision of the court w/ respect
to those facts so far as that decision affects that particular person. Until a
court has passed on those facts no law on that subject is yet in existence.
Prior to such a decision, the only law available is the opinion of lawyers as
to the law relating to that person and to those facts. Such opinion is not
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actually law but only a guess as to what a court will decide. Law then as to
nay given situation is either (a) actual law, i.e., a specific past decision, as
to that situation, or (b) probable law, i.e., a guess as to a specific future
decision. Is this how lawyers customarily define the law? Not at all.
Beale and Legal Fundamentalism
Beale would definitely say that the decision and judgment of a court
determining a particular controversy can in no sense be regarded as in
itself law. Judgment of any court is too finite, too lowly, of too little real
import, to be worthy the name law. Law must be uniform, general,
continuous, equal, certain, pure. Law cannot change backwards and
forwards a dozen times w/in a few years. Its purity is unsullied by mere
decisions, whatever their practical consequence.
In case of conflicting decisions given the same set of facts, the law had
always been the same and the Court, in one decision or the other, had
made a mistake. The law never was in doubt, only the decision was in
doubt; as Beale sees it, the decision and the law are not the same, by any
manner of means. Accdg to Beale, the law consists of three parts: (1)
statutes, (2) rules and (3) the general body of principles accepted as the
fundamental principles of jurisprudence. Law is made in part by the
legislature; in part it rests upon precedents; and in great part it consists in
a homogenous, scientific, and all-embracing body of principle, a
philosophical system.
Law must be predictable and continuous. It is essential that law be
general, for w/o generality there could not be equality, and justice requires
equality, and that means generality. It is impossible that a single event
should be followed by 2 contradictory legal consequences, for any political
society must have only one law; if two laws prevail at the same time, they
might be mutually destructive. Judges can not make law, for if they did, the
law might change rapidly and it must not change rapidly. These things
cannot be, must not be. But they are.
For Beale and his legal absolutism, real Law is superhuman. It is extra-
experiential. But to mere humans, law means what the courts have
decided and will decide, and not vague, “pure” generalizations. Lawyers
are intensely practical men and their concern is w/ the lives and property
of their clients. Why then is generality so prized by lawyers at the expense
of particularity?
Verbalism and Scholasticism
Dean Leon Green: The possibility of developing a true science of law
has been retarded bcoz lawyers have not risen above the word level. If we
are to make progress in the law, we must no longer canonize words such
as rights and duties. Words must surrender their sanctity. Is legal
Absolutism, then, merely word-worship? Perhaps! Many abstract terms
acquire an intense “emotive value”; they stimulate not intellection but
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strong feelings. They represent “emotional abstractions”. Language, in its
emotive aspect, makes legal Absolutism possible. The Bealist is a wishful
thinker who makes indispensable use of Word-Magic. Bealism is the verbal
expression of excessive optimism, is sure to breed excessive cynicism.
Another charge directed against the Bar is belated scholasticism. It is
argued that lawyers have to learn to stop using abstractions as substitutes
for specific events. Lawyers should reason deductively from such
abstractions. Scholastic faith in the superiority of abstract terms, and
slavish adherence to formal logic, has to be dispensed w/.
There seems to be a parallel between the vices f formal logic
(commonly associated w/ scholasticism) and the vices of legal logic.
Scholasticism and Bealism are seemingly related. But we need to ask why
scholasticism and verbalizing have survived in lawyerdom when they have
become obsolescent (if not obsolete) in the natural sciences. Are lawyers
more stupid than the scientists? Surely not.
Childish Thought-ways
The child is a wishful thinker who in the interest of his desires for
harmony, chancelessness, security and security, builds for himself an over-
simplified, over-unified, novelty-less world to conform to his desires,
heedless of the lack of correspondence of this construction w/ the world of
actual experience, & who is aided in contriving this world by his implicit
belief in the magic efficacy of words.
Misuse in modern times of scholastic logic, despite its harmful social
consequences is apparently not due to the fact that nothing has a greater
hold on the human mind than nonsense fortified by technicality, bcoz the
more nonsensical it is, the more impervious it becomes to rational
objection, the more impossible it is to amend it, and so the better it lasts.
Scholasticism is w/ us today not bcoz it is consecrated by a tradition of
2000yrs, but bcoz all men now alive were once children and many of them
continue to remain emotionally childish even in advanced years.
Scholasticism and Platonism alike appear to be cleverly elaborated
formulations of the emotional attitude of childhood, ingenious
rationalizations of the world outlook of the child. To say of a man’s thinking
that it is scholastic or platonistic, is to say that it is tinged w/ childish
emotions.
Genetics
Shall we say that, if we lawyers are preponderantly absolutistic, then
we are scholastic or platonistic – and therefore childish? Scarcely, for while
there is unquestionably a resemblance of some sort between legal
Absolutism and childish thinking, the resemblance is in illusory aims, in
conscious outlook, not in intellectual processes.
A central feature of the child’s mode of thinking is that it is egocentric:
the child assumes that everything centers in himself and confuses the self
w/ the universe. It is the child’s naïve egocentricity, his unconsciousness of
self, w/c leads him to regard his own perspective as immediately objective
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& absolute; w/c makes him a wishful thinker, a verbalist, a fatuous believer
in an impossible chanceless world, devoid of novelty, and gratifyingly
secure and harmonious.
Later, the child’s egocentricity becomes derivative. It is as son of his
father that the child now maintains his belief that he is the center of the
world. Egocentricity becomes dependent on father-centricity. The
discovery of the humanity, the fallibility, of his father is the beginning of
wisdom for the child. W/ that staggering discovery comes the child’s
awareness of his self. Dualisms arise, objectivity commences. But
disillusionment is by no means at once complete. Substitutes for the
father, substitutes that are not fallible and weak, is still sought after.
Where father-substitutes have been obliterated, adult objectivity will make
those thought-processes objective. Where father-substitutes have not been
dissipated, the unconscious childish aims will survive and though
mechanisms of childish character will continue.
Since then, the Law is easily personified as a father-substitute. The
subject of law evokes youthful illusory aims. Scholasticism has survived in
lawyerdom bcoz the emotional attitudes of childhood have a more
tenacious hold on men when their thinking is directed towards the law. The
complete liberation of lawyers from the so-called tradition of scholasticism
can only come through their liberation, w/ respect to law, from the
emotional attitudes of the child.
Word-Consciousness
Counter-argument: It is not the prolongation of childish emotional
attitudes but verbalism, misuse of words. In order to save time, we
contract and condense language, make up words like virtue, liberty,
freedom, democracy, and forget that they are merely abbreviations. The
hindrance to the detection of the merely verbal character of those
abstractions is due to a belief in word-magic. Word-consciousness, a
perception of the true use of words, a study of the genesis of current
language habits, may deliver us from primitivity in thinking by enabling us
to look beyond our speech forms to the things we are talking about.
Piaget: it is not the child that is molded by language; it is the language
w/c is already childish. The real disease is emotional infantilism unduly
prolonged. Of that disease, verbomania is merely one symptom. Even after
words become a means of communicating thoughts, they continue to
contain definite emotional charges, a sort of magical significance,
associated w/ certain acts. Words frequently become, for the child, a
substitute for action. No one needs to teach him that word-magic are
excellent modes of escape from the harsh ways of actual events.
If word-magic is not the cause of childish emotional attitudes, the real
cure probably must be sought in whatever causes an undue prolongation
of a childish emotional outlook. Verbalism will give way completely only
when the childish emotional point of view is outgrown. A war on wards is to
be welcomed in the province of law to assist in demolishing many a legal
myth. But unaided, it will probably prove to be insufficient. The trouble w/
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legal thinking is not the mental inadequacies of lawyers but the very
nature of law as a father-substitute. The lawyers on the whole are better
able to fight off emotional deterrents than the laymen.
Scientific Training
Prof. Walter Wheeler Cook believes the way out of the legal Dark Ages
is through acquainting law students w/ the logic of the natural sciences.
Platonism demonstrates that the yearning for authority is insidious. It will
find satisfaction at all costs; twist any material to its ends. What has
certainty hunger in law done in distorting some of the philosophies w/c it
ahs encountered?
18th century scientific world outlook’s purpose was to observe and
understand and control the actual. The emphasis in legal science was the
exact reverse: attainment of universals w/c were above and independent
of experience. 19th century iconoclasm made lawyers see law as inductive:
belief in a common law of w/c all precedents and decided cases are merely
the evidence and exposition. Legal investigation consisted of looking into
the outward manifestations – statutes & decisions – and formulating to the
mind the invisible law whence they proceed.
But it is far more impt that lawyers catch the spirit of the creative
scientist, w/c yearns not for safety but risk, not for certainty but adventure,
w/c thrives on novelty, and not on nostalgia for the absolute. Can the
scientific spirit be inculcated by instruction in the ways of the scientist? It
would seem not.
What blocks a clearer understanding by lawyers of what they are about
is not dull-mindedness, not inadequacy of educational training. It is, it
seems, an emotional blocking due to the very character of law, to the
facility w/ w/c the law is converted into a substitute for fatherly authority. If
any lawyer can measurably prevent himself from making that substitution,
his thinking about law will become realistic, experimental – adult.
The Judging Process and the Judge’s Personality
The judge in reaching a decision is making a judgment. Judging begins
w/ a conclusion more or less vaguely formed; a man ordinarily starts w/
such a conclusion and afterwards tries to find premises w/c will
substantiate it. In the case of the lawyer, he must, that is if he is to be
successful, begin w/ a conclusion w/c will in sure his client’s winning the
lawsuit. He then assembles the facts in such a fashion that he can work
back from this result he desires to some major premise w/c he thinks the
court will be willing to accept. The precedents, rules, principles and
standards to w/c he will call the court’s attention constitute the premise.
In theory, the judge begins w/ some rule or principle of law as his
premise, applies this premise to the facts, and thus arrives at his decision.
But the judge is a human being and it is safe to assume that judicial
judgments, in most cases, are worked out backward from conclusions
tentatively formulated. The judge usually decides by feeling and not by
judgment. He passes in review all of the rules, principles, legal categories,
LEGAL METHOD - HILBAY A2010
and concepts w/c eh may find useful, directly or by an analogy, so as to
select from them those w/c in his opinion will justify his desired result.
If the law consists of decisions of the judges and if those decisions are
based on the judge’s hunches, then the way ion w/c the judge gets his
hunches is the key to the judicial process. Whatever produces the judge’s
hunches makes the law. What, then, are hunch-producers? Rules and
principles of law are just one class. The political, economic, and moral
prejudices of the judge may be another. And also is his affection for or
animosity to some particular individual or group, due to some unique
experience he has had. Or even the memories he has had.
The courts too have observed that w/o any improper motives,
witnesses, in forming inferences from what they have seen or held or felt,
may badly misrepresent the objective facts. A witness can not
mechanically reproduce the facts, but is reporting his judgment of the facts
and may err in making this judgment. While the witness is in this sense a
judge, the judge, in a like sense, is a witness. The judge’s determination of
the facts of the case is no mechanical act. He is subject to defects in his
appreciation of the testimony. The peculiar traits, disposition, biases and
habits of the particular judge will, then, often determine what he decides to
be the law. The law may vary w/ the personality of the judge.
Justice is a very personal thing. We shall not learn how judges think
until the judges are able and ready to engage in ventures of self-discovery.
For a judge’s decisions are the outcome of his entire life-history: his
general and legal education, family and personal associations, wealth and
social position, legal and political experience, political affiliations and
opinions, intellectual and temperamental traits. No one can know in
advance what a judge will believe to be the “facts” of a case. It follows that
a lawyer’s opinion as to the law relating to a given set of facts is a guess as
to (1) what a judge thereafter will guess were the facts and (2) what the
judge will consider to be the proper decision on the basis of that judge’s
guess as to the facts. Lawyers are constantly looking into the motives and
biases of clients and witnesses, but are still peculiarly reluctant to look into
the motives and biases of judges.
Mechanistic Law; Rules; Discretion; The Ideal Judge
The task of the judge, if well done, is no simple one. He must balance
conflicting human interests and determine w/c of several opposing
individual claims the law should favor in order to promote social well-being.
