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FIRST YEAR LAW TEACHING AS POLITICAL ACTION o There is something to teach: the critique of liberal,

By Dunkan Kennedy 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
- It is an exploration of the possibility of teaching law as a form of
against it.
political action.
o Since the critique of liberalism holds the key in ripping off
- Teachers should develop first year courses into systematic
the system, it can be turned into the something of crucial interest.
embodiments of their views about the present and future organization
o The critique of liberal legalism is true, and to suppress it is
of social life.
immoral, violation of the teacher’s responsibility to his students
- There are two different lines of objection to the proposal green and
o No one is going to purge someone with tenure who
the blue critique
- Green critique arguments: espouses this line with an intelligent sense of it limitations. There is
o First year law students are committed to career patterns impotence as it is afflicted with partiality and obscurity, it is
difficult to distinguish from all other forms of liberalism, and it lacks
and lifestyles that are incompatible to any form of genuine leftism;
the systematic character of the critique of liberalism.
therefore it is hard to look for converts.
o There is a lacking of the intellectual and political force to
o Even if the students were not committed to the status quo,
control the minds of the young.
activism implies an engagement with the mass strata of the
- Response to Green critique
population capable of action that would transform the system. The
o Students may be informed of the leftist way of thinking
target should then be a mass stratum and deprived.
o To focus on law students is double betrayal as they could about law – don’t undermine teacher’s impact on students.
Teaching them to analyze and be critical of legal doctrines that
not change the political system and no benefits that accrue to
they accept; if its explicit and realistic
them from political action could be deserved.
o Complacent centrism of the students may be challenged,
o The moral qualities of the activist are simply incompatible
by reducing their political self confidence by training them to
with the nature of university teaching.
analyze legal doctrine in a way that is simultaneously correct with,
- Blue critique arguments:
useful to them, and delegitimating of the established order.
o There is no subscription to any single system. No
- First year teaching is a way to confront the students with the
subscription to absolutes.
partial and confusing quality of the radical critique of bourgeois
o It is hard to teach from scratch.
legalism.
o The students may not believe anyway.
- Isolation is a fundamental condition of intellectual existence.
o Developing ways to convert students the teacher’s political Denial is not the answer
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 HOW THE LAW SCHOOL FAILS: A POLEMIC
responsibility, while the blue critique, impossibly difficult and even By Dunkan Kennedy
dangerous.
- Actions taken by teachers do not necessarily mean desired and The teachers
foreseeable results - Students have a general perception of hostility from their
- Law profession paves way to radically change the system and professors. They feel that the Socratic method is an assault. This is
overturn corruption and unjust hierarchy often concluded to be a yearning on the part of the professors to hurt
- Steps in actualizing commitment: the students. However, Duncan says that a professor who lectures gets
o List alternatives in trying to create an intense form of across as effectively as the professor who uses the Socratic method.
political education. It is not true that the only meaningful - Most professors are unaware of the effect of their behavior
opposition is underground towards their students. The professors act differently inside and
o Abandoning grandiosity / Admitting to oneself that there outside the classroom; however, very few students, generally those
our politics is theoretically impoverished. There is no grandiosity in academically successful, get to encounter the consolation in knowing
creating an opposition. – Not expecting big reforms right away the professor outside class.
- Response to the Blue Critique:

LEGAL METHOD - HILBAY A2010 -1-


- It is asserted that the professors treat each other with the same Radicalism and Apathy
straightforwardness as they treat their student. Then again, the - Radicals in law school are generally activists. They identify
professor makes distinctions in the way they deal with their students, themselves in terms of their commitment to political and institutional
some with more hostility than others. It is also crucial for the professor, change. They generally denounce competition and they obsess with
knowing that he has the power to affect the lives of students, to be the problems of “selling out”.
aware of the meaning of his conduct in the eyes of another. - Unlike the radicals, Kennedy believes that neither the distribution
- The faculty’s hostility due to a change in the way the students are of power nor the content and organization of study at the law school is
over time. They believe that there is an epidemic of radical student relevant in giving the law school its peculiar atmosphere.
criticism of the law school and dark rumors of student rebellion. - However, he says that the fact that radicals have had the courage
- Some professors feel that they need to be tough in order to control to question the law school has been of great benefit as they have
their classes in order to restrain the students from disintegrating the demonstrated that deficiencies of the institution need not be accepted.
discussion into irrelevance. - The danger for the radicals lies on their fixation on the “system”.
- His grim conclusion: The element of terrorism in teaching law On the other hand, it can be said that they are aware of a fundamental
seems to be “psychologically good” for the teacher. problem and committed to using all of their faculties to solve it the
The students best they can.
- Law students are more aggressive than students in other Academic and Professional Values
professional disciplines due to their past academic successes or their - 2 objections in desiring change in law school: the capacity to turn
prestige at other institutions. out highly successful professionals must not be endangered and that
Two student types: the current organization of the school maximizes the intellectual
The one who wants to become a lawyer: quality of the work done there.
- He is likely to have been successful at academic competition but - Improving lawyerly virtues of the student is met by the claim that
he has not developed an overwhelmingly aggressive manner. He is academic standards are all important.
initially eager to learn and more ready to contribute. However, he The Professional Model
is uncertain of himself compared to the brilliant student body. This - Professional success, in the view of the protector of the status quo,
type fairly goes to class and does solid minimum of studying. He is giving ones life to maintaining the efficiency and stability of a
eventually loses seriousness and adopts indifference to the law corrupt social order.
school and the law. In the future, he would claim that law school - For Kennedy, it is that the power to be exercised is used to
teaches nothing of what is of any use in the real world. improve the human quality of society.
- The first cost to the individual is that he is brainwashed in law - There are two kinds of success: the contribution of Yale to top
school, as his head is filled with notions he barely understands. The policy formulation and the practitioners who contribute to the
second is that he is driven into passivity and cynicism. community through legal and business skills.
The one who is the in the top of the class: - Kennedy: the law school is justified in emphasizing professional
- He is a success, which justifies whatever unpleasantness there is in success only to the extent that the success is beneficial to the
law school. This kind of student operates through distinctively community.
publicly and privately. His public life is more controlled and The Academic Model
aggressive, often more dishonest, and less emotionally satisfying, - What is absent from the law school is the feeling of intellectual
while his private life is invested with vast quantities of intense tension from the confrontation of ideas in the process of growth.
feeling and sentimentality, idealism and protectiveness. There is a need for the feeling of existence of problems unexplored
- This kind compartmentalizes because he believes that the law is not because no one has bothered to think about them but because
cold and inhuman. His cost is that such division of life lead to the the light of a new theory has only recently been turned on them.
deformations in both areas. - Contrary to the academic model argument, teachers virtually
The changing “intellectual response” at Law School never treat their students as their exact intellectual equals in class.
- The problem is not that students do not know if they want to be However, it a far more important objective to see to it that within
lawyers, rather they’re not sure of what kind of people they want to their respective roles, students and teachers treat each other
become. differently.
Conclusion

LEGAL METHOD - HILBAY A2010 -2-


“If there is revolution in the air, it is not primarily institutional, but psychic acceptability are to be viewed as extra-legal considerations
territory which is at stake, or the whole thing is a waste of time” or values that are themselves part of the law)

LANGDELL’S ORTHODOXY 2. Langdellian formalism aspired that the legal system be made
complete through universal formality, and universally formal
By Thomas Gray through conceptual order. A few basic top-level categories and
principles formed a conceptually ordered system above a large
Classical orthodoxy - set of ideas to be put to work from the inside by number of bottom-level rules. Rules, ideally, hold estavlished
those operating institutions, not a set of ideas about those institutions precedents, upon which analysis could be seen to be derived from
reflecting an outside perspective those principles.
- ideal inside theory -> would contain an accurate account of legal *Doubly formal system: 1st, specific rules were framed in such
institutions, a method for operating them, a creed for legal professionals, terms that decisions followed from them uncontroversially when
and a justification of the institutions for the outsiders they were applied to readily ascertainable facts (sought objective
tests and avoided vague standards); 2nd at the next level up one
1. Five criteria for analyzing legal systems could derive the rules themselves analytically from the principles.
A. Comprehensiveness = degree to which judges must decide * Example: the mailbox rule, (using top-level principles) that a
all cases within their jurisdictions, comprehensive if the system contract cannot be formed until there is bargained-for-
provides an institutional mechanism for the unique resolution consideration, which is either promise or performance (definition).
of every case In a bilateral contract case, there is no performance, and the only
B. Completeness = degree to which rules preordain a "right promise contained is contained in the offeree's acceptance
answer" to all possible legal questions, when its substantive (definition). But a promise requires communication of its content
norms provide a uniquely correct solution, incomplete when to its promise (analytical truth). And when the promise is by letter,
containing substantive gaps or inconsistencies between the content is not communicated until the letter is received and
overlapping norms read. Therefore, the contract is not formed until the letter is
C. Formality = degree to which outcomes are determined by received and read. (If bottom-level principles were to be used,that
transparent reasoning process, formal when its outcomes are the acceptance letter had to be received, read and understood, the
dictated by demonstrative, rationally compelling, reasons, (not requirement of rule-formality would not be met).
a necessary reason for completeness, there is a right answer *Crucial to completeness of a system that it be conceptually
for every case, but no demonstrative reasoning to hard cases) ordered and fundamental principles and constitutive concepts be
D. Conceptual order = degree to which bottom-level rules can sufficiently abstract to cover a whole range of possible cases.
be traced back to relatively small number of abstract Bottom-level rules, which are specific, could not be available in
principles, which form a coherent system, one can distinguish advance to deal with all new fact situations; if the law were only a
categories that demarcate bodies of law (e.g. tort, contract, collection of specific rules it would not be complete. (Centrum ad
crime) from operative concepts used in principles, from which ba ito?)
decisive rules are derived (e.g. consideration, proximate cause, *The law considers a mass of haphazardly arranged cases: a
malice) "chaos with a full index." Langdell: "Law, considered as a science,
* completeness, formality, and conceptual order <-- values consists of certain principles or doctrines. To have such mastery of
of legality which allow us to give a clear meaning to vague these as to be able to apply them with constant facility and
terms used in debates about legal theory certainty to the ever-tangled skein of human affairs, is what
* formalism - describes legal theories that stress the constitutes a true lawyer..."
importance of rationally uncontroversial reasoning in legal *Omitted factor: role of acceptability in classical orthodox system.
decisions Examination of Langdell's work shows that he did not hold the view
* conceptualism - describes legal theories that place a high that substantial justice and interests of parties in the cases were
value on creation or discovery of a few fundamental irrelevant to the validity of the mailbox rule. Throughout his work,
principles or concepts at the heart of the system Langdell appealed to considerations of justice or policy. "The law
E. Acceptability = normative attractiveness, fulfills the adopts fictions only to promote justice, i.e., in order to prevent
ideals and desires of those under its jurisdiction, fulfill some injustice..."ALthough not the bulk large in the Langdellian
extra-legal values (debate: WON values encompassed in

LEGAL METHOD - HILBAY A2010 -3-


corpus, he clearly regarded the appeal to justice or convenience sets its own jurisdiction while a judge must decide a case over
(acceptability) as legitimate in at least some circumstances. which he has jurisdiction, whether or not he is satisfied that his
* Example: the flagpole hypothesis: (unilateral contract cases, decision is scientifically correct. The common law doctrine of stare
where offeror promises something in exchange for performance by decisis gives a decided case authoritative force with respect to
the offeree rather than for a return promise). Langdell argued that future decisions in other cases. It thus provides the outside source
there was no consideration and hence could be no contract until of validity for decided cases that was necessary to save classical
the performance was actually completed. Like when A offers B one science of law from the vicious circularity. In law, unlike science,
hundred dollars if he will touch the top of a flagpole; B then error, if persisted in, at some point became truth; and where that
laboriously climbs the pole and just as he was about to touch the point lay could only be determined according to considerations of
top, A shouts, "I revoke." On Langdellian doctrine, A owes B acceptability that were never satisfactorily formalized. (A lie told a
nothing. (**Considerations of justice and convenience were only thousand times becomes the truth, unless our sense of justice
relevant insofar as they were embodied in principles that were refuses to accept it.)
consistent with the other fundamental rules of the system. *Tension among principles of precedent and acceptability: Langdell
"if they cannot be pronounced erroneous, they must at least be
3. Law as science. Langdell's theory is neither Benthamite nor deemed anomalous." The geometric structure of law's universally
deductive natural law but claims to be empirical yet its practice is formal conceptual order caught in the ever-tangled skein of human
highly conceptual. It delivers normative judgments yet proclaims the affairs.
positivist autonomy of law from morals. **Under formalism, progress occurred when a scholar discovered
*Analogy between law as science and Geometry - geometric ideal a previously unrecognized principle in the appellate opinions.
pervades literature of the whole rationalist movement to create Under geometric analogy, legal principles should be universal and
exact sciences of ethics, politics, and law; Euclidean geometry is eternal; history would be simply a record of their gradual
simply an uninterpreted formal system of terms and inference discovery. Legal doctrine as a growth extending through centuries
rules. Euclidid's axioms not mere human constructs but indubitable suggests an analogy between classical legal science and
physical truths which can be proved by sequences of deductive evolutionary biology - and a connection between classical legal
steps. The arrangement of inductively derived generalizations into science and the historical school of jurisprudence (whose central
a deductive system vastly extends our use of resources of thesis was that a nation's law is necessarily rooted in the
experience, by spreading long and difficult chains of deductive contingent and evolving traditions and customary practices of its
inference. When this structure is applied to law, it helps clarify the people.) History provides the necessary raw material - the cases -
otherwise baffling talk of observation, experiment and the like that on which reason operated in extracting legal principles.
appeared in Langdellian literature. *** Vehicle for legal change in classical theory was legislation, but
*The universe of data was not the totality of sense experience of this was viewed by classical writers as haphazard and anomalous
the physical world, but rather the restricted set of reported incursions into the body of common law, not fit for scientific study.
common law decisions. "All materials of legal science were to be **The classical system could not in the end make too much of a
found in printed books." virtue of its flexibility without undermining its promise of
**Circularity - failure of analogy between legal science and determinate geometric order.
geometry. Geometry eventually derives authority from general
trust of direct experience from the senses while legal science's 4. The special appeal of classical orthodoxy was its promise of
authority is from precedent which follows rules and principles, but universal formality - "every cases an easy case." A predictable system
in the classical conception of legal science, these rules and that appealed to businessmen and ascendant groups which had special
principles are themselves inductively derived. TWO RESPONSES: 1. needs for legal predictability and drawn to the "rule of law" concept of
) "Confession and avoidance" ->Admit that legal science is circular, freedom. The dry geometry of classical legal orthodoxy had a certain
while natural science is itself circular. 2.) Break out of the circle by paradoxical quasi-religious appeal to the educated elite as it promised
finding a source of validity for judicial decisions independent of the a complete and universally formal system of norms and so offered
rules and principles. determinate answers in an increasingly incomprehensible world.
**Precedent - Stare decisis as an independent source of validity. Conceptual jurisprudence was revered when secular science and major
Whether a judicially decision was substantively correct, and universities replaced the prestige and spiritual value of the church.
whether it was jurisdictionally and procedurally correct. Science Classical science bridged the practice of law as a profession and the

LEGAL METHOD - HILBAY A2010 -4-


need of the new universities for an alliance with the rich influential bar. In many situations decisions would be both more predictable and
more acceptable if the ruling norm were a vague standard that
5. Classical orthodoxy did fall from its position of explicit dominance allowed judges or juries to apply their intuitive sense of fairness
because of : perceived political bias as Langdellian legal science case-by-case, rather than a clear rule that was sporadically and
reinforced the view of common law contract and property system as a covertly evaded.
"brooding omnipresence in the sky" rather than as a contingent - The pursuit of generality principle leads legal scientists to miss
allocation of power and resources; and it was not readily adapted to a altogether lines of doctrine that were acceptable and that could
period of rapid social change. produce predictable results once recognized. Special case to the
*Critiques mailbox rule (when does a contract accepted by mail become
- The why considerations of acceptability should not be considered effective? Langdell: when received and read): Courts were
in formulating bottom-level rules and in deciding individual cases - frequently holding certain contracts to have been formed before
to do so would allow ad hoc practical judgement, which meant the acceptance was mailed. In cases involving life insurance
abandoning legal science (which meant abandoning certainty, policies, where applicants (offerors) submitted applications subject
predictability, and accountability generally). to approval by the central office of the company, and then died
- Impossibility of the central classical project of formal conceptual after the central office approved the application but before the
ordering (to have relatively few and consistent principles) signed policy (the acceptance) was mailed, courts often held that
-Once disputes are settled in a procedurally final way, they are the policy had gone into effect and the benefits must be paid.
generally left alone by the law, even if later shown to have been -->Special rule for life insurance cases, not announce by the courts
decided incorrectly. (Same as the force of the principle of res because it conflicted with the orthodox "established law." but
judicate, which has no counterpart in science). based on a sensible biases toward compensating survivors and a
-Unresolved jurisdictional conflicts - threats to comprehensiveness feeling that no injustice was done once the insurer had decided to
- within the legal system are perceived as serious crises. issue the policy.
-The courts are primarily dispute-setlers rather than scientific
authorities. Given this practical function, is it not natural to judge 6. Even in its fall classical orthodoxy achieved a secret triumph. In their
their work by the practical standard which is the standard of pursuit of logical order Langdell and his colleagues had actually
acceptability? The values of legality must be subject to the created a new conceptual structure that effectively replaced the older
ultimate test of acceptability but it does not mean that this is to Blackstonian outline of the law in the discourse of the profession. The
direct the courts to decide every dispute in the most acceptable classical scientists drew a basic line between substantive law on the
way. one hand and the procedure and remedies on the other, with the
The boldest claims of classical orthodoxy that the number of former treated as the primary and the latter merely instrumental.
fundamental legal doctrines is much less than is commonly Within law they public law from private, treating private as the core
supposed were empirically undermined when toward the end of and public law as the peripheral anomalous hybrid of law and politics.
the '20s, the failure of the great classical Restatement project The roles of such schemes in elementary pedagogy and indexing legal
(wherein Langdell and his followers set out to realize the claim with materials seem relatively trivial but categorical schemes have a power
impressive ability and energy in writing articles and organizing that is greatest when it is least noticed. They channel the attention of
cases) became obvious. those who use them, structuring experience into the focal and the
*Holmes, who himself valued both conceptual order and formality, peripheral. In so doing, they influence judgement as much as the
insisted on the disjunction between them when he observed that agenda.
"general principles do not decide concrete cases." The actual
decisions of hard cases required drawing a line, arbitrarily, on a 7. Post-classical critics sought to replace classical science of legal
continuum between competing concepts. Judges could establish principles with a Benthamite policy science (remember legal
rules in such situations by observing the clustering of decided empiricism) but it is striking how little progress has been made toward
cases and then imposing artificially sharp boundaries around the basing law on accurate measurement of desires. The main
fuzzy clusters formed. These rules, though arbitrarily, could accomplishment on behalf of this policy seems to have been that in the
provide useful predictability if imposed uniformly by judges in later recent years lawyers and judges have come to invoke the comforting
cases. metaphor of "balancing" when they discuss choices that involve the
*Realists: - formality itself does not always produce predictability. conflict of immeasurable values - the choices that less comforting

LEGAL METHOD - HILBAY A2010 -5-


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

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1. Mainstream – law as having a strong internal structural coherence method was no more than a screen for a new form of
based on the two traits of `individualism' and commitment to legal politically progressive natural law
interpretive formalism. These traits combined in `the will theory.’
2. Sociological jurists 4. Modern Legal Theory
- advocated interpretation on the basis of `scientifically' - Modern legal theory (with the exception of natural law theorists)
established social desiderata, as well as or instead of according to is antiformalist, in the sense of denying the possibility of strictly
meaning meaning based gaplessness.
- version of Will Theory that the private law rules were well - Positivism affirms that discretion in adjudication is inevitable,
understood as a set of rational derivations from the notion that while limiting it to the `penumbra' or to the area inside the `frame'
government should help individuals realize their wills, restrained provided by the norm in question
only as necessary to permit others to do the same.
- presupposed consensus in favor of the goal of individual self- 5. American Legal Theory
realization justified by a specific, will-based, and deductive - American legal theory is antipositivist, and affirms gaplessness,
interpretation of the interrelationship of the dozens or hundreds of but on the basis of policy, purpose, rights, or principles, rather than
relatively concrete norms of the extant national legal orders, and on the basis of textual, conceptual, or precedential formalism
of the legislative and adjudicative institutions that generated and formalism
applied the norms
- critiqued Mainstream Will Theory 6. The Common law world
> individualist premises of the will theory in the name of - critique of precedential interpretive formalism
`social law' a. that policy argument is always necessary in order to
> methodology determine the relevance of a precedent for a new case
 widespread abuse of deduction, meaning that jurists b. that common law theory, if it is to be coherent, must
habitually offered deductive justifications for authorize the creation of an exception to a precedentially
interpretations that were in fact logically underdetermined established rule in any case where an exception would
 falsely assumed the possibility of constructing the legal serve the policies animating the system as a whole
order in such a way that it would be gapless in fact, and 7. On the Continent (I have no idea what “Continent”)
therefore susceptible to exclusively meaning-based - rhetorical and hermeneutic theories of legal interpretation assert
interpretation. that outcomes are always relative to horizons, no matter how
3. New Legal Theoretic Avant-Garde superficially deductive (and then reground interpretation in the
- including both the American legal realists and Kelsenian supposedly shared horizon of liberal faith)
neopositivists
on the Continent 8. Postmodern Theorists
a. `policy analysis'- process of reconciling or balancing - Skeptical theories gain support from comparative law scholarship
diverse legal desiderata on the basis of information about showing diametrically opposed interpretations of identical code
the social context; provisions, and identical case law derived from contradictory code
- critiqued as `social conceptualism' or `policy formalism,' provisions.
because it selected policies arbitrarily, underestimated the
conflicts among them, and offered no defense of balancing as Formalism as a Category in the Sociology of Law
a rationally determinate procedure. 1. Law as essential building block
b. civil libertarianism - The role of formalism, in this context, means that the general
- critique: abuse of deduction from personal rights theory represents law as having a gapless, meaning-based internal
- critiqued sociologists on the ground structure, responsive to outside imperatives of some kind.
c. that its proponents confused facts from values, scientific - In fact, according to the critics, the contradictory internal
versus normative judgments. structure of Western legal systems leaves adjudicators and other
legal administrators great discretion in the interpretation of norms.
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 -7-


- It follows that neither the legitimacy of the legal order, nor its The summary I made for Lessig's article was much too long. There are
content, nor the effects of legal institutions, can be inferred from more important things for you to do with your time, so I'm just posting
the external imperatives the theorist imagines animate them. these reviews and summaries I found on the net. They're far shorter and
2. Law as the weak link in the general sociological construction. anyway you only need the general idea with Hilbay. The details aren't
important.
1. Sociologies that include law as one of the elements in an
integrated representation of society THERE IS NO TEXTUALIST POSITION
2. Sociologies that take law as their (very) object, bringing to bear By Stanley Fish
on it the variety of instruments of sociological investigation
- A logically formal rational system–is a collection of norms that are The intentionalist position is not a method, it is simply the right
internally consistent and that officials apply to particular fact answer to the question (what is the meaning of a text?) It does
situations according to textual and conceptual formalism premised not tell you what to do; it just tells you what you are doing.
on gaplessness,
- Interpretation is the `logical analysis of meaning.' Despite the **Distinction between sentence meaning and speaker’s meaning, -
superficial between the meaning an utterance has by virtue of the lexical items and
resemblance, this ideal type is not just Will Theory under another syntactic structures that make it up, and the meaning a speaker may have
name, because intended but not achieved - is possible because they are distinguishable
a. not intrinsically associated with either the concept or the social entities, and they can come apart. When they do, one can say that the
reality of individual freedom words, literally construed, say one thing, but the speaker’s purpose is to
b. contingent product of Continental legal history, rather than say something else. One can choose between the two – it is an act of
implicit in a larger normative conception. choice made available because it is possible to distinguish between the
two.
Matters for investigation
a. how an order claiming these types of legal rationality operates Ex: Spoken: “Go through the light.”
through officials at the level of practice, how state law interacts Assumptions: (at an intersection with a stoplight turned
with other normative orders, and what effects are plausibly linked red)
to a type 1. Beat the red light. Break the law to make it to an appointment
b. whether it is ever plausible, given the critique of gaplessness and on time?
the ever-present possibility of the abuse of deduction, that a legal 2. Beat the red light because of a medical emergency?
order operates in practice in a way usefully described as logically 3. Simply giving directions?
formal rationality. 4. Just wanted to flout authority and take minor risks?
c. the legal/bureaucratic mode of legitimation no longer relies on the Finally interpreted as: “After the light turns green, go straight and
claim of logically formal rationality, but rather on a complex don’t make any turns.”
mixture of claims of local meaning-based closure, claims of policy
rationality (substantively rational, in Weber's terminology), and Arguments:
claims of democratic procedural legitimacy. These have not Here, the words “Go through the light” are attached to an
precluded a `legitimation crisis.' assumption of an intention because they cannot be heard apart from an
Conclusion intention within which they were uttered. The text is not independent; it is
- Descriptively formal law – both formal rule systems and formal an entirely derivative entity. Once one construes words, the instant one
techniques of interpretation – involves the morally delicate refusal to hears sounds as words and treats them as language, they acquire
respond to the call for justice in the particular case, for reasons that may meaning. Purpose will have already been put in place – to give directions,
be good or bad according to the circumstances. to give orders, to urge haste, to urge outlaw behavior – in the light of which
- Formal law is part of the drama of governance, the trivial or murderous the sounds become words and acquire sense. The specification or
drama of breaking eggs to make omelettes. assumption of intention therefore comes first; the fact of a text with
meaning comes second.

