Juristhoughts

Say it in verse

2011-05-16T11:55:00.000-04:00

“[I]n antient time, before letters were in common use, the Lawes were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily reteine them in memory.” (Thomas Hobbes, Leviathan, ch. 26.)

Today, we are told, the law needs to deal with the problem of forgetting. There is still a time, though, that lawyers need to remember: the exam. And so lawyers-to-be have always tried to come up with ways of making sure they don’t forget. So they use mnemonics or nutshell summaries to help them get past the exam and then forget it all.

Or verse. Eighteenth century English lawyers who were supposed to master the cases in Edward Coke’s reports have come up with a method: a two-line verse summary of all the cases in his reports. You can read the whole thing online: The Reports of Sir Edward Coke, Kt., in Verse.

You can’t get much information in two lines, so these sub-haikus were probably only meant to serve as a reminder.

Can you guess what that case is?

Who physic gives, by college is

Not to be punished, but who does’t amiss.

This is Dr. Bonham’s Case, 8 Co. Rep. 114 (1610), a case that influenced (or, at least, was cited and discussed in) Marbury v. Madison.

Here is another:

For building hogsty, house to die,

Limekiln, if prejudice, action doth lie.

This one is Aldred’s Case, 9 Co. Rep. 57b (1610). This one a leading case in nuisance.

And a last one:

Monopolies, Granted by king are void,

They spoil the trade in which they youth’s imploy’d

This is the Monopolies Case, 11 Co. Rep. 84b (1599), an early antitrust case.

Who is the author? Why did he do it? The first edition of the book, published in 1742, opens with a preface by John Worrall (d. 1771), a legal book seller from Bell Yard, then as now part of legal London. “An ancient manuscript of the following verses falling accidentally into my hands,” is all he says of the origins of the book. Jacob Larwood claims in his Forensic Anecdotes, or Humour and Curiosities of the Law and of the Men of the Law (1882) that it was Worrall who wrote the book himself, but there is no indication for that.

Worrall explained that the book might be useful “not only to refresh the memory, and instruct, but also to afford pleasuring recreation to gentlemen of the law, and others.” This may indicate that lawyers were a humorless bunch already then, but the book proved popular enough to find a willing publisher who put out a third edition in 1826. By then it probably served as the sort of gift that a certain sort of uncle would give to his nephew upon graduation.

Still, can this method help students these days? How about this one:

Before confession police must warn,

Or else people’s case is thrown.

Although, if you can’t remember this one, you may need more than a two-line verse to help you.

Karl Llewellyn was there before

2011-05-16T08:45:00.004-04:00

One of my gripes about contemporary jurisprudence is that all too often it looks as though people think it started in 1961. Consider three examples of ideas nowadays associated with Hart:

(1) The distinction between the internal and the external point of view.

(2) The distinction between the core and penumbra of legal rules.

(3) What has been described recently as “the most famous hypothetical in the common law world,” the statute banning vehicles in the park. (This one is actually from Hart’s 1958 article “Positivism and the Separation of Law and Morals.”

All these can be found, years before, in the work of Karl Llewellyn.

H.L.A. Hart, A View of America – this time with a good scan

2011-05-13T13:53:00.004-04:00

Following on the previous post: a much better scan is now available here.

For citation purposes, the source is The Listener, 59 (1958): 89-90.

The painting on this blog

2011-05-11T12:30:00.001-04:00

How many paintings are there called “Jurisprudence”? Not many that I know of. And even the one I know of no longer exists. The painting is, of course, by Klimt, who was commissioned to paint three murals for the University of Vienna: “Philosophy,” “Medicine,” and “Jurisprudence.” (A fourth mural was to be painted by someone else.) The paintings were poorly received, and were never displayed at the university. They changed hands, and eventually all three were destroyed in World War II, so all we have now are black-and-white photos. You can read more about them in the ever resourceful Wikipedia.

