May the Blessings of Christmas and the Sprit of Goodwill to all Mankind burn brightly in your hearts.
TO ONE AND ALL
GOD BLESS EVERYONE
Dr Siva Ananthan, Sharon
Kryshana, Jacelyn & Akash
The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.
TRUEPENNY, C. J. The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave.
When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.
The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.
Since it was known that the explorers had carried with them only scant
provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians’ committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians’ chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question.
Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers’ wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.
From the testimony of the defendants, which was accepted by the jury, it
appears that it was Whetmore who first proposed that they might find the
nutriment without which survival was impossible in the flesh of one of their
own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.
Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore’s turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.
After the rescue of the defendants, and after they had completed a stay in a
hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.
It seems to me that in dealing with this extraordinary case the jury and the
trial judge followed a course that was not only fair and wise, but the only
course that was open to them under the law. The language of our statute is well known: “Whoever shall willfully take the life of another shall be punished by death.” N. C. S. A. (N. S.) § 12-A. This statute permits of no exception
applicable to this case, however our sympathies may incline us to make
allowance for the tragic situation in which these men found themselves.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the
communications they have addressed to the Chief Executive. There is every
reason to believe that these requests for clemency will be heeded, coming as
they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
FOSTER, J. I am shocked that the Chief Justice, in an effort to escape the
embarrassments of this tragic case, should have adopted, and should have
proposed to his colleagues, an expedient at once so sordid and so obvious. I
believe something more is on trial in this case than the fate of these
unfortunate explorers; that is the law of our Commonwealth. If this Court
declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.
For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself sufficient to justify the acquittal of these
The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called “the law of nature.”
This conclusion rests on the proposition that our positive law is predicated on the possibility of men’s coexistence in society. When a situation arises in
which the coexistence of men becomes impossible, then a condition that
underlies all of our precedents and statutes has ceased to exist. When that
condition disappears, then it is my opinion that the force of our positive law
disappears with it. We are not accustomed to applying the maxim cessante
ratione legis, cessat et ipsa lex to the whole of our enacted law, but I
believe that this is a case where the maxim should be so applied.
The proposition that all positive law is based on the possibility of men’s
coexistence has a strange sound, not because the truth it contains is strange,
but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our
environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men’s coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.
Had the tragic events of this case taken place a mile beyond the territorial
limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth’s surface. The premise that men shall coexist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying ourpositive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.
I conclude, therefore, that at the time Roger Whetmore’s life was ended by
these defendants, they were, to use the quaint language of nineteenth-century writers, not in a “state of civil society” but in a “state of nature.” This has the consequence that the law applicable to them is not the enacted and
established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those principles they were guiltless of any crime.
What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men’s relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.
It has from antiquity been recognized that the most basic principle of law or
government is to be found in the notion of contract or agreement. Ancient
thinkers, especially during the period from 1600 to 1900, used to base
government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.
Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.
If, therefore, our hangmen have the power to end men’s lives, if our sheriffs
have the power to put delinquent tenants in the street, if our police have the
power to incarcerate the inebriated reveler, these powers find their moral
justification in that original compact of our forefathers. If we can find no
higher source for our legal order, what higher source should we expect these
starving unfortunates to find for the order they adopted for themselves?
I believe that the line of argument I have just expounded permits of no
rational answer. I realize that it will probably be received with a certain
discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?
This concludes the exposition of the first ground of my decision. My second
ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.
Now it is, of course, perfectly clear that these men did an act that violates
the literal wording of the statute which declares that he who “shall willfully
take the life of another” is a murderer. But one of the most ancient bits of
legal wisdom is the saying that a man may break the letter of the law without
breaking the law itself. Every proposition of positive law, whether contained
in a statute or a judicial precedent, is to be interpreted reasonably, in the
light of its evident purpose. This is a truth so elementary that it is hardly
necessary to expatiate on it. Illustrations of its application are numberless
and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was convicted under a statute making it a crime to leave one’s car parked in certain areas for a period longer than two hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word “not” had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word “not” into the place where it was evidently intended to go.
The statute before us for interpretation has never been applied literally.
Centuries ago it was established that a killing in self-defense is excused.
There is nothing in the wording of the statute that suggests this exception.
Various attempts have been made to reconcile the legal treatment of
self-defense with the words of the statute, but in my opinion these are all
merely ingenious sophistries. The truth is that the exception in favor of
self-defense cannot be reconciled with the words of the statute, but only with its purpose.
The true reconciliation of the excuse of self-defense with the statute making
it a crime to kill another is to be found in the following line of reasoning.
One of the principal objects underlying any criminal legislation is that of
deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense.
When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense. There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told “to peel the soup and skim the potatoes” her mistress does not mean what she says. She also knows that when her master tells her to “drop everything and come running” he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective.
I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.
TATTING, J. In the discharge of my duties as a justice of this Court, I am
usually able to dissociate the emotional and intellectual sides of my
reactions, and to decide the case before me entirely on the basis of the
latter. In passing on this tragic case I find that my usual resources fail me.
On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.
As I analyze the opinion just rendered by my brother Foster, I find that it is
shot through with contradictions and fallacies. Let us begin with his first
proposition: these men were not subject to our law because they were not in a “state of civil society” but in a “state of nature.” I am not clear why this is
so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a “new charter of
government” by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of “the law of nature,” at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority – when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released from the cave and became again subject to what my brother calls our “positive law”? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.
But it is not necessary to explore these niceties further to demonstrate the
absurdity of my brother’s position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature.
Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence – for though my brother passes over in convenient silence the effect of Whetmore’s withdrawal, this is the necessary implication of his argument.
The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother’s reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck. All of these considerations make it impossible for me to accept the first part of my brother’s argument. I can neither accept his notion that these men were under a code of nature which this Court was bound to apply to them, nor can I accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother’s opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.
The gist of my brother’s argument may be stated in the following terms: No
statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The
application of the statute making it a crime to kill another to the peculiar
facts of this case would contradict this purpose, for it is impossible to
believe that the contents of the criminal code could operate in a deterrent
manner on men faced with the alternative of life or death. The reasoning by
which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.
On the face of things this demonstration seems very convincing indeed. My
brother’s interpretation of the rationale of the excuse of self-defense is in
fact supported by a decision of this court, Commonwealth v. Parry, a precedent I happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon the excuse of self-defense.
Now let me outline briefly, however, the perplexities that assail me when I
examine my brother’s demonstration more closely. It is true that a statute
should be applied in the light of its purpose, and that one of the purposes of
criminal legislation is recognized to be deterrence. The difficulty is that
other purposes are also ascribed to the law of crimes. It has been said that
one of its objects is to provide an orderly outlet for the instinctive human
demand for retribution. Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?
A similar difficulty is presented by the fact that although there is authority
for my brother’s interpretation of the excuse of self-defense, there is other
authority which assigns to that excuse a different rationale. Indeed, until I
happened on Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires a “willful” act. The man who acts to repel an aggressive threat to his own life does not act “willfully,” but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.
Now the familiar explanation for the excuse of self-defense just expounded
obviously cannot be applied by analogy to the facts of this case. These men
acted not only “willfully” but with great deliberation and after hours of
discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is
exactly the opposite. This perplexity is in this case compounded, as it were,
for we have to set off one explanation, incorporated in a virtually unknown
precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has
never been adopted in any judicial decision.
I recognize the relevance of the precedents cited by my brother concerning the displaced “not” and the defendant who parked overtime. But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother’s demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.
Again, I have difficulty in saying that no deterrent effect whatever could be
attributed to a decision that these men were guilty of murder. The stigma of
the word “murderer” is such that it is quite likely, I believe, that if these
men had known that their act was deemed by the law to be murder they would have waited for a few days at least before carrying out their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the distinction to a matter of degree, and does not destroy it altogether. It is certainly true that the element of deterrence would be less in this case than is normally involved in the application of the criminal law.