LEGAL METHOD - HILBAY A2010 -8-


Text alone, no matter how long and dense, can never yield Lexical items and grammatical structures will yield no meaning –
meaning, whereas intention, whether assumed, discovered, or revealed, will not even be seen as lexical items and grammatical structures - until
can always alter a meaning that had previously been in place; not because they are seen as having been produced by some intentional agent. A text
what had been said has been trumped by what was intended, but because that seems obvious is a text for which an intentional context has already
one understanding of what was intended has been dislodged by another. It been assumed. In short, the text has no independence; it is an entirely
is therefore not a matter of choosing between what was said and what was derivative entity – something else must be in place before it can emerge as
meant but rather between specifications of what was meant. 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
**In the arena of legal interpretation, Justice Antonin Scalia declared: Ours partial source of meaning because one cannot anchor a method in a
is a government of laws - of texts written down - not men, and therefore it nonentity, in a notion – the text - that can neither produce nor constrain
would simply be undemocratic “to have the meaning of a law determined anything.
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 **Concession to Intentionalism’s appeal:
of our “inquiry.” “Men may intend what they will; but it is only the laws A. Maximizing intentionalism - searching for a texts meaning because it
that they enact which bind us. Words are material and available for neglects the direct costs and opportunity costs of searching further afield
inspection, intentions are not, and because they are not, they provide an for evidence of legislative intentions.
insufficient constraint on judges who might be tempted to rewrite the law B. Optimizing intentionalism - employing a stopping rule: declining to
in the guise of interpreting it. search further afield if expected benefits of further search are less than
the costs, therefore providing justification for considering less than all
**It is simply a matter of choice between something materially available probative information bearing on legislative intentions.
(text) and something absent and speculative (the intention of its author) Both views represent a choice between interpreting and doing
Intention cannot be separated from meaning or thought of in something else (a cost/benefit analysis). Choosing in the direction of either
conflict with it. If there were no intention, not only would there not be a will force one to now be asking the question “what can we do with the
meaning; there would be no reason to seek one. Again, it is not choosing text?” as opposed to “what does this text mean?” which leaves open a
between what was said and what was meant but really which of the space where an “interpreter” (no longer one) is free to determine how best
possible meanings. to reach a conclusion that reflects his/her policy preferences or a way of
In the matter of choosing between an utterance (text) and what is legitimizing his/her desires. There are instances when the search of
intended, first, for there to even be a choice, any choice, there must be meaning is either too difficult or subversive that insisting on it would be
distinguishable entities to choose between. There must be a textual perverse making stopping rules necessary. Stopping rules are not rules of
meaning – a meaning a sentence has as its property – which one could interpretation however, they are rules that tell you when the effort to
either adhere to or depart from; for only then could this textual meaning interpret should cease (because of reasons stated) and something else
be chosen or chosen against. But words alone, without an animating should take over, nevertheless, acknowledging such obstacles to the
intention, do not have power, do not have semantic shape, and are not yet specification of meaning does not change the fact that the answer to the
language; they do not have any textual meaning that one could readily question “what does a text mean?” is that a text means what its author
adhere to or depart from, in order for it to be chosen or chosen against. intends it to mean.
C. The interpreters or readers decide principle: the meaning taken to be as
**Textualists do not inquire what the legislature meant; only what the how it is understood by the community
statute means The assumption in the readers decide principle is that people have
One who does not want to know about intention does not want to decided to “go beyond” whatever the author may have intended whether
know about meaning. They do not simply go together; they are inseparable in search of the actual authorial intention or just in exercise of their right to
from one another. 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
**The “pluralist” or “synthetic” textualist approach: Meaning can be purposes and needs and hence, it provides no possibility of coming up with
decoded by looking to the combination of lexical items and grammatical an answer to the question “what does a text mean?”
structures, with a little help, in the case of ambiguity or obscurity, from
legislative history or judicial precedent **Objections to intentionalism:

LEGAL METHOD - HILBAY A2010 -9-


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?

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> How did “cat” come to mean jazz musician? Because it was used by > Advantage: Rule of law benefit in that the average citizen is given clear
some people with the intent that it be understood as referring to a jazz notice of what the law means
musician. And the word “cat” meant jazz musician the very first time it > Critique 1: Let us take the extremes. Providing almost no context except
was used with such an intention, even before it was listed as a definition in that the authors were English speakers – this wouldn’t be different from
the dictionary. simply getting the dictionary meaning of the text. On the other hand,
Argument 5: Unexplained Exceptions to I.F. Textualism: The Use of providing them with additional contexts, their readings might:
Context, the Avoidance of Literal Absurdities, and Casualness Regarding a. converge with the authoritative interpreter’s (e.g the judge’s), in
Punctuation which case, why poll from the sample?
> On The Use of Context b. vary from one person to the next, in which case, there will be no
Textualists admit that texts must be read in context. The additional authoritative meaning.
contextual information is, unsurprisingly, information that provides > Critique 2: If polling a sample will yield Critique 1, then why not ask one
evidence of the intent of the actual author. The commonplace truth that median member of the public instead of several? The problem then arises
all understandings of texts are contextual just demonstrates that all texts, as to who is the “median” member of the public, which is an indeterminate
as text, acquire their meaning from the presumed intentions of their concept considering that there is an indefinite number of dimensions on
authors. which one can identify a “median” member of the public.
> On the Avoidance of Literal Absurdities (Absurdity Doctrine) Position 3: The Idealized Reader
This is a way that textualists bring authorial intentions thorough the > Textualists have recourse to the construct of an idealized
backdoor. For to say that some reading is absurd and therefore ought to contemporaneous (with the statute’s enactment) reader – interpreting
be rejected is to say nothing more than that the author of the text could language by asking how “a skilled, objectively reasonable user of words”
not have intended such a reading. would have understood the text, or “as any ordinary Member of Congress
> On Casualness Regarding Punctuation (Scrivener’s Error Doctrine) would have read them,” and also considering the context of the statute
To speak of errors, mistakes, or of a “legislature that obviously and taking into account background legal convention. In sum, the idealized
misspoke” is to have a baseline of legislative intent, for it is only against reader is a lawyer.
that baseline that it is possible to speak of legislative misspeaking. But > Critique: Supplying the idealized reader the “context” of the statute is
then again, so far as the IF textualist is concerned, there can be no but a backdoor means of reintroducing the author’s intent. When asked to
“errors” in statutory text. The text results from clashes of interests, and it interpret something, the idealized reader will seek the actual author’s
is whatever it is, warts and all. So if the text says “emission testing of intent as a source of meaning. In creating this construct of idealized
carps,” it means emission testing of fish. reader to generate an ”objective” meaning, textualists have instead just
created an abstraction that merely filters authorial intention.
Part 2: The Real Issues in Interpretation Moreover, even if the textualist forbids the idealized reader from
If I.F. Textualism is an impossibility because one must always have seeking the intent of the actual author, the idealized reader will still have
recourse to some author, real or otherwise, what other positions could to search for some intent. If we are correct that one must envision an
textualists be advocating? author whenever attempting to make sense of text (indeed, to even
Position 1: Textualism as Rule of Law Restricted Intentionalism identify it as such), the idealized reader will have to imagine a hypothetical
> The interpreter should seek out authorial intent, but in doing so should author/s.
refuse to consider certain kinds of evidence thereof, even if reliable, using > Note: The benefit of this approach is that with the selection of one
a set of norms, for example, rule of law as justification for the same. hypothetical author even though it was a multi-member body that created
> Critique: Because evidence is excluded, especially so when it is reliable the text, it becomes much more likely that every statute has a meaning.
the interpreter will end up in a situation in which the authoritative meaning After all, the more authors a text has, the more likely it is that there is no
of the law is different from what the interpreter knows was the meaning shared intent as to the meaning of the text.
intended by the lawmakers. There is a gap between what the interpreter > Critique of “Note”: Precluded as the idealized reader is from looking to
knows the lawmakers actually intended and what, per the norms (e.g. rule all the evidence of actual authorial intent, the idealized reader may
of law), the interpreter will deem them to have intended. conclude that a text has two or more meanings that are equally supported
Position 2: Textualism as Man on the Street Interpretation by the evidence to which he is restricted. There is no deeper metaphysical
> Interpreting legal texts as would a sample of average members of the fact, like intent, of which these multiple meanings are merely evidence.
public provided a certain context. Position 4: The Idealized Author

LEGAL METHOD - HILBAY A2010 - 11 -


> Legal text should be interpreted to mean what they would have meant achieve a specific goal. Intentionalists do not advocate departing from the
had they been authored by this single idealized lawmaker rather than by intended meaning whenever the interpreter concludes the lawmaker made
the one or several actual lawmakers. a mistake regarding what that meaning would accomplish or how well that
> Critique: In order to yield interpretations, we need to specify the meaning serves the lawmaker’s values. In my understanding, the Judiciary
attributes of the idealized author. This will lead in effect to the reauthoring as intentionalists advocate honoring the intent of the law as it is but do not
of the law by the interpreter. question the wisdom (of the Legislature) as to why such law has been
passed.
Conclusion
Everybody, textualist or otherwise, looks beyond the four corners of TYRANNOSAURUS TEXT AND THE DOCTRINAL SLIP:
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 PP1017 AND THE PROBLEMATICS OF EXECUTIVE
principally its meaning. The text is just a means of conveying meaning. LEGISLATION
The extratextual factors illuminate a statute’s meaning; and therefore, By Florin Hilbay
though they are extratextual, they are not “extrastatutory.”
An intentionalist may choose to exclude some evidence about authorial FLORIN’S OBJECTIVE IN THIS ARTICLE: By showing the doctrinal and
intentions on the theory that the evidence may be more prejudicial than interpretive mistakes of the Supreme Court in the decision of David vs.
probative or may be prone to manipulation. Hence, textualists of Position 1 Arroyo, he hopes to promote a dialogue on the tools of judicial decision-
may be correct in concluding that one ought not examine, for example, making that inform the decision itself.
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 I. THE DOCTRINAL SLIP
Textualists have claimed that textualism “starts from the faithful agent Argument No 1.
premise – that a federal court is responsible for accurately deciphering and The distinction between facial and applied challenges that the Court
implementing the legislature’s commands.” However, “textualists believe used in scrutinizing PP 1017 is founded on the separation of powers
that when a statutory text is clear, that is the end of the matter.” principle that relies on a conceptual distinction between rule-making and
Textualists acknowledge that Congress has the right to place a set of rule-execution. It derives strength from the institutional play between the
marks on a page. But they forbid Congress form selecting the meaning of Court as interpreter of the Constitution, and the Congress, as the body with
those marks. Instead, the meanings of those marks are supposed to be authority to legislate on matters affecting the guarantees in the Bill of
fixed according to a set of rules that are (relatively) independent of Rights. Because presidential authority is only marginally implicated in the
Congress, interpreted on the basis solely of the text independent of analysis of the need for careful drawing of statutes and their compliance
intention. Should Congress intend secondary or nonstandard meanings, it with constitutional principles—the salient feature of facial analysis—then
may well have its will thwarted; for the reasonable reader, if so the application of this kind of scrutiny to presidential proclamation (an
constructed, may generate an objectified meaning that ignores Congress’ altogether different species of policy) is inappropriate.1
intended secondary or tertiary meanings. Whatever the merits of Facial invalidation is a slap on the legislature, while as applied
textualism, it does not strike us as a theory where the interpreter acts as a invalidation is a slap on some arresting officer. In both instances, high-level
faithful agent of Congress. executive officials are invisible to the reach of the doctrines.
Appendix 2: The Lawmaker’s Intended Meaning Versus the Lawmaker’s Argument No. 2.
Intended Goals The Court should not have uncritically applied doctrines in the case.
Legal texts not only have intended meanings; legal texts are meant to Doctrines do not come out of a judicial toolbox ready for use in every
achieve certain goals. But the goals they are meant to achieve are not the apparently similar occasion. Doctrines are always situated temporally and
same thing as the meanings they are intended to convey. spatially.
There are two types of mistakes a lawmaker makes: lapses in
expression (as to meaning) pertaining to mistakes in conveyance when 1
COMMENT: Hilbay is too verbose. His argument is really simple: Facial and applied
words are ill chosen, vis-à-vis lapses in foresight (as to goal) pertaining to challenges applies only to congressional enactments and not to presidential
mistakes of fact that leads one to think that with a specific law s/he might proclamations. Hence, the doctrinal slip.

LEGAL METHOD - HILBAY A2010 - 12 -


Overbreadth doctrine for instance, is a product of politics of judges in The matter is different when the question of meaning is confined in
the United States as particularly shown in the Warren Court’s attitude the President. The President, as commander-in-chief and as chief executive
towards facial invalidation. The doctrinal debate was and still is part of the had full control of her own text, that is, she had the constitutional authority
larger political debate over the role of the US Supreme Court in enforcing to author—enforce—what she had intended to carry our, as she did, her
its views on the Constitution and its relationship with both federal and purpose.4
state legislatures.
DAVID V ARROYO
II. THE TYRANNY OF TEXT
Hilbay attributes the doctrinal slip partly on the Court’s penchant SANDOVAL-GUTIERREZ; May 3, 2006
for privileging the textual interpretation over intentionalist interpretation.
Argument No. 1 NATURE OF THE PETITION
The intent behind PP 1017 can easily be identified considering that the These seven (7) consolidated petitions for certiorari and prohibition
President was the single author of the proclamation. The interpretive issue allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and
therefore that should be determinative of the constitutional argument in General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
David is not difficulty of linking text with intention but of the manipulation committed grave abuse of discretion. Petitioners contend that respondent
of text to suppress an otherwise illicit intention already bare to the public officials of the Government, in their professed efforts to defend and
sight.2 preserve democratic institutions, are actually trampling upon the very
Argument No. 2 freedom guaranteed and protected by the Constitution. Hence, such
Textualism as an ideology of reading applied to PP1017 made the Court issuances are void for being unconstitutional.
conclude that there is nothing in its text that allowed the constitutional
violations that actually occurred despite the vulgarity of the contradictory THE FACTS
context that surrounded it. To look for something in the text that says On February 24, 2006, as the nation celebrated the 20 th Anniversary of
police may arrest anyone who exercises her freedom of speech, and that the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
they may invade premises of publications critical to the government, is to of national emergency, thus:
search for the right of abortion in the Ten Commandments. 3
The tyranny of text is the formalist search for understanding in NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
material marks—texts—that have no presence in the absence of context, of the Philippines and Commander-in-Chief of the Armed Forces of the
of the conditions that make them comprehensible and allow for the Philippines, by virtue of the powers vested upon me by Section 18,
emergence of meaning. Article 7 of the Philippine Constitution which states that: “The President. .
. whenever it becomes necessary, . . . may call out (the) armed forces to
III. HOW THE COURT SHOULD HAVE DECIDED THE CASE prevent or suppress. . .rebellion. . .,” and in my capacity as their
Who is responsible for the Constitutional Violence? Florin’s answer: the Commander-in-Chief, do hereby command the Armed Forces of the
President. Philippines, to maintain law and order throughout the Philippines,
Reason prevent or suppress all forms of lawless violence as well as any act of
The reason why laws, in general, may not be declared unconstitutional insurrection or rebellion and to enforce obedience to all the laws and to
on the basis of the implementer’s misdeed is that the legislature cannot be all decrees, orders and regulations promulgated by me personally or
faulted for the blunders of law enforcement agencies. The Anti-Rape upon my direction; and as provided in Section 17, Article 12 of the
statute should not be invalidated just because the accused was arrested Constitution do hereby declare a State of National Emergency.
without warrant. The structure of our constitutional government limits the The declaration is premised military and police intelligence containing
power of the legislature to compel the executive department to follow its concerted efforts of Left and Right wing factions to bring down the Arroyo
intended meaning. But this is the extent to which logic may carry us. Government.
On the same day, the President issued G. O. No. 5 implementing PP 1017
2
Here, Florin’s bias is shown. He contends that the intent of PP 1017 is illicit from the beginning (hence, the same premise as PP1017), thus:
and that this intent is known by the public. NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
3
Florin admittedly, has excellent insights on judicial interpretation. However, if you notice, he powers vested in me under the Constitution as President of the Republic
doesn’t substantiate his alternative views very well (all rhetoric), which leaves the credibility of of the Philippines, and Commander-in-Chief of the Republic of the
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
4
was such “vulgarity” of the context which surrounded the issuance of PP 1017. In short, the President must be accountable.

LEGAL METHOD - HILBAY A2010 - 13 -


Philippines, and pursuant to Proclamation No. 1017 dated February 24, Arroyo decided not to attend the Alumni Homecoming. The next day, at
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the height of the celebration, a bomb was found and detonated at the PMA
the Philippine National Police (PNP), to prevent and suppress acts of parade ground.
terrorism and lawless violence in the country; On February 21, 2006, Lt. San Juan was recaptured in a communist
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as safehouse in Batangas province. Found in his possession were two (2)
well as the officers and men of the AFP and PNP, to immediately carry flash disks containing minutes of the meetings between members of the
out the necessary and appropriate actions and measures to suppress Magdalo Group and the National People’s Army (NPA), a tape recorder,
and prevent acts of terrorism and lawless violence. audio cassette cartridges, diskettes, and copies of subversive documents. 8
[7]
On March 3, 2006, exactly one week after the declaration of a state of Prior to his arrest, Lt. San Juan announced through DZRH that the
national emergency and after all these petitions had been filed, the “Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of
President lifted PP 1017. Edsa I.”
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
ARGUMENTS OF THE GOVERNMENT information that members of the PNP- Special Action Force were planning
In their presentation of the factual bases of PP 1017 and G.O. No. 5, to defect. Thus, he immediately ordered SAF Commanding General
respondents stated that the proximate cause behind the executive Marcelino Franco, Jr. to “disavow” any defection. The latter promptly
issuances was the conspiracy among some military officers, leftist obeyed and issued a public statement: “All SAF units are under the
insurgents of the New People’s Army (NPA), and some members of the effective control of responsible and trustworthy officers with proven
political opposition in a plot to unseat or assassinate President Arroyo.5[4] integrity and unquestionable loyalty.”
They considered the aim to oust or assassinate the President and take- On the same day, at the house of former Congressman Peping
over the reigns of government as a clear and present danger. Cojuangco, President Cory Aquino’s brother, businessmen and mid-level
During the oral arguments held on March 7, 2006, the Solicitor General government officials plotted moves to bring down the Arroyo
specified the facts leading to the issuance of PP 1017 and G.O. No. 5. administration. Nelly Sindayen of TIME Magazine reported that Pastor
SIGNIFICANTLY, THERE WAS NO REFUTATION FROM PETITIONERS’ Saycon, longtime Arroyo critic, called a U.S. government official about his
COUNSELS. group’s plans if President Arroyo is ousted. Saycon also phoned a man
The Solicitor General argued that the intent of the Constitution is to code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
give full discretionary powers to the President in determining the necessity Commander of the Army’s elite Scout Ranger. Lim said “it was all systems
of calling out the armed forces. He emphasized that none of the go for the planned movement against Arroyo.”9[8]
petitioners has shown that PP 1017 was without factual bases. While he B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
explained that it is not respondents’ task to state the facts behind the Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
questioned Proclamation, however, they are presenting the same, narrated (AFP), that a huge number of soldiers would join the rallies to provide a
hereunder, for the elucidation of the issues. critical mass and armed component to the Anti-Arroyo protests to be held
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants on February 24, 2005. According to these two (2) officers, there was no
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of way they could possibly stop the soldiers because they too, were breaking
the Magdalo Group indicted in the Oakwood mutiny, escaped their the chain of command to join the forces foist to unseat the President.
detention cell in Fort Bonifacio, Taguig City. In a public statement, they However, Gen. Senga has remained faithful to his Commander-in-Chief and
vowed to remain defiant and to elude arrest at all costs. They called upon to the chain of command. He immediately took custody of B/Gen. Lim and
the people to “show and proclaim our displeasure at the sham regime. Let directed Col. Querubin to return to the Philippine Marines Headquarters in
us demonstrate our disgust, not only by going to the streets in protest, but Fort Bonifacio.
also by wearing red bands on our left arms.” 6[5] Earlier, the CPP-NPA called for intensification of political and
On February 17, 2006, the authorities got hold of a document entitled revolutionary work within the military and the police establishments in
“Oplan Hackle I ” which detailed plans for bombings and attacks during the order to forge alliances with its members and key officials. NPA
Philippine Military Academy Alumni Homecoming in Baguio City. The plot spokesman Gregorio “Ka Roger” Rosal declared: “The Communist Party
was to assassinate selected targets including some cabinet members and and revolutionary movement and the entire people look forward to the
President Arroyo herself.7[6] Upon the advice of her security, President possibility in the coming year of accomplishing its immediate task of
5 [4]
Respondents’ Comment dated March 6, 2006. 8 [7]
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex “I” of
6 [5]
Ibid. Respondents’ Consolidated Comment.
7 [6] 9
Ibid. [8]
Respondents’ Consolidated Comment.

LEGAL METHOD - HILBAY A2010 - 14 -


bringing down the Arroyo regime; of rendering it to weaken and unable to freedom of expression” and “a declaration of martial law.” They alleged
rule that it will not take much longer to end it.”10[9] that President Arroyo “gravely abused her discretion in calling out the
On the other hand, Cesar Renerio, spokesman for the National armed forces without clear and verifiable factual basis of the possibility of
Democratic Front (NDF) at North Central Mindanao, publicly announced: lawless violence and a showing that there is necessity to do so.”
“Anti-Arroyo groups within the military and police are growing rapidly, In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
hastened by the economic difficulties suffered by the families of AFP averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
officers and enlisted personnel who undertake counter-insurgency arrogate unto President Arroyo the power to enact laws and decrees; (2)
operations in the field.” He claimed that with the forces of the national their issuance was without factual basis; and (3) they violate freedom of
democratic movement, the anti-Arroyo conservative political parties, expression and the right of the people to peaceably assemble to redress
coalitions, plus the groups that have been reinforcing since June 2005, it is their grievances.
probable that the President’s ouster is nearing its concluding stage in the In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
first half of 2006. alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
Respondents further claimed that the bombing of telecommunication violate (a) Section 412[15] of Article II, (b) Sections 1,13[16] 2,14[17] and 415[18]
towers and cell sites in Bulacan and Bataan was also considered as of Article III, (c) Section 2316[19] of Article VI, and (d) Section 1717[20] of
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is Article XII of the Constitution.
the raid of an army outpost in Benguet resulting in the death of three (3) In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that
soldiers. And also the directive of the Communist Party of the PP 1017 is an “arbitrary and unlawful exercise by the President of her
Philippines ordering its front organizations to join 5,000 Metro Manila Martial Law powers.” And assuming that PP 1017 is not really a
radicals and 25,000 more from the provinces in mass protests.11[10] declaration of Martial Law, petitioners argued that “it amounts to an
By midnight of February 23, 2006, the President convened her security exercise by the President of emergency powers without congressional
advisers and several cabinet members to assess the gravity of the approval.” In addition, petitioners asserted that PP 1017 “goes beyond the
fermenting peace and order situation. She directed both the AFP and the nature and function of a proclamation as defined under the Revised
PNP to account for all their men and ensure that the chain of command Administrative Code.”
remains solid and undivided. To protect the young students from any
12
possible trouble that might break loose on the streets, the President [15]
The prime duty of the Government is to serve and protect the people. The
suspended classes in all levels in the entire National Capital Region. 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.
PETITIONER’S ARGUMENTS 13 [16]
No person shall be deprived of life, liberty, or property without due process of law, nor
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
shall any person be denied the equal protection of the laws.
1017 on the grounds that (1) it encroaches on the emergency powers of 14 [17]
Congress; (2) it is a subterfuge to avoid the constitutional requirements for 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
the imposition of martial law; and (3) it violates the constitutional be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
guarantees of freedom of the press, of speech and of assembly. cause to be determined personally by the judge after examination under oath or
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune affirmation of the complainant and the witnesses he may produce, and particularly
Publishing Co., Inc. challenged the CIDG’s act of raiding the Daily Tribune describing the place to be searched and the persons or things to be seized.
15
offices as a clear case of “censorship” or “prior restraint.” They also [18]
No law shall be passed abridging the freedom of speech, of expression, or of the
claimed that the term “emergency” refers only to tsunami, typhoon, press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances.
hurricane and similar occurrences, hence, there is “absolutely no 16 [19]
emergency” that warrants the issuance of PP 1017. (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
In G.R. No. 171485, petitioners herein are Representative Francis of war.
Joseph G. Escudero, and twenty one (21) other members of the House of (2) In times of war or other national emergency, the Congress may, by law, authorize the
Representatives, including Representatives Satur Ocampo, Rafael Mariano, President, for a limited period and subject to such restrictions as it may prescribe, to
Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 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
and G.O. No. 5 constitute “usurpation of legislative powers”; “violation of adjournment thereof.
17 [20]
10 [9]
In times of national emergency, when the public interest so requires, the State may,
Ibid.
during the emergency and under reasonable terms prescribed by it, temporarily take over
11 [10]
Ibid. or direct the operation of any privately owned public utility or business affected with public
interest.