He must determine whether to fit a particular case into the terms of some
old rules or to “legislate” by revising and adjusting the preexisting rules to
the circumstances of the instant controversy. Yet majority of lawyers still
deny that judges do make law.
John Chipman Gray: The Law is made up of the rules for decision w/c
the courts lay down; all such rules are law; rules for conduct w/c the courts
do not apply is not law; the fact that courts apply rules is what makes them
law; there is no mysterious entity “The Law” apart from these rules; and
the judges are rather the creators, than the discoverers of the law. Judges
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derive these rules from sources: statutes, judicial precedents, opinions of
experts, customs and principles of morality (and public policy). In truth, all
the Law is judge-made law. Judges make law when they make or change
the rules; lawmaking is legal rule-making, the promulgation by a judge of a
new rule for decision.
Holmes: if you want to know the law and nothing else, you must look at
it as a bad man, who cares for only for the material consequences w/c such
knowledge enables him to predict. The prophecies of what the court will do
in fact, and nothing more pretentious, are what I mean by law. A
generalization is empty so far as it is general. Its value depends on the
number of particulars w/c it calls up to the speaker and the hearer. The
Law is made up not of rules for decision laid down by the courts but of the
decisions themselves. All such decisions are law. The fact that courts
render this decisions makes them law. And the sources of law are not only
statutes, precedents, customs and the like, but the rules w/c other courts
have announced when deciding cases.
Bishop Hoadly: whoever has an absolute authority to translate rules
into specific judgments, it is he who is truly the law-giver to all intents and
purposes, and not the persons – be they legislators or other judges – who
first wrote or spoke the rules. Whenever a judge decides a case he is
making law. The law of any case is what the judge decides. Rules whether
stated by judges or others, whether in statutes, opinions or textbooks by
learned authors, are not the Law, but are only some among many of the
sources to w/c judges go in making the law of the cases before them. The
law consists of decisions, and not rules. Whenever a judge decides a case,
he is making law.
Prof. Walter Wheeler Cook: the practicing lawyer is engaged in trying
to forecast future events. His task is not to find the preexisting but
previously hidden meanings in these rules; it is to give them a meaning.
The logical situation confronting the judge in a new case being what it is, it
is obvious that he must legislate, whether he will or no.
Legal rules and precedents only enable the judges to give formal
justifications – rationalizations – of the conclusions at w/c they otherwise
arrive. These formulas are devices for concealing rather than disclosing
what the law is. To apply law mechanically usually signifies laziness, or
callousness to the peculiar factors presented by the controversy. The
personality of the judge is the pivotal factor. The principles of law are often
only remotely related to judicial conduct. There is little hope for stability in
law if our judges are the more enlightened, sensitive, intelligent members
of the community, for then there will be small likelihood that all judges will
react identically to a given set of circumstances or will be obtuse to the
recognition of unique facts in particular legal controversies.
Edmund Burke: no rational man ever did govern himself by
abstractions and universals. Jerome Frank: The act of deciding is seemingly
divisible into 2 parts, the determination of the facts and the determination
of what rules are to be applied to those facts. But these two parts of
judging can not be separated, but intertwined.
LEGAL METHOD - HILBAY A2010
Judge Peters of Alabama (quoting Lord Camden): it cannot safely be
denied that mere judicial discretion is sometimes very much interfered w/
by prejudice, w/c may be swayed and controlled by the merest trifles such
as the toothache, the rheumatism, the gout, or a fit of indigestion, or even
through the very means by w/c indigestion is frequently sought to be
avoided.
All judges exercise discretion, individualize abstract rules, make law.
Those judges a\whoa re most lawless, or most swayed by the perverting
influences of their emotional natures, or most dishonest, are often the very
judges who use most meticulously the language of compelling mechanical
logic, who elaborately wrap about themselves the pretense of merely
discovering and carrying out existing rules, who sedulously avoid any
indications that they individualize cases. The pretense that judges are w/o
the power to exercise an immense amount of discretion and to
individualize controversies, does not relieve us of those evils w/c result
from the abuse of that judicial power. It actually increases the evils. The
attempt to cut down the discretion of the judge, if it were successful, would
remove the very creativeness w/c is the life of the law.
Aristotle: legal rules are necessary general, designed to meet the
average situation, but the circumstances of most actual cases are
particular. Human rule-makers cannot lay down in advance rules w/c will fit
all particular cases thereafter arising. Wherefore the rules of law must
often be modified in their application. That w/c is equitable is just, and
better than one kind of justice, not indeed better than absolute justice, but
better than the error of justice w/ arises from legal generality. The law is
reason unaffected by desire.
Roscoe Pound: there is something in equity and discretion w/c is out of
line w/ the course law should take. Equity or discretion is sometimes the
anti-legal and sometimes the non-legal element in the administration of
justice. Jerome Frank: what Pound calls law and what he calls non-legal can
not be separated. They are so intermingled that it is not possible to divide
them.
The childish desire to rediscover an all-knowing strict father-judge in
law leads to a demand for impossible legal inflexibility and infallibility.
Thence follows assiduous efforts to make law static and therefore to
reduce the power of the judge, to deny to him creativeness. These efforts
are unavailing – fortunately so, since justice depends on a creative
judiciary. Truth is the judge is trying to decide what is just; his judgment is
a “value judgment” and most value judgments rest upon obscure
antecedents.
“The art of manipulating judges properly is impt, and yet does not, and
rightly should not, receive the attention of law schools. The primary object
of the university as a public institution can only be the advancement of our
legal institutions through a dev’t of a liberal understanding or science of
the law.” BUT if law students are taught law in terms of the conduct of
ideal/non-existent judges, then later when those students become
practitioners or judges, they are unlikely to be at their best in coping w/
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the ways of the actual judging process. The rational alternative is to accept
that judges are human beings. In law schools, in law offices and law courts,
there must be explicit recognition of the meaning of the phrase “human
nature in law.” The study of this may not only deepen our knowledge of
legal institutions but open an unworked mine of judicial wisdom.
We also need to develop a more explicit technique for individualizing
cases. The systematic, deliberate and openly discussed sue of the unique
facts of the case will not be of much service until the judges develop the
notion of law as a portion of the science of human nature. And that dev’t
cannot come to fruition until the judges come to grips w/ the human nature
operative in themselves.
Illusory Precedents: The Future: Judicial Somnambulism
Lawyers and judges purport to make large use of precedents: the
conduct of judges in past cases as a means of procuring analogies for
action in new cases. What the courts in fact do is to manipulate the
language of former decisions. And our present use of illusory precedents
makes the employment of real precedents impossible.
Yntema: a decision is reached after an emotive experience in w/c
principles and logic play a secondary part to describe the event w/c ahs
already transpired. The impt problem is not the formulation of the rule but
the ascertainment of the cases tow/c, and the extent to w/c, it applies. It is
impossible to guess what the judge did experience in trying a case.
Dickinson: the “personal bent of the judge” to some extent affects his
decisions, but this personal bent is a factor only in the selection of new
rules for unprovided cases. BUT in a profound sense the unique
circumstances of almost any case make it an unprovided case where no
well established rule authoritatively compels a given result.
Reliance on precedents is illusory bec judges can seldom tell precisely
what has been theretofore decided. A court can usually find earlier
decisions w/c can be made to justify almost any conclusion. There are very
few who have attained the enlightened state of awareness of their
unawareness. These include Judges Holmes, Cardozo, Hand, Hucheson,
Lehman and a few others. Others are still swayed by the belief that since
their opinions will serve as precedents, they are obligated to look too far
both backwards and forwards. They sometimes refuse to do justice in the
case on trial bcoz they fear that “hard cases make bad laws,” – causing an
“injustice accdg to law.”
One danger in the administration of justice is that the necessities of
the future and the interest of parties not before the court may be sacrificed
in favor of present litigants. Judicial self-delusion and ineffectual
suppression of the judge’s personality leads to the indirect, unobserved
and harmful effects of his personality on judicial decisions. The desire to
regulate the future is in part a desire for impossible uniformity, security
and certainty, for over-simplification, fro a world regulated and controlled
as a child would have it regulated and controlled. Some justices, in seeking
to cover up the more obvious manifestations of this lack of legal
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conformity even go as far as proposing that the courts cease writing
opinions, or at least prohibit rendition of dissenting opinions.
The judge at his best is an arbitrator, a sound man who strives to do
justice to the parties by exercising a wise discretion w/ respect to the
peculiar circumstances of the case. He does not merely find or invent some
generalized rules w/c he applies to the facts presented to him. But the
bench and bar usually try to conceal this arbitral function, making the labor
of judges less effective.
The paradox of wisdom: in so far as we become mindful that life is
more dangerous that we had naively supposed in childhood, we help
ourselves to approach nearer to actual security. If we relinquish that law
can be mathematically made certain, if we honestly recognize the judicial
process as involving unceasing adjustment and individualization, we may
be able to reduce the uncertainty w/c characterizes much of our present
judicial output to the extent that such uncertainty is undesirable. By
abandoning an infantile hope of absolute legal certainty we may augment
markedly the amount of legal certainty. It is about time to abandon judicial
somnambulism.
Painful Suspension
We want our judges to practice reflective thinking: inquiry into the
rightness of established habits, interruption of routine, selection of
alternatives, detection of ambiguities, and choice of roads at the
crossways. Scientists, professional doubters are devoted to breaking up
tradition, courting the kind of pain involved in reflective thinking. Judges,
on the other hand, especially those whose judgments are routine, honor
precedent and try to avoid the pain of suspended judgment.
Vaihinger on 3 stages in human dev’t: (1) Dogmatism, proper to the
primitive man, trustfully assumes that whatever occurs in thought exists,
that thought is infallible. (2) Negative skepticism, rather pessimistic,
regards thought as an extremely defective instrument w/c falsifies reality
and leads us astray. (3) True criticism, quite hard to attain, recognizes that
although thought may not be in complete correspondence w/ actual reality,
it may lead to ultimate practical coincidence w/ the facts of existence.
One’s reaching this stage is a product not of high intellectual progress but
of emotional maturity. The pain involve in suspended judgment is a
product of the regressive and more infantile tendencies. W/ maturity doubt
and inquiry should no longer be unpleasant, but should rather become a
source of interest and satisfaction. The so-called scientific mind is the
emotionally adult or mature mind.
Judges have failed to see that, in a sense, all legal rules, principles,
precepts, concepts, standards – all generalized statements of law – are
fictions. We want judges who, viewing and employing all rules as fictions,
will appreciate that as rules are fictions intended for the sake of justice, it
is not to be endured that they shall work injustice in any particular case,
and must be molded in furtherance of those equitable objects to promote
w/c they were designed. If justice is to be capably administered, judges
must be so trained that they will put a premium on their dynamic
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tendencies and struggle against the drag of childish nostalgia for the
oversecure and impossibly serene – for a father-governed world.
The Basic Myth and the Jury
The demand for excessive legal certainty produces a violent prejudice
against a recognition of the practical need for flexible adaptation and
individualization of law based upon the unique facts of particular cases.
Note that the function of the jury is supposed to be fact-finding. But in
most jury cases, the jury determine not the “facts” but the legal rights and
obligations of the parties to the suit. For the judgment of the court follows
the general verdict of the jury, so that the verdict, since it produces a
judgment w/c determined the respective rights and obligations, decides
the law of that particular case. The general-verdict jury system developed
bcoz it serves two purposes: It preserves the basic dogma in appearance
and at the same time (albeit crudely and bunglingly) circumvents it in fact,
to the end of permitting that pliancy and elasticity w/c is impossible accdg
to the dogma, but w/c life demands.
Mr. Justice Chalmers: Hard cases make bad law. But hard cases tried
w/ a jury do not make bad law, for they make no law at all, as far as the
findings of the jury are concerned. The principle is kept intact while the
jury do justice in the particular case by not applying it.