There is still a further difficulty in my brother Foster’s proposal to read an
exception into the statute to favor this case, though again a difficulty not
even intimated in his opinion. What shall be the scope of this exception? Here the men cast lots and the victim was himself originally a party to the
agreement. What would we have to decide if Whetmore had refused from the
beginning to participate in the plan? Would a majority be permitted to overrule him? Or, suppose that no plan were adopted at all and the others simply conspired to bring about Whetmore’s death, justifying their act by saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he was the only one who believed in an afterlife. These illustrations could be multiplied, but enough have been suggested to reveal what a quagmire of hidden difficulties my brother’s reasoning contains.
Of course I realize on reflection that I may be concerning myself with a
problem that will never arise, since it is unlikely that any group of men will
ever again be brought to commit the dread act that was involved here. Yet, on still further reflection, even if we are certain that no similar case will
arise again, do not the illustrations I have given show the lack of any
coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle be tested by the conclusions it entails, without
reference to the accidents of later litigational history? Still, if this is so,
why is it that we of this Court so often discuss the question whether we are
likely to have later occasion to apply a principle urged for the solution of
the case before us? Is this a situation where a line of reasoning not
originally proper has become sanctioned by precedent, so that we are permitted to apply it and may even be under an obligation to do so?
The more I examine this case and think about it, the more deeply I become
involved. My mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not furnished to me, nor can I discover for myself, any formula c apable of resolving the equivocations that beset me on all sides.
I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When I feel myself inclined to accept the view of my brother Foster, I am repelled by a feeling that his arguments are intellectually unsound and approach mere rationalization. On the other hand, when I incline toward upholding the conviction, I am struck by the absurdity of directing that these men be put to death when their lives have been saved at the cost of the lives of ten heroic workmen. It is to me a matter of regret that the Prosecutor saw fit to ask for an indictment for murder. If we had a provision in our statutes making it a crime to eat human flesh, that would have been a more appropriate charge. If no other charge suited to the facts of this case could be brought against the defendants, it would have been wiser, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted and tried, and we have therefore been drawn into this unfortunate affair.
Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe,
unprecedented in the history of this tribunal. I declare my withdrawal from the decision of this case.
KEEN, J. I should like to begin by setting to one side two questions which
are not before this Court.
The first of these is whether executive clemency should be extended to these
defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives
instructions to the Chief Executive as to what he should do in this case and
suggests that some impropriety will attach if these instructions are not
heeded. This is a confusion of governmental functions – a confusion of which
the judiciary should be the last to be guilty. I wish to state that if I were
the Chief Executive I would go farther in the direction of clemency than the
pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.
The second question that I wish to put to one side is that of deciding whether
what these men did was “right” or “wrong,” “wicked” or “good.” That is also a
question that is irrelevant to the discharge of my office as a judge sworn to
apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also safely dismiss without comment the first and more poetic portion of my brother Foster’s opinion. The element of fantasy contained in the arguments developed there has been sufficiently revealed in my brother Tatting’s somewhat solemn attempt to take those arguments seriously.
The sole question before us for decision is whether these defendants did,
within the meaning of N. C. S. A. (N. S.) § 12-A, willfully take the life of
Roger Whetmore. The exact language of the statute is as follows: “Whoever shall willfully take the life of another shall be punished by death.” Now I should suppose that any candid observer, content to extract from these words their natural meaning, would concede at once that these defendants did “willfully take the life” of Roger Whetmore.
Whence arise all the difficulties of the case, then, and the necessity for so
many pages of discussion about what ought to be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.
Now, of course, my brother Foster does not admit that he is actuated by a
personal dislike of the written law. Instead he develops a familiar line of
argument according to which the court may disregard the express language of a statute when something not contained in the statute itself, called its
“purpose,” can be employed to justify the result the court considers proper.
Because this is an old issue between myself and my colleague, I should like,
before discussing his particular application of the argument to the facts of
this case, to say something about the historical background of this issue and
its implications for law and government generally.
There was a time in this Commonwealth when judges did in fact legislate very freely, and all of us know that during that period some of our statutes were rather thoroughly made over by the judiciary. That was a time when the accepted principles of political science did not designate with any certainty the rank and function of the various arms of the state. We all know the tragic issue of that uncertainty in the brief civil war that arose out of the conflict between the judiciary, on the one hand, and the executive and the legislature, on the other. There is no need to recount here the factors that contributed to that unseemly struggle for power, though they included the unrepresentative character of the Chamber, resulting from a division of the country into election districts that no longer accorded with the actual distribution of the population, and the forceful personality and wide popular following of the then Chief Justice. It is enough to observe that those days are behind us, and that in place of the uncertainty that then reigned we now have a clear-cut principle, which is the supremacy of the legislative branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable; I observe merely that this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to administer.
Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated themselves to the restricted role which the new order imposes on them. My brother Foster is one of that group; his way of dealing with statutes is exactly that of a judge living in the 3900’s.
We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished. Anyone who has followed the written opinions of Mr. Justice Foster will have had an opportunity to see it at work in every branch of the law. I am personally so familiar with the process that in the event of my brother’s incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms of the statute as applied to the case before him.
The process of judicial reform requires three steps. The first of these is to
divine some single “purpose” which the statute serves. This is done although
not one statute in a hundred has any such single purpose, and although the
objectives of nearly every statute are differently interpreted by the different
classes of its sponsors. The second step is to discover that a mythical being
called “the legislator,” in the pursuit of this imagined “purpose,” overlooked
something or left some gap or imperfection in his work. Then comes the final
and most refreshing part of the task, which is, of course, to fill in the blank
thus created. Quod erat faciendum.
My brother Foster’s penchant for finding holes in statutes reminds one of the
story told by an ancient author about the man who ate a pair of shoes. Asked
how he liked them, he replied that the part he liked best was the holes. That
is the way my brother feels about statutes; the more holes they have in them
the better he likes them. In short, he doesn’t like statutes.
One could not wish for a better case to illustrate the specious nature of this
gap-filling process than the one before us. My brother thinks he knows exactly what was sought when men made murder a crime, and that was something he calls “deterrence.” My brother Tatting has already shown how much is passed over in that interpretation. But I think the trouble goes deeper. I doubt very much whether our statute making murder a crime really has a “purpose” in any ordinary sense of the term. Primarily, such a statute reflects a deeply-felt human conviction that murder is wrong and that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively and live happier lives if they are protected against the threat of violent assault. Bearing in mind that the victims of murders are often unpleasant people, we might add some suggestion that the matter of disposing of undesirables is not a function suited to private enterprise, but should be a state monopoly. All of which reminds me of the attorney who once argued before us that a statute licensing physicians was a good thing because it would lead to lower life insurance rates by lifting the level of general health. There is such a thing as overexplaining the obvious.
If we do not know the purpose of § 12-A, how can we possibly say there is a
“gap” in it? How can we know what its draftsmen thought about the question of killing men in order to eat them? My brother Tatting has revealed an
understandable, though perhaps slightly exaggerated revulsion to cannibalism. How do we know that his remote ancestors did not feel the same revulsion to an even higher degree? Anthropologists say that the dread felt for a forbidden act may be increased by the fact that the conditions of a tribe’s life create special temptations toward it, as incest is most severely condemned among those whose village relations make it most likely to occur. Certainly the period following the Great Spiral was one that had implicit in it temptations to anthropophagy. Perhaps it was for that very reason that our ancestors expressed their prohibition in so broad and unqualified a form. All of this is conjecture, of course, but it remains abundantly clear that neither I nor my brother Foster knows what the “purpose” of § 12-A is.