LEGAL METHOD - HILBAY A2010 - 15 -


And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained the public;21[33] and fourth, the case is capable of repetition yet evading
that PP 1017 and G.O. No. 5 are “unconstitutional for being violative of the review.22[34]
freedom of expression, including its cognate rights such as freedom of the 2. YES. The requirement of Locus standi which is the right of
press and the right to access to information on matters of public concern, appearance in a court of justice on a given question shall be set aside
all guaranteed under Article III, Section 4 of the 1987 Constitution.” In this by the Court whenever it is shown that the case is of transcendental
regard, she stated that these issuances prevented her from fully importance.
prosecuting her election protest pending before the Presidential Electoral SUBSTANTIVE
Tribunal. 1. YES. Notwithstanding the discretionary nature of the constitutional
In respondents’ Consolidated Comment, the Solicitor General exercise of the President of his/her calling out of power, the Courts
countered that: first, the petitions should be dismissed for being moot; shall have authority to inquire into the factual basis of such exercise to
second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 determine whether it was within the constitutionally permissible limits
(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no or whether grave abuse of discretion attended its exercise. (This
legal standing; third, it is not necessary for petitioners to implead interpretation was based on Article VIII, section 1)23
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 2. A. Facial Challenge. Facial invalidation of laws (overbreadth
expression and redress of grievances. 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
ISSUES no instance that the assailed law may be valid; and that (3) the Court
PROCEDURAL has no other alternative remedies available.
1) WON the moot and academic principle precludes the Court from Under the void-for-vagueness doctrine, a law shall be facially invalid
taking cognizance of the cases 18 only if men of common intelligence must necessarily guess at its
2) WON the petitioners in 171485 (Escudero et al.), G.R. Nos. meaning and differ as to its application
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and B. Constitutional Basis. The authority of the President to exercise his
171424 (Legarda) have legal standing. calling out power to suppress lawless violence shall not be deemed to
SUBSTANTIVE include the power to authorize: (a) arrests and seizures without judicial
1) WON the Supreme Court can review the factual bases of PP warrants; (b) ban on public assemblies; (c) take-over of news media
1017. and agencies and press censorship; and (d) issuance of Presidential
2) WON PP 1017 and G.O. No. 5 are unconstitutional.\ Decrees, as these powers can be exercised by the President as
a. Facial Challenge Commander-in-Chief only where there is a valid declaration of Martial
b. Constitutional Basis Law or suspension of the writ of habeas corpus.
c. As Applied Challenge The take care power of the President, which includes the power to
enforce obedience of laws shall not be deemed to include calling the
RATIO DECIDENDI military to enforce or implement certain laws, such as customs laws,
PROCEDURAL laws governing family and property relations, laws on obligations and
contracts and the like.
1. NO. Courts will decide cases, otherwise moot and academic, if: The ordinance power of the President shall not include the power
first, there is a grave violation of the Constitution;19[31] second, the to make “decrees” with the same force and effect as those issued by
exceptional character of the situation and the paramount public President Marcos.
interest is involved;20[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and
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,
18 Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive
BRYAN_SJ: I REFORMULATED THE ISSUE SO THAT THE RATIO DECIDENDI WILL BE RESPONSIVE
Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
TO IT. THE ORIGINAL QUESTION WAS TO THIS EFFECT: “WERE THE PETITIONS MOOT AND 23
ACADEMIC?,” WHICH WAS ANSWERED BY THE COURT IN THE AFFIRMATIVE, ONLY TO REPUDIATE BRYAN_SJ: PAY ATTENTION TO THE COURT’S REASONING LATER ON, WHERE THE COURT
THE PRINCIPLE LATER. 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
19[31] NOT INCLUDE THE CREATION OF AN INDEPENDENT BODY TO INDEPENDENTLY INVESTIGATE THE
Province of Batangas v. Romulo, supra.
FACTUAL BASIS.
20 [32]
Lacson v. Perez, supra.

LEGAL METHOD - HILBAY A2010 - 16 -


In the absence of delegated authority from Congress, the authority of alleged mootness of this case, respondents cited Chief Justice Artemio V.
the President to declare a state of emergency shall not be deemed to Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.29[36]
include the power to temporarily take over or direct the operation of However, they failed to take into account the Chief Justice’s very
any privately owned public utility or business affected with public statement that an otherwise “moot” case may still be decided “provided
interest. the party raising it in a proper case has been and/or continues to be
Acts of terrorism no matter how repulsive shall not be deemed to be prejudiced or damaged as a direct result of its issuance.” The present
punishable in the absence of legislation clearly defining said acts and case falls right within this exception to the mootness rule pointed out by
providing specific punishments therefor. the Chief Justice.
C. Applied Challenge. The Court shall not declare laws as invalid solely
on the basis of their misapplication or abuse or susceptibility to abuse 2. Locus standi is defined as “a right of appearance in a court of justice on
by the people tasked to implement them. a given question.”30[37] In private suits, standing is governed by the “real-
The arrest of Randy David and other acts done by the authorities parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules
pursuant to the parts of the laws herein considered unconstitutional of Civil Procedure, as amended. It provides that “every action must be
are also deemed unconstitutional without prejudice to the filing of prosecuted or defended in the name of the real party in interest.”
necessary administrative, criminal or civil actions against specific Accordingly, the “real-party-in interest” is “the party who stands to be
abuses committed by authorities. 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
REASONING OF THE COURT his own right to the relief sought.
PROCEDURAL By way of summary, the following rules may be culled from the cases
1. The “moot and academic” principle is not a magical formula that can decided by this Court. Taxpayers, voters, concerned citizens, and
automatically dissuade the courts in resolving a case. Courts will decide legislators may be accorded standing to sue, provided that the following
cases, otherwise moot and academic, if: first, there is a grave violation of requirements are met:
the Constitution;24[31] second, the exceptional character of the situation and (1 the cases involve constitutional issues;
the paramount public interest is involved;25[32] third, when constitutional (2) for taxpayers, there must be a claim of illegal disbursement of
issue raised requires formulation of controlling principles to guide the public funds or that the tax measure is unconstitutional;
bench, the bar, and the public; 26[33] and fourth, the case is capable of (3) for voters, there must be a showing of obvious interest in the
repetition yet evading review.27[34] validity of the election law in question;
All the foregoing exceptions are present here and justify this Court’s (4) for concerned citizens, there must be a showing that the issues
assumption of jurisdiction over the instant petitions. Petitioners alleged raised are of transcendental importance which must be settled early;
that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. and
There is no question that the issues being raised affect the public’s (5) for legislators, there must be a claim that the official action
interest, involving as they do the people’s basic rights to freedom of complained of infringes upon their prerogatives as legislators.
expression, of assembly and of the press. Moreover, the Court has the Now, the application of the above principles to the present petitions.
duty to formulate guiding and controlling constitutional precepts, doctrines The locus standi of petitioners in G.R. No. 171396, particularly David
or rules. It has the symbolic function of educating the bench and the bar, and Llamas, is beyond doubt. The same holds true with petitioners in G.R.
and in the present petitions, the military and the police, on the extent of No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
the protection given by constitutional guarantees.28[35] And lastly, “direct injury” resulting from “illegal arrest” and “unlawful search”
respondents’ contested actions are capable of repetition. Certainly, the committed by police operatives pursuant to PP 1017. Rightly so, the
petitions are subject to judicial review. In their attempt to prove the Solicitor General does not question their legal standing.
- In G.R. No. 171485, the opposition Congressmen alleged there was
24[31]
Province of Batangas v. Romulo, supra. usurpation of legislative powers. They also raised the issue of whether or
25 [32]
Lacson v. Perez, supra. not the concurrence of Congress is necessary whenever the alarming
26 [33]
Province of Batangas v. Romulo, supra.
powers incident to Martial Law are used. Moreover, it is in the interest of
27 [34] 29[36]
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
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. 30 [37]
28 [35] Black’s Law Dictionary, 6th Ed. 1991, p. 941.
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
31 [38]
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

LEGAL METHOD - HILBAY A2010 - 17 -


justice that those affected by PP 1017 can be represented by their prevented her from pursuing her occupation. Her submission that she has
Congressmen in bringing to the attention of the Court the alleged pending electoral protest before the Presidential Electoral Tribunal is
violations of their basic rights. likewise of no relevance. She has not sufficiently shown that PP 1017 will
- In G.R. No. 171400, (ALGI), this Court applied the liberality rule in affect the proceedings or result of her case. But considering once more
Philconsa v. Enriquez,32[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan the transcendental importance of the issue involved, this Court may relax
ng Pilipinas, Inc. v. Tan,33[61] Association of Small Landowners in the the standing rules.
Philippines, Inc. v. Secretary of Agrarian Reform,34[62] Basco v. Philippine It must always be borne in mind that the question of locus standi is but
Amusement and Gaming Corporation,35[63] and Tañada v. Tuvera,36[64] that corollary to the bigger question of proper exercise of judicial power. This is
when the issue concerns a public right, it is sufficient that the petitioner is the underlying legal tenet of the “liberality doctrine” on legal standing. It
a citizen and has an interest in the execution of the laws. cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
- In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated judicial question which is of paramount importance to the Filipino people.
its right to peaceful assembly may be deemed sufficient to give it legal To paraphrase Justice Laurel, the whole of Philippine society now waits with
standing. Organizations may be granted standing to assert the rights of bated breath the ruling of this Court on this very critical matter. The
their members.37[65] We take judicial notice of the announcement by the petitions thus call for the application of the “transcendental importance”
Office of the President banning all rallies and canceling all permits for doctrine, a relaxation of the standing requirements for the petitioners in
public assemblies following the issuance of PP 1017 and G.O. No. 5. the “PP 1017 cases.”
- 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 This Court holds that all the petitioners herein have locus standi.
failed to allege any direct or potential injury which the IBP as an institution Incidentally, IT IS NOT PROPER TO IMPLEAD PRESIDENT ARROYO AS
or its members may suffer as a consequence of the issuance of PP No. RESPONDENT. SETTLED IS THE DOCTRINE THAT THE PRESIDENT, DURING
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,38[66] HIS TENURE OF OFFICE OR ACTUAL INCUMBENCY,39[67] MAY NOT BE SUED IN
the Court held that the mere invocation by the IBP of its duty to preserve ANY CIVIL OR CRIMINAL CASE, AND THERE IS NO NEED TO PROVIDE FOR IT
the rule of law and nothing more, while undoubtedly true, is not sufficient IN THE CONSTITUTION OR LAW. It will degrade the dignity of the high
to clothe it with standing in this case. This is too general an interest which office of the President, the Head of State, if he can be dragged into court
is shared by other groups and the whole citizenry. However, in view of the litigations while serving as such. Furthermore, it is important that he be
transcendental importance of the issue, this Court declares that petitioner freed from any form of harassment, hindrance or distraction to enable him
have locus standi. to fully attend to the performance of his official duties and functions.
- In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file Unlike the legislative and judicial branch, only one constitutes the
the instant petition as there are no allegations of illegal disbursement of executive branch and anything which impairs his usefulness in the
public funds. The fact that she is a former Senator is of no consequence. discharge of the many great and important duties imposed upon him by
She can no longer sue as a legislator on the allegation that her the Constitution necessarily impairs the operation of the Government.
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. However, this does not mean that the President is not accountable to
5. Her claim that she is a media personality will not likewise aid her anyone. Like any other official, he remains accountable to the people 40[68]
because there was no showing that the enforcement of these issuances but he may be removed from office only in the mode provided by law and
that is by impeachment.41[69]
32 [60]
235 SCRA 506 (1994).
SUBSTANTIVE
33 [61]
1. Review of Factual Bases
Supra.

34 [62] 39
Supra. [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
35[63]
197 SCRA 52, 60 (1991). 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
36 [64]
Supra. 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
37 [65] lead modest lives.
See NAACP v. Alabama, 357 U.S. 449 (1958). 41
38[66]
G.R. No. 141284, August 15, 2000, 338 SCRA 81. [69]
Ibid., Sec. 2.

LEGAL METHOD - HILBAY A2010 - 18 -


The Integrated Bar of the Philippines v. Zamora42[80] -- a recent case Group of the Philippine Army showing the growing alliance between the
most pertinent to these cases at bar -- echoed a principle similar to NPA and the military. Petitioners presented nothing to refute such events.
Lansang vs Garcia.43 While the Court considered the President’s “calling- Thus, absent any contrary allegations, the Court is convinced that the
out” power as a discretionary power solely vested in his wisdom, it President was justified in issuing PP 1017 calling for military aid.
stressed that “this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it 2. CONSTITUTIONALITY OF PP 1017 AND G.O. NO. 5
was exercised in a manner constituting grave abuse of discretion.” This A. “Facial Challenge”
ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of Petitioners contend that PP 1017 is void on its face because of its
1987 Constitution which fortifies the authority of the courts to determine in “overbreadth.” They claim that its enforcement encroached on both
an appropriate action the validity of the acts of the political departments. unprotected and protected rights under Section 4, Article III of the
Under the new definition of judicial power, the courts are authorized not Constitution and sent a “chilling effect” to the citizens.
only “to settle actual controversies involving rights which are legally A facial review of PP 1017, using the overbreadth doctrine, is uncalled
demandable and enforceable,” but also “to determine whether or not there for. First and foremost, the overbreadth doctrine is an analytical tool
has been a grave abuse of discretion amounting to lack or excess of developed for testing “on their faces” statutes in free speech cases, also
jurisdiction on the part of any branch or instrumentality of the known under the American Law as First Amendment cases.47[103] A plain
government.” The latter part of the authority represents a broadening of reading of PP 1017 shows that it is not primarily directed to speech or even
judicial power to enable the courts of justice to review what was before a speech-related conduct. It is actually a call upon the AFP to prevent or
forbidden territory, to wit, the discretion of the political departments of suppress all forms of lawless violence. In United States v. Salerno,48[104] the
the government.44[81] It speaks of judicial prerogative not only in terms of US Supreme Court held that “we have not recognized an ‘overbreadth’
power but also of duty.45[82] doctrine outside the limited context of the First Amendment” (freedom of
As to how the Court may inquire into the President’s exercise of power, speech). Moreover, the overbreadth doctrine is not intended for testing
Lansang adopted the test that “judicial inquiry can go no further than to the validity of a law that “reflects legitimate state interest in maintaining
satisfy the Court not that the President’s decision is correct,” but that “the comprehensive control over harmful, constitutionally unprotected
President did not act arbitrarily.” Thus, the standard laid down is not conduct.” Undoubtedly, lawless violence, insurrection and rebellion are
correctness, but arbitrariness. 46[83] In Integrated Bar of the Philippines, this considered “harmful” and “constitutionally unprotected conduct.”
Court further ruled that “it is incumbent upon the petitioner to show that Second, facial invalidation of laws is considered as “manifestly strong
the President’s decision is totally bereft of factual basis” and that if he medicine,” to be used “sparingly and only as a last resort,” and is
fails, by way of proof, to support his assertion, then “this Court cannot “generally disfavored;”49[107] The reason for this is obvious. Embedded in
undertake an independent investigation beyond the pleadings.” the traditional rules governing constitutional adjudication is the principle
Petitioners failed to show that President Arroyo’s exercise of the that a person to whom a law may be applied will not be heard to challenge
calling-out power, by issuing PP 1017, is totally bereft of factual basis. A a law on the ground that it may conceivably be applied unconstitutionally
reading of the Solicitor General’s Consolidated Comment and to others, i.e., in other situations not before the Court.50[108]
Memorandum shows a detailed narration of the events leading to the And third, a facial challenge on the ground of overbreadth is the most
issuance of PP 1017, with supporting reports forming part of the records. difficult challenge to mount successfully, since the challenger must
Mentioned are the escape of the Magdalo Group, their audacious threat of establish that there can be no instance when the assailed law may be
the Magdalo D-Day, the defections in the military, particularly in the valid. Here, petitioners did not even attempt to show whether this
Philippine Marines, and the reproving statements from the communist situation exists.
leaders. There was also the Minutes of the Intelligence Report and Security Related to the “overbreadth” doctrine is the “void for vagueness
doctrine” which holds that “a law is facially invalid if men of common
42 [80]
Supra.
43 47
BRYAN_SJ: LANSANG VS. GARCIA IS RELEVANT ONLY TO THE EXTENT THAT THE COURT MAY [103]
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No.
INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE ACTION. THE SIMILARITY ENDS THERE 148560, November 19, 2001, 369 SCRA 393.
BECAUSE LANSANG WAS SPECIFICALLY APPLIED TO MARTIAL LAW. DAVID VS. ARROYO
CONCERNS THE FACTUAL BASIS FOR THE CALLING OUT POWER. 48[104]
481 U.S. 739, 95 L. Ed. 2d 697 (1987).
44 [81]
Cruz, Philippine Political Law, 2002 Ed., p. 247. 49[107]
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
45 [82]
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
46 [83] 50[108]
Supra, 481-482. Ibid.

LEGAL METHOD - HILBAY A2010 - 19 -


intelligence must necessarily guess at its meaning and differ as to its President Arroyo’s declaration of a “state of rebellion” was merely an
application.”51[110] It is subject to the same principles governing act declaring a status or condition of public moment or interest, a
overbreadth doctrine. For one, it is also an analytical tool for testing “on declaration allowed under Section 4 cited above. Such declaration, in the
their faces” statutes in free speech cases. And like overbreadth, it is said words of Sanlakas, is harmless, without legal significance, and deemed not
that a litigant may challenge a statute on its face only if it is vague in all its written. In these cases, PP 1017 is more than that. In declaring a state of
possible applications. Again, petitioners did not even attempt to show that national emergency, President Arroyo did not only rely on Section 18,
PP 1017 is vague in all its application. They also failed to establish that Article VII of the Constitution, a provision calling on the AFP to prevent or
men of common intelligence cannot understand the meaning and suppress lawless violence, invasion or rebellion. She also relied on Section
application of PP 1017. 17, Article XII, a provision on the State’s extraordinary power to take over
B. Constitutional Basis of PP 1017 privately-owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously,
Calling-out Power such Proclamation cannot be deemed harmless, without legal significance,
The Constitution grants the President, as Commander-in-Chief, a or not written, as in the case of Sanlakas.
“sequence” of graduated powers. From the most to the least benign, Some of the petitioners vehemently maintain that PP 1017 is actually a
these are: the calling-out power, the power to suspend the privilege of the declaration of Martial Law. It is no so. What defines the character of PP
writ of habeas corpus, and the power to declare Martial Law. Citing 1017 are its wordings. It is plain therein that what the President invoked
Integrated Bar of the Philippines v. Zamora,52[112] the Court ruled that the was her calling-out power.
only criterion for the exercise of the calling-out power is that “whenever it In his “Statement before the Senate Committee on Justice” on March
becomes necessary,” the President may call the armed forces “to prevent 13, 2006, Mr. Justice Vicente V. Mendoza, 53[114] an authority in constitutional
or suppress lawless violence, invasion or rebellion.” Are these conditions law, said that of the three powers of the President as Commander-in-Chief,
present in the instant cases? As stated earlier, considering the the power to declare Martial Law poses the most severe threat to civil
circumstances then prevailing, President Arroyo found it necessary to issue liberties. It is a strong medicine which should not be resorted to lightly. It
PP 1017. Owing to her Office’s vast intelligence network, she is in the cannot be used to stifle or persecute critics of the government. It is placed
best position to determine the actual condition of the country. in the keeping of the President for the purpose of enabling him to secure
Under the calling-out power, the President may summon the armed the people from harm and to restore order so that they can enjoy their
forces to aid him in suppressing lawless violence, invasion and rebellion. individual freedoms.
This involves ordinary police action. But every act that goes beyond the Justice Mendoza also stated that PP 1017 is not a declaration of Martial
President’s calling-out power is considered illegal or ultra vires. For this Law. It is no more than a call by the President to the armed forces to
reason, a President must be careful in the exercise of his powers. He prevent or suppress lawless violence. As such, it cannot be used to justify
cannot invoke a greater power when he wishes to act under a lesser acts that only under a valid declaration of Martial Law can be done. Its
power. There lies the wisdom of our Constitution, the greater the power, use for any other purpose is a perversion of its nature and scope, and any
the greater are the limitations. act done contrary to its command is ultra vires.
It is pertinent to state, however, that there is a distinction between the Justice Mendoza further stated that specifically, (a) arrests and
President’s authority to declare a “state of rebellion” (in Sanlakas) and the seizures without judicial warrants; (b) ban on public assemblies; (c) take-
authority to proclaim a state of national emergency. While President over of news media and agencies and press censorship; and (d) issuance
Arroyo’s authority to declare a “state of rebellion” emanates from her of Presidential Decrees, are powers which can be exercised by the
powers as Chief Executive, the statutory authority cited in Sanlakas was President as Commander-in-Chief only where there is a valid declaration of
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, Martial Law or suspension of the writ of habeas corpus.
which provides: Based on the above disquisition, it is clear that PP 1017 is not a
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaration of Martial Law. It is merely an exercise of President Arroyo’s
declaring a status or condition of public moment or interest, upon the calling-out power for the armed forces to assist her in preventing or
existence of which the operation of a specific law or regulation is made suppressing lawless violence.
to depend, shall be promulgated in proclamations which shall have the
force of an executive order. “Take Care” Power
51 [110]
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-
24693, July 31, 1967, 20 SCRA 849 (1967). 53[114]
Retired Associate Justice of the Supreme Court.
52[112]
Supra.

LEGAL METHOD - HILBAY A2010 - 20 -


The second provision of PP 1017 pertains to the power of the and a House of Representatives.” To be sure, neither Martial Law nor a
President to ensure that the laws be faithfully executed. This is based on state of rebellion nor a state of emergency can justify President Arroyo’s
Section 17, Article VII which reads: exercise of legislative power by issuing decrees.
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the Can President Arroyo enforce obedience to all decrees and laws through
laws be faithfully executed. the military?
As the Executive in whom the executive power is vested,54[115] As this Court stated earlier, President Arroyo has no authority to enact
the primary function of the President is to enforce the laws as well decrees. It follows that these decrees are void and, therefore, cannot be
as to formulate policies to be embodied in existing laws. He sees enforced. With respect to “laws,” she cannot call the military to enforce or
to it that all laws are enforced by the officials and employees of his implement certain laws, such as customs laws, laws governing family and
department. Before assuming office, he is required to take an oath property relations, laws on obligations and contracts and the like. She can
or affirmation to the effect that as President of the Philippines, he only order the military, under PP 1017, to enforce laws pertinent to its duty
will, among others, “execute its laws.” 55[116] In the exercise of such to suppress lawless violence.
function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed Power to Take Over
forces of the country,56[117] including the Philippine National The pertinent provision of PP 1017 states:
Police57[118] under the Department of Interior and Local x x x and to enforce obedience to all the laws and to all decrees,
Government.58[119] orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the Constitution
Is it within the domain of President Arroyo to promulgate “decrees”? do hereby declare a state of national emergency.
PP 1017 states in part: “to enforce obedience to all the laws and The import of this provision is that President Arroyo, during the state of
decrees x x x promulgated by me personally or upon my direction.” national emergency under PP 1017, can call the military not only to
The President is granted an Ordinance Power under Chapter 2, Book III enforce obedience “to all the laws and to all decrees x x x” but also to act
of Executive Order No. 292 (Administrative Code of 1987), which allows her pursuant to the provision of Section 17, Article XII which reads:
to issue executive orders, administrative orders, proclamations, Sec. 17. In times of national emergency, when the public interest so
memorandum orders/circulars, general or special orders. President requires, the State may, during the emergency and under reasonable
Arroyo’s ordinance power is limited to the foregoing issuances. She cannot terms prescribed by it, temporarily take over or direct the operation of
issue decrees similar to those issued by Former President Marcos under PP any privately-owned public utility or business affected with public
1081. Presidential Decrees are laws which are of the same category and interest.
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 What could be the reason of President Arroyo in invoking the
1973 Constitution.59[121] above provision when she issued PP 1017?
This Court rules that the assailed PP 1017 is unconstitutional insofar as The answer is simple. During the existence of the state of national
it grants President Arroyo the authority to promulgate “decrees.” emergency, PP 1017 purports to grant the President, without any authority
Legislative power is peculiarly within the province of the Legislature. or delegation from Congress, to take over or direct the operation of any
Section 1, Article VI categorically states that “[t]he legislative power shall privately-owned public utility or business affected with public interest.
be vested in the Congress of the Philippines which shall consist of a Senate This provision was first introduced in the 1973 Constitution, as a
product of the “martial law” thinking of the 1971 Constitutional
54[115] Convention.60[122] In effect at the time of its approval was President Marcos’
Section 1, Article VII of the Constitution.
55[116] Letter of Instruction No. 2 dated September 22, 1972 instructing the
Section 5, Article VII of the Constitution.
56 Secretary of National Defense to take over “the management, control and
[117]
Section 18, Article VII of the Constitution. operation of the Manila Electric Company, the Philippine Long Distance
57
[118]
Section 6, Article XVI of the Constitution.
58 60 [122]
[119]
Section 17, Article XIV of the 1973 Constitution reads: “In times of national
See Republic Act No. 6975. emergency when the public interest so requires, the State may temporarily take over or
59 [121]
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of direct the operation of any privately owned public utility or business affected with public
Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission interest.”
on Election, supra.