And if you wonder what this painting has to do with jurisprudence, there is an interesting interpretive essay on the paintings in Carl Schorske’s Fin-de-siècle Vienna: Politics and Culture.

What the judge had for breakfast

2011-05-10T13:03:00.001-04:00

Legal realism is what the judge had for breakfast, right? This is what people used to say when they wanted to make fun of legal realism. The origins are unclear, but the closest I have come to its origins is this:

Study of particular personalities becomes essential to the advocate, and so, important for Jurisprudence if it is not to ignore the facts of life. In the case of a particular judge subject to dyspepsia, the unfortunate effects of a particular ill-advised breakfast do alter the advocate's practical problem. I confess to total inability to understand why, when the subject of study is the effect of advocacy and the bearing of the advocate’s work on the result of cases and the growth of law, such matters should be regarded as either unilluminating or indecent to discuss.

K.N. Llewellyn, On Reading and Using the Newer Jurisprudence (1940) (requires subscription).

Well, it now turns out that this may not be such a joke after all. Here is the abstract of an article to be published in the Proceedings of the National Academy of Science:

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges.We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

Here is the source.

H.L.A. Hart's least known paper, now online

2011-05-10T00:00:00.004-04:00

In my paper mentioned in my previous post I cite what must be H.L.A. Hart’s least known published work. It is a brief piece, based on a recording he made for the BBC, reporting his impressions of the United States after his return from his year in Harvard. It is in this year that he gave the famous Holmes Lecture that, together with Lon Fuller’s response, became “the Hart-Fuller debate.” The piece, called “A View of America,” was published in the BBC’s (now defunct) magazine, The Listener.

The piece is interesting even if for no other reason than Hart’s comments on the differences between life, and especially academic life in the U.S. and Britain. But I think it is also significant for those interested in his ideas.

And it contains this: In the United States, writes Hart,

[a]rgument soon breaks through to what is believed, apparently, to be at the root of every problem—a moral problem. And, more widespread than I could have believed, was the conviction that just as there lurks at the bottom of almost every problem a moral question, so there must somewhere be an answer; an answer perhaps for the sage—and he may be in the university—to provide.

This sounds like pure Dworkin. There is the idea that all societal problems are moral problems, that there is a right answer to all those problems, and that it is the task for the sage “and he may be in the university” to provide it. Here is Dworkin in Law's Empire in 1986:

It falls to philosophers, if they are willing, to work out law's ambitions for itself, the purer form of law within and beyond the law we have.

(Dworkin says the same on morality more generally in his latest book, Justice for Hedgehogs.) And yet Hart's piece is from January 1958! As far as I know Dworkin’s first publication is from 1963; “The Model of Rules” was published in 1968; and the right answer thesis did not become explicit until the 1970s.

There are a few other gems in this little article.

The Listener is not available online, so I scanned the piece. It’s a very poor scan. In fact, I took photos of the pages with my phone, which I later converted to PDF. The result is not pretty, but is readable. I will try to get a proper scan, but in the meantime, there it is.

Update: A better scan is now available here.

Upcoming McMaster conference on the nature of law

2011-05-08T19:40:00.000-04:00

Soon I will be heading off to the conference on the nature of law to be held at McMaster University. For quite some time I have been rather skeptical of legal philosophers’ defining the jurisprudence as concerned first (and foremost?) with the search for the nature of law, and my contribution to the conference takes the same line, albeit perhaps more explicitly than in the past. The specific argument is different from my earlier efforts. I adopt a kind of “case study” approach, comparing the way the relationship between law and politics is understood in American and British (or English) law. I argue that it is understood very differently, and that the difference reflects a different fundamental understanding of the nature of law. The paper is now available on SSRN.