Considerations similar to those I have just outlined are also applicable to the
exception in favor of self-defense, which plays so large a role in the
reasoning of my brothers Foster and Tatting. It is of course true that in
Commonwealth v. Parry an obiter dictum justified this exception on the
assumption that the purpose of criminal legislation is to deter. It may well
also be true that generations of law students have been taught that the true
explanation of the exception lies in the fact that a man who acts in
self-defense does not act “willfully,” and that the same students have passed
their bar examinations by repeating what their professors told them. These last observations I could dismiss, of course, as irrelevant for the simple reason that professors and bar examiners have not as yet any commission to make our laws for us. But again the real trouble lies deeper. As in dealing with the statute, so in dealing with the exception, the question is not the conjectural purpose of the rule, but its scope. Now the scope of the exception in favor of self-defense as it has been applied by this Court is plain: it applies to cases of resisting an aggressive threat to the party’s own life. It is therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that Whetmore made no threat against the lives of these defendants.
The essential shabbiness of my brother Foster’s attempt to cloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting’s opinion. In that opinion Justice Tatting struggles manfully to combine his colleague’s loose moralisms with his own sense of fidelity to the written law. The issue of this struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply cannot apply a statute as it is written and remake it to meet your own wishes at the same time.
Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives.
Indeed, I will go farther and say that not only are the principles I have been
expounding those which are soundest for our present conditions, but that we would have inherited a better legal system from our forefathers if those
principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of the matter would have had an understandable and rational basis, instead of the hodgepodge of verbalisms and metaphysical distinctions that have emerged from the judicial and professorial treatment.
These concluding remarks are, of course, beyond any duties that I have to
discharge with relation to this case, but I include them here because I feel
deeply that my colleagues are insufficiently aware of the dangers implicit in
the conceptions of the judicial office advocated by my brother Foster.
I conclude that the conviction should be affirmed.
HANDY, J. I have listened with amazement to the tortured ratiocinations to
which this simple case has given rise. I never cease to wonder at my
colleagues’ ability to throw an obscuring curtain of legalisms about every
issue presented to them for decision. We have heard this afternoon learned
disquisitions on the distinction between positive law and the law of nature,
the language of the statute and the purpose of the statute, judicial functions
and executive functions, judicial legislation and legislative legislation. My
only disappointment was that someone did not raise the question of the legal
nature of the bargain struck in the cave – whether it was unilateral or
bilateral, and whether Whetmore could not be considered as having revoked an offer prior to action taken thereunder.
What have all these things to do with the case? The problem before us is what
we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract
theory, but of human realities. When the case is approached in this light, it
becomes, I think, one of the easiest to decide that has ever been argued before this Court.
Before stating my own conclusions about the merits of the case, I should like
to discuss briefly some of the more fundamental issues involved – issues on
which my colleagues and I have been divided ever since I have been on the
I have never been able to make my brothers see that government is a human
affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.
Of all branches of the government, the judiciary is the most likely to lose its
contact with the common man. The reasons for this are, of course, fairly
obvious. Where the masses react to a situation in terms of a few salient
features, we pick into little pieces every situation presented to us. Lawyers
are hired by both sides to analyze and dissect. Judges and attorneys vie with
one another to see who can discover the greatest number of difficulties and
distinctions in a single set of facts. Each side tries to find cases, real or
imagined, that will embarrass the demonstrations of the other side. To escape this embarrassment, still further distinctions are invented and imported into the situation. When a set of facts has been subjected to this kind of treatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust.
Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which really stands in need of such
regulation is greatly overestimated. There are, of course, a few fundamental
rules of the game that must be accepted if the game is to go on at all. I would
include among these the rules relating to the conduct of elections, the
appointment of public officials, and the term during which an office is held.
Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I
concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free
But outside of these fields I believe that all government officials, including
judges, will do their jobs best if they treat forms and abstract concepts as
instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result.
The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense. My adherence to this philosophy has, however, deeper roots. I believe that it is only with the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable accord with the sentiments of those subject to our rule. More governments have been wrecked, and more human misery caused, by the lack of this accord between ruler and ruled than by any other factor that can be discerned in history. Once drive a sufficient wedge between the mass of people and those who direct their legal, political, and economic life, and our society is ruined. Then neither Foster’s law of nature nor Keen’s fidelity to written law will avail us anything.
Now when these conceptions are applied to the case before us, its decision
becomes, as I have said, perfectly easy. In order to demonstrate this I shall
have to introduce certain realities that my brothers in their coy decorum have seen fit to pass over in silence, although they are just as acutely aware of them as I am.
The first of these is that this case has aroused an enormous public interest,
both here and abroad. Almost every newspaper and magazine has carried articles about it; columnists have shared with their readers confidential information as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains made a poll of public opinion on the question, “What do you think the Supreme Court should do with the Speluncean explorers?” About ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently four-and-a-half men, or ninety per cent, who share the common opinion.
This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second and less visionary part of my brother Foster’s opinion.
Now I know that my brothers will be horrified by my suggestion that this Court should take account of public opinion. They will tell you that public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will warn you that all of these safeguards go for naught if a mass opinion formed outside this framework is allowed to have any influence on our decision.
But let us look candidly at some of the realities of the administration of our
criminal law. When a man is accused of crime, there are, speaking generally,
four ways in which he may escape punishment. One of these is a determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination that takes place in a rather formal and abstract atmosphere. But look at the other three ways in which he may escape punishment. These are: (1) a decision by the Prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and formal framework of rules that prevents factual error, excludes emotional and personal factors, and guarantees that all the forms of the law will be observed?
In the case of the jury we do, to be sure, attempt to cabin their deliberations
within the area of the legally relevant, but there is no need to deceive
ourselves into believing that this attempt is really successful. In the normal
course of events the case now before us would have gone on all of its issues
directly to the jury. Had this occurred we can be confident that there would
have been an acquittal or at least a division that would have prevented a
conviction. If the jury had been instructed that the men’s hunger and their
agreement were no defense to the charge of murder, their verdict would in all likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than any that is likely to tempt us. Of course the only reason that didn’t occur in this case was the fortuitous
circumstance that the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities.
My brother Tatting expresses annoyance that the Prosecutor did not, in effect, decide the case for him by not asking for an indictment. Strict as he is
himself in complying with the demands of legal theory, he is quite content to
have the fate of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other hand, wants the application of common sense postponed to the very end, though like Tatting, he wants no personal part in it.
This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing that topic directly, I want to make a related observation about the poll of public opinion. As I have said, ninety per cent of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The ten per cent constituted a very oddly assorted group, with the most curious and divergent opinions. One of our university experts has made a study of this group and has found that its members fall into certain patterns. A substantial portion of them are subscribers to “crank” newspapers of limited circulation that gave their readers a distorted version of the facts of the case. Some thought that “Speluncean” means “cannibal” and that anthropophagy is a tenet of the Society. But the point I want to make, however, is this: although almost every conceivable variety and shade of opinion was represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of ninety per cent, who said, “I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have another branch of the government come along and pardon them.” Yet this is a solution that has more or less dominated our discussions and which our Chief Justice proposes as a way by which we can avoid doing an injustice and at the same time preserve respect for law. He can be assured that if he is preserving anybody’s morale, it is his own, and not the public’s, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the danger that we may get
lost in the patterns of our own thought and forget that these patterns often
cast not the slightest shadow on the outside world.
I come now to the most crucial fact in this case, a fact known to all of us on
this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue
is left to him, the Chief Executive will refuse to pardon these men or commute their sentence. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with thereverse of the effect intended. As I have told my brothers, it happens that my wife’s niece is an intimate friend of his secretary. I have learned in this indirect, but, I think, wholly reliable way, that he is firmly determined not to commute the sentence if these men are found to have violated the law.
No one regrets more than I the necessity for relying in so important a matter
on information that could be characterized as gossip. If I had my way this
would not happen, for I would adopt the sensible course of sitting down with
the Executive, going over the case with him, finding out what his views are,
and perhaps working out with him a common program for handling the situation. But of course my brothers would never hear of such a thing.
Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice, ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster’s feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive “in my capacity as a private citizen.” (I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers’ expense.)
I must confess that as I grow older I become more and more perplexed at men’s refusal to apply their common sense to problems of law and government, and this truly tragic case has deepened my sense of discouragement and dismay. I only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I first assumed it. As a matter of fact, by a kind of sad rounding of the circle, I encountered issues like those involved here in the very first case I tried as Judge of the Court of General Instances in Fanleigh County.
A religious sect had unfrocked a minister who, they said, had gone over to the views and practices of a rival sect. The minister circulated a handbill making charges against the authorities who had expelled him. Certain lay members of the church announced a public meeting at which they proposed to explain the position of the church. The minister attended this meeting. Some said he slipped in unobserved in a disguise; his own testimony was that he had walked in openly as a member of the public. At any rate, when the speeches began he interrupted with certain questions about the affairs of the church and made some statements in defense of his own views. He was set upon by members of the audience and given a pretty thorough pommeling, receiving among other injuries a broken jaw. He brought a suit for damages against the association that sponsored the meeting and against ten named individuals who he alleged were his assailants.
When we came to the trial, the case at first seemed very complicated to me. The attorneys raised a host of legal issues. There were nice questions on the
admissibility of evidence, and, in connection with the suit against the
association, some difficult problems turning on the question whether the
minister was a trespasser or a licensee. As a novice on the bench I was eager
to apply my law school learning and I began studying these question closely,
reading all the authorities and preparing well-documented rulings. As I studied the case I became more and more involved in its legal intricacies and I began to get into a state approaching that of my brother Tatting in this case. Suddenly, however, it dawned on me that all these perplexing issues really had nothing to do with the case, and I began examining it in the light of common sense. The case at once gained a new perspective, and I saw that the only thing for me to do was to direct a verdict for the defendants for lack of evidence.
I was led to this conclusion by the following considerations. The melee in
which the plaintiff was injured had been a very confused affair, with some
people trying to get to the center of the disturbance, while others were trying to get away from it; some striking at the plaintiff, while others were
apparently trying to protect him. It would have taken weeks to find out the
truth of the matter. I decided that nobody’s broken jaw was worth that much to the Commonwealth. (The minister’s injuries, incidentally, had meanwhile healed without disfigurement and without any impairment of normal faculties.) Furthermore, I felt very strongly that the plaintiff had to a large extent brought the thing on himself. He knew how inflamed passions were about the affair, and could easily have found another forum for the expression of his views. My decision was widely approved by the press and public opinion, neither of which could tolerate the views and practices that the expelled minister was attempting to defend.
Now, thirty years later, thanks to an ambitious Prosecutor and a legalistic
jury foreman, I am faced with a case that raises issues which are at bottom
much like those involved in that case. The world does not seem to change much, except that this time it is not a question of a judgment for five or six
hundred frelars, but of the life or death of four men who have already suffered more torment and humiliation than most of us would endure in a thousand years. I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.
TATTING, J. I have been asked by the Chief Justice whether, after listening
to the two opinions just rendered, I desire to reexamine the position
previously taken by me. I wish to state that after hearing these opinions I am
greatly strengthened in my conviction that I ought not to participate in the
decision of this case.
The Supreme Court being evenly divided, the conviction and sentence of the
Court of General Instances is affirmed. It is ordered that the execution of the
sentence shall occur at 6 a.m., Friday, April 2, 4300, at which time the Public Executioner is directed to proceed with all convenient dispatch to hang each of the defendants by the neck until he is dead.
Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles. There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a prediction in any ordinary sense of the term. As for the judges who make up Chief Justice Truepenny’s court, they are, of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live questions of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problems of the human race.
Lon Fuller and HLA Hart entered into a fiery debate over whether unfair Nazi laws should have been adhered to. The focus of the debate was on ‘Grudge Informer’ cases, which were a series of cases that concerned Nazi German citizens who would ‘dob-in’ people under a Nazi law that they had a grudge against. The alleged offences tended to be minor crimes against the state, but under an atmosphere of terror the Nazi state would punish miniscule transgressions. After the Second World War Nazi laws had been condemned politically, and there was pressure to punish grudge informers.
The Fuller–Hart debate arose specifically from cases where wives reported their husbands, whom they wanted to get rid of. One such wife told the Nazi authorities that her husband was unlawfully criticising the Nazi regime. He was subsequently sent to the Russian Front, which almost invariably was a death sentence. However, the husband survived. After the War, when the Nazi law had been repealed, the husband brought legal action against his wife for unlawful deprivation of his liberty under the German Criminal Code of 1871. Given that legislation at the time was validly enacted, could the law be described as so morally reprehensible that it is not law? Did Nazi law absolve the woman? Or was it so immoral that it could not be regarded as law and hence the woman could be convicted under the Criminal Code?
Lon Fuller (1902–78) sought to demonstrate that the Nazi German legal system was not a legal system because it failed to meet basic rules.
By contrast, HLA Hart preferred to look to what existed in the legal system at the time. Whether the rules were unjust or irrational did not affect their legal status.
Hart argued from a positivist position that moral issues should not be considered within a legal system. A law should not be invalidated on the basis of a moral judgement. However, Hart believed certain principles should underpin laws, including clearly recognisable rules with recognisable consequences and discernable mechanisms for changing rules. Hart observed that the Nazi law was legitimately enacted and enforced. Therefore, the wife could not be punished for following the law.
In the end, both Hart and Fuller endorsed retrospective legislation that allowed trials against grudge informers to proceed as an offence against the German Criminal Code of 1871. For Hart the retrospective legislation was enforced validly.
For Fuller, the retrospective legislation merely gave effect to the illegitimacy of the Nazi laws.
Questions for discussion
Was Nazi grudge informer policy ‘law’?
What are the arguments of Fuller?
What are the opposing arguments of Hart?
What would Ronald Dworkin, Karl Marx or Robert Delgado say about the grudge informer policy?
Natural law theory holds that along with the positive law there exist certain ideal principles or values to which the positive law should correspond if it is to be regarded as genuine law. Thus, while positivism holds that to be valid law, all that is required is that it should issue from a competent legislator after following the prescribed process, natural law theory requires in addition that such law, to be valid, must conform to some ideal principle (which may emanate from morality, reason, God, or some other such source).
The Hart-Fuller “debate” illustrates the opposing points of view of positivism and natural law, particularly in the context of Nazi laws.*
The “debate” began when Hart published his Holmes Lecture (entitled Positivism and the Separation of Law and Morals) delivered at Harvard Law School in April 1957 and published in Harvard Law Review in 1958. The reply was given by Fuller in his article “Positivism and Fidelity to Law – A reply to Prof. Hart”, also published in 1958 in Harvard Law Review.
Hart’s rejoinder was in his book The Concept of Law, to which Fuller replied in the first edition of his book The Morality of Law. To this Hart gave his reply in 1965 in Harvard Law Review. Fuller replied in the Second (Revised) Edition of The Morality of Law, published in 1969.
This ding-dong, inconclusive series of repartees and rejoinders led Cotterrell to remark in his book The Politics of Jurisprudence:
“There is often a sense that in the battle of arguments no one ever wins, and further that there are no reliable criteria by which one could recognize victory anyway. The disputes seem timeless, the issues never resolved. Decade after decade positivists and natural lawyers face one another in the final of the World Cup. Victory goes now to one side, now to the other. The legal theorist can only cheer or jeer, label his opponent a moral leper or a disingenuous romantic.”
It is submitted that the theory of dynamic positivism** really puts the debate to an end.
Dynamic positivism certainly supports Hart’s view that Nazi laws were also laws (though wicked laws). But the reasons which dynamic positivism gives are deeper and more consistent than those of Hart.
A typical example considered in the Hart-Fuller debate was of the wife of a German who reported her husband to the Gestapo for criticizing Hitler’s conduct of the war. The husband was tried and sentenced to death, but his sentence was converted to service as a soldier on the Russian front. The husband survived the war, and after the war instituted legal proceedings against his wife.