LEGAL METHOD - HILBAY A2010 - 21 -


Telephone Company, the National Waterworks and Sewerage Authority, previously quoted, relate to national emergencies, they must be read
the Philippine National Railways, the Philippine Air Lines, Air Manila (and) together to determine the limitation of the exercise of emergency powers.
Filipinas Orient Airways . . . for the successful prosecution by the Generally, Congress is the repository of emergency powers. This is
Government of its effort to contain, solve and end the present national evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
emergency.” such powers to the President. Certainly, a body cannot delegate a power
Petitioners, particularly the members of the House of Representatives, not reposed upon it. However, knowing that during grave emergencies, it
claim that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 may not be possible or practicable for Congress to meet and exercise its
is an encroachment on the legislature’s emergency powers. This is an powers, the Framers of our Constitution deemed it wise to allow Congress
area that needs delineation. to grant emergency powers to the President, subject to certain conditions,
A distinction must be drawn between the President’s authority to thus:
declare “a state of national emergency” and to exercise emergency (1) There must be a war or other emergency.
powers. To the first, as elucidated by the Court, Section 18, Article VII (2) The delegation must be for a limited period only.
grants the President such power, hence, no legitimate constitutional (3) The delegation must be subject to such restrictions as the
objection can be raised. But to the second, manifold constitutional issues Congress may prescribe.
arise. (4) The emergency powers must be exercised to carry out a
Section 23, Article VI of the Constitution reads: national policy declared by Congress.62[124]
SEC. 23. (1) The Congress, by a vote of two-thirds of both Section 17, Article XII must be understood as an aspect of the
Houses in joint session assembled, voting separately, shall emergency powers clause. The taking over of private business
have the sole power to declare the existence of a state of war. affected with public interest is just another facet of the emergency
(2) In times of war or other national emergency, the Congress powers generally reposed upon Congress. Thus, when Section 17
may, by law, authorize the President, for a limited period and states that the “the State may, during the emergency and under
subject to such restrictions as it may prescribe, to exercise reasonable terms prescribed by it, temporarily take over or direct the
powers necessary and proper to carry out a declared national operation of any privately owned public utility or business affected
policy. Unless sooner withdrawn by resolution of the Congress, with public interest,” it refers to Congress, not the President. Now,
such powers shall cease upon the next adjournment thereof. whether or not the President may exercise such power is dependent
It may be pointed out that the second paragraph of the above on whether Congress may delegate it to him pursuant to a law
provision refers not only to war but also to “other national emergency.” If prescribing the reasonable terms thereof.
the intention of the Framers of our Constitution was to withhold from the
President the authority to declare a “state of national emergency” Petitioner Cacho-Olivares, et al. contends that the term “emergency”
pursuant to Section 18, Article VII (calling-out power) and grant it to under Section 17, Article XII refers to “tsunami,” “typhoon,” “hurricane”
Congress (like the declaration of the existence of a state of war), then the and “similar occurrences.” This is a limited view of “emergency.”
Framers could have provided so. Clearly, they did not intend that Emergency, as a generic term, connotes the existence of conditions
Congress should first authorize the President before he can declare a suddenly intensifying the degree of existing danger to life or well-being
“state of national emergency.” The logical conclusion then is that beyond that which is accepted as normal. Implicit in this definitions are
President Arroyo could validly declare the existence of a state of national the elements of intensity, variety, and perception. Emergencies, as
emergency even in the absence of a Congressional enactment. perceived by legislature or executive in the United Sates since 1933, have
But the exercise of emergency powers, such as the taking over of been occasioned by a wide range of situations, classifiable under three (3)
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] 62[124]
Antieau, Constitutional Construction, 1982, p.21. Cruz, Philippine Political Law, 1998, p. 94.

LEGAL METHOD - HILBAY A2010 - 22 -


principal heads: a) economic, b) natural disaster,63[129] and c) national a statute or ordinance is to be determined from its general purpose and its
security. efficiency to accomplish the end desired, not from its effects in a particular
“Emergency,” as contemplated in our Constitution, is of the same case.67[137] PP 1017 is merely an invocation of the President’s calling-out
breadth. It may include rebellion, economic crisis, pestilence or epidemic, power. Its general purpose is to command the AFP to suppress all forms of
typhoon, flood, or other similar catastrophe of nationwide proportions or lawless violence, invasion or rebellion. It had accomplished the end
effect.64[131] This is evident in the Records of the Constitutional desired which prompted President Arroyo to issue PP 1021. But there is
Commission. nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
Following our interpretation of Section 17, Article XII, invoked by illegal arrest, search or violate the citizens’ constitutional rights.
President Arroyo in issuing PP 1017, this Court rules that such Proclamation Now, may this Court adjudge a law or ordinance unconstitutional on
does not authorize her during the emergency to temporarily take over or the ground that its implementor committed illegal acts? The answer is no.
direct the operation of any privately owned public utility or business The criterion by which the validity of the statute or ordinance is to be
affected with public interest without authority from Congress. measured is the essential basis for the exercise of power, and not a mere
Let it be emphasized that while the President alone can declare a incidental result arising from its exertion.68[138] This is logical. Just imagine
state of national emergency, however, without legislation, he has no the absurdity of situations when laws maybe declared unconstitutional just
power to take over privately-owned public utility or business affected because the officers implementing them have acted arbitrarily. If this were
with public interest. The President cannot decide whether exceptional so, judging from the blunders committed by policemen in the cases passed
circumstances exist warranting the take over of privately-owned upon by the Court, majority of the provisions of the Revised Penal Code
public utility or business affected with public interest. Nor can he would have been declared unconstitutional a long time ago.
determine when such exceptional circumstances have ceased. Likewise, President Arroyo issued G.O. No. 5 to carry into effect the provisions of
without legislation, the President has no power to point out the types of PP 1017. General orders are “acts and commands of the President in his
businesses affected with public interest that should be taken over. In capacity as Commander-in-Chief of the Armed Forces of the Philippines.”
short, the President has no absolute authority to exercise all the powers of They are internal rules issued by the executive officer to his subordinates
the State under Section 17, Article VII in the absence of an emergency precisely for the proper and efficient administration of law. Such rules and
powers act passed by Congress. 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
C. “AS APPLIED CHALLENGE” 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
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the valid is that they must be reasonable, not arbitrary or capricious.
basis of these illegal acts? In general, does the illegal implementation of a G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
law render it unconstitutional? “necessary and appropriate actions and measures to suppress and prevent
Settled is the rule that courts are not at liberty to declare statutes acts of terrorism and lawless violence.”
invalid although they may be abused and misabused65[135] and may afford Unlike the term “lawless violence” which is unarguably extant in our
an opportunity for abuse in the manner of application.66[136] The validity of statutes and the Constitution, and which is invariably associated with
63
“invasion, insurrection or rebellion,” the phrase “acts of terrorism” is still
[129]
The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency an amorphous and vague concept. Congress has yet to enact a law
and necessity for relief in stricken agricultural areas and in another section referred to “the defining and punishing acts of terrorism.
present drought emergency.”[129] The India Emergency Food Aid Act of 1951 provided for The absence of a law defining “acts of terrorism” may result in abuse
emergency shipments of food to India to meet famine conditions then ravaging the great
and oppression on the part of the police or military. An illustration is when
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 a group of persons are merely engaged in a drinking spree. Yet the
existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone, military or the police may consider the act as an act of terrorism and
hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April 1937. It immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
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, and oppression on their part. It must be remembered that an act can only
July 1, 1952, Sec. 2 [a]) Supra.
67 [137]
64[131]
Cruz, Philippine Political Law, 1998, p. 95. Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY
309, 105 NE 548.
68 [138]
65 [135]
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173. Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
69 [139]
66 [136]
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
70 [140]
cert den 280 US 610, 74 L ed 653, 50 S Ct 158. Ibid.

LEGAL METHOD - HILBAY A2010 - 23 -


be considered a crime if there is a law defining the same as such and Sec. 5. Arrest without warrant; when lawful. - A peace
imposing the corresponding penalty thereon. officer or a private person may, without a warrant, arrest
So far, the word “terrorism” appears only once in our criminal laws, a person:
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos (a) When, in his presence, the person to be arrested has
during the Martial Law regime. This decree is entitled “Codifying The committed, is actually committing, or is attempting to
Various Laws on Anti-Subversion and Increasing The Penalties for commit an offense.
Membership in Subversive Organizations.” The word “terrorism” is (b) When an offense has just been committed and he has
mentioned in the following provision: “That one who conspires with any probable cause to believe based on personal knowledge
other person for the purpose of overthrowing the Government of the of facts or circumstances that the person to be arrested
Philippines x x x by force, violence, terrorism, x x x shall be punished by has committed it; and.
reclusion temporal x x x.” Neither of the two (2) exceptions mentioned above justifies petitioner
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the David’s warrantless arrest. During the inquest for the charges of inciting
Communist Party of the Philippines) enacted by President Corazon Aquino to sedition and violation of BP 880, all that the arresting officers could
on May 5, 1985. These two (2) laws, however, do not define “acts of invoke was their observation that some rallyists were wearing t-shirts
terrorism.” Since there is no law defining “acts of terrorism,” it is with the invective “Oust Gloria Now” and their erroneous assumption
President Arroyo alone, under G.O. No. 5, who has the discretion to that petitioner David was the leader of the rally. 73[146] Consequently, the
determine what acts constitute terrorism. Her judgment on this aspect is Inquest Prosecutor ordered his immediate release on the ground of
absolute, without restrictions. Consequently, there can be indiscriminate insufficiency of evidence. He noted that petitioner David was not wearing
arrest without warrants, breaking into offices and residences, taking over the subject t-shirt and even if he was wearing it, such fact is insufficient to
the media enterprises, prohibition and dispersal of all assemblies and charge him with inciting to sedition. Further, he also stated that there is
gatherings unfriendly to the administration. All these can be effected in insufficient evidence for the charge of violation of BP 880 as it was not
the name of G.O. No. 5. These acts go far beyond the calling-out power of even known whether petitioner David was the leader of the rally.74[147]
the President. Certainly, they violate the due process clause of the But what made it doubly worse for petitioners David et al. is that not
Constitution. Thus, this Court declares that the “acts of terrorism” portion only was their right against warrantless arrest violated, but also their right
of G.O. No. 5 is unconstitutional. to peaceably assemble.
Section 4 of Article III guarantees:
VALIDITY OF SPECIFIC ACTS CONDUCTED BY AUTHORITIES No law shall be passed abridging the freedom of speech, of
PURSUANT TO PP 1017 AND G.O. NO. 5 expression, or of the press, or the right of the people
In the Brief Account71[144] submitted by petitioner David, certain facts peaceably to assemble and petition the government for
are established: first, he was arrested without warrant; second, the PNP redress of grievances.
operatives arrested him on the basis of PP 1017; third, he was brought at “Assembly” means a right on the part of the citizens to meet
Camp Karingal, Quezon City where he was fingerprinted, photographed peaceably for consultation in respect to public affairs. It is a necessary
and booked like a criminal suspect; fourth, he was treated brusquely by consequence of our republican institution and complements the right of
policemen who “held his head and tried to push him” inside an unmarked speech. As in the case of freedom of expression, this right is not to be
car; fifth, he was charged with Violation of Batas Pambansa Bilang limited, much less denied, except on a showing of a clear and present
No. 88072[145] and Inciting to Sedition; sixth, he was detained for seven (7) danger of a substantive evil that Congress has a right to prevent. In other
hours; and seventh, he was eventually released for insufficiency of words, like other rights embraced in the freedom of expression, the right to
evidence. assemble is not subject to previous restraint or censorship. It may not be
The Constitution enunciates the general rule that no person shall be conditioned upon the prior issuance of a permit or authorization from the
arrested without warrant. The recognized exceptions are in Section 5, government authorities except, of course, if the assembly is intended to be
Rule 113 of the Revised Rules on Criminal Procedure provides: 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
71 [144]
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
not committing any crime, neither was there a showing of a clear and
72 [145]
An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble 73 [146]
Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
and Petition the Government for Other Purposes.
74 [147]
Ibid.

LEGAL METHOD - HILBAY A2010 - 24 -


present danger that warranted the limitation of that right. As can be and radio networks to “cooperate” with the government for the duration of
gleaned from circumstances, the charges of inciting to sedition and the state of national emergency. He warned that his agency will not
violation of BP 880 were mere afterthought. Even the Solicitor General, hesitate to recommend the closure of any broadcast outfit that violates
during the oral argument, failed to justify the arresting officers’ conduct. rules set out for media coverage during times when the national security is
On the basis of the above principles, the Court likewise considers the threatened.
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) The search is illegal. Rule 126 of The Revised Rules on Criminal
unwarranted. Apparently, their dispersal was done merely on the basis of Procedure lays down the steps in the conduct of search and seizure.
Malacañang’s directive canceling all permits previously issued by local Section 4 requires that a search warrant be issued upon probable cause in
government units. This is arbitrary. The wholesale cancellation of all connection with one specific offence to be determined personally by the
permits to rally is a blatant disregard of the principle that “freedom of judge after examination under oath or affirmation of the complainant and
assembly is not to be limited, much less denied, except on a showing of a the witnesses he may produce. Section 8 mandates that the search of a
clear and present danger of a substantive evil that the State has a right to house, room, or any other premise be made in the presence of the lawful
prevent.”75[149] Tolerance is the rule and limitation is the exception. Only occupant thereof or any member of his family or in the absence of the
upon a showing that an assembly presents a clear and present danger that latter, in the presence of two (2) witnesses of sufficient age and discretion
the State may deny the citizens’ right to exercise it. Indeed, respondents residing in the same locality. And Section 9 states that the warrant must
failed to show or convince the Court that the rallyists committed acts direct that it be served in the daytime, unless the property is on the person
amounting to lawless violence, invasion or rebellion. With the blanket or in the place ordered to be searched, in which case a direction may be
revocation of permits, the distinction between protected and unprotected inserted that it be served at any time of the day or night. All these rules
assemblies was eliminated. were violated by the CIDG operatives.
Moreover, under BP 880, the authority to regulate assemblies and Not only that, the search violated petitioners’ freedom of the press.
rallies is lodged with the local government units. They have the power to The best gauge of a free and democratic society rests in the degree of
issue permits and to revoke such permits after due notice and hearing on freedom enjoyed by its media. In the Burgos v. Chief of Staff76[152] this
the determination of the presence of clear and present danger. Here, Court held that --
petitioners were not even notified and heard on the revocation of their As heretofore stated, the premises searched were the business and
permits. The first time they learned of it was at the time of the dispersal. printing offices of the "Metropolitan Mail" and the "We Forum”
Such absence of notice is a fatal defect. When a person’s right is restricted newspapers. As a consequence of the search and seizure, these
by government action, it behooves a democratic government to see to it premises were padlocked and sealed, with the further result that the
that the restriction is fair, reasonable, and according to procedure. printing and publication of said newspapers were discontinued.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of Such closure is in the nature of previous restraint or censorship
freedom of speech i.e., the freedom of the press. Petitioners’ narration of abhorrent to the freedom of the press guaranteed under the
facts, which the Solicitor General failed to refute, established the following: fundamental law, and constitutes a virtual denial of petitioners'
first, the Daily Tribune’s offices were searched without warrant; second, freedom to express themselves in print. This state of being is patently
the police operatives seized several materials for publication; third, the anathematic to a democratic framework where a free, alert and even
search was conducted at about 1:00 o’ clock in the morning of February militant press is essential for the political enlightenment and growth of
25, 2006; fourth, the search was conducted in the absence of any official of the citizenry.
the Daily Tribune except the security guard of the building; and fifth, While admittedly, the Daily Tribune was not padlocked and sealed like
policemen stationed themselves at the vicinity of the Daily Tribune offices. the “Metropolitan Mail” and “We Forum” newspapers in the above case,
Thereafter, a wave of warning came from government officials. yet it cannot be denied that the CIDG operatives exceeded their
Presidential Chief of Staff Michael Defensor was quoted as saying that such enforcement duties. The search and seizure of materials for publication,
raid was “meant to show a ‘strong presence,’ to tell media outlets not to the stationing of policemen in the vicinity of the The Daily Tribune offices,
connive or do anything that would help the rebels in bringing down this and the arrogant warning of government officials to media, are plain
government.” Director General Lomibao further stated that “if they do not censorship. It is that officious functionary of the repressive government
follow the standards –and the standards are if they would contribute to who tells the citizen that he may speak only if allowed to do so, and no
instability in the government, or if they do not subscribe to what is in more and no less than what he is permitted to say on pain of punishment
General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’” should he be so rash as to disobey.77[153] Undoubtedly, the The Daily
National Telecommunications Commissioner Ronald Solis urged television Tribune was subjected to these arbitrary intrusions because of its anti-
75[149] 76[152]
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553 No. L-64161, December 26, 1984, 133 SCRA 816.

LEGAL METHOD - HILBAY A2010 - 25 -


government sentiments. This Court cannot tolerate the blatant disregard offices and whimsical seizure of its articles for publication and other
of a constitutional right even if it involves the most defiant of our citizens. materials, are declared UNCONSTITUTIONAL.
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 NATURE OF THE JUDICIAL PROCESS
the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.78[154] By Benjamin Cardozo
Incidentally, during the oral arguments, the Solicitor General admitted
that the search of the Tribune’s offices and the seizure of its materials for I. INTRODUCTION. METHOD OF PHILOSOPHY
publication and other papers are illegal; and that the same are • Deciding cases happens everyday
inadmissible “for any purpose,” - Difficult to explain the language of the law to laymen
The Court has passed upon the constitutionality of these issuances. Its - “Brew” of judge-made law:
ratiocination has been exhaustively presented. At this point, suffice it to • Source of information
reiterate that PP 1017 is limited to the calling out by the President of the • Contribution of information to the decision
military to prevent or suppress lawless violence, invasion or rebellion. • Precedents and whether or not they should be followed
When in implementing its provisions, pursuant to G.O. No. 5, the military • Morals and at what point should they be considered
and the police committed acts which violate the citizens’ rights under the • Logical consistency
Constitution, this Court has to declare such acts unconstitutional and
• William James – the steam of tendency is innate in man which gives
illegal.
coherence and direction to every thought or action
In this connection, Chief Justice Artemio V. Panganiban’s concurring
• Objectively seeing things is difficult because we never see them with
opinion, attached hereto, is considered an integral part of this ponencia.
eyes except our own
DISPOSITION OF THE CASE • Where does the judge find the law which embodies?
WHEREFORE, the Petitions are partly granted. The Court rules that PP - Constitution or statutes
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria - The Constitution overrides statutes but a statute consistent with
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. the Constitution overrides the law of judges. In this sense, judge-
However, the provisions of PP 1017 commanding the AFP to enforce laws made law is secondary and subordinate to the law that is made by
not related to lawless violence, as well as decrees promulgated by the legislators.
President, are declared UNCONSTITUTIONAL. In addition, the provision in • The difficulties of interpretation arise when the legislature has had no
PP 1017 declaring national emergency under Section 17, Article VII of the meaning at all, when the question which is raised on the statute never
Constitution is CONSTITUTIONAL, but such declaration does not authorize occurred to it, when what he judges have to do is to guess what it
the President to take over privately-owned public utility or business would have intended in a point not present to its mind.
affected with public interest without prior legislation. • Tasks of system law:
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which o To make more profound the discovery of the latent meaning of
the AFP and the PNP should implement PP 1017, i.e. whatever is positive law
“necessary and appropriate actions and measures to suppress and prevent o To fill the gaps which are found in every positive law in greater or
acts of lawless violence.” Considering that “acts of terrorism” have not yet less measure
been defined and made punishable by the Legislature, such portion of G.O. • The generalities of the Constitution have a content and significance
No. 5 is declared UNCONSTITUTIONAL. which vary from age to age. Interpretation becomes more than the
The warrantless arrest of Randolf S. David and Ronald Llamas; the ascertainment if the meaning and intent of lawmakers whose collective
dispersal and warrantless arrest of the KMU and NAFLU-KMU members will has been declared.
during their rallies, in the absence of proof that these petitioners were • How does the judge set about his task?
committing acts constituting lawless violence, invasion or rebellion and o Compares a case with precedents
violating BP 880; the imposition of standards on media or any form of prior o If none, fashion law for litigants before him
restraint on the press, as well as the warrantless search of the Tribune • The common law does not work from pre-established truths of
77 universal and inflexible validity to conclusions derived from them
[153]
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. deductively. Its method is inductive and it draws its generalizations
102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
78 [154]
from particulars.
Boyd v. United States, 116 U.S. 616 (1886).

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- What was once thought to be the exception is the rule and what • Another example would be the law of contract in the sense that the
was the rule is the exception. distinction between debt, covenant and assumpsit are merely
- The problem which confronts the judge is twofold: first he has to historical.
extract from the precedents the ratio decidendi and then • If history and philosophy do not serve to fix the direction of a principle,
determine the path along which the principle is to move and custom may step in.
develop. • In England the Common Law is distinguishable into three kinds:
• Method of philosophy – line of logical progression - General customs – universal rule of the whole Kingdom and forms the
• Method of evolution – line of historical development Common Law
• Method of traditions – line of the customs of the community - Particular customs – affect only the inhabitants of particular districts
• Method of sociology – lines of justice, morals, social welfare and the - Certain particular laws – by custom are adopted and used by some
mores of the day particular courts of pretty general and extensive jurisdiction.
• Adherence to precedent must be the rule rather than the exception if • Custom is a custom of judicial decision, not of popular action. It is
litigants are to have faith in the even-handed administration of justice doubtful whether at all stages of legal history, rules laid down by
in the courts. judges have not generated custom, rather than custom generated the
• The judge who molds the law by the method of philosophy may be rules.
satisfying an intellectual craving for symmetry of form and substance • We look to custom, not so much for the creation of new rules, but for
• Wesley Newcomb Hohfeld – while the analytical work is indispensable, tests and standards that are to determine how established rules shall
it is not an all-sufficient one for the lawyer. The analytical tool merely be applied.
paves the way for other branches of jurisprudence and that without the • For example, in the absence of inconsistent statute, new classes of
aid of the latter, satisfactory solutions of legal problems cannot be negotiable instruments may be created by mercantile practice. The
reached. obligations of public and private corporations may retain the quality of
• The directive force of logic does not always exert itself along a single negotiability, despite the presence of a seal which, at a common law
and unobstructed path. One principle or precedent, pushed to the limit would destroy it.
of its logic, may point to one conclusion while another precedent may • It not so much in the making of new rules as in the application of old
point with equal certainty to another conclusion. ones that the creative energy of custom most often manifests itself
• We go forward with logic and analogies until we reach a certain point. today. General standards of right and duty are established. Customs
They follow the same lines at first then they begin to diverge and we must determine whether there has been adherence or departure.
must make a choice between them. • The point of contact between the method of tradition and the method
of sociology: the natural and spontaneous evolutions of habit fix the
LECTURE II. THE METHODS OF HISTORY, TRADITION AND limits of right and wrong. A slight extension of custom identifies it with
SOCIOLOGY customary morality, the prevailing standard of right conduct. Each
• The directive force of a precedent may involve either an investigation method maintains the interaction between conduct and order.
of origins or an effort of pure reason. • How is it possible to choose between principles? History will give
• History is likely to predominate over logic of pure reason. direction to the development concepts in law which have been
• An example is the conception of juristic or corporate personality with historical growths. Logic and symmetry apply in concepts which
the long train of consequences which that conception has engendered. comparative jurisprudence shows to be common to other highly
- Subject matter may lend itself naturally to one method as to another. developed systems. Custom tends to assert itself as the controlling
- Customs or utility would be present to regulate the choice. force in areas where the rules may, with approximately the same
- The judge’s personality may prove to be the controlling factor also. convenience, be settled one way or the other. Finally, when social
• An example of a field in law where there could be no progress without needs demand one settlement or the other, there is a need to be bend
history would be real property. symmetry, ignore history and sacrifice custom in the pursuit of the
- No lawgiver meditating the code of laws would have conceived the other ends.
system of feudal tenures. • Welfare of society is the final cause of law.
- History built up the system and the law that went with it. - Ethical considerations can be no more excluded from the
administration of justice which is the end and purpose of all civil
laws.