While men want the law to be father-like, aloof, stern, coldly impartial,
they also want it to be flexible, understanding, humanized. Judges, in turn,
do not usually admit the wide margin of discretion they employ in arriving
at their decisions; and to preserve the self-delusion of legal fixity, certainty
and impartiality, they hand over the determination of legal rights and
liabilities to the whims of 12 men casually gathered together. Seeking to
escape judge-made law, we have evolved jury-made law. The jury system
means that the illusion of the existence of an inflexible body of rules
ostensibly has been maintained, whereas, in fact, uniformity and
inflexibility are negated.
The truth is that the very judges who seem to estimate the jury as the
superior triers of facts pragmatically reveal little sincerity in their jury
worship. The use of fact-verdicts, while it may slightly reduce the evils of
the jury system, cannot eliminate them. The jury makes the orderly
administration of justice virtually impossible. The judge’s instructions have
become part of an elaborate ceremonial routine. The jury lawyer is a
realist, seeking a result, and he plays upon every weakness of the dozen
men who will decide the fate of his client. The basic legal myth produces
an intricate, technical ritual, practically useless, but the subject of endless
and wasteful disputation.
Codification and the Command Theory of the Law
The remedy for legal uncertainty recurrently proposed by men of
strong sense (Frederick the Great, Napoleon, and many others): adoption
of a code, a carefully prepared body of rules sufficiently complete to settle
all future controversies. But history has seen that the hope of attaining a
LEGAL METHOD - HILBAY A2010
large measure of legal certainty by codification proved vain. It produced
not certainty, but sterile logic-chopping. The gap between theory and
practice is now rapidly widening. The law expounded in classroom and
textbook differs more and more from that applied in the courts.
Codification cannot create a body of rules w/c will exclude judicial
innovation and thereby guarantee compete predictability. A code cannot
be stable, it must be adaptive. Where customs are constantly changing
under the pressure of a lively industrialism and commercialism, no code,
however adequate for today, could possibly be sufficient for the problems
of tomorrow or the day after tomorrow. Even in a relatively static society,
no one can foresee all future combinations of events.
The incompleteness of the code calls for judicial law-making. Such law-
making is customarily designated judicial interpretation. But that is a false
label: What the judges have to do is, not to determine what the legislature
did mean on a point w/c was present to its mind, but to guess what it
would have intended on a point not present to its mind had the point been
present. Judicial law-making is not only an unavoidable, but a desirable and
most important element of any code system. The childish belief in legal
finality is not to be realized by codification. It is and will ever be based
upon illusion.
On the command theory of law. John Austin: Every law is a command –
the command of a monarch or sovereign to persons in a state of subjection
to its authority. Law proceeds from superiors and binds inferiors. Wurzel: to
most laymen and lawyers, jurisprudence is a science of obedience, of
submission to commands. Jerome Frank: the public is still dominated by a
childish myth. Although there are gaps in the law, although the law is
never complete and always provisional, although it is plain to the eye of
any realistic observer that it is being made and remade constantly by the
courts, the social want demands that every artifice be used to conceal
these gaps.
The Religious Explanation
Defining religion as the belief in a universal steadfastness, in an
uninterrupted connection between apparently disjunctive events, in cosmic
certainty, it may be possible that man’s search for complete legal certainty
is but one aspect of the religious impulse/conviction to seek for security
and certainty. In primitive and ancient times law and religion were virtually
one. In terms of its social origins, law is a gift of the gods. Folk-law, when
law and religion were identical, contained an extraordinary minuteness and
detail of crimes and their penalties such that there was no room for judicial
aberration or discretion.
But to say that the contemporary desire for too much definiteness and
predictability in law is a survival of the earlier definition of law and religion
may be too insufficient. The close and avowed relation of law to religion is
a matter of the distant past. The legal profession has long been split off
from priesthood.
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 One cause of the longing for excessive legal certainty in modern times
is the operation of a “force” w/c acted powerfully in the past and acts
powerfully now. Society is made up of persons who now are or recently
have been children. There exists a close and obvious correspondence
between the attitude of the young child towards his parents and that of
man towards the superhuman powers w/c he personifies as God, the Divine
Father. Religion, in a sense, is infinite dependence upon God. But the child
does not “divinify” his parents. It can better be said that he “paternalizes”
God at the moment when he ceases to regard his parents as perfect. The
Father in Heaven is likely to absorb a large measure of the attributes
originally ascribed by the child to his earthly father.
In the same manner, the Law is “paternalized,” not “divinified.”
Therefore, the continued craving for excessive legal stability is to be
ascribed not to a survival of the period when law was dominated by a
belief in its religious or divine origin, but to a more powerful and still
operative influence, underlying both law and religion. We must seek one of
the important causes of the basic legal illusion not in religion, but in
undisposed of childish longings for a father-substitute, longings w/c play
their part in religion as in law.
The Basic Myth, and Certain Brilliant Legal Thinkers
1. Dean Roscoe Pound and the search for legal certainty . Pound says
rigid rules and judicial slot-machines are to be preferred for cases relating
to property and commercial or business transactions. But for cases raising
problems of human conduct or the conduct of enterprise or good-faith
cases, non-mechanical methods and flexible discretions may be utilized.
He seems aware of the judicial realities, yet reluctant to relinquish entirely
the age-old myths. He denounces the dogma of “no judge-made law” yet
tries to preserve it.
2. Jhering and the kingdom of justice on Earth. Jhering believed that
law should be pliant and deliberately purposive, that it should be
consciously used as a means to desired social results. But although he
believed that the law should deal w/ differences between individuals, he
was at times apparently opposed to the individualization of controversies.
There is in him a struggle between two inconsistent attitudes: a marked
sensitiveness to objective reality & a powerful drive of satisfaction of
purely subjective emotional needs. He defines law as the feeling of security
in the State and religion as the feeling of security in God.
3. Demogue’s belief in the importance of deluding the public. This
contemporary French jurist discloses the ambiguity of the phrase “legal
security” and differentiates static security that favors owners of rights and
emphasizes the status quo vis-à-vis dynamic security that incites to action
in promoting the security of those who acquire these rights. He thoroughly
is w/o illusions as to the attainability or desirability of legal certainty but he
deliberately counsels against the disclosure to the layman of the
contingent character of law.
LEGAL METHOD - HILBAY A2010
4. Wurzel and the value of lay ignorance. This writer desires to see
lawyers abandon antiquated assumptions as to the character and function
of law, and become conscious of the mental processes w/c they employ
unconsciously. But he also believes that the public appearance of a static
legal universe must be preserved and that the laity must not peer behind
the scenes. The lawyers are to become more sophisticated, but the laymen
are to remain ignorant and deluded.
5. John Morley and the meaning of compromise. Morley’s writings on
attitudes towards religion and politics show that he detested the “dual
doctrine” and the reserve of intellectual cowardice dealing hypocritically w/
narrow minds in the supposed interest of peace and quietness. He says it
is wise to be patient about the general acceptance of a new idea but the
time has always come, and the season is never unripe, for the
announcement of the fruitful idea to the general public. The first kind of
compromise where the compromiser rejects the highest truth prolongs the
duration of the empire of prejudice and retards the arrival of dev’t. The
other kind, where the compromiser holds the highest truth courageously
for his ensign and device but neither forces nor expects the whole world
straight away to follow, is what he terms as a legitimate compromise.
6. The candor of Cardozo. This legal writer wants to do away w/ legal
mysteries. He would have not lawyers alone, but laymen as well, learn the
actualities of the judicial process. He seems to have reached adult
emotional stature, able to contemplate w/o fear a public w/c shall know
what he knows. Yet, he is not ready to abandon entirely the ancient dream.
He laments the absence of mathematical legal exactness and authoritative
commands as the evil against w/c intellect rebels.
Conclusion
I. Getting Rid of the Need for Father-Authority
A revised attitude towards the law wants the courts to perceive what it
is they are doing and thus be enabled to address themselves consciously
to doing it in the best way. Enlightened thinkers want an effective,
intelligent fusion of the two competing tendencies towards stability and
change; a working principle of growth; a constant revision of the law’s
heritage of knowledge and thought; the frequent adaptation of the legal
rules so as to relate them to the realities of contemporary social, industrial
and political conditions. This is no easy task.
Growing up means throwing off dependence upon external authority. It
means self-reliance, the acceptance of responsibility. It means questioning
calmly and dispassionately our bequests from the past, our social heritage.
The fear of change is an ancient one. If we are to grow more civilized, we
must arrive at a more adult attitude towards chance and change.
We must distinguish between that growth towards maturity w/c
produces an acceptance of danger and that childish reaction against
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fatherly authority w/c takes on the appearance of adult courage. In law, if
the search for the father-judge is ended, no violent transformation need or
will occur. The demand for too much change is as little based on
practicality as the demand for too much rigidity.
Modern civilization demands a mind free of father-governance. To
remain father-governed in adult years is peculiarly the modern sin. The
modern mind is a mind free of childish emotional drags, a mature mind,
unopposed to change, avowedly pragmatic. Until we become thoroughly
cognizant of, and cease to be controlled by, the image of the father hidden
away, in the authority of the law, we shall not reach that first step in the
civilized administration of justice, the recognition that man is not made for
the law, but that the law is made by and for men.
II. Mr. Justice Oliver Wendell Holmes, the Completely Adult Jurist
His writings are a treasury of balanced judgments, a vast knowledge of
legal history divorced from slavish venerations of the past. He has put
away childish longings for a father-controlled world & has steadfastly urged
his fellows to do likewise. Holmes’ adult illusionless surveys are an
indispensable aid and an inspiration for legal realists. “The life of the law
has not been logic; it ahs been experience.” Law cannot be dealt w/ as if it
contained only axioms and corollaries of a book of mathematics.
For him, history is valuable for the light it throws upon the present; the
past gives us vocabulary and fixes the limit of our imagination, but the
present has a right to govern itself as far as it can. He believes that in
substance, the growth of the law is legislative and that the process of
judicial law-making has largely been unconscious. He advocates a more
conscious recognition of legislative function of our courts. He has
abandoned legal mysticism and believes that where there is doubt, the
simple tool of logic does not suffice, and even if it is disguised and
unconscious, the judges are called on to exercise the sovereign
prerogative of choice. He has been saying that, in effect, the Golden Rule
is that there is no Golden Rule.
If, like Holmes, we win free of the myth of fixed authoritarian law,
having neither to accept law bcoz it comes from an authority resembling
the father’s, nor to reject it for like reason, we shall, for the first time,
begin to face legal problems squarely. If, like him, we realize that
perfection is not possible, the legal profession will then for the first time be
in a position to do its work well, w/ lawyers enjoying the pleasures of self-
confidence, self-authority, and the other benefits such an adult, mature,
conscious outlook may bring.
THE SCANDAL OF THE SPEAKING JUDGE
By Florin Hilbay
LEGAL METHOD - HILBAY A2010
I. Rituals
• The role-playing between the judges and the judged is constitutive.
• The basic dichotomy is ancient and most notably paired with
another separation—the ruler and the ruled. This has been
reconfigured by the present society into the rhetoric of
constitutionalism in two ways:
1. Separation of Powers: has become a judicial theory of
maintaining a mechanistic Newtonian balance among different
public departments, not to promote efficiency, but to avoid abuses
of power.
2. Due Process Clause: the deprivation of life, liberty, or
property now requires the mediation of an ideal—the cold, neutral,
and impartial judge.
• Nature of Judicial Function: that judging is law-application and
fact-finding; that law application is about interpretation; that
interpretation is a matter of applying the plain meaning of texts and
that judges are detached from the active world of norm-building and
are in fact objective of received knowledge.
• These doctrines also give meaning to the judiciary being the “less
dangerous branch” and substantiate the nature of judicial reasoning
as both a matter of logic and directional. Most importantly, they
have given judges an escape from the kind of responsibility political
officials in a democracy are usually subjected to: accountability for
one’s politics or ideological implications of one’s decisions.
• Proposal: for judges, once made aware of their political role, to
embrace this function wholeheartedly not only because this is the
way of the honest but because it is important for the judges to take
responsibility for their decisions and thus place their public actions
within the reach of the democratic radar.