The wife’s defence was that her husband had committed an offence under a Nazi statute of 1934. Post-war Germany, however, held the wife liable.
Hart argued that the decision of the court was wrong, as the Nazi law of 1934 was a valid law (as it satisfied his “rule of recognition”), whereas Fuller contended that the Nazi regime was so “lawless” that nothing therein could qualify as law.
The basic principle of Nazi law was laid down in the Enabling Act of July 12, 1934 passed by the German Reichstag which amended the German Constitution by permitting Hitler to issue decrees inconsistent with the Constitution, including decrees passing the budget, making treaties, and even amending the Constitution. As declared by Goering to the Prussian prosecutors on July 12, 1934 “The Law and the will of the Fhrer are one”.
The nature of Nazi justice has been described in William Shirer’s The Rise and Fall of the Third Reich, under the heading “Justice in the Third Reich” (at p. 369). Nazi racial laws regarded Jews as inferior beings and treated them inhumanly. There was total arbitrariness and terror during Hitler’s rule; the Gestapo being empowered to arrest, torture or even kill any person without any charge or trial. Ultimately 6 million Jews were murdered in gas chambers, apart from the other atrocities committed by the Nazis.
Now Germany had been industrialized long before Hitler came to power. Democracy and the rule of law are necessary concomitants of an industrial society. This is because:
(1) Industrial society is based on science, and science is based on the study and application of objective laws. Industrial society simply cannot function on the basis of arbitrariness, and there has to be the rule of law, otherwise the productive processes in such a society will be disrupted. Arbitrariness and whimsical orders are totally antithetical to the functioning of an industrial society.
(2) Industrial society is democratic society. There can no doubt temporarily be dictatorial governments in an industrial society (e.g. Nazi rule), but these will necessarily be short-lived aberrations, and society during such a period will not function smoothly but fitfully.
We can now bring the Hart-Fuller debate to a close.
Hart is right, Nazi laws were certainly laws, but such laws were wholly inconsistent with the mode of production in industrial society (which stage Germany had reached long before Hitler came to power), and with the social relations engendered by such a mode of production.
Hitler’s regime in fact could not have lasted long, as it was based on features which disrupt industrial society e.g. arbitrariness and terror. In fact Hitler’s regime would have collapsed much earlier than it did had it not received the support of Chamberlain and Daladier.
Hitler turned the German economy into a war economy1. Massive rearmament could only lead to a parasitic economy relying on wars of conquest, slave labour and stolen goods (from conquered countries).
Thus Hitler tried to turn Germany into a nation in some respects similar to ancient Rome which conquered many nations to obtain slaves and tribute (much of the grain distributed practically free to the Roman populace was forcibly taken from Egypt). But slave society had perished with the Roman Empire 1500 years ago. To turn the clock back and try to restore it was impossible. Slavery is wholly inconsistent with modern industrial society (in fact it is inconsistent even with feudal society).
Hence Hitler’s laws were wholly inconsistent with historical development in Europe. In attacking Jews, Hitler tried to throw Germany back into the middle ages. Hitler came straight out of a museum into the modern world. However, the laws he made, though hideous and monstrous, were certainly laws, as they were in accordance with the Enabling Act passed by the Reichstag.
The anxiety of natural law thinkers like Fuller is that unless Nazi laws are treated as non-laws, those who perpetrated atrocities under the Nazi regime could escape punishment.
However, as pointed out by Hart, retrospective laws could have been framed after the Second World War retrospectively repealing Nazi laws and retrospectively declaring the acts of perpetrators of such atrocities as criminal.
No doubt retrospective criminal statutes are ordinarily frowned upon, but Hitler’s regime was exceptional. In fact in the Nuremberg trials, certain laws, e.g. crimes against humanity, were applied retrospectively to punish Hitler’s accomplices. Hence there is no absolute prohibition on the retrospective enactment of criminal laws, and this should certainly have been done in the case of the Nazis.
Fuller says that a law to be a law must have “inner morality”.
But where does morality come from? It arises from the mode of production. The ancient Greeks and Romans found nothing immoral in slavery (except stoics like Seneca, who were really on the fringe of ancient Roman society, and not in its mainstream, and really belonged intellectually to the subsequent Christian era). But today everyone regards slavery as immoral. Thus any law which reflects the social relationships of a slave society or feudal society will today be regarded as immoral or unjust.
The Nazi regime was certainly immoral, but it was immoral because it was totally inconsistent with the mode of production of modern industrial society and the social relations and values which such a society engenders. Unless one grasps this point clearly the Hart-Fuller debate will go on endlessly.
Hart becomes inconsistent when he concedes a “minimum content of natural law” (see Hart’s The Concept of Law) in which he includes (1) human vulnerability, (2) approximate equality, (3) limited resources, (4) limited altruism, and (5) limited understanding and strength of will. Thus Hart practically concedes the existence of a certain degree of natural law. But it could easily be pointed out that “natural law” is merely the norms which have to be followed for the smooth running of a society at a particular stage of its historical development. Slave-holding societies, e.g., ancient Greece and Rome, regarded slavery as natural, feudal society regarded serfdom and aristocratic privileges as natural, while industrial society regards equality as natural. Thus what is “natural” depends on the mode of production at a particular stage of historical development.
Once this basic concept is grasped, all the talk of Fuller (and even Hart) that there must be a “minimum degree” of morality in law in order that it may qualify as law goes up in smoke.
The “minimum morality” idea is bound to land us in difficulties. What is that minimum? This itself is hazy and uncertain. Different persons may have different views about it, and it is bound to be different at different stages of historical development. Hart mentions five features of minimum morality, and Fuller conceives of eight. Others may conceive of dozens.
It is submitted, that both Hart and Fuller, insofar as they require a “minimum morality” in law, are in error. That is not to say that laws cannot be immoral, but that immorality does not disqualify them from being law. “Minimum morality”, it is submitted, is nothing but the conformity of the law to the stage of historical development a particular society has reached, so that society may function smoothly.
Are we then to define law as a set of rules made for the smooth running of society at a particular stage of historical development in conformity with the mode of production of that stage?
The difficulty with this definition is that it does not take note of the fact that the law often lags behind social development (as happened in pre-revolutionary France or pre-revolutionary Russia). There can be reactionary laws which throw society backwards. Also, as dynamic positivism advocates, laws can be ahead of social development in order to guide society forward.
The “revival” of natural law was only a temporary, emotional reaction to the atrocities of the Nazi regime, but it had no scientific basis. As pointed out by the author in his book Law in the Scientific Era, natural law is unacceptable in the scientific era, which relies more and more on positive law (see the chapter entitled “Natural Law in the Scientific Era”). In fact, despite the gallant effort of Fuller and that of others (which reminds one of Don Quixote), very few persons rely on natural law today. The “revival of natural law” collapsed within two decades of the end of the Second World War.
We can certainly say that certain minimum rules are required in a society for its smooth functioning at a particular stage of its historical development. But we need not resort to the mystical concept of “natural law” for that purpose. There are often deviations from these minimal rules e.g. arbitrariness and whimsical orders in modern society, and these disrupt the productive processes and social relations in society. The remedy for this is amendment of the law and insistence on legality, and not a resort to natural law.
For the validity of a law we therefore go back to Hart’s rule of recognition, from which Hart has himself deviated by requiring in addition to the rule of recognition a minimum morality for a law to qualify as a law.
Hart’s rule of recognition, in simple language, says that a law to be valid must be made in accordance with the Constitution of a country (whether the Constitution is written or unwritten).
This rule of recognition is somewhat different from Kelsen’s grundnorm, which in most countries can be identified with the Constitution itself.
Whether we go by Hart’s theory or Kelsen’s, in either case we see that the entire legal system rests on the Constitution. But where does the Constitution come from?