LEGAL METHOD - HILBAY A2010 - 27 -


- Logic, history and custom have their place but they will be shaped - Statutes are designed to meet the fugitive exigencies of the hour.
to conform with the end of the law. - Amendment is easy as the exigencies change. The meaning, once
• An English judge once said: “Our common law system consists in construed, tends legitimately to stereotype itself in the form first
applying to new combinations of circumstances those rules of law cast.
which we derive from legal principles and judicial precedents, and for - A constitution states or ought to state not rules for the passing
the sake of attaining uniformity, consistency and certainty, we must hour but principles for an expanding future.
apply those rules when they are not plainly unreasonable and • New times and new manners may call for new standards and new
inconvenient to all cases which arise.” rules. The courts are free in marking the limits of the individual’s
• There is often graeter freedom of choice in the construction of immunities to shape their judgments in accordance with reason and
constitutions than in the ordinary statutes. Constitutions enunciate justice. That does not mean that in judging the validity of statutes
general principles which must be worked out and applied to particular they are free to substitute their own ideas of reason and justice for
conditions. There are resulting “gaps” which the method of sociology those of the men and women whom they serve. There must be an
fills by putting the emphasis on social welfare. objective standard.
- 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 LESSSON III. THE METHOD OF SOCIOLOGY. THE JUDGE AS A
of right conduct, which find expression in the mores of the LEGISLATOR.
community. • The method of sociology is the arbiter between the other methods,
• The will of the State, expressed in decision and judgment is to bring determining in the last analysis the choice of each, weighing their
about a just determination by means of the subjective sense of justice competing claims, setting bounds to their pretensions, balancing and
inherent in the judge, guided by an effective weighing of the interests moderating and harmonizing them all.
of the parties in the light of the opinions generally prevailing in the • Jhering’s conception was that the end of the law as determining the
community regarding transactions like those in question. The direction of its growth. This finds its instruments in the method of
determination should be: sociology.
- In harmony with the requirements of good faith in business • Law is a historical growth for it is an expression of customary morality
intercourse which develops silently and unconsciously from one age to another.
- In harmony with the needs of practical life, unless a positive • Law is also a conscious or purposed growth, for the expression of
statute prevents it. customary morality will be false unless the mind of the judge directed
• Geny: Interrogate reason and conscience, to discover in our inmost to the attainment of the moral end and its embodiment in legal forms.
nature, the very basis of justice and on the other, to address ourselves • The judge’s duty to declare the law in accordance with reason and
to social phenomena, to ascertain the laws of their harmony and the justice is seen to be a phase of his duty to declare it in accordance with
principles of order which they exact. custom. It is the customary morality of right-minded men and women
• Examples of an area where the method of sociology can be applicable: which he is to enforce by his decree.
“No one shall be deprived of liberty without due process of law.” • Professor Gray: “Everyone will agree that a judge is likely to share the
- Liberty is not defined and there are many questions to be notions of right and wrong prevalent in the community which he lives;
answered, including whether or not the restraints that are arbitrary but suppose in a case where there is nothing to guide him but the
today may become useful and rational and therefore lawful notions of right and wrong, that his notions of right and wrong differ
tomorrow? from those of the community – which ought he to follow – his own
- The answer to that question at present is yes but in the past, it notions or the notions of the community?
might have been no. Events of the past (Declaration of • Professor Gray believes the judge should follow his own notions.
Independence, US Revolution, Rousseau and Locke’s philosophies, • The hypothesis presented by Gray is not likely to be followed. A judge
etc.) have been responsible for the change in the answer. would err is he were to impose upon the community his own
- Dicey: “The movement from individualistic liberalism to idiosyncrasies of conduct or belief. He would be under duty to conform
unsystematic collectivism had brought changes in the social order to the accepted standards of the community.
which carried with them the need of a new formulation of • The judicial process according to Cardozo: Logic and history, custom
fundamental rights and duties.” and utility and the accepted standards of right conduct, are the forces
• The content of constitutional immunities is not constant but varies which singly or in combination shape the progress of the law. Which of
from age to age. these forces shall dominate in any case must depend largely upon the

LEGAL METHOD - HILBAY A2010 - 28 -


comparative importance or value of the social interests that will be • In default of an applicable, the judge is to pronounce judgment
thereby promoted or impaired. One of the most fundamental social according to the customary law, and in default of a custom according
interests is that law shall be uniform and impartial. to the rules which he would establish if he were to assume the part of a
• Holmes: “We do not realize how large a part of our law is open to legislator.
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 LECTURE IV. ADHERENCE TO PRECEDENT. THE SUBCONSCIOUS
same aims which would be those of a legislator who was proposing to ELEMENT IN THE JUDICIAL PROCESS. CONCLUSION.
himself to regulate the question. • In the vast majority of cases, the retrospective effect of judge-made
• The theory of old writers is that judges did not legislate at all. A pre- law is felt either to involve no hardship only such hardship as is
existing rule was there, imbedded, if concealed in the body of the inevitable where no rule has been declared.
customary law. All that eh judges did was to throw off the wrappings • There has been a good deal of discussion whether the rule of
and expose the statute to our view. adherence to precedent ought to be abandoned altogether. I think
• From the holding that the law is never made by judges, the votaries of adherence to precedent should be the rule and not the exception. To
the Austinian analysis have been led at times to the conclusion that it these I may add that the labor of judges would be increased almost to
is never made by anyone else. Customs no matter how firmly the breaking point if every past decision could be reopened in every
established, are not law, they say, until adopted by the courts. Even case and one could not lay one’s course of bricks on the secure
statutes are not law because the courts must fic their meaning. foundation of the courses laid by others who had gone before him.
• Gray: “Law is what the judges declare; that statutes, precedents, the • But I am ready to concede that the rule of adherence to precedent,
opinions of learned experts, customs and morality are the sources of though it ought to be abandoned, ought to be in some degree relaxed.
Law.” I think that when a rule, after is has been duly tested by experience,
• Jethro Brown: “…a statute till construed is not real law. It is only ahs been found to be inconsistent with the sense of justice or with the
ostensible law.” social welfare, there should be less hesitation in frank avowal and full
• Cardozo says that we must seek a conception of law which realism can abandonment.
accept as true. Statutes do not cease to be law because the power to • J. Wheeler (Dwy v. Connecticut): “That court best serves the law which
fix their meaning in case of doubt or ambiguity has been confided to recognizes that the rules of law which grew up in a remote generation
the courts. may, in the fullness of experience, be found to serve another
• Obscurity of statute or of precedent or of customs or of morals or generation badly and which discards the old rule when it finds that
collision between some or all of them may leave the law unsettled and another law represents what should be according to the established
cast a duty upon the courts to declare it retrospectively in the exercise and settled judgment of society…”
of a power frankly legislative in function. • Example: parol agreements are ineffective to vary or discharge a
• Judges have, of course, the power, though not the right, to ignore the contract under seal. In days when seals counted for a good deal, there
mandate of a statute and render judgment in despite of it. What really may have been some reason in this recognition of a mystical
matters is this, that the judge is under a duty, within the limits of his solemnity. In our day, when the perfunctory initials L.S. have replaced
power of innovation, to maintain a relation between law and morals, the heraldic devices, the law is conscious of its own absurdity when it
between the percepts of jurisprudence and those of reason and good preserves the rubrics of a vanished era.
conscience. • President Roosevelt: “The chief lawmakers in our country may be, and
• The constant insistence that morality and justice are not has tended to are often, the judges, because they are the final seat of authority.”
breed distrust and contempt of law as something to which morality and • My duty as a judge may be to objectify in law, not my own aspirations
justice are not merely alien, but hostile. and convictions and philosophies, but the aspirations and convictions
• “It is the function of our courts to keep the doctrines up to date with and philosophies of the men and women of my time.
the mores by continual restatement and by giving them a continually • The training of the judge, if coupled with what is styled the judicial
new content. This is judicial legislation and the judge legislates at his temperament, will help in some degree to emancipate him from the
peril. ” suggestive power of individual dislikes and prepossessions. It will help
• The power of interpretation must be lodged somewhere and the to broaden the group to which his subconscious loyalties are due.
custom of the constitution has lodged it in the judges. Never will these loyalties be utterly distinguished while human nature
is what it is.

LEGAL METHOD - HILBAY A2010 - 29 -


• There is no assurance that the rule of the majority will be the factors in the life of the child. These factors manifest themselves in a
expression of perfect reason when embodied in constitution or in childish appetite fore complete peace, comfort, protection from the
statute. We ought not to expect more of it when embodied in the dangers of the unknown. He satisfies that craving, in large measure,
judgments of courts. 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
LAW AND THE MODERN MIND irreducible chance. When they find life distracting, they revert to childish
By Jerome Frank longings they attempt to satisfy through “the rediscovery of the father,”
The Basic Myth through father-substitutes. Functionally, the Law apparently resembles the
Lay attitude towards lawyers is a compound of contradiction: (1) Father-as-Judge. The child’s Father-as-Judge was infallible. Hence, the basic
respect for the impt functions of the legal profession and (2) disdain for legal myth that law is, or can be made, unwavering, fixed and settled.
lawyers who are seen as artists in double-dealing, masters of chicane. Why do men seek unreliable uncertainty in law? Bcoz they have not
What’s the source of these doubts? Dean Roscoe Pound says its 12 th yet relinquished the childish need for an authoritative father and
century clerical jealousy of the rising profession of non-clerical lawyers, an unconsciously have tried top find in the law a substitute for those
angry rivalry kept alive by other professions jealous of the lawyer’s attributes of firmness, sureness, certainty and infallibility ascribed in
prestige. But there may be something more: a belief that lawyers childhood to the father.
complicate the law in the interest of larger fees!
However, it may not entirely be the lawyer’s fault. The law has always The Language of the Law: Lawyers as a Profession of Rationalizers
been, is now, and will ever continue to be, largely vague and variable; bcoz The practice of law necessitates a special technique of speech w/c may
it deals w/ human relations in their most complicated aspects. Situations seem to the uninitiate to be indirect but w/c lawyers have discovered to be
are bound to occur w/c were never contemplated when the original rules vitally necessary to the effective handling of legal concepts. When courts
were made. The constant dev’t of unprecedented problems requires a legal come up w/ differing judgments on seemingly the same set of facts, legal
system capable of fluidity and pliancy. In fields other than the law, there is practitioners won’t bluntly state that they are abandoning the earlier
a willingness to accept probabilities and to forego the hope of finding the decisions. Bcoz to have made such a bald statement would have been to
absolutely certain. It is surely absurd to expect to realize even make too painfully clear the fact of retroactive law-making by the court.
approximate certainty and predictability in law. The fact of unpredictable changes in the law would have become too
Since legal tentativeness is inevitable and often socially desirable, it disagreeably obvious.
should not be considered an avoidable evil. But the public learns little or Sir Henry Maine: lawyers employ a double language: e.g. “intention of
nothing of this desirability of legal tentativeness. Why? Bcoz a large part of the legislature” …the purposes of the actual human beings who comprised
the profession believes, and therefore encourages the laity to believe, that the legislature are only to a very limited extent considered legally
legal rules either are or can be made essentially immutable. pertinent. The legislators whose will the courts purport to obey are unreal
Wurzel asks why there exists a longing for complete certainty on law and undiscoverable persons. Also, “manifest” may mean that the man
and why a pretense that it can be attained. He finds the answer in a “social never really had such an intention. Wurzel: lawyers have a peculiar and
want” for a body of law w/c shall appear to be, what it can never be, an distinctive verbiage w/c conceals the real nature of their reasoning
exhaustive list of commands, issued by the State, sufficient to settle every processes.
conceivable controversy w/c may arise. What is the source of this curious Lawyers do use a double language and entertain a double and
“social want”? But the current demand for exactness and predictability in inconsistent set of ideas. But all human do! Ideas and beliefs of all of us
law is incapable of satisfaction, does not arise from practical needs, and may be roughly classified as of 2 kinds: those based primarily on direct
has its roots in a yearning for something unreal; what then is the source of observation of objective data and those entirely or almost entirely a
this basic legal myth? product of subjective factors (read: bias!). Biases have deeper roots far
better concealed from consciousness. They often grow out of childish aims
A Partial Explanation w/c are not relevant to our adult status. But we don’t admit these biases.
We look at clues in the direction of childhood. The filial relation is We persuade ourselves that our lives are governed by Reason. We
clearly indicated as one impt unconscious determinant of the ways of man rationalize.
in dealing w/ all his problems, incldg the problem of his attitude towards Rationalization conceals the real foundations of our biased beliefs and
the law. enables us to maintain, side by side as it were, beliefs w/c are inherently
The infant strives to retain something like pre-birth serenity. incompatible. This process, the normal human way of avoiding recognition
Conversely, fear of the unknown, dread of chance and change, are vital

LEGAL METHOD - HILBAY A2010 - 30 -


of the conflict of incompatible beliefs is not really exclusive to lawyers. But actually law but only a guess as to what a court will decide. Law then as to
lawyers, more that most men, are compelled to reconcile incompatibles. nay given situation is either (a) actual law, i.e., a specific past decision, as
Yet for the most part, lawyers are also supposed to seek to achieve to that situation, or (b) probable law, i.e., a guess as to a specific future
certainty. Given the two contradictory aims of practicality and idealism, it decision. Is this how lawyers customarily define the law? Not at all.
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? Beale and Legal Fundamentalism
Conventional view: law is a complete body of rules. Legislatures are Beale would definitely say that the decision and judgment of a court
expressly empowered to change the law. Judges are not to make or change determining a particular controversy can in no sense be regarded as in
law but to apply it. Judicial opinions are only evidences of what the law is. itself law. Judgment of any court is too finite, too lowly, of too little real
Contrary minority view: judge-made law is real law. Judges make and import, to be worthy the name law. Law must be uniform, general,
change the law. Statutory legislation may only alter law prospectively. continuous, equal, certain, pure. Law cannot change backwards and
Jurisprudence, on the other hand, can alter the law retroactively. The myth forwards a dozen times w/in a few years. Its purity is unsullied by mere
that judges have no power to change existing law or make new law is a decisions, whatever their practical consequence.
direct outgrowth of a subjective need for believing in a stable, In case of conflicting decisions given the same set of facts, the law had
approximately unalterable legal world – a child’s world. always been the same and the Court, in one decision or the other, had
The supposed practical importance of avoiding legal retroactivity and made a mistake. The law never was in doubt, only the decision was in
uncertainty is much overrated, since most men act w/o regard to the legal doubt; as Beale sees it, the decision and the law are not the same, by any
consequences of their conduct. John Chipman Gray: the law of w/c a man manner of means. Accdg to Beale, the law consists of three parts: (1)
has no knowledge is the same to him as if it did not exist. The factor of statutes, (2) rules and (3) the general body of principles accepted as the
uncertainty in law has little bearing on practical affairs. Retroactivity and fundamental principles of jurisprudence. Law is made in part by the
the resulting unavoidable uncertainty are not as great practical evils as legislature; in part it rests upon precedents; and in great part it consists in
they are often assumed to be. The no judge-made law doctrine is not a homogenous, scientific, and all-embracing body of principle, a
fundamentally a response to practical needs. There is no harm in this philosophical system.
myth. Law must be predictable and continuous. It is essential that law be
But the denial of the fact of judge-made law seems to resemble an general, for w/o generality there could not be equality, and justice requires
outright benevolent lie that people should believe. It actually leads to a equality, and that means generality. It is impossible that a single event
distrust of the judges, disrespect for their opinions. Why then do judges should be followed by 2 contradictory legal consequences, for any political
deceive the public? Bcoz they are themselves deceived. The doctrine of no society must have only one law; if two laws prevail at the same time, they
judge-made law is not a lie, not a fiction, rather a myth – a false affirmation might be mutually destructive. Judges can not make law, for if they did, the
made w/o complete knowledge of its falsity. And this self-delusion has led law might change rapidly and it must not change rapidly. These things
to many unfortunate results. cannot be, must not be. But they are.
Childish dread of uncertainty and unwillingness to face legal realities For Beale and his legal absolutism, real Law is superhuman. It is extra-
produce a basic legal myth that the law is completely settled and defined. experiential. But to mere humans, law means what the courts have
Thence springs the subsidiary myth that judges never make law. That decided and will decide, and not vague, “pure” generalizations. Lawyers
myth, in turn, is the progenitor of a large brood of troublesome semi-myths are intensely practical men and their concern is w/ the lives and property
like “contracts implied in law,” “constructive fraud,” and “malice in law.” of their clients. Why then is generality so prized by lawyers at the expense
of particularity?
Legal Realism
What is the law? What does it mean to the average man of our times Verbalism and Scholasticism
when he consults a lawyer? For any particular lay person, the law w/ Dean Leon Green: The possibility of developing a true science of law
respect to any particular set of facts, is a decision of the court w/ respect has been retarded bcoz lawyers have not risen above the word level. If we
to those facts so far as that decision affects that particular person. Until a are to make progress in the law, we must no longer canonize words such
court has passed on those facts no law on that subject is yet in existence. as rights and duties. Words must surrender their sanctity. Is legal
Prior to such a decision, the only law available is the opinion of lawyers as Absolutism, then, merely word-worship? Perhaps! Many abstract terms
to the law relating to that person and to those facts. Such opinion is not acquire an intense “emotive value”; they stimulate not intellection but