II. Performative Utterances
• John Langshaw Austin’s Speech Act Theory: introduced the
concept of statements that are not nonsensical, and yet are not true
or false. Performative speech acts do not have truth value, and since
the act of uttering the statement creates the referent, there is no
external referent against which to measure the truth of the
utterance.
• Appropriate circumstances for the use of performatives:
1.There must exist an accepted conventional procedure having a
certain conventional effect, that procedure to include the uttering
of certain words by certain persons in certain circumstances;
2.The particular persons and circumstances in a given case must be
appropriate for the invocation of the particular procedure invoked;
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 3.The procedure must be executed by all participants both correctly
and completely;
4.Where, as often, the procedure is designed for use by persons
having certain thoughts or feelings, or for the inauguration of
certain consequential conduct on the part of any participant, then
a person participation in and so invoking the procedure must in
fact have those thoughts or feelings, and the participants must
intend so to conduct themselves; and
5.The participants must actually so conduct themselves
subsequently.
III. Judging as Performance
• The entire decision-making process is performative: decisions over
evidence or fact-finding, choice of applicable law, and conclusions of
law are all performative utterances per se. Every instance in the
decision-making process is an isolated moment of creation summed
up by the familiar So Ordered.
1. Findings of Fact - evidence is the mode and manner of proving
competent facts in judicial proceedings.
- the resulting metaphor is that of a judge as finder of fact.
- It assumes that the reality of facts produced by evidence exists
objectively and that it is possible to know this reality through a
methodology that is supposed to be faithfully adhered to by the
judge.
- But this is a case of theory unfit with reality because every
instance in which a judge declares that “the court has
established as a fact” something, what she has really done is to
make a choice among multiple sets of hypothesized and
hypothesizable fact situations. This choice is imaginative, and
not compelled by rules.
- Judges are also prone to making “common sense” conclusions
and of facts presented by litigants, when they do, they engage in
slippery and foundational argumentation.
- The metaphorical role of fact-finding is therefore performative:
the act of stating is the act of creating.
2. Conclusions of Law – related to the choice of law applicable and
the conclusion arising from that choice
- formalist equation of Jerome Frank: (Law) x (Fact) = Decision.
3. Mixing Facts and Law – through the parsing of texts, judges are
able to re-use and modify the metaphor of finding; whereas evidence
allows the judge to find facts, interpretation allows her to “find”
meaning.
- there is no textualist position. The role of text is not to provide
meaning but to furnish a material arena for debating symbols;
LEGAL METHOD - HILBAY A2010
the demand for interpretive certainty is an ideal that can never
be approximated.
IV. Background to the Foreground
• whereas before the goal was the mastery of the technical skills of
applying rules, now it is understanding the normative value of each
and every performance; whereas before the standard for evaluating
decisions was its coherence with doctrine, now it is its relevance as
political choices; whereas before judgments are infallible, now
judgments are ideological statements susceptible to interrogation.
• The characteristic feature of the way these ideas became
entrenched is their invisibility. Judicial decisions are most
wholesome when couched in impartial language, and judges’ ability
to pacify public dissent has a lot to do with the apparent objectivity
of their reasoned elaborations.
• What is the result of the combination of colonial imposition and
political ideology insofar as the courts are concerned? It is the
ideological performance which has become entrenched in the
rhetoric of the public and , most importantly, in the teachings of the
law schools where generations of future lawyers and judges are
trained to believe that the metaphors of fact-finding and law-
interpretation are actually true.
• Pintip Dunn makes the following pragmatic point: “Judges are
liars. They routinely engage in delusion. They occupy a paradoxical
position in this world, one in which their function requires them to
make law, while their legitimacy depends on the fiction that they
interpret law. It is a strange fiction, but it is a necessary one. The
legitimacy of the judicial system requires that the rule of law be
above the whims of the individual personalities who happen to
occupy positions on the Supreme Court at any given time. Rather
the rule of law must be grounded in objective analysis and
immutable logic, reasoning that does not change with the changing
of personnel. Otherwise, there would be no reason to accept the
decisions of the Court as the governing framework for our society.”
1. Not all judges are liars. What judges should realize is that they do
not work in isolation; every decision that they make alters the legal
space which affect human beings all the time (judges have their own
set of myths!)
2. The fiction of a judge as an interpreter and not a legislator is not
necessary. To embrace the reality that law-creation is a judge’s field
of play is to raise the bar of responsibility (demands accountability?)
3. Each and every judge is unique because every human being
carries with her the baggage of personal history, the weight of
culture, and unavoidable genetic predispositions (admits fallibility
and arbitrariness of judges?)
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 6.Fairness is a matter of convention. Reason can take many
pathways, and equally reasonable propositions do exist. The
choice among reasonable propositions is a performative utterance.
7.The governing framework for accepting decisions of judges is
entirely positivist—all judicial decisions should be accepted
because they have pedigree, that they can be traced to an
ultimate source of authority: the Constitution (MYTH?)
Conclusion
• The species of responsibility of judges are different:
1.it is one thing to say that the judge’s ruling is hers; quite different
to say that the judge’s ruling is decisive.
2.it is one thing to say that the judge’s decision was based on the
facts and the law of the case; quite another to say that the judge’s
decision was based on her interpretation, which is always creative,
of the facts of the case.
• When a judge decides, she isn’t disclosing a hidden, pre-existing
reality. Rather, her very utterance/act contributes to the reality of
the situation and in many instances, even makes it. This is the
meaning of the claim that judging is political, and therefore,
ideological. Judges therefore are not merely passive but active
participants in the political process.
INSIDE THE JUDICIAL MIND
By Guthrie, Rachlinski and Wistrich
INTRODUCTION
Empirical evidence suggests that even highly-qualified judges
inevitably rely on cognitive decision-making processes that can produce
systematic errors in judgment. The very nature of human thought can
induce judges to make consistent and predictable mistakes in particular
situations. Psychologists have learned that human beings rely on mental
shortcuts, called “heuristics”, to make complex decisions. Reliance on
these heuristics can create cognitive illusions that produce erroneous
judgments. Even though judges are experienced, well-trained, and highly
motivated decision makers, they are vulnerable to cognitive illusions.
I. THE STUDY
A. Participants
167 federal magistrate judges were recruited to participate in the
study, drawn from a large group attending an educational conference.
B. Procedure
Differing versions of a five-page questionnaire were randomly
distributed, and the judges were asked to read them and respond to the
LEGAL METHOD - HILBAY A2010
questions. All responses were anonymous. The questionnaire presented
each judge with five items, each testing for the influence of one of the five
cognitive illusions described below.
II. RESULTS
A. Anchoring
When people make numerical estimates, they commonly rely on
the initial value available to them. That initial value tends to “anchor” their
final estimates. Anchors affect judgment by changing the standard of
reference that people use when making numeric judgments.
Judges were presented with a description of a serious personal
injury suit in which only damages were at issue. They were randomly
assigned to either an a “No Anchor” or an “Anchor” condition. Judges in the
“No Anchor” condition were asked to estimate to the plaintiff for
compensatory damages. Judges in the “Anchor” condition were given
additional information that “the defendant has moved for the dismissal of
the case, arguing that it does not meet the jurisdictional minimum for a
diversity case of $75,000.” These judges were asked to rule on the motion
and to estimate the award for compensatory damages if the motion were
denied.
Ruling on the motion had a large effect on damage awards. The
judges in the No Anchor condition indicated an average award of
$1,249,000 while the judges in the Anchor condition awarded an average
of $882,000. The $75,000 jurisdictional minimum anchored the damage
awards. Asking the judges to rule on this frivolous motion depressed
average damage awards by 29.4%.
These data show how easily anchors can creep into the process
and affect the way judges think about damage awards. Constraints such as
damage caps or mandatory sentencing guidelines might reduce the
influence that biased or irrelevant anchors have on judicial damage awards
and sentences. However, they can also inappropriately skew damage
awards and criminal sentences if they provide anchors that are unrelated
to an appropriate sentence or damage award.
B. Framing
When people confront risky decisions, they categorize their
decision options as potential gains or losses from a salient reference point
such as the status quo. This “framing” of options influences the way
people evaluate their options and affects their willingness to incur risk.
People make choices designed to maintain or slightly improve the status
quo, which translates into risk-averse decisions when choosing between
options that appear to represent gains and risk-seeking decisions when
choosing between options that appear to represent losses.
Each of the judges was presented with a hypothetical description
of a lawsuit. Half of the judges (“Plaintiff/Gains” Condition) reviewed the
case from the plaintiff’s perspective, in which the choices involved
potential gains. The other half of the judges (“Defendant/Losses”
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Condition) reviewed the case from the defendant’s perspective, in which
the choice involved potential losses.
There was a statistically significant difference between the two
groups. 39.8% of judges evaluating the case from the plaintiff’s
perspective indicated that they thought the plaintiff should accept a
settlement offer, but only 25% of judges evaluating the case from the
defendant’s perspective indicated that they thought the defendant should
offer to settle.
The framing of the settlement decision affected judges in the
study. From the plaintiff’s perspective, settlement seemed relatively more
attractive, while from the defendant’s perspective, trial seemed relatively
more attractive, even though the two perspectives presented identical
economic choices.
C. Hindsight Bias
People overstate their own ability to have predicted the past and
believe that others should have been able to predict events better than
was possible. This “hindsight bias” occurs because learning an outcome
causes people to update their beliefs, and then rely on these new beliefs to
generate estimates of what was predictable while ignoring the change in
their beliefs that learning the outcome inspired. Because courts usually
evaluate events after the fact, they are vulnerable to the hindsight bias.
Each of the judges was presented with a hypothetical fact pattern
bases on an actual case. They were randomly assigned to one of three
conditions. Each condition gave a different outcome on appeal:
• “Lesser Sanction”: The court of appeals ruled that
the district court abused its discretion and remanded the case for
imposition of a less onerous sanction.
• “Affirmed”: The court of appeals affirmed the
decision.
• “Vacated”: The court of appeals found that the
district court abused its discretion and vacated the sanction against
the plaintiff.
The judges were asked to predict which of the three actions the
court of appeals was most likely to have taken, regardless of the condition
to which they were assigned.
Knowing the outcome significantly affected judges’ assessments.
When told the court of appeals had affirmed the decision, 81.5% of judges
indicated they would have predicted that result. The sum of the
percentage of judges in each of the three conditions who selected the
outcome that they were told had occurred as “the most likely to have
occurred” was 172%. It would have been 100% if learning the outcome had
had no effect.
Judges’ susceptibility to the hindsight bias is troubling because
judges are frequently expected to suppress their knowledge of some set of
facts before making decisions.
D. Representativeness Heuristic
LEGAL METHOD - HILBAY A2010
When people make categorical judgments, they tend to base their
judgments on the extent to which the evidence being analyzed is
representative of the category. Psychologists refer to this as the
“representativeness heuristic”. Although it is useful, it can lead people to
discount relevant statistical information. Excess reliance on the
representativeness heuristic leads people to commit a variety of decision-
making errors.
Judges were given a paragraph-long description of a torts case
based loosely on a classic English case where the plaintiff was struck by a
barrel while passing by a warehouse and were asked to estimate the
likelihood that the barrel that hit the plaintiff fell due to negligence of one
of the workers. Overall, the judges did well. More than 40% got the correct
answer, but those who did not exhibited a significant tendency to choose
the highest range.
In the problem that was used, the accident was unlikely to occur
when the defendant was not negligent. Nevertheless, because negligence
was rare, the event was still unlikely to have been caused by negligence.
E. Egocentric Bias
People tend to make judgments about themselves and their
abilities that are “egocentric” or “self-serving”. Egocentric biases could
lead judges to believe that they are better decision makers than is really
the case.
Judges were asked to estimate their reversal rates on appeal by
placing themselves in the quartile corresponding to their respective rates.
56.1% of judges placed themselves in the lowest quartile while only 4.5%
placed themselves in the highest quartile.
The judges exhibited a strong egocentric bias concerning the
likelihood that they would be overturned on appeal. Egocentric biases
might prevent judges from maintaining an awareness of their limitations;
this might work to the detriment of litigants in their courtrooms. The
influence of the egocentric bias likely makes it difficult for litigants to
convince federal judges that they might have been wrong.