The Constitution is a product of certain historical and political developments, and these in turn are heavily conditioned by social and economic factors. Classical positivism does not go beyond the Constitution, dynamic positivism goes beyond it, and studies the historical, social and economic forces behind the Constitution and the other laws.
In conclusion we may ask whether there is no place for idealism in the legal system. Classical positivism, of course, finds no place for it, but dynamic positivism has tremendous idealism, not by relying on natural law but on the basis of scientific understanding.
As mentioned in Law in the Scientific Era, dynamic positivism aims at guiding society forward on scientifically planned lines. It studies the historical trend in society, and aims at peacefully helping social advance. The legislator in a scientific society is therefore a person who is both scientific as well as idealistic. His idealism is however not utopian. It does not proceed from some a priori, innate ideas, but from a scientific study of society’s objective historical patterns and processes, the aim of such study being to peacefully guide society forward in history. Only a person who is genuinely sincere, compassionate, full of love for his fellow human beings, and filled with a strong desire to abolish suffering can be a dynamic positivist, though of course he must also have scientific understanding.
The term “natural law” is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent. It does not refer to the laws of nature, the laws that science aims to describe. According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. While being logically independent of natural law legal theory, the two theories intersect. However, the majority of the article will focus on natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms. The conceptual jurisprudence of John Austin provides a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. Similarly, the neo-naturalism of John Finnis is a development of classical natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. Lastly, Ronald Dworkin’s theory is a response and critique of legal positivism. All of these theories subscribe to one or more basic tenets of natural law legal theory and are important to its development and influence.
At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: “the truth of any moral proposition lies in its correspondence with a mind- and convention-independent moral reality”), the relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one species of moral realism, but not the only form; on Sayre-McCord’s view, moral subjectivism and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: “the rule and measure of human acts is the reason, which is the first principle of human acts” (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, “natural law”).
But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their “authority” not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once wrote, “nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne” (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent with the denial of natural law theory of law.
Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural law theory of morality. One could, for example, hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically independent of natural law theory of morality. The remainder of this essay will be exclusively concerned with natural law theories of law.
The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks “the essence or nature which is common to all laws that are properly so called” (Austin 1995, 11). Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: those like natural law legal theory that affirm there is a conceptual relation between law and morality and those like legal positivism that deny such a relation.
All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can “think of eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.) ‘laws’ by which the universe is ordered.” Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal.
But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: “[E]very human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law” (ST I-II, Q.95, A.II). To paraphrase Augustine’s famous remark, an unjust law is really no law at all.
The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original” (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law.
It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: legal norms that are promulgated by human beings are valid only if they are consistent with morality.
Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point:
Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin’s own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate the law and determine our moral obligations with respect to the law) are actually rendered more difficult by its collapse of the distinction between morality and law. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: given that the norm being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law by pointing to its practical implications ñ a strategy that seems to commit a category mistake. Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996). Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally:
A more reasonable interpretation of statements like “an unjust law is no law at all” is that unjust laws are not laws “in the fullest sense.” As we might say of some professional, who had the necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or judgment: “she’s no lawyer” or “he’s no doctor.” This only indicates that we do not think that the title in this case carries with it all the implications it usually does. Similarly, to say that an unjust law is “not really law” may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with “higher law” (Bix 1996, 226).
Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made in favor of Bix’s view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.
John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: “the principles of natural law explain the obligatory force (in the fullest sense of ‘obligation’) of positive laws, even when those laws cannot be deduced from those principles” (Finnis 1980, 23-24). On Finnis’s view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion (a view he shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.
Like classical naturalism, Finnis’s naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.
On Finnis’s view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows:
[T]he term ‘law’ … refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community (Finnis 1980, 276).
Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: “one would simply be misunderstanding my conception of the nature and purpose of explanatory definitions of theoretical concepts if one supposed that my definition ‘ruled out as non-laws’ laws which failed to meet, or meet fully, one or other of the elements of the definition” (Finnis 1980, 278).
Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis’s view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that “a ruler’s use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends’ or party’s or faction’s advantage, or out of malice against some person or group” (Finnis 1980, 352). For the ultimate basis of a ruler’s moral authority, on this view, “is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community’s co- ordination problems” (Finnis 1980, 351).
Finnis’s theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism’s identity as a distinct theory of law. Indeed, it appears that Finnis’s natural law theory is compatible with naturalism’s historical adversary, legal positivism, inasmuch as Finnis’s view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes that Aquinas’s classical naturalism fully affirms the notion that human laws are “posited.”
Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fuller’s view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes:
The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller 1964, 106).
To the extent that a definition of law can be given, then, it must include the idea that law’s essential function is to “achiev[e] [social] order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behavior” (Fuller 1965, 657).
Fuller’s functionalist conception of law implies that nothing can count as law unless it is capable of performing law’s essential function of guiding behavior. And to be capable of performing this function, a system of rules must satisfy the following principles:
- (P1) the rules must be expressed in general terms;
- (P2) the rules must be publicly promulgated;
- (P3) the rules must be prospective in effect;
- (P4) the rules must be expressed in understandable terms;
- (P5) the rules must be consistent with one another;
- (P6) the rules must not require conduct beyond the powers of the affected parties;
- (P7) the rules must not be changed so frequently that the subject cannot rely on them; and
- (P8) the rules must be administered in a manner consistent with their wording.
On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality can achieve law’s essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are “internal” to law in the sense that they are built into the existence conditions for law.
These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy because rules guide behavior. Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller’s view, that they constitute a morality. Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist.
Nevertheless, Fuller’s conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: “What I have called the internal morality of law is … a procedural version of natural law … [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be” (Fuller 1964, 96- 97).
Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a constraint on the existence of a legal system: “A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all” (Fuller 1964, 39).
Fuller’s procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example, denies Fuller’s claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions of morality and efficacy:
[T]he author’s insistence on classifying these principles of legality as a “morality” is a source of confusion both for him and his readers…. [T]he crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite of the qualification “inner,” is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. (”Avoid poisons however lethal if they cause the victim to vomit”….) But to call these principles of the poisoner’s art “the morality of poisoning” would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned (Hart 1965, 1285-86).
On Hart’s view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fuller’s eight principles are built into the existence conditions for law, he concludes they do not constitute a conceptual connection between law and morality.
Unfortunately, Hart overlooks the fact that most of Fuller’s eight principles double as moral ideals of fairness. For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals.
Nevertheless, Fuller’s principles operate internally, not as moral ideals, but merely as principles of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.
Ronald Dworkin’s so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature.
The Conventionality Thesis emphasizes law’s conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.
The Separability Thesis, at the most general level, simply denies naturalism’s Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is “just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (Hart 1994, 185-186).
Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40).
In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim’s will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkin’s view, the court decided the case by citing “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute” (Dworkin 1977, 29).
On Dworkin’s view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. For the Riggs judges would “rightfully” have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law.
Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: “[e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition” (Dworkin 1977, 41).
On Dworkin’s view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a society’s legal practices considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a society’s legal practices considered as a whole.
Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkin’s view, adjudication is and should be interpretive:
[J]udges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract (Dworkin 1982, 165).
There are, thus, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.
For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following way:
A thoughtful judge might establish for himself, for example, a rough “threshold” of fit which any interpretation of data must meet in order to be “acceptable” on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is “substantively” better, that is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171).
As Dworkin conceives it, then, the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the basis of those moral principles that “figure in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question” (Dworkin 1977, 66).
And this is a process, according to Dworkin, that “must carry the lawyer very deep into political and moral theory.” Indeed, in later writings, Dworkin goes so far as to claim, somewhat implausibly, that “any judge’s opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts” (Dworkin 1986, 90).
Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis, according to which judicial decisions always enforce pre-existing rights: “even when no settled rule disposes of the case, one party may nevertheless have a right to win. It remains the judge’s duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively” (Dworkin 1977, 81).