LEGAL METHOD - HILBAY A2010 - 31 -


strong feelings. They represent “emotional abstractions”. Language, in its & absolute; w/c makes him a wishful thinker, a verbalist, a fatuous believer
emotive aspect, makes legal Absolutism possible. The Bealist is a wishful in an impossible chanceless world, devoid of novelty, and gratifyingly
thinker who makes indispensable use of Word-Magic. Bealism is the verbal secure and harmonious.
expression of excessive optimism, is sure to breed excessive cynicism. Later, the child’s egocentricity becomes derivative. It is as son of his
Another charge directed against the Bar is belated scholasticism. It is father that the child now maintains his belief that he is the center of the
argued that lawyers have to learn to stop using abstractions as substitutes world. Egocentricity becomes dependent on father-centricity. The
for specific events. Lawyers should reason deductively from such discovery of the humanity, the fallibility, of his father is the beginning of
abstractions. Scholastic faith in the superiority of abstract terms, and wisdom for the child. W/ that staggering discovery comes the child’s
slavish adherence to formal logic, has to be dispensed w/. awareness of his self. Dualisms arise, objectivity commences. But
There seems to be a parallel between the vices f formal logic disillusionment is by no means at once complete. Substitutes for the
(commonly associated w/ scholasticism) and the vices of legal logic. father, substitutes that are not fallible and weak, is still sought after.
Scholasticism and Bealism are seemingly related. But we need to ask why Where father-substitutes have been obliterated, adult objectivity will make
scholasticism and verbalizing have survived in lawyerdom when they have those thought-processes objective. Where father-substitutes have not been
become obsolescent (if not obsolete) in the natural sciences. Are lawyers dissipated, the unconscious childish aims will survive and though
more stupid than the scientists? Surely not. mechanisms of childish character will continue.
Since then, the Law is easily personified as a father-substitute. The
Childish Thought-ways subject of law evokes youthful illusory aims. Scholasticism has survived in
The child is a wishful thinker who in the interest of his desires for lawyerdom bcoz the emotional attitudes of childhood have a more
harmony, chancelessness, security and security, builds for himself an over- tenacious hold on men when their thinking is directed towards the law. The
simplified, over-unified, novelty-less world to conform to his desires, complete liberation of lawyers from the so-called tradition of scholasticism
heedless of the lack of correspondence of this construction w/ the world of can only come through their liberation, w/ respect to law, from the
actual experience, & who is aided in contriving this world by his implicit emotional attitudes of the child.
belief in the magic efficacy of words.
Misuse in modern times of scholastic logic, despite its harmful social Word-Consciousness
consequences is apparently not due to the fact that nothing has a greater Counter-argument: It is not the prolongation of childish emotional
hold on the human mind than nonsense fortified by technicality, bcoz the attitudes but verbalism, misuse of words. In order to save time, we
more nonsensical it is, the more impervious it becomes to rational contract and condense language, make up words like virtue, liberty,
objection, the more impossible it is to amend it, and so the better it lasts. freedom, democracy, and forget that they are merely abbreviations. The
Scholasticism is w/ us today not bcoz it is consecrated by a tradition of hindrance to the detection of the merely verbal character of those
2000yrs, but bcoz all men now alive were once children and many of them abstractions is due to a belief in word-magic. Word-consciousness, a
continue to remain emotionally childish even in advanced years. perception of the true use of words, a study of the genesis of current
Scholasticism and Platonism alike appear to be cleverly elaborated language habits, may deliver us from primitivity in thinking by enabling us
formulations of the emotional attitude of childhood, ingenious to look beyond our speech forms to the things we are talking about.
rationalizations of the world outlook of the child. To say of a man’s thinking Piaget: it is not the child that is molded by language; it is the language
that it is scholastic or platonistic, is to say that it is tinged w/ childish w/c is already childish. The real disease is emotional infantilism unduly
emotions. prolonged. Of that disease, verbomania is merely one symptom. Even after
words become a means of communicating thoughts, they continue to
Genetics contain definite emotional charges, a sort of magical significance,
Shall we say that, if we lawyers are preponderantly absolutistic, then associated w/ certain acts. Words frequently become, for the child, a
we are scholastic or platonistic – and therefore childish? Scarcely, for while substitute for action. No one needs to teach him that word-magic are
there is unquestionably a resemblance of some sort between legal excellent modes of escape from the harsh ways of actual events.
Absolutism and childish thinking, the resemblance is in illusory aims, in If word-magic is not the cause of childish emotional attitudes, the real
conscious outlook, not in intellectual processes. cure probably must be sought in whatever causes an undue prolongation
A central feature of the child’s mode of thinking is that it is egocentric: of a childish emotional outlook. Verbalism will give way completely only
the child assumes that everything centers in himself and confuses the self when the childish emotional point of view is outgrown. A war on wards is to
w/ the universe. It is the child’s naïve egocentricity, his unconsciousness of be welcomed in the province of law to assist in demolishing many a legal
self, w/c leads him to regard his own perspective as immediately objective 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 and concepts w/c eh may find useful, directly or by an analogy, so as to
nature of law as a father-substitute. The lawyers on the whole are better select from them those w/c in his opinion will justify his desired result.
able to fight off emotional deterrents than the laymen. 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
Scientific Training hunches is the key to the judicial process. Whatever produces the judge’s
Prof. Walter Wheeler Cook believes the way out of the legal Dark Ages hunches makes the law. What, then, are hunch-producers? Rules and
is through acquainting law students w/ the logic of the natural sciences. principles of law are just one class. The political, economic, and moral
Platonism demonstrates that the yearning for authority is insidious. It will prejudices of the judge may be another. And also is his affection for or
find satisfaction at all costs; twist any material to its ends. What has animosity to some particular individual or group, due to some unique
certainty hunger in law done in distorting some of the philosophies w/c it experience he has had. Or even the memories he has had.
ahs encountered? The courts too have observed that w/o any improper motives,
18th century scientific world outlook’s purpose was to observe and witnesses, in forming inferences from what they have seen or held or felt,
understand and control the actual. The emphasis in legal science was the may badly misrepresent the objective facts. A witness can not
exact reverse: attainment of universals w/c were above and independent mechanically reproduce the facts, but is reporting his judgment of the facts
of experience. 19th century iconoclasm made lawyers see law as inductive: and may err in making this judgment. While the witness is in this sense a
belief in a common law of w/c all precedents and decided cases are merely judge, the judge, in a like sense, is a witness. The judge’s determination of
the evidence and exposition. Legal investigation consisted of looking into the facts of the case is no mechanical act. He is subject to defects in his
the outward manifestations – statutes & decisions – and formulating to the appreciation of the testimony. The peculiar traits, disposition, biases and
mind the invisible law whence they proceed. habits of the particular judge will, then, often determine what he decides to
But it is far more impt that lawyers catch the spirit of the creative be the law. The law may vary w/ the personality of the judge.
scientist, w/c yearns not for safety but risk, not for certainty but adventure, Justice is a very personal thing. We shall not learn how judges think
w/c thrives on novelty, and not on nostalgia for the absolute. Can the until the judges are able and ready to engage in ventures of self-discovery.
scientific spirit be inculcated by instruction in the ways of the scientist? It For a judge’s decisions are the outcome of his entire life-history: his
would seem not. general and legal education, family and personal associations, wealth and
What blocks a clearer understanding by lawyers of what they are about social position, legal and political experience, political affiliations and
is not dull-mindedness, not inadequacy of educational training. It is, it opinions, intellectual and temperamental traits. No one can know in
seems, an emotional blocking due to the very character of law, to the advance what a judge will believe to be the “facts” of a case. It follows that
facility w/ w/c the law is converted into a substitute for fatherly authority. If a lawyer’s opinion as to the law relating to a given set of facts is a guess as
any lawyer can measurably prevent himself from making that substitution, to (1) what a judge thereafter will guess were the facts and (2) what the
his thinking about law will become realistic, experimental – adult. 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
The Judging Process and the Judge’s Personality biases of clients and witnesses, but are still peculiarly reluctant to look into
The judge in reaching a decision is making a judgment. Judging begins the motives and biases of judges.
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 Mechanistic Law; Rules; Discretion; The Ideal Judge
substantiate it. In the case of the lawyer, he must, that is if he is to be The task of the judge, if well done, is no simple one. He must balance
successful, begin w/ a conclusion w/c will in sure his client’s winning the conflicting human interests and determine w/c of several opposing
lawsuit. He then assembles the facts in such a fashion that he can work individual claims the law should favor in order to promote social well-being.
back from this result he desires to some major premise w/c he thinks the He must determine whether to fit a particular case into the terms of some
court will be willing to accept. The precedents, rules, principles and old rules or to “legislate” by revising and adjusting the preexisting rules to
standards to w/c he will call the court’s attention constitute the premise. the circumstances of the instant controversy. Yet majority of lawyers still
In theory, the judge begins w/ some rule or principle of law as his deny that judges do make law.
premise, applies this premise to the facts, and thus arrives at his decision. John Chipman Gray: The Law is made up of the rules for decision w/c
But the judge is a human being and it is safe to assume that judicial the courts lay down; all such rules are law; rules for conduct w/c the courts
judgments, in most cases, are worked out backward from conclusions do not apply is not law; the fact that courts apply rules is what makes them
tentatively formulated. The judge usually decides by feeling and not by law; there is no mysterious entity “The Law” apart from these rules; and
judgment. He passes in review all of the rules, principles, legal categories, 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 Judge Peters of Alabama (quoting Lord Camden): it cannot safely be
experts, customs and principles of morality (and public policy). In truth, all denied that mere judicial discretion is sometimes very much interfered w/
the Law is judge-made law. Judges make law when they make or change by prejudice, w/c may be swayed and controlled by the merest trifles such
the rules; lawmaking is legal rule-making, the promulgation by a judge of a as the toothache, the rheumatism, the gout, or a fit of indigestion, or even
new rule for decision. through the very means by w/c indigestion is frequently sought to be
Holmes: if you want to know the law and nothing else, you must look at avoided.
it as a bad man, who cares for only for the material consequences w/c such All judges exercise discretion, individualize abstract rules, make law.
knowledge enables him to predict. The prophecies of what the court will do Those judges a\whoa re most lawless, or most swayed by the perverting
in fact, and nothing more pretentious, are what I mean by law. A influences of their emotional natures, or most dishonest, are often the very
generalization is empty so far as it is general. Its value depends on the judges who use most meticulously the language of compelling mechanical
number of particulars w/c it calls up to the speaker and the hearer. The logic, who elaborately wrap about themselves the pretense of merely
Law is made up not of rules for decision laid down by the courts but of the discovering and carrying out existing rules, who sedulously avoid any
decisions themselves. All such decisions are law. The fact that courts indications that they individualize cases. The pretense that judges are w/o
render this decisions makes them law. And the sources of law are not only the power to exercise an immense amount of discretion and to
statutes, precedents, customs and the like, but the rules w/c other courts individualize controversies, does not relieve us of those evils w/c result
have announced when deciding cases. from the abuse of that judicial power. It actually increases the evils. The
Bishop Hoadly: whoever has an absolute authority to translate rules attempt to cut down the discretion of the judge, if it were successful, would
into specific judgments, it is he who is truly the law-giver to all intents and remove the very creativeness w/c is the life of the law.
purposes, and not the persons – be they legislators or other judges – who Aristotle: legal rules are necessary general, designed to meet the
first wrote or spoke the rules. Whenever a judge decides a case he is average situation, but the circumstances of most actual cases are
making law. The law of any case is what the judge decides. Rules whether particular. Human rule-makers cannot lay down in advance rules w/c will fit
stated by judges or others, whether in statutes, opinions or textbooks by all particular cases thereafter arising. Wherefore the rules of law must
learned authors, are not the Law, but are only some among many of the often be modified in their application. That w/c is equitable is just, and
sources to w/c judges go in making the law of the cases before them. The better than one kind of justice, not indeed better than absolute justice, but
law consists of decisions, and not rules. Whenever a judge decides a case, better than the error of justice w/ arises from legal generality. The law is
he is making law. reason unaffected by desire.
Prof. Walter Wheeler Cook: the practicing lawyer is engaged in trying Roscoe Pound: there is something in equity and discretion w/c is out of
to forecast future events. His task is not to find the preexisting but line w/ the course law should take. Equity or discretion is sometimes the
previously hidden meanings in these rules; it is to give them a meaning. anti-legal and sometimes the non-legal element in the administration of
The logical situation confronting the judge in a new case being what it is, it justice. Jerome Frank: what Pound calls law and what he calls non-legal can
is obvious that he must legislate, whether he will or no. not be separated. They are so intermingled that it is not possible to divide
Legal rules and precedents only enable the judges to give formal them.
justifications – rationalizations – of the conclusions at w/c they otherwise The childish desire to rediscover an all-knowing strict father-judge in
arrive. These formulas are devices for concealing rather than disclosing law leads to a demand for impossible legal inflexibility and infallibility.
what the law is. To apply law mechanically usually signifies laziness, or Thence follows assiduous efforts to make law static and therefore to
callousness to the peculiar factors presented by the controversy. The reduce the power of the judge, to deny to him creativeness. These efforts
personality of the judge is the pivotal factor. The principles of law are often are unavailing – fortunately so, since justice depends on a creative
only remotely related to judicial conduct. There is little hope for stability in judiciary. Truth is the judge is trying to decide what is just; his judgment is
law if our judges are the more enlightened, sensitive, intelligent members a “value judgment” and most value judgments rest upon obscure
of the community, for then there will be small likelihood that all judges will antecedents.
react identically to a given set of circumstances or will be obtuse to the “The art of manipulating judges properly is impt, and yet does not, and
recognition of unique facts in particular legal controversies. rightly should not, receive the attention of law schools. The primary object
Edmund Burke: no rational man ever did govern himself by of the university as a public institution can only be the advancement of our
abstractions and universals. Jerome Frank: The act of deciding is seemingly legal institutions through a dev’t of a liberal understanding or science of
divisible into 2 parts, the determination of the facts and the determination the law.” BUT if law students are taught law in terms of the conduct of
of what rules are to be applied to those facts. But these two parts of ideal/non-existent judges, then later when those students become
judging can not be separated, but intertwined. 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 conformity even go as far as proposing that the courts cease writing
that judges are human beings. In law schools, in law offices and law courts, opinions, or at least prohibit rendition of dissenting opinions.
there must be explicit recognition of the meaning of the phrase “human The judge at his best is an arbitrator, a sound man who strives to do
nature in law.” The study of this may not only deepen our knowledge of justice to the parties by exercising a wise discretion w/ respect to the
legal institutions but open an unworked mine of judicial wisdom. peculiar circumstances of the case. He does not merely find or invent some
We also need to develop a more explicit technique for individualizing generalized rules w/c he applies to the facts presented to him. But the
cases. The systematic, deliberate and openly discussed sue of the unique bench and bar usually try to conceal this arbitral function, making the labor
facts of the case will not be of much service until the judges develop the of judges less effective.
notion of law as a portion of the science of human nature. And that dev’t The paradox of wisdom: in so far as we become mindful that life is
cannot come to fruition until the judges come to grips w/ the human nature more dangerous that we had naively supposed in childhood, we help
operative in themselves. ourselves to approach nearer to actual security. If we relinquish that law
can be mathematically made certain, if we honestly recognize the judicial
Illusory Precedents: The Future: Judicial Somnambulism process as involving unceasing adjustment and individualization, we may
Lawyers and judges purport to make large use of precedents: the be able to reduce the uncertainty w/c characterizes much of our present
conduct of judges in past cases as a means of procuring analogies for judicial output to the extent that such uncertainty is undesirable. By
action in new cases. What the courts in fact do is to manipulate the abandoning an infantile hope of absolute legal certainty we may augment
language of former decisions. And our present use of illusory precedents markedly the amount of legal certainty. It is about time to abandon judicial
makes the employment of real precedents impossible. somnambulism.
Yntema: a decision is reached after an emotive experience in w/c Painful Suspension
principles and logic play a secondary part to describe the event w/c ahs We want our judges to practice reflective thinking: inquiry into the
already transpired. The impt problem is not the formulation of the rule but rightness of established habits, interruption of routine, selection of
the ascertainment of the cases tow/c, and the extent to w/c, it applies. It is alternatives, detection of ambiguities, and choice of roads at the
impossible to guess what the judge did experience in trying a case. crossways. Scientists, professional doubters are devoted to breaking up
Dickinson: the “personal bent of the judge” to some extent affects his tradition, courting the kind of pain involved in reflective thinking. Judges,
decisions, but this personal bent is a factor only in the selection of new on the other hand, especially those whose judgments are routine, honor
rules for unprovided cases. BUT in a profound sense the unique precedent and try to avoid the pain of suspended judgment.
circumstances of almost any case make it an unprovided case where no Vaihinger on 3 stages in human dev’t: (1) Dogmatism, proper to the
well established rule authoritatively compels a given result. primitive man, trustfully assumes that whatever occurs in thought exists,
Reliance on precedents is illusory bec judges can seldom tell precisely that thought is infallible. (2) Negative skepticism, rather pessimistic,
what has been theretofore decided. A court can usually find earlier regards thought as an extremely defective instrument w/c falsifies reality
decisions w/c can be made to justify almost any conclusion. There are very and leads us astray. (3) True criticism, quite hard to attain, recognizes that
few who have attained the enlightened state of awareness of their although thought may not be in complete correspondence w/ actual reality,
unawareness. These include Judges Holmes, Cardozo, Hand, Hucheson, it may lead to ultimate practical coincidence w/ the facts of existence.
Lehman and a few others. Others are still swayed by the belief that since One’s reaching this stage is a product not of high intellectual progress but
their opinions will serve as precedents, they are obligated to look too far of emotional maturity. The pain involve in suspended judgment is a
both backwards and forwards. They sometimes refuse to do justice in the product of the regressive and more infantile tendencies. W/ maturity doubt
case on trial bcoz they fear that “hard cases make bad laws,” – causing an and inquiry should no longer be unpleasant, but should rather become a
“injustice accdg to law.” source of interest and satisfaction. The so-called scientific mind is the
One danger in the administration of justice is that the necessities of emotionally adult or mature mind.
the future and the interest of parties not before the court may be sacrificed Judges have failed to see that, in a sense, all legal rules, principles,
in favor of present litigants. Judicial self-delusion and ineffectual precepts, concepts, standards – all generalized statements of law – are
suppression of the judge’s personality leads to the indirect, unobserved fictions. We want judges who, viewing and employing all rules as fictions,
and harmful effects of his personality on judicial decisions. The desire to will appreciate that as rules are fictions intended for the sake of justice, it
regulate the future is in part a desire for impossible uniformity, security is not to be endured that they shall work injustice in any particular case,
and certainty, for over-simplification, fro a world regulated and controlled and must be molded in furtherance of those equitable objects to promote
as a child would have it regulated and controlled. Some justices, in seeking w/c they were designed. If justice is to be capably administered, judges
to cover up the more obvious manifestations of this lack of legal 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 large measure of legal certainty by codification proved vain. It produced
oversecure and impossibly serene – for a father-governed world. not certainty, but sterile logic-chopping. The gap between theory and
practice is now rapidly widening. The law expounded in classroom and
The Basic Myth and the Jury textbook differs more and more from that applied in the courts.
The demand for excessive legal certainty produces a violent prejudice Codification cannot create a body of rules w/c will exclude judicial
against a recognition of the practical need for flexible adaptation and innovation and thereby guarantee compete predictability. A code cannot
individualization of law based upon the unique facts of particular cases. be stable, it must be adaptive. Where customs are constantly changing
Note that the function of the jury is supposed to be fact-finding. But in under the pressure of a lively industrialism and commercialism, no code,
most jury cases, the jury determine not the “facts” but the legal rights and however adequate for today, could possibly be sufficient for the problems
obligations of the parties to the suit. For the judgment of the court follows of tomorrow or the day after tomorrow. Even in a relatively static society,
the general verdict of the jury, so that the verdict, since it produces a no one can foresee all future combinations of events.
judgment w/c determined the respective rights and obligations, decides The incompleteness of the code calls for judicial law-making. Such law-
the law of that particular case. The general-verdict jury system developed making is customarily designated judicial interpretation. But that is a false
bcoz it serves two purposes: It preserves the basic dogma in appearance label: What the judges have to do is, not to determine what the legislature
and at the same time (albeit crudely and bunglingly) circumvents it in fact, did mean on a point w/c was present to its mind, but to guess what it
to the end of permitting that pliancy and elasticity w/c is impossible accdg would have intended on a point not present to its mind had the point been
to the dogma, but w/c life demands. present. Judicial law-making is not only an unavoidable, but a desirable and
Mr. Justice Chalmers: Hard cases make bad law. But hard cases tried most important element of any code system. The childish belief in legal
w/ a jury do not make bad law, for they make no law at all, as far as the finality is not to be realized by codification. It is and will ever be based
findings of the jury are concerned. The principle is kept intact while the upon illusion.
jury do justice in the particular case by not applying it. On the command theory of law. John Austin: Every law is a command –
While men want the law to be father-like, aloof, stern, coldly impartial, the command of a monarch or sovereign to persons in a state of subjection
they also want it to be flexible, understanding, humanized. Judges, in turn, to its authority. Law proceeds from superiors and binds inferiors. Wurzel: to
do not usually admit the wide margin of discretion they employ in arriving most laymen and lawyers, jurisprudence is a science of obedience, of
at their decisions; and to preserve the self-delusion of legal fixity, certainty submission to commands. Jerome Frank: the public is still dominated by a
and impartiality, they hand over the determination of legal rights and childish myth. Although there are gaps in the law, although the law is
liabilities to the whims of 12 men casually gathered together. Seeking to never complete and always provisional, although it is plain to the eye of
escape judge-made law, we have evolved jury-made law. The jury system any realistic observer that it is being made and remade constantly by the
means that the illusion of the existence of an inflexible body of rules courts, the social want demands that every artifice be used to conceal
ostensibly has been maintained, whereas, in fact, uniformity and these gaps.
inflexibility are negated.
The truth is that the very judges who seem to estimate the jury as the The Religious Explanation
superior triers of facts pragmatically reveal little sincerity in their jury Defining religion as the belief in a universal steadfastness, in an
worship. The use of fact-verdicts, while it may slightly reduce the evils of uninterrupted connection between apparently disjunctive events, in cosmic
the jury system, cannot eliminate them. The jury makes the orderly certainty, it may be possible that man’s search for complete legal certainty
administration of justice virtually impossible. The judge’s instructions have is but one aspect of the religious impulse/conviction to seek for security
become part of an elaborate ceremonial routine. The jury lawyer is a and certainty. In primitive and ancient times law and religion were virtually
realist, seeking a result, and he plays upon every weakness of the dozen one. In terms of its social origins, law is a gift of the gods. Folk-law, when
men who will decide the fate of his client. The basic legal myth produces law and religion were identical, contained an extraordinary minuteness and
an intricate, technical ritual, practically useless, but the subject of endless detail of crimes and their penalties such that there was no room for judicial
and wasteful disputation. aberration or discretion.
But to say that the contemporary desire for too much definiteness and
Codification and the Command Theory of the Law predictability in law is a survival of the earlier definition of law and religion
The remedy for legal uncertainty recurrently proposed by men of may be too insufficient. The close and avowed relation of law to religion is
strong sense (Frederick the Great, Napoleon, and many others): adoption a matter of the distant past. The legal profession has long been split off
of a code, a carefully prepared body of rules sufficiently complete to settle from priesthood.
all future controversies. But history has seen that the hope of attaining a

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One cause of the longing for excessive legal certainty in modern times 4. Wurzel and the value of lay ignorance. This writer desires to see
is the operation of a “force” w/c acted powerfully in the past and acts lawyers abandon antiquated assumptions as to the character and function
powerfully now. Society is made up of persons who now are or recently of law, and become conscious of the mental processes w/c they employ
have been children. There exists a close and obvious correspondence unconsciously. But he also believes that the public appearance of a static
between the attitude of the young child towards his parents and that of legal universe must be preserved and that the laity must not peer behind
man towards the superhuman powers w/c he personifies as God, the Divine the scenes. The lawyers are to become more sophisticated, but the laymen
Father. Religion, in a sense, is infinite dependence upon God. But the child are to remain ignorant and deluded.
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 5. John Morley and the meaning of compromise. Morley’s writings on
Father in Heaven is likely to absorb a large measure of the attributes attitudes towards religion and politics show that he detested the “dual
originally ascribed by the child to his earthly father. doctrine” and the reserve of intellectual cowardice dealing hypocritically w/
In the same manner, the Law is “paternalized,” not “divinified.” narrow minds in the supposed interest of peace and quietness. He says it
Therefore, the continued craving for excessive legal stability is to be is wise to be patient about the general acceptance of a new idea but the
ascribed not to a survival of the period when law was dominated by a time has always come, and the season is never unripe, for the
belief in its religious or divine origin, but to a more powerful and still announcement of the fruitful idea to the general public. The first kind of
operative influence, underlying both law and religion. We must seek one of compromise where the compromiser rejects the highest truth prolongs the
the important causes of the basic legal illusion not in religion, but in duration of the empire of prejudice and retards the arrival of dev’t. The
undisposed of childish longings for a father-substitute, longings w/c play other kind, where the compromiser holds the highest truth courageously
their part in religion as in law. 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.
The Basic Myth, and Certain Brilliant Legal Thinkers 6. The candor of Cardozo. This legal writer wants to do away w/ legal
1. Dean Roscoe Pound and the search for legal certainty . Pound says mysteries. He would have not lawyers alone, but laymen as well, learn the
rigid rules and judicial slot-machines are to be preferred for cases relating actualities of the judicial process. He seems to have reached adult
to property and commercial or business transactions. But for cases raising emotional stature, able to contemplate w/o fear a public w/c shall know
problems of human conduct or the conduct of enterprise or good-faith what he knows. Yet, he is not ready to abandon entirely the ancient dream.
cases, non-mechanical methods and flexible discretions may be utilized. He laments the absence of mathematical legal exactness and authoritative
He seems aware of the judicial realities, yet reluctant to relinquish entirely commands as the evil against w/c intellect rebels.
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 Conclusion
law should be pliant and deliberately purposive, that it should be I. Getting Rid of the Need for Father-Authority
consciously used as a means to desired social results. But although he A revised attitude towards the law wants the courts to perceive what it
believed that the law should deal w/ differences between individuals, he is they are doing and thus be enabled to address themselves consciously
was at times apparently opposed to the individualization of controversies. to doing it in the best way. Enlightened thinkers want an effective,
There is in him a struggle between two inconsistent attitudes: a marked intelligent fusion of the two competing tendencies towards stability and
sensitiveness to objective reality & a powerful drive of satisfaction of change; a working principle of growth; a constant revision of the law’s
purely subjective emotional needs. He defines law as the feeling of security heritage of knowledge and thought; the frequent adaptation of the legal
in the State and religion as the feeling of security in God. rules so as to relate them to the realities of contemporary social, industrial
3. Demogue’s belief in the importance of deluding the public. This and political conditions. This is no easy task.
contemporary French jurist discloses the ambiguity of the phrase “legal Growing up means throwing off dependence upon external authority. It
security” and differentiates static security that favors owners of rights and means self-reliance, the acceptance of responsibility. It means questioning
emphasizes the status quo vis-à-vis dynamic security that incites to action calmly and dispassionately our bequests from the past, our social heritage.
in promoting the security of those who acquire these rights. He thoroughly The fear of change is an ancient one. If we are to grow more civilized, we
is w/o illusions as to the attainability or desirability of legal certainty but he must arrive at a more adult attitude towards chance and change.
deliberately counsels against the disclosure to the layman of the We must distinguish between that growth towards maturity w/c
contingent character of law. 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 I. Rituals
will occur. The demand for too much change is as little based on • The role-playing between the judges and the judged is constitutive.
practicality as the demand for too much rigidity. • The basic dichotomy is ancient and most notably paired with
Modern civilization demands a mind free of father-governance. To another separation—the ruler and the ruled. This has been
remain father-governed in adult years is peculiarly the modern sin. The reconfigured by the present society into the rhetoric of
modern mind is a mind free of childish emotional drags, a mature mind, constitutionalism in two ways:
unopposed to change, avowedly pragmatic. Until we become thoroughly
cognizant of, and cease to be controlled by, the image of the father hidden 1. Separation of Powers: has become a judicial theory of
away, in the authority of the law, we shall not reach that first step in the maintaining a mechanistic Newtonian balance among different
civilized administration of justice, the recognition that man is not made for public departments, not to promote efficiency, but to avoid abuses
the law, but that the law is made by and for men. of power.
2. Due Process Clause: the deprivation of life, liberty, or
II. Mr. Justice Oliver Wendell Holmes, the Completely Adult Jurist property now requires the mediation of an ideal—the cold, neutral,
His writings are a treasury of balanced judgments, a vast knowledge of and impartial judge.
legal history divorced from slavish venerations of the past. He has put • Nature of Judicial Function: that judging is law-application and
away childish longings for a father-controlled world & has steadfastly urged fact-finding; that law application is about interpretation; that
his fellows to do likewise. Holmes’ adult illusionless surveys are an interpretation is a matter of applying the plain meaning of texts and
indispensable aid and an inspiration for legal realists. “The life of the law that judges are detached from the active world of norm-building and
has not been logic; it ahs been experience.” Law cannot be dealt w/ as if it are in fact objective of received knowledge.
contained only axioms and corollaries of a book of mathematics.
• These doctrines also give meaning to the judiciary being the “less
For him, history is valuable for the light it throws upon the present; the
dangerous branch” and substantiate the nature of judicial reasoning
past gives us vocabulary and fixes the limit of our imagination, but the
as both a matter of logic and directional. Most importantly, they
present has a right to govern itself as far as it can. He believes that in
have given judges an escape from the kind of responsibility political
substance, the growth of the law is legislative and that the process of
officials in a democracy are usually subjected to: accountability for
judicial law-making has largely been unconscious. He advocates a more
one’s politics or ideological implications of one’s decisions.
conscious recognition of legislative function of our courts. He has
abandoned legal mysticism and believes that where there is doubt, the • Proposal: for judges, once made aware of their political role, to
simple tool of logic does not suffice, and even if it is disguised and embrace this function wholeheartedly not only because this is the
unconscious, the judges are called on to exercise the sovereign way of the honest but because it is important for the judges to take
prerogative of choice. He has been saying that, in effect, the Golden Rule responsibility for their decisions and thus place their public actions
is that there is no Golden Rule. within the reach of the democratic radar.
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 II. Performative Utterances
the father’s, nor to reject it for like reason, we shall, for the first time, • John Langshaw Austin’s Speech Act Theory: introduced the
begin to face legal problems squarely. If, like him, we realize that concept of statements that are not nonsensical, and yet are not true
perfection is not possible, the legal profession will then for the first time be or false. Performative speech acts do not have truth value, and since
in a position to do its work well, w/ lawyers enjoying the pleasures of self- the act of uttering the statement creates the referent, there is no
confidence, self-authority, and the other benefits such an adult, mature, external referent against which to measure the truth of the
conscious outlook may bring. 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
THE SCANDAL OF THE SPEAKING JUDGE appropriate for the invocation of the particular procedure invoked;
By Florin Hilbay

LEGAL METHOD - HILBAY A2010 - 38 -


3.The procedure must be executed by all participants both correctly the demand for interpretive certainty is an ideal that can never
and completely; be approximated.
4.Where, as often, the procedure is designed for use by persons
having certain thoughts or feelings, or for the inauguration of IV. Background to the Foreground
certain consequential conduct on the part of any participant, then • whereas before the goal was the mastery of the technical skills of
a person participation in and so invoking the procedure must in applying rules, now it is understanding the normative value of each
fact have those thoughts or feelings, and the participants must and every performance; whereas before the standard for evaluating
intend so to conduct themselves; and decisions was its coherence with doctrine, now it is its relevance as
5.The participants must actually so conduct themselves political choices; whereas before judgments are infallible, now
subsequently. 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
III. Judging as Performance to pacify public dissent has a lot to do with the apparent objectivity
• The entire decision-making process is performative: decisions over of their reasoned elaborations.
evidence or fact-finding, choice of applicable law, and conclusions of • What is the result of the combination of colonial imposition and
law are all performative utterances per se. Every instance in the political ideology insofar as the courts are concerned? It is the
decision-making process is an isolated moment of creation summed ideological performance which has become entrenched in the
up by the familiar So Ordered. rhetoric of the public and , most importantly, in the teachings of the
1. Findings of Fact - evidence is the mode and manner of proving law schools where generations of future lawyers and judges are
competent facts in judicial proceedings. trained to believe that the metaphors of fact-finding and law-
- the resulting metaphor is that of a judge as finder of fact. interpretation are actually true.
- It assumes that the reality of facts produced by evidence exists • Pintip Dunn makes the following pragmatic point: “Judges are
objectively and that it is possible to know this reality through a liars. They routinely engage in delusion. They occupy a paradoxical
methodology that is supposed to be faithfully adhered to by the position in this world, one in which their function requires them to
judge. make law, while their legitimacy depends on the fiction that they
- But this is a case of theory unfit with reality because every interpret law. It is a strange fiction, but it is a necessary one. The
instance in which a judge declares that “the court has legitimacy of the judicial system requires that the rule of law be
established as a fact” something, what she has really done is to above the whims of the individual personalities who happen to
make a choice among multiple sets of hypothesized and occupy positions on the Supreme Court at any given time. Rather
hypothesizable fact situations. This choice is imaginative, and the rule of law must be grounded in objective analysis and
not compelled by rules. immutable logic, reasoning that does not change with the changing
- Judges are also prone to making “common sense” conclusions of personnel. Otherwise, there would be no reason to accept the
and of facts presented by litigants, when they do, they engage in decisions of the Court as the governing framework for our society.”
slippery and foundational argumentation. 1. Not all judges are liars. What judges should realize is that they do
- The metaphorical role of fact-finding is therefore performative: not work in isolation; every decision that they make alters the legal
the act of stating is the act of creating. space which affect human beings all the time (judges have their own
2. Conclusions of Law – related to the choice of law applicable and set of myths!)
the conclusion arising from that choice 2. The fiction of a judge as an interpreter and not a legislator is not
- formalist equation of Jerome Frank: (Law) x (Fact) = Decision. necessary. To embrace the reality that law-creation is a judge’s field
3. Mixing Facts and Law – through the parsing of texts, judges are of play is to raise the bar of responsibility (demands accountability?)
able to re-use and modify the metaphor of finding; whereas evidence 3. Each and every judge is unique because every human being
allows the judge to find facts, interpretation allows her to “find” carries with her the baggage of personal history, the weight of
meaning. culture, and unavoidable genetic predispositions (admits fallibility
- there is no textualist position. The role of text is not to provide and arbitrariness of judges?)
meaning but to furnish a material arena for debating symbols;