F. Cognitive Illusions in Judges & Other Decision Makers
Judicial decision making, like the decision making of other experts
and lay people, is influenced by the cognitive illusions tested. Judges
appear to be just as susceptible as other decision makers to anchoring,
hindsight bias and egocentric bias. Though still susceptible to framing and
the representativeness heuristic, judges appear less susceptible than other
decision makers to these effects.
G. Do These Findings Apply to Judges in the Courtroom?
The study shows that judges rely on cognitive processes that are
likely to induce them to make systematic errors, but it does not
conclusively demonstrate that judges actually make such errors in the
courtroom. To the extent that the methods used in this study have
identified thought processes that judges use, the conclusions apply in the
courtroom. Only if increased attention and greater deliberation enable
judges to abandon the heuristics that they are otherwise inclined to rely
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upon can they avoid the illusions of judgment that these heuristics
produce. In the course of making decisions in the courtroom, judges
certainly face more complex fact patterns, have more motivation to make
good decisions, have more time to make decisions, and receive assistance
from litigants, lawyers, and clerks. But unless these factors alter the
fundamental ways judges think, they will not eliminate the effects of
cognitive illusions.
III. GENERAL DISCUSSION & IMPLICATIONS
Like the rest of us, judges use heuristics that can produce
systematic errors in judgment. Unlike the rest of us, however, judges’
judgments can compromise the quality of justice that the courts
deliver. What can the legal system do to avoid or minimize the effects
of cognitive illusions?
A. Improving Judges’ Judgment
Judges can make good decisions by learning to adopt multiple
perspectives on the problems confronting them, restricting their use of
heuristics to normatively appreciate circumstances, and distrusting
inclinations that are likely to be the product of cognitive illusions. Greater
experience, training and specialization should enable judges to make
better decisions.
B. Juries Versus Judges
Reformers commonly propose that the legal system should rely
more heavily on judges than juries as a means of reducing the influence of
cognitive errors in the courtroom. The results of the study suggest that
choosing the optimal decision maker requires a comparison of the relative
strengths and weaknesses of judges and juries.
Judges are likely to be better decision makers in circumstances
where decision-making experience can blunt the effects of cognitive
illusions. Judges are also in a better position to determine whether
evidence is relevant. Judges are less likely than jurors to rely on heuristics
like representativeness that can lead to erroneous evidentiary
determinations.
Although the results support greater reliance on judges in
circumstances where experience and training can facilitate avoidance of
cognitive illusions, they also identify important advantages juries have
over judges. Juries consist of groups, and group deliberation might reduce
some illusions of judgment. Because groups usually remember more of the
relevant facts than individuals, group decision making can mitigate some
of the cognitive illusions’ influence. Another important advantage of a jury
trial is that it creates a mechanism for keeping potentially misleading
information away from the fact finder. A judge will always know about
subsequent remedial measures and statutory damage caps, whereas this
information can be kept from juries.
C. Legal Rules That Avoid Illusions of Judgment
LEGAL METHOD - HILBAY A2010
The legal system might also adopt procedural, evidentiary, and
even substantive rules to minimize the deleterious effects of cognitive
illusions on judicial decision making. Indeed, some legal rules appear to
represent an effort by judges or legislators to avoid the effects of these
illusions of judgment.
For example, Rule 407 of the Federal Rules of Evidence represents
an adaptation to the effects of the hindsight bias by excluding from
evidence subsequent remedial measures taken by the defendant.
Similarly, courts often rely on ex ante standards of conduct rather than ex
post determinations of “reasonableness” as a means of reducing the
hindsight bias.
Several legal rules also arguably reflect efforts to temper the
effects of egocentric biases. The availability of multiple judicial appeals
might be an effort to counteract the potentially overconfident assignment
of the death penalty. Likewise, damage caps might reflect a systematic
effort to temper overconfident civil verdicts.
There is some danger that adopting reforms to reduce the effects
of a single cognitive illusion will skew the litigation process because any
single reform will fail to reduce the effects of other illusions. Furthermore,
efforts to curb the effects of a single illusion might have an adverse effect
on one category of litigants. Nevertheless, failing to adopt reforms that
reduce the effect of cognitive illusions also skews the system and ensures
that the system produces more errors than it otherwise might.
CONCLUSION
Despite their best efforts, judges are vulnerable to the influence of
cognitive illusions. The study demonstrates that judges rely on the same
cognitive decision-making process as laypersons and other experts, which
leave them vulnerable to cognitive illusions that can produce poor
judgments. However, judges, litigants, and legislators can take steps to
minimize the effects of these cognitive illusions. Additional psychological
and legal scholarship is needed to explore the various ways that the
cognitive processes of legal actors can and should influence the
administration of justice. A greater understanding of these cognitive
processes can only improve the legal system, whereas ignorance can only
undermine it.
COURSE IN GENERAL LINGUISTICS
By Ferdinand de Saussure
Let’s sum up Saussure’s work (and influence) by the first 5 letters of his
name: S- Semiology (a.k.a. Semiotics); A- Arbitrariness of the sign (and
language); U- Universal vs. Individual “reality”; S- Sign, Signifier, Signified,
Signification; S- Structuralism (though we won’t discuss this here) Then we
can motivate ourselves by adding the last three letters
I. LANGUAGE
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 a. Language (langage) is a ‘system of signs that express ideas’.
b.For Saussure, it is the social side of speech. It is outside the
individual. An individual cannot create or modify it by himself; it
exists only by virtue of a sort of contract signed by the members of a
community.
c. Language makes us “human”. It creates a way for us to identify
objects/people, communicate, reflect, make plans, etc. (Jonas’
contention: Other animals have a system of communication, thus
they have “language”. Sarah violently objected to this)
II. SEMIOLOGY, SIGN/SIGNIFIER/SIGNIFIED
a. Semiology is ‘a science that studies the life of signs within society’.
This science would teach us 'what signs consist of, what laws govern
them'.
b. The sign is made up of the signifier (or the sound image)
and the signified (or the concept). The sound image is the
psychological imprint of the sound, not a material/physical concept,
belonging to the system. Both components of the linguistic sign are
inseparable. An easy way to understand this is to think of them as
being two sides of a sheet of paper - one side cannot exist without
the other.
c. Take note that the relationship is of sound image and concept, not
a thing and a name, not of a naming process only – a collection of
words for a collection of objects (the Adamic conception). This
naming process assumes that ready-made ideas exist before words.
Whereas Saussure says that there are no pre-existing ideas before
language. Language brings into being, by describing, a world
that it then knows as external. (Yes, the external ‘physical’ world
may already exist, but its ‘reality’ remains nebulous until language
articulates it. As pointed out in class, a small nameless part of one’s
arm physically ‘exists’ but until one recognizes it and gives it a
name, it doesn’t really exist, it’s ‘not there’-- it’s just a part of
one’s whole arm. One is not likely to regard the small nameless part
of the arm as a separate concept from the whole arm.)
III. ARBITRARINESS
a.The bond between the signifier and the signified is arbitrary and
unmotivated. There is no natural reason why a particular sign should
be attached to a particular concept. Even onomatopoeic words are
just approximate imitations of certain sounds (example: Tagalog
‘tilaok’, Bisaya ‘tuktugaok’, Japanese “kukuruku, English
‘cockadoodledoo’!)
b. Saussure saw language as being an ordered system of
signs whose meanings are arrived at arbitrarily by a cultural
LEGAL METHOD - HILBAY A2010
convention. There is no necessary reason why a pig should be
called a pig. It doesn't look sound or smell any more like the
sequence of sounds 'p-i-g'. It is only because we in our language
group agree that it is called a 'pig' that that sequence of sounds
refers to the animal in the real world. You and your circle of friends
could agree always to refer to pigs as 'squerdlishes' if you want. As
long as there is general agreement, that's no problem - until you
start talking about squerdlishes to people who don't share the same
convention. (This is from the Internet)
c. There are many implications of signs/language being arbitrary.
Since it is the case that the meanings we assign to signs are the
result of conventions arrived at by the community, then it is
reasonable to suppose that the values of the community will be
incorporated into those signs/meanings. The users will, for example,
have developed signs for those things they agree to be “important”.
What passes for reality in any culture is a product of the sign
systems of that culture. This would make 'reality' ‘encoded’. The
process of decoding signs is socially and culturally conditioned.
Usually, it is the dominant culture that dictates the meaning and the
value of the sign. Sign systems can be systems of
domination/oppression.
IV. UNIVERSAL vs INDIVIDUAL REALITY
a. Saussure challenged the idea that there exists a “universal”
reality. Individuals and different communities divide up the world
differently. To explain this, Saussure uses the word bœuf as an
example. He cites the fact that the English language has different
words for the animal and the meat product: Ox and beef, while in
French, bœuf is used to refer to both concepts. A perception of
difference between the two concepts is absent from the French
vocabulary. In Saussure's view, particular words are born out of a
particular society’s needs, rather than out of a need to label a pre-
existing set of concepts. (“Slicing” things depends on our “social
reality”/ culture. Like we have different names for rice = palay,
bigas, kanin. While for the the Americans, its just rice. For a
fisherman, his fishnets have different parts and each part has a
name, but for us non-fisherfolk, it’s just a fishnet.)
FIRE, METAPHOR AND THE CONSTITUTIONAL MYTH-
MAKING
By Robert Tsai
• This article accepts that metaphor helps us to comprehend a
court’s decision. At the same time, it contends that metaphor plays a
special role in the realm of constitutional discourse. Metaphor in
constitutional law not only reinforces doctrinal categories, but also
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 promotes acceptance of interpretive prerogative and creates
sustainable constitutional subcultures, with their attendant myths,
counter- narratives, hero figures and villains, and sacred mantras. It
links citizens to governing institutions, and bridges diverse
communities of interest.
• To illustrate these themes, the article examines the appearance of
fire- inspired legal sayings in the Courts free- expression rulings over
time, drawing on the work of anthropologists, legal theorists, and
cognitive linguists.
Introduction
Constitutional myth- making – is a process whereby potent metaphors,
symbols, scripts, and mantras are constructed and disseminated by
individuals and institutions to create legal meaning. Its raw materials
consist of legal lore and doctrinal infrastructure, as well as folk belief
systems and ordinary experiences.
Tracing the evolution of fire hones our perspective of law and culture in
three respects.
[1] Analysis of these recurring linguistic- cultural tools reveals why fire-
based language is uniquely effective in influencing constitutional
actors.
[2] Observing the formation of a free speech ethos in intimate fashion
allows us to gain valuable insight into how metaphor can cement or
dissolve existing doctrine across time.
[3] Once attention is refocused on the fire’s integral role in shaping our
free speech belief system, we should arrive at a better appreciation for
the relationship between constitutional language and institutional self-
conception. In this instance, fire has left its mark by serving as a ready
implement of bureaucratic influence and by reflecting the Supreme
Court’s rise to the apex of the socio- legal order.
Part I: Language And Its Discontents
This part lays out, on the one hand, the skeptical view of metaphor shared
by traditional legal scholars, and on the other, the enthusiastic embrace of
metaphor by the law-as-language movement.
[a] To the formalist, metaphor seemed impossible to pin down, entirely
unpredictable. To the legal realist bent on uncovering the social policies
exerting a “gravitational field upon any rule or precedent” and nudging the
law in those general directions, metaphor appeared to be just another
distraction.
Note: This deeply held understanding of metaphoric communication as a
distasteful habit from which jurists must be weaned has been forcefully
challenged in recent years by theorists and empiricists who recognize law
as a close cousin of ordinary language.
[b] The linguist and anthropologist find metaphor to be a building block in
the communicative process. They tell us that at the basic level, metaphors
allow human beings to understand one phenomenon in relationship to
LEGAL METHOD - HILBAY A2010
another to illuminate some salient details while shading others. In doing
so, they order our social world by weaving new events into stock scenes
and everyday occurrences.
• Negotiating a line between these 2 perspectives, this part makes
the case for an understanding of metaphor that is essential to the
constitutional myth-making process.