There is a broader point emerging from the paper: the need for legal philosophers to pay more attention to politics. Legal philosophers are obsessed with the question of the relationship between law and morality. In one way or another all the big debates of the last fifty years or so (positivism v. natural law; positivism v. Dworkin; inclusive positivism v. exclusive positivism; obligation to obey to the law yes or no) are offshoots of that question, and different thinkers’ views tend to be aligned along predictable lines: if you are a legal positivist it is not surprising you think there is no general obligation to obey the law; if you are a natural lawyer, it is not hard to see to discover that you believe the opposite.

What is interesting is that there is almost no work by legal philosophers on the connection between law and politics. (There is, of course, a lot by political scientists.) But I have come to think that the law-and-politics interface is much more important than the law-and-morality interface for the sort of questions that preoccupy legal philosophers. Admittedly, this impression may simply be the result of the fact that this issue is less explored, but be that as it may, more attention should be paid to this issue. One reason why it may have been less discussed is that it is potentially much more destructive for the “nature of law” enterprise than that of law-and-morality. Or at least this is at least this what I try to show in my paper.

The paper ends with a brief look to the future (and in a way to the past) of jurisprudence, a matter that I explore more fully in a different paper (still in the works), namely the disappearance of human nature from jurisprudence and its potential, and needed, return. A view of law as derived from some views on human nature has been central to the work of the classical natural lawyers but it is also an aspect of those thinkers often classified as early legal positivists, Hobbes and Bentham. For them an account of human nature was itself part of a broader metaphysical worldview. This perspective has largely disappeared from contemporary legal positivism, and it is this perspective that a more naturalistic jurisprudence could and should revive. More on this in the future.

Here We Go: David Hume and Legal Theory

2011-05-07T22:30:00.000-04:00

You have to start somewhere, and David Hume’s 300th birthday, though arbitrary, is not a bad day to start. According to the an op-ed from today’s New York Times Hume is the most important philosopher ever to write in English,” who made contributions to “epistemology, political theory, economics, historiography, aesthetics and religion.” But what about legal theory? In the typical story you learn in Anglophone universities, after the dark age of natural law, there came Hobbes who begat Bentham, who begat Austin, who begat Hart, and thus we got to the present. I think there is quite a lot that is wrong about the story. And one is that Hume is missing from it. There are a few exceptions (two of the top of my head are Gerald Postema’s Bentham and the Common Law Tradition, a large part of which is actually dedicated Hume, and Knud Haakonssen’s The Science of a Legislator), but in general he is not discussed by legal theorists. That is unfortunate, because I don’t think anyone would doubt that Hume is far more original, interesting, broad or deep than that minor Victorian figure, John Austin. But even he gets more attention.

(Austin, by the way, might beg to differ with this assessment. He described Hume’s work as “rather acute and ingenious, than coherent and profound: handling detached topics with signal dexterity, but evincing an utter inability to grasp his subject as a whole.”)

In recent years there has been revival in the idea of naturalist(ic) jurisprudence. (The term, to the best of my knowledge, was first used by Edward Robinson in his 1935 book, Law and the Lawyers, but was made popular in recent years by Brian Leiter). I think this is a welcome change to counter the strong anti-naturalistic trends that have dominated English-speaking jurisprudence in the last fifty years. Hume, together with Hobbes and Bentham, should be among the heroes of the movement.

Hume, is of course, more famous for a lot more. I will only briefly his views on religion. His posthumously published Dialogues Concerning Natural Religion are valuable, still read and discussed (as is his essay on miracles). But perhaps the best short taste of his views on religion comes not directly from him, but from James Boswell. Boswell met David Hume less than two months before he died in 1776. Boswell was surprised to find Hume in good spirits, and even more surprised to hear him firm in his skepticism about the immorality of the soul after death and his complete rejection of religion. He was, in fact, more than surprised. He was alarmed to report that Hume “said flatly that the morality of every religion was bad, and, I really thought, was not jocular when he said that when he heard a man was religious, he concluded he was a rascal, though he had known some instances of very good men being religious.” The whole text is short and very much worth reading. A brief dramatization is available here.