LEGAL METHOD - HILBAY A2010 - 39 -


6.Fairness is a matter of convention. Reason can take many questions. All responses were anonymous. The questionnaire presented
pathways, and equally reasonable propositions do exist. The each judge with five items, each testing for the influence of one of the five
choice among reasonable propositions is a performative utterance. cognitive illusions described below.
7.The governing framework for accepting decisions of judges is
entirely positivist—all judicial decisions should be accepted II. RESULTS
because they have pedigree, that they can be traced to an A. Anchoring
ultimate source of authority: the Constitution (MYTH?) When people make numerical estimates, they commonly rely on
the initial value available to them. That initial value tends to “anchor” their
Conclusion final estimates. Anchors affect judgment by changing the standard of
• The species of responsibility of judges are different: reference that people use when making numeric judgments.
1.it is one thing to say that the judge’s ruling is hers; quite different Judges were presented with a description of a serious personal
to say that the judge’s ruling is decisive. injury suit in which only damages were at issue. They were randomly
2.it is one thing to say that the judge’s decision was based on the assigned to either an a “No Anchor” or an “Anchor” condition. Judges in the
facts and the law of the case; quite another to say that the judge’s “No Anchor” condition were asked to estimate to the plaintiff for
decision was based on her interpretation, which is always creative, compensatory damages. Judges in the “Anchor” condition were given
of the facts of the case. additional information that “the defendant has moved for the dismissal of
• When a judge decides, she isn’t disclosing a hidden, pre-existing the case, arguing that it does not meet the jurisdictional minimum for a
reality. Rather, her very utterance/act contributes to the reality of diversity case of $75,000.” These judges were asked to rule on the motion
the situation and in many instances, even makes it. This is the and to estimate the award for compensatory damages if the motion were
meaning of the claim that judging is political, and therefore, denied.
ideological. Judges therefore are not merely passive but active Ruling on the motion had a large effect on damage awards. The
participants in the political process. 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
INSIDE THE JUDICIAL MIND awards. Asking the judges to rule on this frivolous motion depressed
By Guthrie, Rachlinski and Wistrich average damage awards by 29.4%.
These data show how easily anchors can creep into the process
INTRODUCTION and affect the way judges think about damage awards. Constraints such as
Empirical evidence suggests that even highly-qualified judges damage caps or mandatory sentencing guidelines might reduce the
inevitably rely on cognitive decision-making processes that can produce influence that biased or irrelevant anchors have on judicial damage awards
systematic errors in judgment. The very nature of human thought can and sentences. However, they can also inappropriately skew damage
induce judges to make consistent and predictable mistakes in particular awards and criminal sentences if they provide anchors that are unrelated
situations. Psychologists have learned that human beings rely on mental to an appropriate sentence or damage award.
shortcuts, called “heuristics”, to make complex decisions. Reliance on B. Framing
these heuristics can create cognitive illusions that produce erroneous When people confront risky decisions, they categorize their
judgments. Even though judges are experienced, well-trained, and highly decision options as potential gains or losses from a salient reference point
motivated decision makers, they are vulnerable to cognitive illusions. 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
I. THE STUDY choosing between options that appear to represent losses.
A. Participants Each of the judges was presented with a hypothetical description
167 federal magistrate judges were recruited to participate in the of a lawsuit. Half of the judges (“Plaintiff/Gains” Condition) reviewed the
study, drawn from a large group attending an educational conference. case from the plaintiff’s perspective, in which the choices involved
B. Procedure potential gains. The other half of the judges (“Defendant/Losses”
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 - 40 -


Condition) reviewed the case from the defendant’s perspective, in which When people make categorical judgments, they tend to base their
the choice involved potential losses. judgments on the extent to which the evidence being analyzed is
There was a statistically significant difference between the two representative of the category. Psychologists refer to this as the
groups. 39.8% of judges evaluating the case from the plaintiff’s “representativeness heuristic”. Although it is useful, it can lead people to
perspective indicated that they thought the plaintiff should accept a discount relevant statistical information. Excess reliance on the
settlement offer, but only 25% of judges evaluating the case from the representativeness heuristic leads people to commit a variety of decision-
defendant’s perspective indicated that they thought the defendant should making errors.
offer to settle. Judges were given a paragraph-long description of a torts case
The framing of the settlement decision affected judges in the based loosely on a classic English case where the plaintiff was struck by a
study. From the plaintiff’s perspective, settlement seemed relatively more barrel while passing by a warehouse and were asked to estimate the
attractive, while from the defendant’s perspective, trial seemed relatively likelihood that the barrel that hit the plaintiff fell due to negligence of one
more attractive, even though the two perspectives presented identical of the workers. Overall, the judges did well. More than 40% got the correct
economic choices. answer, but those who did not exhibited a significant tendency to choose
C. Hindsight Bias the highest range.
People overstate their own ability to have predicted the past and In the problem that was used, the accident was unlikely to occur
believe that others should have been able to predict events better than when the defendant was not negligent. Nevertheless, because negligence
was possible. This “hindsight bias” occurs because learning an outcome was rare, the event was still unlikely to have been caused by negligence.
causes people to update their beliefs, and then rely on these new beliefs to E. Egocentric Bias
generate estimates of what was predictable while ignoring the change in People tend to make judgments about themselves and their
their beliefs that learning the outcome inspired. Because courts usually abilities that are “egocentric” or “self-serving”. Egocentric biases could
evaluate events after the fact, they are vulnerable to the hindsight bias. lead judges to believe that they are better decision makers than is really
Each of the judges was presented with a hypothetical fact pattern the case.
bases on an actual case. They were randomly assigned to one of three Judges were asked to estimate their reversal rates on appeal by
conditions. Each condition gave a different outcome on appeal: placing themselves in the quartile corresponding to their respective rates.
• “Lesser Sanction”: The court of appeals ruled that 56.1% of judges placed themselves in the lowest quartile while only 4.5%
the district court abused its discretion and remanded the case for placed themselves in the highest quartile.
imposition of a less onerous sanction. The judges exhibited a strong egocentric bias concerning the
• “Affirmed”: The court of appeals affirmed the likelihood that they would be overturned on appeal. Egocentric biases
decision. might prevent judges from maintaining an awareness of their limitations;
• “Vacated”: The court of appeals found that the this might work to the detriment of litigants in their courtrooms. The
district court abused its discretion and vacated the sanction against influence of the egocentric bias likely makes it difficult for litigants to
the plaintiff. convince federal judges that they might have been wrong.
The judges were asked to predict which of the three actions the F. Cognitive Illusions in Judges & Other Decision Makers
court of appeals was most likely to have taken, regardless of the condition Judicial decision making, like the decision making of other experts
to which they were assigned. and lay people, is influenced by the cognitive illusions tested. Judges
Knowing the outcome significantly affected judges’ assessments. appear to be just as susceptible as other decision makers to anchoring,
When told the court of appeals had affirmed the decision, 81.5% of judges hindsight bias and egocentric bias. Though still susceptible to framing and
indicated they would have predicted that result. The sum of the the representativeness heuristic, judges appear less susceptible than other
percentage of judges in each of the three conditions who selected the decision makers to these effects.
outcome that they were told had occurred as “the most likely to have G. Do These Findings Apply to Judges in the Courtroom?
occurred” was 172%. It would have been 100% if learning the outcome had The study shows that judges rely on cognitive processes that are
had no effect. likely to induce them to make systematic errors, but it does not
Judges’ susceptibility to the hindsight bias is troubling because conclusively demonstrate that judges actually make such errors in the
judges are frequently expected to suppress their knowledge of some set of courtroom. To the extent that the methods used in this study have
facts before making decisions. identified thought processes that judges use, the conclusions apply in the
D. Representativeness Heuristic courtroom. Only if increased attention and greater deliberation enable
judges to abandon the heuristics that they are otherwise inclined to rely

LEGAL METHOD - HILBAY A2010 - 41 -


upon can they avoid the illusions of judgment that these heuristics The legal system might also adopt procedural, evidentiary, and
produce. In the course of making decisions in the courtroom, judges even substantive rules to minimize the deleterious effects of cognitive
certainly face more complex fact patterns, have more motivation to make illusions on judicial decision making. Indeed, some legal rules appear to
good decisions, have more time to make decisions, and receive assistance represent an effort by judges or legislators to avoid the effects of these
from litigants, lawyers, and clerks. But unless these factors alter the illusions of judgment.
fundamental ways judges think, they will not eliminate the effects of For example, Rule 407 of the Federal Rules of Evidence represents
cognitive illusions. an adaptation to the effects of the hindsight bias by excluding from
evidence subsequent remedial measures taken by the defendant.
III. GENERAL DISCUSSION & IMPLICATIONS Similarly, courts often rely on ex ante standards of conduct rather than ex
Like the rest of us, judges use heuristics that can produce post determinations of “reasonableness” as a means of reducing the
systematic errors in judgment. Unlike the rest of us, however, judges’ hindsight bias.
judgments can compromise the quality of justice that the courts Several legal rules also arguably reflect efforts to temper the
deliver. What can the legal system do to avoid or minimize the effects effects of egocentric biases. The availability of multiple judicial appeals
of cognitive illusions? might be an effort to counteract the potentially overconfident assignment
A. Improving Judges’ Judgment of the death penalty. Likewise, damage caps might reflect a systematic
Judges can make good decisions by learning to adopt multiple effort to temper overconfident civil verdicts.
perspectives on the problems confronting them, restricting their use of There is some danger that adopting reforms to reduce the effects
heuristics to normatively appreciate circumstances, and distrusting of a single cognitive illusion will skew the litigation process because any
inclinations that are likely to be the product of cognitive illusions. Greater single reform will fail to reduce the effects of other illusions. Furthermore,
experience, training and specialization should enable judges to make efforts to curb the effects of a single illusion might have an adverse effect
better decisions. on one category of litigants. Nevertheless, failing to adopt reforms that
B. Juries Versus Judges reduce the effect of cognitive illusions also skews the system and ensures
Reformers commonly propose that the legal system should rely that the system produces more errors than it otherwise might.
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 CONCLUSION
choosing the optimal decision maker requires a comparison of the relative Despite their best efforts, judges are vulnerable to the influence of
strengths and weaknesses of judges and juries. cognitive illusions. The study demonstrates that judges rely on the same
Judges are likely to be better decision makers in circumstances cognitive decision-making process as laypersons and other experts, which
where decision-making experience can blunt the effects of cognitive leave them vulnerable to cognitive illusions that can produce poor
illusions. Judges are also in a better position to determine whether judgments. However, judges, litigants, and legislators can take steps to
evidence is relevant. Judges are less likely than jurors to rely on heuristics minimize the effects of these cognitive illusions. Additional psychological
like representativeness that can lead to erroneous evidentiary and legal scholarship is needed to explore the various ways that the
determinations. cognitive processes of legal actors can and should influence the
Although the results support greater reliance on judges in administration of justice. A greater understanding of these cognitive
circumstances where experience and training can facilitate avoidance of processes can only improve the legal system, whereas ignorance can only
cognitive illusions, they also identify important advantages juries have undermine it.
over judges. Juries consist of groups, and group deliberation might reduce
some illusions of judgment. Because groups usually remember more of the COURSE IN GENERAL LINGUISTICS
relevant facts than individuals, group decision making can mitigate some
of the cognitive illusions’ influence. Another important advantage of a jury By Ferdinand de Saussure
trial is that it creates a mechanism for keeping potentially misleading
information away from the fact finder. A judge will always know about Let’s sum up Saussure’s work (and influence) by the first 5 letters of his
subsequent remedial measures and statutory damage caps, whereas this name: S- Semiology (a.k.a. Semiotics); A- Arbitrariness of the sign (and
information can be kept from juries. 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
C. Legal Rules That Avoid Illusions of Judgment
I. LANGUAGE

LEGAL METHOD - HILBAY A2010 - 42 -


a. Language (langage) is a ‘system of signs that express ideas’. convention. There is no necessary reason why a pig should be
b.For Saussure, it is the social side of speech. It is outside the called a pig. It doesn't look sound or smell any more like the
individual. An individual cannot create or modify it by himself; it sequence of sounds 'p-i-g'. It is only because we in our language
exists only by virtue of a sort of contract signed by the members of a group agree that it is called a 'pig' that that sequence of sounds
community. 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
c. Language makes us “human”. It creates a way for us to identify long as there is general agreement, that's no problem - until you
objects/people, communicate, reflect, make plans, etc. (Jonas’ start talking about squerdlishes to people who don't share the same
contention: Other animals have a system of communication, thus convention. (This is from the Internet)
they have “language”. Sarah violently objected to this)
c. There are many implications of signs/language being arbitrary.
Since it is the case that the meanings we assign to signs are the
II. SEMIOLOGY, SIGN/SIGNIFIER/SIGNIFIED result of conventions arrived at by the community, then it is
reasonable to suppose that the values of the community will be
a. Semiology is ‘a science that studies the life of signs within society’. incorporated into those signs/meanings. The users will, for example,
This science would teach us 'what signs consist of, what laws govern have developed signs for those things they agree to be “important”.
them'. What passes for reality in any culture is a product of the sign
b. The sign is made up of the signifier (or the sound image) systems of that culture. This would make 'reality' ‘encoded’. The
and the signified (or the concept). The sound image is the process of decoding signs is socially and culturally conditioned.
psychological imprint of the sound, not a material/physical concept, Usually, it is the dominant culture that dictates the meaning and the
belonging to the system. Both components of the linguistic sign are value of the sign. Sign systems can be systems of
inseparable. An easy way to understand this is to think of them as domination/oppression.
being two sides of a sheet of paper - one side cannot exist without
the other. IV. UNIVERSAL vs INDIVIDUAL REALITY
c. Take note that the relationship is of sound image and concept, not a. Saussure challenged the idea that there exists a “universal”
a thing and a name, not of a naming process only – a collection of reality. Individuals and different communities divide up the world
words for a collection of objects (the Adamic conception). This differently. To explain this, Saussure uses the word bœuf as an
naming process assumes that ready-made ideas exist before words. example. He cites the fact that the English language has different
Whereas Saussure says that there are no pre-existing ideas before words for the animal and the meat product: Ox and beef, while in
language. Language brings into being, by describing, a world French, bœuf is used to refer to both concepts. A perception of
that it then knows as external. (Yes, the external ‘physical’ world difference between the two concepts is absent from the French
may already exist, but its ‘reality’ remains nebulous until language vocabulary. In Saussure's view, particular words are born out of a
articulates it. As pointed out in class, a small nameless part of one’s particular society’s needs, rather than out of a need to label a pre-
arm physically ‘exists’ but until one recognizes it and gives it a existing set of concepts. (“Slicing” things depends on our “social
name, it doesn’t really exist, it’s ‘not there’-- it’s just a part of reality”/ culture. Like we have different names for rice = palay,
one’s whole arm. One is not likely to regard the small nameless part bigas, kanin. While for the the Americans, its just rice. For a
of the arm as a separate concept from the whole arm.) fisherman, his fishnets have different parts and each part has a
name, but for us non-fisherfolk, it’s just a fishnet.)
III. ARBITRARINESS
a.The bond between the signifier and the signified is arbitrary and FIRE, METAPHOR AND THE CONSTITUTIONAL MYTH-
unmotivated. There is no natural reason why a particular sign should
be attached to a particular concept. Even onomatopoeic words are MAKING
just approximate imitations of certain sounds (example: Tagalog By Robert Tsai
‘tilaok’, Bisaya ‘tuktugaok’, Japanese “kukuruku, English
‘cockadoodledoo’!) • This article accepts that metaphor helps us to comprehend a
b. Saussure saw language as being an ordered system of court’s decision. At the same time, it contends that metaphor plays a
signs whose meanings are arrived at arbitrarily by a cultural special role in the realm of constitutional discourse. Metaphor in
constitutional law not only reinforces doctrinal categories, but also

LEGAL METHOD - HILBAY A2010 - 43 -


promotes acceptance of interpretive prerogative and creates another to illuminate some salient details while shading others. In doing
sustainable constitutional subcultures, with their attendant myths, so, they order our social world by weaving new events into stock scenes
counter- narratives, hero figures and villains, and sacred mantras. It and everyday occurrences.
links citizens to governing institutions, and bridges diverse • Negotiating a line between these 2 perspectives, this part makes
communities of interest. the case for an understanding of metaphor that is essential to the
• To illustrate these themes, the article examines the appearance of constitutional myth-making process.
fire- inspired legal sayings in the Courts free- expression rulings over • Metaphor is then understood as a rhetorical device that mediates
time, drawing on the work of anthropologists, legal theorists, and the relationships between citizens and governing institutions.\
cognitive linguists. 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
Introduction view has 3 benefits:
Constitutional myth- making – is a process whereby potent metaphors, [1] Theater best captures the multivocal nature of law, both in terms of
symbols, scripts, and mantras are constructed and disseminated by the sophisticated and simple audiences involved, and in the multiplicity
individuals and institutions to create legal meaning. Its raw materials of institutional roles that make up the American form of self-
consist of legal lore and doctrinal infrastructure, as well as folk belief government.
systems and ordinary experiences. [2] This modality underscores the fundamentally public nature of law,
Tracing the evolution of fire hones our perspective of law and culture in which strives to ascertain and disseminate shared socio- legal values.
three respects. [3] The theater analogy appropriately treats text as one source among
[1] Analysis of these recurring linguistic- cultural tools reveals why fire- many, like a screenplay or musical score, rather than as the entirety of
based language is uniquely effective in influencing constitutional the process that is law.
actors.
[2] Observing the formation of a free speech ethos in intimate fashion
• 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
allows us to gain valuable insight into how metaphor can cement or
signals and connections. Through customary practice punctuated by
dissolve existing doctrine across time.
moments of improvisation, language cues legal actors to play
[3] Once attention is refocused on the fire’s integral role in shaping our
particular roles, sets the parameters for doctrinal possibilities, and
free speech belief system, we should arrive at a better appreciation for
facilitates social cooperation.
the relationship between constitutional language and institutional self-
• Unlike ordinary speech, which is often enlisted in the service of tidy
conception. In this instance, fire has left its mark by serving as a ready
resolutions here and now, law is in a perpetual state of
implement of bureaucratic influence and by reflecting the Supreme
dramatization.
Court’s rise to the apex of the socio- legal order.
Note: The next 3 parts of the article are organized into 3 “metaphorical
fields,” where historical events, value systems and rhetorical strategy have
Part I: Language And Its Discontents
converged to produce distinct thematic structure in the development of
This part lays out, on the one hand, the skeptical view of metaphor shared
the language of fire. These 3 discrete eras or metaphorical field are: [a]
by traditional legal scholars, and on the other, the enthusiastic embrace of
1919 until World War II, [b] the transitional period in the decade following
metaphor by the law-as-language movement.
WWII, and [c] the late 1950s to the present
[a] To the formalist, metaphor seemed impossible to pin down, entirely
unpredictable. To the legal realist bent on uncovering the social policies
Part II: The Early Modern Cases: Fire Becomes Modular
exerting a “gravitational field upon any rule or precedent” and nudging the
law in those general directions, metaphor appeared to be just another • This is the period from 1919 until World War II. It discusses the
distraction. composition of fire metaphors and legal sayings which were
Note: This deeply held understanding of metaphoric communication as a introduced into the cultural soil at that time. The fire-as-expression
distasteful habit from which jurists must be weaned has been forcefully motif was given life in 3 decisions addressing the extent which the
challenged in recent years by theorists and empiricists who recognize law First Amendment protected Socialist views: Schneck v. United Sates,
as a close cousin of ordinary language. Frohwerk v. United States, and Gitlow v. New York.
[b] The linguist and anthropologist find metaphor to be a building block in • The metaphor “falsely shouting fire in a crowded place” has come
the communicative process. They tell us that at the basic level, metaphors to serve a dual function: [1] the image acts as a prototype for
allow human beings to understand one phenomenon in relationship to

LEGAL METHOD - HILBAY A2010 - 44 -


unprotected expression, and [2] it broadly operates as a mantra of transformative metaphors available to a new generation of
udicial influence, inviting acceptance as interpretive choices. Americans.
Important point: During this period, the metaphor assigned the state the • The assembly metaphor captures the legal principle that thinking
role of firefighter who extinguishes the sparks of revolution, motivated by a people will not be presumed to rush violence or illegal activity at the
desire to protect the public safety. The Court enabled and applauded the drop of an inflammatory word. More importantly, it introduced
state’s aggressive suppression of speech, acting as the firefighter’s loyal inventive images, counter-scripts, and categories of meaning to a
assistant. The metaphor cast the defendant-speaker in the part of the new generation of constitutional actors.
hated arsonist, who was duly blamed for unleashing the dire threat of the
constitutional order.
• Smoke but no fire: The absence of fire heralded fundamental
changes in speech culture. The Justices began to lose interest in
• The entire metaphorical structure of judicial discourse served to patrolling the boundaries of illegal advocacy but trained their
underscore the Court’s inclination to treat the speaker’s words not as attention on establishing bounds of obscenity and the degree of
expression, but more like an act of inchoate revolution interrupted by state control of public fora.
vigilant authorities.
Illustration: Part IV: The Court As Firefighter: Flipping The Script
Arsonist-speaker threatens the legal order ---> State attempts to
• This is the period from the late 1950s to the present. This part
extinguish the fire through regulatory suppression ---> Court endorses the
examines the Court’s reconfiguration of the legend of fire in the last
action ---> Constitutional equilibrium is restored
generation so as to spin a new web of meaning, one that has
• Once unleashed in law, fire-based language provided grist for the expanded the realm of protected expression even as it has enhanced
creation of new signs and images in speech culture. 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
Part III: The Post- War Interregnum: Transitions citizen-speaker on the street, is ably filled by the state. The leading role of
• This is the transitional period in the decade following World War II. firefighter, once acted by the state, is now performed by the Court itself.
In the immediate post-war years, the internal structure of the fire Advocates, judges, and intellectuals have contributed to the dissemination
metaphor remained largely intact, re-invigorated by memories of of the new legal myth of fire.
conflict.
Important point: The Court harnessed the fire metaphor to enable a • The roast pig incantation[a] points that a challenged law is overly
national anti-communism policy. Later, the Justices started to experiment broad or otherwise poorly suited to the state’s interest, or that a law
by stirring race into the combustible mixture as a method of legitimating cannot be saved by the government’s salutary motives alone; and,
judicial noninterference in the other forms of speech regulation. [b] inaugurated a new linguistic field in free speech culture, as fire
[a] As members of the national leadership, the Justices seized the was harnessed to advance expressive liberty.
opportunity to apply the lessons of war, nationalism and racial hatred to • “Burning down the house to roast the pig” ---> The act of roasting
the home front. External threat subsided during this transitional period. But a pig stands for the benign purpose of government, while the
once the governing metaphorical field relaxed its grip and public attention metaphorical house – so often used to represent law – signifies our
turned inward for a time, fear of internal divisions of another kind – constitutional order, inadvertently set ablaze through the actions of
involving race and ethnicity – crept through public imagination. well-intentioned officials. We shake our heads at the foolishness
[b] In the meantime, a latent image of the people assembled out of doors displayed by the state’s position and we are thankful that the Court
began to dominate the Justices’ post war free speech jurisprudence. The stands ready to put the world right.
emerging framework of crowd control facilitated the battle of metaphoric Illustration:
embodiments of the people. This is the metaphor of the assembly Regulation-as-fire threatens the constitutional order ---> Direct conflict
unleashed. arises between the Court and another state actor ---> judicial authority is
• Peaceful resistance against unjust laws in the streets and the dispensed to meet the threat ---> Invalidating the state action repairs the
courts not only revolutionized substantive constitutional breach.
commitments, entirely reversing the presumption that speech out of
doors was a threat to public order, but also irreversibly altered the Part V: Warring Metaphors Over Time
This part tackles 3 topics in closing the article.