In “Hard Cases,” Dworkin distinguishes between two kinds of legal argument. Arguments of policy “justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole” (Dworkin 1977, 82). In contrast, arguments of principle “justify a political decision by showing that the decision respects or secures some individual or group right” (Dworkin 1977, 82).
On Dworkin’s view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one party’s claim of right and against another party’s claim of right. An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole.
Notice that Dworkin’s views on legal principles and judicial obligation are inconsistent with all three of legal positivism’s core commitments. Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a community’s law regardless of whether they have been formally promulgated. Most importantly, Dworkin’s view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.
NATURAL LAW AND REASON
Among intellectuals who consider themselves “scientific,” the phrase “the nature of man” is apt to have the effect of a red flag on a bull. “Man has no nature!” is the modern rallying cry and typical of the sentiment of political philosophers today was the assertion of a distinguished political theorist some years ago before a meeting of the American Political Science Association that “man’s nature” is a purely theological concept that must be dismissed from any scientific discussion.
The political theorist was the late Hannah Arendt. For a typical criticism of natural law by a legal Positivist, see Hans Kelsen, General Theory of Law and State (New York: Russell and Russell, 1961), pp. 8ff.
In the controversy over man’s nature, and over the broader and more controversial concept of “natural law,” both sides have repeatedly proclaimed that natural law and theology are inextricably intertwined. As a result, many champions of natural law, in scientific or philosophic circles, have gravely weakened their case by implying that rational, philosophical methods alone cannot establish such law: that theological faith is necessary to maintain the concept. On the other hand, the opponents of natural law have gleefully agreed; since faith in the supernatural is deemed necessary to belief in natural law, the latter concept must be tossed out of scientific, secular discourse, and be consigned to the arcane sphere of the divine studies. In consequence, the idea of a natural law founded on reason and rational inquiry has been virtually lost.
And yet, Black’s Law Dictionary defines the natural law in a purely rationalistic and non-theological manner:Jus Naturale, the natural law, or law of nature; law, or legal principles, supposed to be discoverable by the light of nature or abstract reasoning, or to be taught by nature to all nations and men alike, or law supposed to govern men and peoples in a state of nature, i.e., in advance of organized governments or enacted laws (3rd ed., p. 1044).
Professor Patterson, in Jurisprudence: Men and Ideas of the Law (Brooklyn: Foundation Press, 1953), p. 333, defines the natural law cogently and concisely as:
Principles of human conduct that are discoverable by “reason” from the basic inclinations of human nature, and that are absolute, immutable and of universal validity for all times and places. This is the basic conception of scholastic natural law … and most natural law philosophers.
The believer in a rationally established natural law must, then, face the hostility of both camps: the one group sensing in this position an antagonism toward religion; and the other group suspecting that God and mysticism are being slipped in by the back door. To the first group, it must be said that they are reflecting an extreme Augustinian position which held that faith rather than reason was the only legitimate tool for investigating man’s nature and man’s proper ends. In short, in this fideist tradition, theology had completely displaced philosophy.
Supporters of theological ethics nowadays typically strongly oppose the concept of natural law. See the discussion of casuistry by the neo-orthodox Protestant theologian Karl Barth, Church Dogmatics 3, 4 (Edinburgh: 11 and T. Clark, 1961), pp. 7ff.
The Thomist tradition, on the contrary, was precisely the opposite: vindicating the independence of philosophy from theology, and proclaiming the ability of man’s reason to understand and arrive at the laws, physical and ethical, of the natural order, if belief in a systematic order of natural laws open to discovery by man’s reason is per se anti-religious, then anti-religious also were St. Thomas and the later Scholastics, as well as the devout Protestant jurist Hugo Grotius. The statement that there is an order of natural law, in short, leaves open the problem of whether or not God has created that order; and the assertion of the viability of man’s reason to discover the natural order leaves open the question of whether or not that reason was given to man by God. The assertion of an order of natural laws discoverable by reason is, by itself, neither pro- nor anti-religious.
For a discussion of the role of reason in the philosophy of Aquinas, see Etienne Gilson, The Christian Philosophy of St. Thomas Aquinas (New York: Random House, 1956). An important analysis of Thomistic natural law theory is Germain Grisez, “The First Principle of Practical Reason,” in Anthony Kenny, ed., Aquinas: A Collection of Critical Essays (New York: Anchor Books, 1969), pp. 340–82. For a history of medieval natural law, see Odon Lottin, Psychologie et morale aux xiie et xiiie siècles, 6 vols. (Louvain, 1942–1960).
Because this position is startling to most people today, let us investigate this Thomistic position a little further. The statement of absolute independence of natural law from the question of the existence of God was implicit rather than flatly asserted in St. Thomas himself; but like so many implications of Thomism, it was brought forth by Suarez and the other brilliant Spanish Scholastics of the late sixteenth century. The Jesuit Suarez pointed out that many Scholastics had taken the position that the natural law of ethics, the law of what is good and bad for man, does not depend upon God’s will. Indeed, some of the Scholastics had gone so far as to say that:
even though God did not exist, or did not make use of His reason, or did not judge rightly of things, if there is in man such a dictate of right reason to guide him, it would have had the same nature of law as it now has
From Franciscus Suarez, De Legibus ac Deo Legislatore (1619), lib. II, Cap. vi. Suarez also noted that many Scholastics “seem therefore logically to admit that natural law does not proceed from God as a lawgiver, for it is not dependent on God’s will.” Quoted in A.P. d’Enfreves, Natural Law (London: Hutchinson University Library, 1951), p. 71.
Because this position is startling to most people today, let us investigate this Thomistic position a little further. The statement of absolute independence of natural law from the question of the existence of God was implicit rather than flatly asserted in St. Thomas himself; but like so many implications of Thomism, it was brought forth by Suarez and the other brilliant Spanish Scholastics of the late sixteenth century. The Jesuit Suarez pointed out that many Scholastics had taken the position that the natural law of ethics, the law of what is good and bad for man, does not depend upon God’s will. Indeed, some of the Scholastics had gone so far as to say that:
even though God did not exist, or did not make use of His reason, or did not judge rightly of things, if there is in man such a dictate of right reason to guide him, it would have had the same nature of law as it now has.
Or, as a modern Thomist philosopher declares:
If the word “natural’ means anything at all, it refers to the nature of a man, and when used with “law,” “natural” must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the “Natural Law” of Aquinas
Thomas E Davitt, S.J., “St. Thomas Aquinas and the Natural Law,” in Arthur L. Harding, ed., Origins of the Natural Law Tradition (Dallas, Tex.: Southern Methodist University Press, 1954), p. 39. Also see Brendan F. Brown, ed., The Natural Law Reader (New York: Oceana Pubs., 1960), pp. 101–4.
Or, as a modern Thomist philosopher declares:
If the word “natural’ means anything at all, it refers to the nature of a man, and when used with “law,” “natural” must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the “Natural Law” of Aquinas.
Dutch Protestant jurist Hugo Grotius declared, in his De Iure Belli ac Pacis (1625):
What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God.
Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend … Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.
Quoted in d’Entrèves, Natural Law, pp. 52–53. See also Otto Gierke, Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1957), pp. 98–99.
D’Entrèves concludes that:
[Grotius’s] definition of natural law has nothing revolutionary. When he maintains that natural law is that body of rules which Man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the schoolmen.
D’Entrèves, Natural Law, pp. 51–52. Also see A.H. Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism (1943), and Frederick C. Copleston, S.J., A History of Philosophy (Westminster, Md.: Newman Press, 1959), 2, pp. 330f. On the neglected influence of the Spanish Scholastic Suarez on modern philosophers, see Jose Ferrater Mora, “Suarez and Modern Philosophy,” Journal of the History of Ideas (October 1953): 528–47.