• Metaphor is then understood as a rhetorical device that mediates
the relationships between citizens and governing institutions.\
It might be fruitful to think of constitutional law as a species of
performance art, and less as ordinary language or literature and more. This
view has 3 benefits:
[1] Theater best captures the multivocal nature of law, both in terms of
the sophisticated and simple audiences involved, and in the multiplicity
of institutional roles that make up the American form of self-
government.
[2] This modality underscores the fundamentally public nature of law,
which strives to ascertain and disseminate shared socio- legal values.
[3] The theater analogy appropriately treats text as one source among
many, like a screenplay or musical score, rather than as the entirety of
the process that is law.
• In a performative model of higher law-making, language is not the
beginning and end of law. Instead it serves as a crucial network of
signals and connections. Through customary practice punctuated by
moments of improvisation, language cues legal actors to play
particular roles, sets the parameters for doctrinal possibilities, and
facilitates social cooperation.
• Unlike ordinary speech, which is often enlisted in the service of tidy
resolutions here and now, law is in a perpetual state of
dramatization.
Note: The next 3 parts of the article are organized into 3 “metaphorical
fields,” where historical events, value systems and rhetorical strategy have
converged to produce distinct thematic structure in the development of
the language of fire. These 3 discrete eras or metaphorical field are: [a]
1919 until World War II, [b] the transitional period in the decade following
WWII, and [c] the late 1950s to the present
Part II: The Early Modern Cases: Fire Becomes Modular
• This is the period from 1919 until World War II. It discusses the
composition of fire metaphors and legal sayings which were
introduced into the cultural soil at that time. The fire-as-expression
motif was given life in 3 decisions addressing the extent which the
First Amendment protected Socialist views: Schneck v. United Sates,
Frohwerk v. United States, and Gitlow v. New York.
• The metaphor “falsely shouting fire in a crowded place” has come
to serve a dual function: [1] the image acts as a prototype for
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 unprotected expression, and [2] it broadly operates as a mantra of
udicial influence, inviting acceptance as interpretive choices.
Important point: During this period, the metaphor assigned the state the
role of firefighter who extinguishes the sparks of revolution, motivated by a
desire to protect the public safety. The Court enabled and applauded the
state’s aggressive suppression of speech, acting as the firefighter’s loyal
assistant. The metaphor cast the defendant-speaker in the part of the
hated arsonist, who was duly blamed for unleashing the dire threat of the
constitutional order.
• The entire metaphorical structure of judicial discourse served to
underscore the Court’s inclination to treat the speaker’s words not as
expression, but more like an act of inchoate revolution interrupted by
vigilant authorities.
Illustration:
Arsonist-speaker threatens the legal order ---> State attempts to
extinguish the fire through regulatory suppression ---> Court endorses the
action ---> Constitutional equilibrium is restored
• Once unleashed in law, fire-based language provided grist for the
creation of new signs and images in speech culture.
Part III: The Post- War Interregnum: Transitions
• This is the transitional period in the decade following World War II.
In the immediate post-war years, the internal structure of the fire
metaphor remained largely intact, re-invigorated by memories of
conflict.
Important point: The Court harnessed the fire metaphor to enable a
national anti-communism policy. Later, the Justices started to experiment
by stirring race into the combustible mixture as a method of legitimating
judicial noninterference in the other forms of speech regulation.
[a] As members of the national leadership, the Justices seized the
opportunity to apply the lessons of war, nationalism and racial hatred to
the home front. External threat subsided during this transitional period. But
once the governing metaphorical field relaxed its grip and public attention
turned inward for a time, fear of internal divisions of another kind –
involving race and ethnicity – crept through public imagination.
[b] In the meantime, a latent image of the people assembled out of doors
began to dominate the Justices’ post war free speech jurisprudence. The
emerging framework of crowd control facilitated the battle of metaphoric
embodiments of the people. This is the metaphor of the assembly
unleashed.
• Peaceful resistance against unjust laws in the streets and the
courts not only revolutionized substantive constitutional
commitments, entirely reversing the presumption that speech out of
doors was a threat to public order, but also irreversibly altered the
LEGAL METHOD - HILBAY A2010
transformative metaphors available to a new generation of
Americans.
• The assembly metaphor captures the legal principle that thinking
people will not be presumed to rush violence or illegal activity at the
drop of an inflammatory word. More importantly, it introduced
inventive images, counter-scripts, and categories of meaning to a
new generation of constitutional actors.
• Smoke but no fire: The absence of fire heralded fundamental
changes in speech culture. The Justices began to lose interest in
patrolling the boundaries of illegal advocacy but trained their
attention on establishing bounds of obscenity and the degree of
state control of public fora.
Part IV: The Court As Firefighter: Flipping The Script
• This is the period from the late 1950s to the present. This part
examines the Court’s reconfiguration of the legend of fire in the last
generation so as to spin a new web of meaning, one that has
expanded the realm of protected expression even as it has enhanced
the role of judiciary in American life. In our own era, it is speech
regulation rather than inflammatory expression that threatens to set
our constitutional order ablaze.
Important point: The despised role of arsonist, previously played by the
citizen-speaker on the street, is ably filled by the state. The leading role of
firefighter, once acted by the state, is now performed by the Court itself.
Advocates, judges, and intellectuals have contributed to the dissemination
of the new legal myth of fire.
• The roast pig incantation[a] points that a challenged law is overly
broad or otherwise poorly suited to the state’s interest, or that a law
cannot be saved by the government’s salutary motives alone; and,
[b] inaugurated a new linguistic field in free speech culture, as fire
was harnessed to advance expressive liberty.
• “Burning down the house to roast the pig” ---> The act of roasting
a pig stands for the benign purpose of government, while the
metaphorical house – so often used to represent law – signifies our
constitutional order, inadvertently set ablaze through the actions of
well-intentioned officials. We shake our heads at the foolishness
displayed by the state’s position and we are thankful that the Court
stands ready to put the world right.
Illustration:
Regulation-as-fire threatens the constitutional order ---> Direct conflict
arises between the Court and another state actor ---> judicial authority is
dispensed to meet the threat ---> Invalidating the state action repairs the
breach.
Part V: Warring Metaphors Over Time
This part tackles 3 topics in closing the article.
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[1] It offers explanations for the ascendancy of the marketplace and the
decline of fire as the dominant constitutional metaphor
• 3 factors that fueled the marketplace ascendant: [a] the market
metaphors message of hands off libertarianism, [b] periods of
prosperity and economic stagnation helped keep the language on
the tip of every constitutional actor’s tongue, and [c] its resonance
with American ideals
• Fire’s renewal in free speech culture illustrates both the patterned
quality of constitutional language and the ingenuity with which legal
rules and metaphors can be re-imagined. To this day, the Court
continues to prefer the negative characteristics of fire—its fear-
inspiring nature and its tendency to consume everything in its path.
[2] It strives to deepen our understanding of metaphor as an indispensable
link between legal mythology and popular culture.
[3] The discussion suggests that we should be watchful of metaphors that
reinforce the jurists’ view of themselves as the primary guardians of
the legal order.
• Metaphor has splayed a major part in this profound shift in the
Justices’ own institutional outlook, just as it has deeply influenced
how ordinary Americans perceive the Court’s labors. Whether as the
metaphoric market regulator, fire-fighter, or referee, the Court has
built an arsenal of images, metaphors, and story lines with which to
patrol its sphere of influence
LAW AND LITERATURE
By Richard Posner
• Atheoretical-system of education in the Philippines
-absence of theoretical study in the Philippines
Theoretical work-started with literary critics i.e. Marxist theories, feminism
• Texts i.e. Bible, Constitution, Statutes-have intrinsic meaning-if this is so,
then there is little room for theoretical work or theorizing text.
• Text-surface, superstructures, ideological bias, racial bias, gender bias,
efficiency.
• If texts in law are closed-textured, then there is no room for theoretical
work. But this is not the case. Stare decisis becomes strong source of
constraint only of they are consistent which isn’t the case. There is
therefore space for theoretical work.
• Status of text-has space for interpretation (metaphorical interpretation).
The question is where do you end?
• If you allow space in the Constitution, then when do you stop?
• The debate therefore should be the degree of open-texturedness rather
than whether or not it’s open-textured
Law and Literature
LEGAL METHOD - HILBAY A2010
• “judicial activists” need not apologize for reading things into the
Constitution that do not seem to be there-this is the nature of
“interpretation”-“construction”
• Literary scholars deal with complex texts-many are old and
temporal remoteness makes original meaning the only authentic
meaning difficult to recover
• Concepts that are outside of time and space and distinct from the
perceptions out of which they have been made
• Person A concept (signified)—Signifier (words, sound, etc.)-noise-
Person B concept (signifier)
• Signifier-signified-link is a matter of convention-not universal
• Problem is there are different languages and sometimes a
language lacks a signifier for a particular signified
• Translation is often problematic—signify other concepts in our
culture—we overdetermine their conceptual message
• There are impediments to perfect conceptual transfer or
“intersubjectivity” as corruptions-can be overcome normally
• Properties of signifiers that impede communications-arbitrary and
culture-bound rather than logical or natural
• Literature-devices that call attention to the signifier
• Literature-not concerned with conveying concepts in the most
economical manner possible than deconstruction
• Work of literature-doing something more than conveying to the
reader a paraphrasable meaning conceived in the author’s mind
• Deconstruction-denies the inherent logical or metaphysical priority
of authors or concept over the medium of communication. It doesn’t
appear to deny the intelligibility of communicative discourse and hence
the possibility that statutory and constitutional provisions really could
communicate the commands of their authors
• Law is discretionary and therefore political
• Dworkin hails the legislator as the unacknowledged poet of the
world
• Posner-intentionalist when it comes to reading statutes and the
Constitution but a New Critic when it comes to reading works of
literature
• “Intentionalist” literary critic-way to understand a work of literature
is to try to reconstruct the author’s intentions-the meaning he assigned
to it
• “New Critic”-assign a coherent and satisfying meaning to the
words
• Critical Legal Scholars-deconstruct legal texts-followed
Postmodernist approach to literature and therefore the literary
deconstructionists’ counterparts to law
• New Critic-thought that very little in the way of context was
necessary to make literature intelligible
• New Critic-you don’t need to know the circumstances
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 • Multiple interpretation of the same work at the same time may be
an equilibrium state for the literary marketplace whereas they would
be a source of profound disequilibrium in law
• Interesting aspect in law-judges’ opinion-a combination of law and
literature
• Which interpretive approach should we then apply?
BLINK
By Malcolm Gladwell
Thesis Statement
People have the ability to unconsciously think without consciously
thinking. We could arrive at decisions, resolutions, and judgments without
thinking too much and it is likely to be as good as when we consciously
think deeply.
Definition
• Thin-slicing refers to the ability of our unconscious to find patterns
in situations and behavior based on very narrow slices of
experience.
• Adaptive Unconscious- A crucial brain activity that keeps humans
able to function by silently processing daily stimulus. An individual
is unaware of such brain process thus making it to a great extent
uncontrollable.
• “Warren Harding Error”- Thin-slicing in a superficial level and
giving too much emphasis on the snap judgment.
Summary
The book is a combination of scientific studies (Implicit Association
Test), historical accounts (Warren Harding), social happenings
(discrimination), notable trends (Coke v Pepsi), and simple day to day
observations regarding the creation of snap-judgments otherwise known as
thin-slicing.
It demystifies us from the idea that for people to come up with
there judgments regarding just about anything there is the factor of time
and careful investigation. The book gives us evidences that point to the
idea that we are indeed able to rely on our own adaptive unconscious and
that we are capable at arriving on a decision that is accurate.
There is a possible problem however as there is an also likely
chance that our way of thinking would be impaired by day to day
bombardment of stimulus. The Warren Harding Error lets us stop from
thinking beyond what we already figured. It keeps us away from weighing
the need to look beyond what we thin-slice. It is crucial therefore for us not
to over emphasize our snap judgment by knowing when to apply such
LEGAL METHOD - HILBAY A2010
judgments. Pivotal or crucial moments still require thinking twice and
doubting and thin-slicing may be placed in a back seat.