LEGAL METHOD - HILBAY A2010 - 45 -


[1] It offers explanations for the ascendancy of the marketplace and the • “judicial activists” need not apologize for reading things into the
decline of fire as the dominant constitutional metaphor Constitution that do not seem to be there-this is the nature of
• 3 factors that fueled the marketplace ascendant: [a] the market “interpretation”-“construction”
metaphors message of hands off libertarianism, [b] periods of • Literary scholars deal with complex texts-many are old and
prosperity and economic stagnation helped keep the language on temporal remoteness makes original meaning the only authentic
the tip of every constitutional actor’s tongue, and [c] its resonance meaning difficult to recover
with American ideals • Concepts that are outside of time and space and distinct from the
• Fire’s renewal in free speech culture illustrates both the patterned perceptions out of which they have been made
quality of constitutional language and the ingenuity with which legal • Person A concept (signified)—Signifier (words, sound, etc.)-noise-
rules and metaphors can be re-imagined. To this day, the Court Person B concept (signifier)
continues to prefer the negative characteristics of fire—its fear- • Signifier-signified-link is a matter of convention-not universal
inspiring nature and its tendency to consume everything in its path. • Problem is there are different languages and sometimes a
[2] It strives to deepen our understanding of metaphor as an indispensable language lacks a signifier for a particular signified
link between legal mythology and popular culture. • Translation is often problematic—signify other concepts in our
[3] The discussion suggests that we should be watchful of metaphors that culture—we overdetermine their conceptual message
reinforce the jurists’ view of themselves as the primary guardians of
• There are impediments to perfect conceptual transfer or
the legal order.
“intersubjectivity” as corruptions-can be overcome normally
• Metaphor has splayed a major part in this profound shift in the
• Properties of signifiers that impede communications-arbitrary and
Justices’ own institutional outlook, just as it has deeply influenced
culture-bound rather than logical or natural
how ordinary Americans perceive the Court’s labors. Whether as the
metaphoric market regulator, fire-fighter, or referee, the Court has • Literature-devices that call attention to the signifier
built an arsenal of images, metaphors, and story lines with which to • Literature-not concerned with conveying concepts in the most
patrol its sphere of influence 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
LAW AND LITERATURE • Deconstruction-denies the inherent logical or metaphysical priority
By Richard Posner of authors or concept over the medium of communication. It doesn’t
appear to deny the intelligibility of communicative discourse and hence
• Atheoretical-system of education in the Philippines the possibility that statutory and constitutional provisions really could
-absence of theoretical study in the Philippines communicate the commands of their authors
Theoretical work-started with literary critics i.e. Marxist theories, feminism • Law is discretionary and therefore political
• Texts i.e. Bible, Constitution, Statutes-have intrinsic meaning-if this is so, • Dworkin hails the legislator as the unacknowledged poet of the
then there is little room for theoretical work or theorizing text. world
• Text-surface, superstructures, ideological bias, racial bias, gender bias, • Posner-intentionalist when it comes to reading statutes and the
efficiency. Constitution but a New Critic when it comes to reading works of
• If texts in law are closed-textured, then there is no room for theoretical literature
work. But this is not the case. Stare decisis becomes strong source of • “Intentionalist” literary critic-way to understand a work of literature
constraint only of they are consistent which isn’t the case. There is is to try to reconstruct the author’s intentions-the meaning he assigned
therefore space for theoretical work. to it
• Status of text-has space for interpretation (metaphorical interpretation). • “New Critic”-assign a coherent and satisfying meaning to the
The question is where do you end? words
• If you allow space in the Constitution, then when do you stop? • Critical Legal Scholars-deconstruct legal texts-followed
• The debate therefore should be the degree of open-texturedness rather Postmodernist approach to literature and therefore the literary
than whether or not it’s open-textured deconstructionists’ counterparts to law
• New Critic-thought that very little in the way of context was
Law and Literature necessary to make literature intelligible
• New Critic-you don’t need to know the circumstances

LEGAL METHOD - HILBAY A2010 - 46 -


• Multiple interpretation of the same work at the same time may be judgments. Pivotal or crucial moments still require thinking twice and
an equilibrium state for the literary marketplace whereas they would doubting and thin-slicing may be placed in a back seat.
be a source of profound disequilibrium in law Along this line, we should also remember that stereotyping is also
• Interesting aspect in law-judges’ opinion-a combination of law and a tool for thin-slicing. It is then important for us to consciously be able to
literature look beyond our stereotyped ideas. While it may be unconsciously done,
• Which interpretive approach should we then apply? 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
BLINK
through the creation of the judgment although it is not in line with the true
By Malcolm Gladwell 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
Thesis Statement on what really should be considered.
People have the ability to unconsciously think without consciously
thinking. We could arrive at decisions, resolutions, and judgments without Application in Law
thinking too much and it is likely to be as good as when we consciously The book’s application to law is, although not apparent, its
think deeply. 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
Definition knowing it. It is value neutral yet it never takes away the fact that it could
• Thin-slicing refers to the ability of our unconscious to find patterns work for or against anyone thus reasonability and equality really does not
in situations and behavior based on very narrow slices of exist. What is crucial at this point is that we accept that people indeed
experience. thin-slice and that we really are able to come up with a sound judgment
• Adaptive Unconscious- A crucial brain activity that keeps humans regardless of the length of time that we think and whoever we are.
able to function by silently processing daily stimulus. An individual
is unaware of such brain process thus making it to a great extent STRAIGHT TALK AND THE PHILOSOPHY OF
uncontrollable.
POSSIBILITY
• “Warren Harding Error”- Thin-slicing in a superficial level and
giving too much emphasis on the snap judgment. By Florin Hilbay

Summary • My concern implicates an aspect of being broader than just what kind of
The book is a combination of scientific studies (Implicit Association gender I have, or think I have, or think I ought to have. It seems to me
Test), historical accounts (Warren Harding), social happenings that that at a higher level of generality, differences in gender collapse
(discrimination), notable trends (Coke v Pepsi), and simple day to day and converge towards an appreciable commonality… we are all human
observations regarding the creation of snap-judgments otherwise known as bodies that can communicate. This point of convergence is where a
thin-slicing. shared community becomes a possibility, where theorizing moves from
It demystifies us from the idea that for people to come up with imagination to the politics of transformation
there judgments regarding just about anything there is the factor of time • His Issue: the autonomy of the individual in a society imbued with
and careful investigation. The book gives us evidences that point to the dominant and domineering signs – cultural marks that commandeer and
idea that we are indeed able to rely on our own adaptive unconscious and simultaneously create the appearance of freedom. My inability to
that we are capable at arriving on a decision that is accurate. transcend the commands of culture has infused doubts about my
There is a possible problem however as there is an also likely freedom to many any choice. If my perceptions (culture etc.) is
chance that our way of thinking would be impaired by day to day constructed prior to myself, given and not made, where goes my
bombardment of stimulus. The Warren Harding Error lets us stop from freedom?
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 NATURAL LAW
to over emphasize our snap judgment by knowing when to apply such • 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

LEGAL METHOD - HILBAY A2010 - 47 -


possible for me – one is natural law. It furnishes powerful categories that • Human essence for the purpose of gender is to set a boundary, a
assign gender to the body and pathologize deviations from such fixed limitation to what would constitute a body human in the eyes of the law
categories – males and females with a taste for the same sex and society
• The powerful effect of this conceptual scheme is the production of a • For example, when the FC defines marriages as a special contract of
mandatory binarism, referred to by Adrienne Rich as compulsory permanent union between a man and a woman, when bathrooms are
heterosexuality, that universalizes gender by confining it in some notion distinguished for men and women etc., these definitions and
of gender confinement and erasure of the possibilities of personhood categorizations are not value-neutral but paradigm-dependent. As such
that serves as motive power for this internal mechanism of constraint the world-view they promulgate is very-limiting
• Natural law exists in the minds of lots of human beings. Usually, this is all • This is not to say that one is capable of embracing the complexity of
that matters. But who says what natural law is? If you say the hearts and concrete social reality, but we argue insofar as the paradigm is a source
minds of people, it shall invite contradiction as it would be tantamount to of illegitimate power of some over the others, as it constrains everyone's
saying that the problems of the world are solvable by common sense. To ability to author their lives
say that it is an institution like the church, it is submitting your
• For example, homosexuals are not allowed to marry and those that are
personhood, your existence to the dictates of an institution of humans
allowed to marry are tied to each other til their bodies expire, and pop
like you, whose meanings are close to discourse as they purport to be
culture feeds and sells people with a notion of heterosexuality and
infallible
gender without explicating it
CULTURE • It present an extent of limitation of our ability to create ourselves
• CULTURE is a more inclusive approximation of the internal mechanism • The goal of freedom is furthered by articulation, by bringing into
• The universe of signs that inhabit animates and inanimates is the discourse and conscripting to the demands of language the relevance of
cultural space that generates the kinds of meanings that function as cultural signs in the emergence of human consciousness. If our body is
tools of communication and, therefore, construction hub altered by culture, then we should start worrying about regulations,
• Human body is a hub that reads the code of culture, making intelligible norms and symbols that get entrenched and claim permanent status – as
signs and at the same time contributing to the creation of the code itself. such, marriage is not a simple validation of an intimate relationship, it is
The code of culture then is open-source dynamic, situated and opaque. an ENTRENCHMENT OF A PARADIGM OF GENDER
As such, culture is a broader term that encompasses all those external • This game of heterosexuality is played out in multiple arenas, deployed
influences that carve out human consciousness and define our and entrenched in viral form, in public and private spheres that feed on
preferences each other in a constant two-way dynamic
• While society provides me with the range of choices and a definition of • The effect of the combination of private and public ordering is a scheme
those specific choices, my decision to pick or not to pick is self- of categorizing the body through an essentialism that effectively dictates
attributable, but with regard my inability to choose a partner of the same the possible and the not-possible – the policing of the sex: the necessity
sex, it is the conditions of culture that prevent me from even considering of regulating sex through useful and public discourses.
such choice. My inability is not simply a refusal, but a blindness… • Gender has been labeled through the sexual organs, what was
• While ignorance to this reality is bliss, there is a sense in which blissful contingent before is now naturalized, made inherent and thus, a
ignorance and human agency are incompatible. Bliss and ignorance worldview was born
makes life livable but knowledge of this pierces the bubble and floods me • This method of labeling is very powerful as those with sticky utterances
with the thought of living a less than conscious existence, impervious to are the ones who control the language game of gender and as such, they
discourse dictate the truth about human sexuality. We must realize that truth is a
• Progressive gender advocacy and queer theory are more concerned function of the way language is used and manipulated and it sensitizes
about issues of justice and human rights. So when there is talk about us to the importance of words/signs and what they signify
marriage, homophobia and other discriminations, the thrust is towards • As such, words are also a matter of freedom – they we can calibrate
an ideal of justice that is more tolerant, inclusive, if not embracive. It has words and defines possible and not possible, and ultimately, what we are
an aspect of freedom, as it is a claim to freedom by some from the and who we are. This extent of linguistic confinement is the extent of
exclusion of others. But this freedom is not only for the other: but human freedom; we are creatures of our language, slaves to our own
freedom in a general sense, even us who consider ourselves straight words

PHILOSOPHY OF POSSIBILITY

LEGAL METHOD - HILBAY A2010 - 48 -


• Humanity does not precede description. The concept of humanity, • Language then is soft, porous, malleable, and plastic; and it is because of
human, humane etc. is possible only through some form of description. these qualities that the movement from possibility to possibility becomes
Without language we cannot describe ourselves and the we and I do no a reality
rise up to the level of possible. Human being or the humanity of being is • This space of uncertainty lying in the interstices of language, in the
created by the knife of language that slices and differentiates our bodies margins of textualized body, is the location of freedom
from all other phenomena. With language, existence and possibility
become available; through language, we become subjects OFFENSIVE NUISANCES
• In this view we discover how oppressive certain structures are – the By Joel Feinberg
language of marriage is unjust become it confines intimates relationships
within the hegemony of heterosexuality Disclaimers: The Relative Triviality of Offense
• The notion of gender then is an institutional narrative attached to I. it The term offense could be subdivided into two conditions –
operates as an ideology of viewing bodies and normalizing them through subjective and objective. “Offense” in the strict sense of ordinary
channels of heterosexuality. When it creates it prevents bodies from language specifies a subjective condition – the offending act must be taken
moving from possibility to possibility, from engaging in more meaningful by the offended person to wrong him whether in fact it does or not. On the
acts of authorship. other hand, offense in the sense of offense principle specifies an objective
• But freedom is possible only if we can detach ourselves from these insti. condition – the unpleasant mental state must be caused by conduct that
Narratives from the limitations of the very language that makes really is wrongful. In offense principle, it is necessary that there be a
possibilities possible. The possibility of freedom is actualized only in that wrong, but not that the victim feel wronged. The principle asserts that the
very instance when that imagined possibility is co-opted by the prevention of offensive conduct is properly the state’s business.
structures of our language. The road to freedom is in inhabiting the However, the author emphasized that offense, in highly restricted
language we seek to transform version of the offense principle, is surely a less serious thing than harm.
• The linguistic deficiency of labeling people who are neither men or Therefore, it follows that the law should not treat offenses as if they were
women becomes a source of power and oppression of those we call serious, by and large as harms. It should not, for example, attempt to
queer, strange and anomalous and when it is settled, it gets enforced, control offensiveness by the criminal law when other modes of regulation
consciously and unconsciously in the public and private spheres. We can do the job as efficiently as efficiently and economically (i.e. norms,
must then identify those institutions that have appropriated the market, and architecture).
language of gender and problematize their acquisition, thereby
highlighting the tenuousness of their hold over the architecture if our The Model of Nuisance Law
language In the Anglo-American Law, the term nuisance refers to two quite
different sorts of wrongs: a miscellany of minor criminal offenses bearing
GENDER UNDER ERASURE the label of “public nuisance” or “common nuisance,” and a tort called
• The contingency of language and the concepts within it should inform us “private nuisance.” Private nuisances inconvenience specific individuals in
about the suppleness of categories, and that they only emerge in the possession of their right, whereas public nuisances inconvenience
discourse. random assortments of people (“the public”) in the exercise of rights
• The politics of gender is the politics of acting out desires as the very common to all citizens.
source of meaning and identity. If desire is the fountainhead of meaning, Since practically all human activities interfere to some extent with
the fuel that allows the body to move from possibility to possibility, then others or involve some risk of interference, and these interferences range
all of us must be cautious about the layers of the rhetoric of confinement from mere trifling annoyances to serious harms, it is unavoidable that
embedded in discourse balancing of interest be done by the legislature. In doing such, a variety of
• As such, words such as man, woman and queer are mere linguistic factors must be considered.
combinations and by themselves have no sense, only contingent and 1. The seriousness of the inconvenience depends on
non-essential a. The extent, duration, and character of the interference.
• These concepts thus come under erasure, not erased, as Derrida says, (Illustration: There is no nuisance from an occasional
but de-concretized, softened and undermined. This includes the concept unpleasant odor in the community but a constant and
of I, self, and identity as well. unrelieved stench would be “substantial interference” and
• The recognition of this possibility is the very instance of transformation. may amount to a nuisance.

LEGAL METHOD - HILBAY A2010 - 49 -


b. The social value of the use that plaintiff makes of his land. The Relation between Offense and Privacy
(Illustration: Between the right of a person to a good sleep Privacy refers to that of a privileged territory or domain in which an
during the night may be favored against the right of individual person has the exclusive authority of determining whether
another person to enjoy large and raucous parties during another may enter, and if so, when and for how long, and under what
the night.) conditions. The individual person’s will alone reigns supreme over them.
Since offense conduct could sometimes intrude the privacy of
c. The extent to which the plaintiff can, without undue one’s person, it is necessary that drawing boundaries between private
burden or hardship, avoid the offense by taking domains of persons, and between the private domain of any given person
precautions against it. (Illustration: The plaintiff cannot and the public world be done.
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 PATERNALISM
smoke enters. By Gerald Dworkin
2. The reasonableness of the defendant’s conduct depends on
Paternalism is the interference with a person’s liberty of action
a. The social value of its ultimate purpose (Illustration: The
justified with reasons referring exclusively to the welfare, good, happiness,
inconvenience of the noise produced by a factory could be needs, interests, or values of the person being coerced. “Pure” cases are
tolerated for general god but a noisy dog will have little those wherein only the person benefited loses freedom. In “impure” cases,
social value and therefore relief from it will be justified. others lose freedom, too (e.g., limiting cigarette sales/advertising). It may
b. The motive of the defendant (innocent or spiteful) be that impure paternalism requires arguments or reasons of a stronger
c. Whether the defendant, by taking reasonable steps, can kind in order to be justified, since there are persons losing a portion of
avoid or reduce the inconvenience to the plaintiff without their liberty and they do not even have the solace of having it be done “in
undue burden or inconvenience to himself. their own interest.” Paternalism then will always involve limitations on the
3. The interest of the community or the public at large. (Illustration: liberty of some individuals in their own interest but it may also extend to
A householder who takes up residence in a manufacturing district interferences with the liberty of parties whose interests are not in question.
cannot complain, as a plaintiff in a private nuisance suit, of the It is difficult to find "pure" cases. For example, prohibiting smoking
noise, dust, or vibration. 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
Note: The author is suggesting that the offense principle will supply the tobacco). A law prohibiting suicide is an example of pure
have to be mediated by balancing tests similar to those already paternalism.
employed in the law of nuisance. Another situation that is similar to paternalism, but different, is collective
limitations in order to gain a collective good (e.g., laws created through
A Ride on the Bus/ The Modes and Meaning of “Offense” consent of the governed that prohibit working more than a certain number
Kinds of Offense: of hours). We consent to these, but must coordinate our behavior to reap
A. Affronts to Senses the benefit.
- all cases where the gratingly unpleasant experience derives Mill’s principle bans paternalism – but he makes exceptions for almost
entirely from its sound, color, or odor. everything else. (Mill will only allow restriction on freedom of person A in
B. Disgust and Revulsion order to prevent harm or to positively benefit person B, but NOT to prevent
C. Shock to Moral, Religious, or Patriotic Sensibilities A from harming A). Mill assumes that each person is (1) the best judge of
D. Shame, Embarrassment (including vicious embarrassment), and their own life, and (2) each person is more concerned about themselves
Anxiety than others are. Therefore, attempts to judge on behalf of others will have
- shame is “a painful emotion caused by consciousness of guilt, worse consequences than letting people judge for themselves.
shortcoming, or impropriety in one’s own behavior or position, or in It is interesting to note that Mill himself was aware of some of the
the behavior or position of a closely associated person or group.” limitations on the doctrine that the individual is the best judge of his own
E. Annoyance, Boredom, Frustration interests. In his discussion of government intervention in general (even
F. Fear, Resentment, Humiliation, Anger (from empty threats, insults, where the intervention does not interfere with liberty but provides
mockery, flaunting, or taunting) alternative institutions to those of the market) after making claims which
are parallel to those just discussed, for example, “People understand their

LEGAL METHOD - HILBAY A2010 - 50 -


own business and their own interests better, and care for them more, than nature of the harmful effects (or beneficial consequences) to be avoided
the government does, or can be expected to do,” he goes on to an (or achieved) and the probability of their occurrence. The burden of proof
intelligent discussion of the “very large and conspicuous exceptions to the here is twofold—what lawyers distinguish as the burden of going forward
maxim that “Most persons take a juster and more intelligent view of their and the burden of persuasion. That the authorities have the burden of
own interest, and of the means of promoting it that can either be going forward means that it is up to them to raise the question and bring
prescribed to them by a general enactment of the legislature, or pointed forward evidence of the evils to be avoided. Unlike the case of new drugs,
out in the particular case by a public functionary.” where the manufacturer must produce some evidence that the drug has
Thus there are things of which the utility does not consist in been tested and found not harmful, no citizen has to show with respect to
ministering to inclinations, nor in serving the daily uses of life, and the self-regarding conduct that it is not harmful or promotes his best interest.
want of which is the least felt where the need is greatest. This is peculiarly In addition, the nature and cogency of the evidence for the harmfulness of
true of those things which are chiefly useful as tending to raise the the course of action must be set at a high level. To paraphrase a
character of human beings. A second exception to the doctrine that formulation of the burden of proof for criminal proceedings—better two
individuals are the best judges of their own interest is when an individual men ruin themselves than one man be unjustly deprived of liberty.
attempts to decide irrevocably now what will be best for his interest at Finally, a principle of the least restricting alternative is suggested.
some future and distant time. The presumption in favor of individual If there is an alternative way of accomplishing the desired end without
judgment is only legitimate, where the judgment is grounded on actual, restricting liberty although it may involve great expense, inconvenience, et
and especially on present, personal experience, and not suffered to be cetera, the society must adopt it.
reversed even after experience has condemned it.
The outcome of these exceptions is that Mill does not declare that FREE CULTURE
there should never be government interference with the economy but By Lawrence Lessig
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
Summary
government interference. Letting alone, in short, should be the general
In the preface of Free Culture, Lessig compares the book with a
practice: every departure from it, unless required by some great good, is a
previous book of his, Code and Other Laws of Cyberspace, which
certain evil.
propounded that software has the effect of law. Free Culture's message is
Dworkin argues that paternalism should be allowed in some cases,
different, Lessig writes, because it is "about the consequence of the
and sometimes it is our duty. The question is when. Thus, paternalism is
Internet to a part of our tradition that is much more fundamental, and, as
justified only to preserve a wider range of freedom for the individual in
hard as this is for a geek-wanna-be to admit, much more important."
question.
Professor Lessig analyzes the tension that exists between the
Consider children: parent has duty to do what the child would want
concepts of piracy and property in the intellectual property realm in the
if the child were the adult. Clear cases with children: prevention of all kinds
context of what he calls the present "depressingly compromised process of
of harm, and also unpleasant activities that create later benefits, e.g., we
making law" that has been captured in most nations by multinational
send children to school even when they do not want to go.
corporations that are interested in the accumulation of capital and not the
The standard here has to be one of [impartial] rationality: “we
free exchange of ideas.
would be most likely to consent to paternalism in those instances in which
The book also chronicles his prosecution of the Eldred v. Ashcroft case and
it preserves and enhances for the individual his ability to rationally
his attempt to develop the Eldred Act also known as the Public Domain
consider and carry out his own decisions”
Enhancement Act or the Copyright Deregulation Act.
With adults, paternalism is rational when it restricts freedom in
Lessig concludes his book by suggestion that as society evolves
order to prevent “far reaching, potentially dangerous, irreversible” harm,
into an information society there is a choice to be made to decide if that
or secure a future good.
society is to be free or feudal in nature. In his afterword he suggests that
1. The adult does not know the risks/benefits
free software pioneer Richard Stallman and the Free Software Foundation
2. The adult knows, but has “weakness of will”
model of making content available is not against the capitalist approach
a. psychological or social pressure
that has allowed such corporate models as Westlaw and LexisNexis to have
b. irrational discounting of danger due to short vs. long term
subscribers to pay for materials that are essentially in the public domain
consequences
but with underlying licenses like those created by his organization Creative
In all cases of paternalistic legislation there must be a heavy and
Commons.
clear burden of proof placed on the authorities to demonstrate the exact

LEGAL METHOD - HILBAY A2010 - 51 -


He also argues for the creation of shorter renewable periods of in those industries, as evidenced in the strange notion of the “volume of
copyright and a limitation on derivative rights, such as limiting a creativity”. “Free” is the opposite of “non-free”, although the reference to
publisher's ability to stop the publication of copies of an author's book on “free-culture licenses”, as provided by Creative Commons, expresses the
the internet for non-commercial purposes or create a compulsory licensing irony – of which Lessig seems hardly aware - of freedom having to be
scheme to ensure that creators obtain direct royalties for their works licensed.
based upon their usage statistics and some kind of taxation scheme such What this book’s usage of “culture” leaves out could fill several
as suggested by professor William Fisher of Harvard Law School [1] that is more books. That may well be Lessig’s intention, as a prolific author. He
similar to a longstanding proposal of Richard Stallman. makes only passing mention of the scandal surrounding the control of
When an author is as publicly active as Lawrence Lessig, and when rights in scholarly publishing with which he is actively engaged through
a book comes with a supporting web site, an author’s blog, and surrounded Public Library of Science. He leaves out of view the arguments about
by previous and subsequent discussions of many of its themes and journalists’ copyright and “open source” journalism, although these chime
proposals, the reviewer can find it difficult to know where to start. Anybody with those he does pursue. And he gives scant attention to cross-cultural
with more than a passing interest in political, legal and ethical issues difference, except perhaps to reveal a disquieting lack of interest in
arising from new media development is likely to be familiar in some way European norms and values.
with Lessig. Scientific American named him as one of its Top 50 Lessig’s critique of the drift of US copyright law is that it is
Visionaries. A colleague and I included him in our ‘top twenty’ (18, as it approaching European standards. However, he does not stop to reflect why
turned out) analysts of the information society in a briefing requested by Europe is as it is (not singular, for a start) and fails to notice the
the Information Society Commission, an advisory body to the Irish contradiction in his citing of the (European) British Broadcasting
government. Corporation as an exemplar of best practice in archive access.
Lessig is a widely respected commentator, an advocate and Lessig’s primary references are those of a constitutional lawyer –
activist (“a cultural warrior”), as well as an academic. His frequently cited the fundamental law of he United States and the judgments of the
blog has had leading Democrats, judges, politicians and professors, as Supreme Court. A significant part of this book is the self-critical account of
invited contributors. His web site carries the badges of the campaigns with how he pursued a case through to the Supreme Court, in support of a New
which he is prominently associated, chief among them Creative Commons Hampshire citizen who was being obstructed in his efforts to build a public
(chair: Lawrence Lessig), a licensing agency that presents a kind of ‘third archive of literature in the public domain. Goliath slew David, and, in this
way’ between traditional copyright and free-for-all. book, David’s defender is licking his wounds, pointing out how he failed
Lessig acknowledges the uncertainties that attend this discussion. He adequately to demonstrate the harms caused by the “extraordinary land
steers between the condemnations and the celebrations of Napster grab” that is going on. Much of the detail in these chapters, in the
downloading and other such challenges to copyright protection. He warns historical examples of copyright claims and in the accounts of industry
against the dangers of a polarized debate. He distinguishes in nuanced lobbying of Congress is intriguing, and appalling. Lessig demonstrates
ways between the rights of authors, publishers and re-publishers. But he is through myriad examples how controls on creative expression are
very certain that the current trends in copyright law are damaging to becoming both broader and tighter. He reports almost casually on the way
culture and to democracy. Over the 300 pages of this book, the reader is policy-makers and legislators are in the thrall of big-industry interests. He
being persuaded to accept a definition of the copyright problem to which describes the growing power of ever-larger media conglomerates, though
Creative Commons is one, if not the, answer. ‘Free Culture’ has itself been he turns a blind eye to dominant Disney, whose early achievements served
published through the Creative Commons licensing procedure, which to support his case on the necessary role of “piracy” in cultural production.
means that it can be downloaded from the web, subject to certain terms. He presents a valuable model of evolving relations between Norms, Law,
Lessig stacks up many fascinating cases and illustrations and Market and Architecture (technology).
compelling arguments to persuade readers of the validity and urgency of Lessig believes strongly in the potential of the Internet to facilitate
his concluding set of recommendations. He invokes American traditions, a shared culture. In blogs, he sees unfettered public discourse at work. In
represented by the United States constitution and Walt Disney’s creativity, the instantaneous republication that is going on continuously on the Net,
to buttress his case. Although the heart of the book is in the detail of law, he sees cultural democracy in practice. Formalities are needed to protect
Lessig as an advocate presents his argument as one about culture and such activity, but less regulation, and, above all, fewer lawyers. In these
creativity. For this reader, this scaffolding is the least persuasive aspect of conditions, Lessig believes, a free culture can be reclaimed from the land-
the book. The use Lessig makes of “free” (as in “free culture”), of “culture” grabbers. Just how we get there, or just how the tide is to be turned, is not
and of “creativity” is highly tendentious. Here, “culture” refers to the so clear.
entertainment industries and its products. “Creativity” refers to production

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