Along this line, we should also remember that stereotyping is also
a tool for thin-slicing. It is then important for us to consciously be able to
look beyond our stereotyped ideas. While it may be unconsciously done,
our knowledge of our disposition would bring it out in the conscious level.
Finally, it should also be noted that at times there is a need for the
isolation of our criteria for judgment. The unconscious is able to seep
through the creation of the judgment although it is not in line with the true
nature of our decision (you may hate Gloria not because of her national
policies but because she is short). In this situations there is a need to focus
on what really should be considered.
Application in Law
The book’s application to law is, although not apparent, its
application to the (following the realist perspective) that Law is governed
by human features (i.e. flaws and strengths). Specifically when we are
dealing with judges or juries who are able to thin-slice without them
knowing it. It is value neutral yet it never takes away the fact that it could
work for or against anyone thus reasonability and equality really does not
exist. What is crucial at this point is that we accept that people indeed
thin-slice and that we really are able to come up with a sound judgment
regardless of the length of time that we think and whoever we are.
STRAIGHT TALK AND THE PHILOSOPHY OF
POSSIBILITY
By Florin Hilbay
• My concern implicates an aspect of being broader than just what kind of
gender I have, or think I have, or think I ought to have. It seems to me
that that at a higher level of generality, differences in gender collapse
and converge towards an appreciable commonality… we are all human
bodies that can communicate. This point of convergence is where a
shared community becomes a possibility, where theorizing moves from
imagination to the politics of transformation
• His Issue: the autonomy of the individual in a society imbued with
dominant and domineering signs – cultural marks that commandeer and
simultaneously create the appearance of freedom. My inability to
transcend the commands of culture has infused doubts about my
freedom to many any choice. If my perceptions (culture etc.) is
constructed prior to myself, given and not made, where goes my
freedom?
NATURAL LAW
• There are terms that constrain and direct my ability to make choices that
I cannot make because they are outside the range of choices that are
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 possible for me – one is natural law. It furnishes powerful categories that
assign gender to the body and pathologize deviations from such fixed
categories – males and females with a taste for the same sex
• The powerful effect of this conceptual scheme is the production of a
mandatory binarism, referred to by Adrienne Rich as compulsory
heterosexuality, that universalizes gender by confining it in some notion
of gender confinement and erasure of the possibilities of personhood
that serves as motive power for this internal mechanism of constraint
• Natural law exists in the minds of lots of human beings. Usually, this is all
that matters. But who says what natural law is? If you say the hearts and
minds of people, it shall invite contradiction as it would be tantamount to
saying that the problems of the world are solvable by common sense. To
say that it is an institution like the church, it is submitting your
personhood, your existence to the dictates of an institution of humans
like you, whose meanings are close to discourse as they purport to be
infallible
CULTURE
• CULTURE is a more inclusive approximation of the internal mechanism
• The universe of signs that inhabit animates and inanimates is the
cultural space that generates the kinds of meanings that function as
tools of communication and, therefore, construction
• Human body is a hub that reads the code of culture, making intelligible
signs and at the same time contributing to the creation of the code itself.
The code of culture then is open-source dynamic, situated and opaque.
As such, culture is a broader term that encompasses all those external
influences that carve out human consciousness and define our
preferences
• While society provides me with the range of choices and a definition of
those specific choices, my decision to pick or not to pick is self-
attributable, but with regard my inability to choose a partner of the same
sex, it is the conditions of culture that prevent me from even considering
such choice. My inability is not simply a refusal, but a blindness…
• While ignorance to this reality is bliss, there is a sense in which blissful
ignorance and human agency are incompatible. Bliss and ignorance
makes life livable but knowledge of this pierces the bubble and floods me
with the thought of living a less than conscious existence, impervious to
discourse
• Progressive gender advocacy and queer theory are more concerned
about issues of justice and human rights. So when there is talk about
marriage, homophobia and other discriminations, the thrust is towards
an ideal of justice that is more tolerant, inclusive, if not embracive. It has
an aspect of freedom, as it is a claim to freedom by some from the
exclusion of others. But this freedom is not only for the other: but
freedom in a general sense, even us who consider ourselves straight
PHILOSOPHY OF POSSIBILITY
LEGAL METHOD - HILBAY A2010
• Human essence for the purpose of gender is to set a boundary, a
limitation to what would constitute a body human in the eyes of the law
and society
• For example, when the FC defines marriages as a special contract of
permanent union between a man and a woman, when bathrooms are
distinguished for men and women etc., these definitions and
categorizations are not value-neutral but paradigm-dependent. As such
the world-view they promulgate is very-limiting
• This is not to say that one is capable of embracing the complexity of
concrete social reality, but we argue insofar as the paradigm is a source
of illegitimate power of some over the others, as it constrains everyone's
ability to author their lives
• For example, homosexuals are not allowed to marry and those that are
allowed to marry are tied to each other til their bodies expire, and pop
culture feeds and sells people with a notion of heterosexuality and
gender without explicating it
• It present an extent of limitation of our ability to create ourselves
• The goal of freedom is furthered by articulation, by bringing into
discourse and conscripting to the demands of language the relevance of
cultural signs in the emergence of human consciousness. If our body is
hub altered by culture, then we should start worrying about regulations,
norms and symbols that get entrenched and claim permanent status – as
such, marriage is not a simple validation of an intimate relationship, it is
an ENTRENCHMENT OF A PARADIGM OF GENDER
• This game of heterosexuality is played out in multiple arenas, deployed
and entrenched in viral form, in public and private spheres that feed on
each other in a constant two-way dynamic
• The effect of the combination of private and public ordering is a scheme
of categorizing the body through an essentialism that effectively dictates
the possible and the not-possible – the policing of the sex: the necessity
of regulating sex through useful and public discourses.
• Gender has been labeled through the sexual organs, what was
contingent before is now naturalized, made inherent and thus, a
worldview was born
• This method of labeling is very powerful as those with sticky utterances
are the ones who control the language game of gender and as such, they
dictate the truth about human sexuality. We must realize that truth is a
function of the way language is used and manipulated and it sensitizes
us to the importance of words/signs and what they signify
• As such, words are also a matter of freedom – they we can calibrate
words and defines possible and not possible, and ultimately, what we are
and who we are. This extent of linguistic confinement is the extent of
human freedom; we are creatures of our language, slaves to our own
words
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• Humanity does not precede description. The concept of humanity,
human, humane etc. is possible only through some form of description.
Without language we cannot describe ourselves and the we and I do no
rise up to the level of possible. Human being or the humanity of being is
created by the knife of language that slices and differentiates our bodies
from all other phenomena. With language, existence and possibility
become available; through language, we become subjects
• In this view we discover how oppressive certain structures are – the
language of marriage is unjust become it confines intimates relationships
within the hegemony of heterosexuality
• The notion of gender then is an institutional narrative attached to I. it
operates as an ideology of viewing bodies and normalizing them through
channels of heterosexuality. When it creates it prevents bodies from
moving from possibility to possibility, from engaging in more meaningful
acts of authorship.
• But freedom is possible only if we can detach ourselves from these insti.
Narratives from the limitations of the very language that makes
possibilities possible. The possibility of freedom is actualized only in that
very instance when that imagined possibility is co-opted by the
structures of our language. The road to freedom is in inhabiting the
language we seek to transform
• The linguistic deficiency of labeling people who are neither men or
women becomes a source of power and oppression of those we call
queer, strange and anomalous and when it is settled, it gets enforced,
consciously and unconsciously in the public and private spheres. We
must then identify those institutions that have appropriated the
language of gender and problematize their acquisition, thereby
highlighting the tenuousness of their hold over the architecture if our
language
GENDER UNDER ERASURE
• The contingency of language and the concepts within it should inform us
about the suppleness of categories, and that they only emerge in
discourse.
• The politics of gender is the politics of acting out desires as the very
source of meaning and identity. If desire is the fountainhead of meaning,
the fuel that allows the body to move from possibility to possibility, then
all of us must be cautious about the layers of the rhetoric of confinement
embedded in discourse
• As such, words such as man, woman and queer are mere linguistic
combinations and by themselves have no sense, only contingent and
non-essential
• These concepts thus come under erasure, not erased, as Derrida says,
but de-concretized, softened and undermined. This includes the concept
of I, self, and identity as well.
• The recognition of this possibility is the very instance of transformation.
LEGAL METHOD - HILBAY A2010
• Language then is soft, porous, malleable, and plastic; and it is because of
these qualities that the movement from possibility to possibility becomes
a reality
• This space of uncertainty lying in the interstices of language, in the
margins of textualized body, is the location of freedom
OFFENSIVE NUISANCES
By Joel Feinberg
Disclaimers: The Relative Triviality of Offense
The term offense could be subdivided into two conditions –
subjective and objective. “Offense” in the strict sense of ordinary
language specifies a subjective condition – the offending act must be taken
by the offended person to wrong him whether in fact it does or not. On the
other hand, offense in the sense of offense principle specifies an objective
condition – the unpleasant mental state must be caused by conduct that
really is wrongful. In offense principle, it is necessary that there be a
wrong, but not that the victim feel wronged. The principle asserts that the
prevention of offensive conduct is properly the state’s business.
However, the author emphasized that offense, in highly restricted
version of the offense principle, is surely a less serious thing than harm.
Therefore, it follows that the law should not treat offenses as if they were
serious, by and large as harms. It should not, for example, attempt to
control offensiveness by the criminal law when other modes of regulation
can do the job as efficiently as efficiently and economically (i.e. norms,
market, and architecture).
The Model of Nuisance Law
In the Anglo-American Law, the term nuisance refers to two quite
different sorts of wrongs: a miscellany of minor criminal offenses bearing
the label of “public nuisance” or “common nuisance,” and a tort called
“private nuisance.” Private nuisances inconvenience specific individuals in
the possession of their right, whereas public nuisances inconvenience
random assortments of people (“the public”) in the exercise of rights
common to all citizens.
Since practically all human activities interfere to some extent with
others or involve some risk of interference, and these interferences range
from mere trifling annoyances to serious harms, it is unavoidable that
balancing of interest be done by the legislature. In doing such, a variety of
factors must be considered.
1. The seriousness of the inconvenience depends on
a. The extent, duration, and character of the interference.
(Illustration: There is no nuisance from an occasional
unpleasant odor in the community but a constant and
unrelieved stench would be “substantial interference” and
may amount to a nuisance.
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 b. The social value of the use that plaintiff makes of his land.
(Illustration: Between the right of a person to a good sleep
during the night may be favored against the right of
another person to enjoy large and raucous parties during
the night.)
c. The extent to which the plaintiff can, without undue
burden or hardship, avoid the offense by taking
precautions against it. (Illustration: The plaintiff cannot
plausibly complain, for example, that occasional smoke
from his neighbor’s land has entered his own home, when
he has neglected to close the windows through which the
smoke enters.
2. The reasonableness of the defendant’s conduct depends on
a. The social value of its ultimate purpose (Illustration: The
inconvenience of the noise produced by a factory could be
tolerated for general god but a noisy dog will have little
social value and therefore relief from it will be justified.
b. The motive of the defendant (innocent or spiteful)
c. Whether the defendant, by taking reasonable steps, can
avoid or reduce the inconvenience to the plaintiff without
undue burden or inconvenience to himself.
3. The interest of the community or the public at large. (Illustration:
A householder who takes up residence in a manufacturing district
cannot complain, as a plaintiff in a private nuisance suit, of the
noise, dust, or vibration.
Note: The author is suggesting that the offense principle will
have to be mediated by balancing tests similar to those already
employed in the law of nuisance.
A Ride on the Bus/ The Modes and Meaning of “Offense”
Kinds of Offense:
A. Affronts to Senses
- all cases where the gratingly unpleasant experience derives
entirely from its sound, color, or odor.
B. Disgust and Revulsion
C. Shock to Moral, Religious, or Patriotic Sensibilities
D. Shame, Embarrassment (including vicious embarrassment), and
Anxiety
- shame is “a painful emotion caused by consciousness of guilt,
shortcoming, or impropriety in one’s own behavior or position, or in
the behavior or position of a closely associated person or group.”
E. Annoyance, Boredom, Frustration
F. Fear, Resentment, Humiliation, Anger (from empty threats, insults,
mockery, flaunting, or taunting)
LEGAL METHOD - HILBAY A2010
The Relation between Offense and Privacy
Privacy refers to that of a privileged territory or domain in which an
individual person has the exclusive authority of determining whether
another may enter, and if so, when and for how long, and under what
conditions. The individual person’s will alone reigns supreme over them.
Since offense conduct could sometimes intrude the privacy of
one’s person, it is necessary that drawing boundaries between private
domains of persons, and between the private domain of any given person
and the public world be done.
PATERNALISM
By Gerald Dworkin
Paternalism is the interference with a person’s liberty of action
justified with reasons referring exclusively to the welfare, good, happiness,
needs, interests, or values of the person being coerced. “Pure” cases are
those wherein only the person benefited loses freedom. In “impure” cases,
others lose freedom, too (e.g., limiting cigarette sales/advertising). It may
be that impure paternalism requires arguments or reasons of a stronger
kind in order to be justified, since there are persons losing a portion of
their liberty and they do not even have the solace of having it be done “in
their own interest.” Paternalism then will always involve limitations on the
liberty of some individuals in their own interest but it may also extend to
interferences with the liberty of parties whose interests are not in question.
It is difficult to find "pure" cases. For example, prohibiting smoking
makes no sense unless we also prohibit the sale of tobacco products, and
this prohibition limits the freedom of smokers and of non-smokers (who
supply the tobacco). A law prohibiting suicide is an example of pure
paternalism.
Another situation that is similar to paternalism, but different, is collective
limitations in order to gain a collective good (e.g., laws created through
consent of the governed that prohibit working more than a certain number
of hours). We consent to these, but must coordinate our behavior to reap
the benefit.
Mill’s principle bans paternalism – but he makes exceptions for almost
everything else. (Mill will only allow restriction on freedom of person A in
order to prevent harm or to positively benefit person B, but NOT to prevent
A from harming A). Mill assumes that each person is (1) the best judge of
their own life, and (2) each person is more concerned about themselves
than others are. Therefore, attempts to judge on behalf of others will have
worse consequences than letting people judge for themselves.
It is interesting to note that Mill himself was aware of some of the
limitations on the doctrine that the individual is the best judge of his own
interests. In his discussion of government intervention in general (even
where the intervention does not interfere with liberty but provides
alternative institutions to those of the market) after making claims which
are parallel to those just discussed, for example, “People understand their
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own business and their own interests better, and care for them more, than
the government does, or can be expected to do,” he goes on to an
intelligent discussion of the “very large and conspicuous exceptions to the
maxim that “Most persons take a juster and more intelligent view of their
own interest, and of the means of promoting it that can either be
prescribed to them by a general enactment of the legislature, or pointed
out in the particular case by a public functionary.”
Thus there are things of which the utility does not consist in
ministering to inclinations, nor in serving the daily uses of life, and the
want of which is the least felt where the need is greatest. This is peculiarly
true of those things which are chiefly useful as tending to raise the
character of human beings. A second exception to the doctrine that
individuals are the best judges of their own interest is when an individual
attempts to decide irrevocably now what will be best for his interest at
some future and distant time. The presumption in favor of individual
judgment is only legitimate, where the judgment is grounded on actual,
and especially on present, personal experience, and not suffered to be
reversed even after experience has condemned it.
The outcome of these exceptions is that Mill does not declare that
there should never be government interference with the economy but
rather that “in every instance, the burden of making out a strong case
should be thrown not on those who resist but those who recommend
government interference. Letting alone, in short, should be the general
practice: every departure from it, unless required by some great good, is a
certain evil.
Dworkin argues that paternalism should be allowed in some cases,
and sometimes it is our duty. The question is when. Thus, paternalism is
justified only to preserve a wider range of freedom for the individual in
question.
Consider children: parent has duty to do what the child would want
if the child were the adult. Clear cases with children: prevention of all kinds
of harm, and also unpleasant activities that create later benefits, e.g., we
send children to school even when they do not want to go.
The standard here has to be one of [impartial] rationality: “we
would be most likely to consent to paternalism in those instances in which
it preserves and enhances for the individual his ability to rationally
consider and carry out his own decisions”
With adults, paternalism is rational when it restricts freedom in
order to prevent “far reaching, potentially dangerous, irreversible” harm,
or secure a future good.
1. The adult does not know the risks/benefits
2. The adult knows, but has “weakness of will”
a. psychological or social pressure
b. irrational discounting of danger due to short vs. long term
consequences
In all cases of paternalistic legislation there must be a heavy and
clear burden of proof placed on the authorities to demonstrate the exact
LEGAL METHOD - HILBAY A2010
nature of the harmful effects (or beneficial consequences) to be avoided
(or achieved) and the probability of their occurrence. The burden of proof
here is twofold—what lawyers distinguish as the burden of going forward
and the burden of persuasion. That the authorities have the burden of
going forward means that it is up to them to raise the question and bring
forward evidence of the evils to be avoided. Unlike the case of new drugs,
where the manufacturer must produce some evidence that the drug has
been tested and found not harmful, no citizen has to show with respect to
self-regarding conduct that it is not harmful or promotes his best interest.
In addition, the nature and cogency of the evidence for the harmfulness of
the course of action must be set at a high level. To paraphrase a
formulation of the burden of proof for criminal proceedings—better two
men ruin themselves than one man be unjustly deprived of liberty.
Finally, a principle of the least restricting alternative is suggested.
If there is an alternative way of accomplishing the desired end without
restricting liberty although it may involve great expense, inconvenience, et
cetera, the society must adopt it.
FREE CULTURE
By Lawrence Lessig
Summary
In the preface of Free Culture, Lessig compares the book with a
previous book of his, Code and Other Laws of Cyberspace, which
propounded that software has the effect of law. Free Culture's message is
different, Lessig writes, because it is "about the consequence of the
Internet to a part of our tradition that is much more fundamental, and, as
hard as this is for a geek-wanna-be to admit, much more important."
Professor Lessig analyzes the tension that exists between the
concepts of piracy and property in the intellectual property realm in the
context of what he calls the present "depressingly compromised process of
making law" that has been captured in most nations by multinational
corporations that are interested in the accumulation of capital and not the
free exchange of ideas.
The book also chronicles his prosecution of the Eldred v. Ashcroft case and
his attempt to develop the Eldred Act also known as the Public Domain
Enhancement Act or the Copyright Deregulation Act.
Lessig concludes his book by suggestion that as society evolves
into an information society there is a choice to be made to decide if that
society is to be free or feudal in nature. In his afterword he suggests that
free software pioneer Richard Stallman and the Free Software Foundation
model of making content available is not against the capitalist approach
that has allowed such corporate models as Westlaw and LexisNexis to have
subscribers to pay for materials that are essentially in the public domain
but with underlying licenses like those created by his organization Creative
Commons.
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 He also argues for the creation of shorter renewable periods of
copyright and a limitation on derivative rights, such as limiting a
publisher's ability to stop the publication of copies of an author's book on
the internet for non-commercial purposes or create a compulsory licensing
scheme to ensure that creators obtain direct royalties for their works
based upon their usage statistics and some kind of taxation scheme such
as suggested by professor William Fisher of Harvard Law School [1] that is
similar to a longstanding proposal of Richard Stallman.
When an author is as publicly active as Lawrence Lessig, and when
a book comes with a supporting web site, an author’s blog, and surrounded
by previous and subsequent discussions of many of its themes and
proposals, the reviewer can find it difficult to know where to start. Anybody
with more than a passing interest in political, legal and ethical issues
arising from new media development is likely to be familiar in some way
with Lessig. Scientific American named him as one of its Top 50
Visionaries. A colleague and I included him in our ‘top twenty’ (18, as it
turned out) analysts of the information society in a briefing requested by
the Information Society Commission, an advisory body to the Irish
government.
Lessig is a widely respected commentator, an advocate and
activist (“a cultural warrior”), as well as an academic. His frequently cited
blog has had leading Democrats, judges, politicians and professors, as
invited contributors. His web site carries the badges of the campaigns with
which he is prominently associated, chief among them Creative Commons
(chair: Lawrence Lessig), a licensing agency that presents a kind of ‘third
way’ between traditional copyright and free-for-all.
Lessig acknowledges the uncertainties that attend this discussion. He
steers between the condemnations and the celebrations of Napster
downloading and other such challenges to copyright protection. He warns
against the dangers of a polarized debate. He distinguishes in nuanced
ways between the rights of authors, publishers and re-publishers. But he is
very certain that the current trends in copyright law are damaging to
culture and to democracy. Over the 300 pages of this book, the reader is
being persuaded to accept a definition of the copyright problem to which
Creative Commons is one, if not the, answer. ‘Free Culture’ has itself been
published through the Creative Commons licensing procedure, which
means that it can be downloaded from the web, subject to certain terms.
Lessig stacks up many fascinating cases and illustrations and
compelling arguments to persuade readers of the validity and urgency of
his concluding set of recommendations. He invokes American traditions,
represented by the United States constitution and Walt Disney’s creativity,
to buttress his case. Although the heart of the book is in the detail of law,
Lessig as an advocate presents his argument as one about culture and
creativity. For this reader, this scaffolding is the least persuasive aspect of
the book. The use Lessig makes of “free” (as in “free culture”), of “culture”
and of “creativity” is highly tendentious. Here, “culture” refers to the
entertainment industries and its products. “Creativity” refers to production
LEGAL METHOD - HILBAY A2010
in those industries, as evidenced in the strange notion of the “volume of
creativity”. “Free” is the opposite of “non-free”, although the reference to
“free-culture licenses”, as provided by Creative Commons, expresses the
irony – of which Lessig seems hardly aware - of freedom having to be
licensed.
What this book’s usage of “culture” leaves out could fill several
more books. That may well be Lessig’s intention, as a prolific author. He
makes only passing mention of the scandal surrounding the control of
rights in scholarly publishing with which he is actively engaged through
Public Library of Science. He leaves out of view the arguments about
journalists’ copyright and “open source” journalism, although these chime
with those he does pursue. And he gives scant attention to cross-cultural
difference, except perhaps to reveal a disquieting lack of interest in
European norms and values.
Lessig’s critique of the drift of US copyright law is that it is
approaching European standards. However, he does not stop to reflect why
Europe is as it is (not singular, for a start) and fails to notice the
contradiction in his citing of the (European) British Broadcasting
Corporation as an exemplar of best practice in archive access.
Lessig’s primary references are those of a constitutional lawyer –
the fundamental law of he United States and the judgments of the
Supreme Court. A significant part of this book is the self-critical account of
how he pursued a case through to the Supreme Court, in support of a New
Hampshire citizen who was being obstructed in his efforts to build a public
archive of literature in the public domain. Goliath slew David, and, in this
book, David’s defender is licking his wounds, pointing out how he failed
adequately to demonstrate the harms caused by the “extraordinary land
grab” that is going on. Much of the detail in these chapters, in the
historical examples of copyright claims and in the accounts of industry
lobbying of Congress is intriguing, and appalling. Lessig demonstrates
through myriad examples how controls on creative expression are
becoming both broader and tighter. He reports almost casually on the way
policy-makers and legislators are in the thrall of big-industry interests. He
describes the growing power of ever-larger media conglomerates, though
he turns a blind eye to dominant Disney, whose early achievements served
to support his case on the necessary role of “piracy” in cultural production.
He presents a valuable model of evolving relations between Norms, Law,
Market and Architecture (technology).
Lessig believes strongly in the potential of the Internet to facilitate
a shared culture. In blogs, he sees unfettered public discourse at work. In
the instantaneous republication that is going on continuously on the Net,
he sees cultural democracy in practice. Formalities are needed to protect
such activity, but less regulation, and, above all, fewer lawyers. In these
conditions, Lessig believes, a free culture can be reclaimed from the land-
grabbers. Just how we get there, or just how the tide is to be turned, is not
so clear.
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