Grotius’s aim, d’Entrèves adds, “was to construct a system of laws which would carry conviction in an age in which theological controversy was gradually losing the power to do so.” Grotius and his juristic successors — Pufendorf, Burlamaqui, and Vattel — proceeded to elaborate this independent body of natural laws in a purely secular context, in accordance with their own particular interests, which were not, in contrast to the Schoolmen, primarily theological.
See Gierke, Natural Law and the Theory of Society, p. 289. Also see Herbert Spencer, An Autobiography (New York: D. Appleton, 1904), vol. 1, p. 415.
Indeed, even the eighteenth-century rationalists, in many ways dedicated enemies of the Scholastics, were profoundly influenced in their very rationalism by the Scholastic tradition.
Thus, see Carl L. Becker, The Heavenly City of the Eighteenth-century Philosophers (New Haven, Conn.: Yale University Press, 1957), p. 8.
Thus, let there be no mistake: in the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason — not faith, or intuition, or grace, revelation, or anything else.
The late realist philosopher John Wild, in his important article, “Natural Law and Modern Ethical Theory,” Ethics (October 1952), states:
Realistic [natural law] ethics is now often dismissed as theological and authoritarian in character. But this is a misunderstanding. Its ablest representatives, from Plato and Aristotle to Grotius, have defended it on the basis of empirical evidence alone without any appeal to supernatural authority (p. 2, and pp. 1–13).
Also see the denial of the existence of such a thing as “Christian philosophy” any more than “Christian hats and shoes” by the Catholic social philosopher Orestes Brownson. Thomas T. McAvoy, C.S.C., “Orestes A. Brownson and Archbishop John Hughes in 1860,” Review of Politics (January 1962): 29.
In the contemporary atmosphere of sharp dichotomy between natural law and reason — and especially amid the irrationalist sentiments of “conservative” thought — this cannot be underscored too often. Hence, St. Thomas Aquinas, in the words of the eminent historian of philosophy Father Copleston, “emphasized the place and function of reason in moral conduct. He [Aquinas] shared with Aristotle the view that it is the possession of reason which distinguished man from the animals” and which “enables him to act deliberately in view of the consciously apprehended end and raises him above the level of purely instinctive behavior.”
Frederick C. Copleston, S.J., Aquinas (London: Penguin Books, 1955), p. 204.
Aquinas, then, realized that men always act purposively, but also went beyond this to argue that ends can also be apprehended by reason as either objectively good or bad for man. For Aquinas, then, in the words of Copleston, “there is therefore room for the concept of ‘right reason,’ reason directing man’s acts to the attainment of the objective good for man.” Moral conduct is therefore conduct in accord with right reason: “If it is said that moral conduct is rational conduct, what is meant is that it is conduct in accordance with right reason, reason apprehending the objective good for man and dictating the means to its attainment.”
“Reason is not bound to be a mere slave to the passions, confined to cranking out the discovery of the means to arbitrarily chosen ends.”
In natural-law philosophy, then, reason is not bound, as it is in modern post-Humean philosophy, to be a mere slave to the passions, confined to cranking out the discovery of the means to arbitrarily chosen ends. For the ends themselves are selected by the use of reason; and “right reason” dictates to man his proper ends as well as the means for their attainment. For the Thomist or natural-law theorist, the general law of morality for man is a special case of the system of natural law governing all entities of the world, each with its own nature and its own ends. “For him the moral law … is a special case of the general principles that all finite things move toward their ends by the development of their potentialities.” And here we come to a vital difference between inanimate or even non-human living creatures, and man himself; for the former are compelled to proceed in accordance with the ends dictated by their natures, whereas man, “the rational animal,” possesses reason to discover such ends and the free will to choose.
Inanimate bodies act in certain ways precisely because they are what they are, and they cannot act otherwise; they cannot perform actions which are contrary to their nature. And animals are governed by instinct. In fine, all creatures below man participate unconsciously in the eternal law, which is reflected in their natural tendencies, and they do not possess the freedom which is required in order to be able to act in a mariner incompatible with this law. It is therefore essential that he [man] should know the eternal law in so far as it concerns himself. Yet, how can he know it? He cannot read, as it were, the mind of God… [but] he can discern the fundamental tendencies and needs of his nature, and by reflecting on them he can come to a knowledge of the natural moral law…. Every man possesses … the light of reason whereby he can reflect … and promulgate to himself the natural law, which is the totality of the universal precepts or dictates of right reason concerning the good which is to be pursued and the evil which is to be shunned (Ibid., pp. 213–14).
Which doctrine, natural law or those of its critics, is to be considered truly rational was answered incisively by the late Leo Strauss, in the course of a penetrating critique of the value-relativism in political theory of Professor Arnold Brecht. For, in contrast to natural law,
positivistic social science … is characterized by the abandonment of reason or the flight from reason….
According to the positivistic interpretation of relativism which prevails in present-day social science … reason can tell us which means are conducive to which ends; it cannot tell us which attainable ends are to be preferred to other attainable ends. Reason cannot tell us that we ought to choose attainable ends; if someone ‘loves him who desires the impossible’ reason may tell him that he acts irrationally, but it cannot tell him that he ought to act rationally, or that acting irrationally is acting badly or basely. If rational conduct consists in choosing the right means for the right end, relativism teaches in effect that rational conduct is impossible.
Leo Strauss, “Relativism,” in H. Schoeck and J. W. Wiggins, eds., Relativism and the Study of Man (Princeton, NJ.: D. Van Nostrand, 1961), pp. 144–45. For a devastating critique of an attempt by a relativistic political scientist to present a “value-free” case for freedom and the self-development of the person, see Walter Berns, “The Behavioral Sciences and the Study of Political Things: The Case of Christian Bay’s The Structure of Freedom,” American Political Science Review (September 1961): 550–59.
Finally, the unique place of reason in natural-law philosophy has been affirmed by the modern Thomistic philosopher, the late Father John Toohey. Toohey defined sound philosophy as follows: “Philosophy, in the sense in which the word is used when scholasticism is contrasted with other philosophies, is an attempt on the part of man’s unaided reason to give a fundamental explanation of the nature of things.”
Toohey adds that “scholastic philosophy is the philosophy which teaches the certitude of human knowledge acquired by means of sense experience, testimony, reflection, and reasoning.” John J. Toohey, S.J., Notes on Epistemology (Washington, D.C.: Georgetown University, 1952), pp. 111–12.
NATURAL LAW AS ‘SCIENCE’
It is indeed puzzling that so many modern philosophers should sniff at the very term “nature” as an injection of mysticism and the supernatural. An apple, let fall, will drop to the ground; this we all observe and acknowledge to be in the nature of the apple (as well as the world in general). Two atoms of hydrogen combined with one of oxygen will yield one molecule of water — behavior that is uniquely in the nature of hydrogen, oxygen, and water. There is nothing arcane or mystical about such observations. Why then cavil at the concept of “nature”? The world, in fact, consists of a myriad number of observable things, or entities. This is surely an observable fact. Since the world does not consist of one homogenous thing or entity alone, it follows that each one of these different things possesses differing attributes, otherwise they would all be the same thing. But if A, B, C, etc., have different attributes, it follows immediately that they have different natures.
Henry B. Veatch, in his For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971), p. 7, states:
Recourse must be had to an older notion than that which has now come to be in fashion among contemporary scientists and philosophers of science…. Surely, in that everyday world of common-sense existence in which, as human beings, and for all of cur scientific sophistication, we can hardly cease to live and move and have our being, we do indeed find ourselves constantly invoking an older and even a decidedly common sense notion of “nature” and “natural law.” For don’t we all recognize that a rose is different from an eggplant, and a man from a mouse, and hydrogen from manganese? To recognize such differences in things is surely to recognize that they behave differently: one doesn’t expect of a man quite the same things that one does of a mouse, and vice versa. Moreover, the reason our expectations thus differ as to what various types of things or entities will do, or how they will act and react, is simply that they just are different kinds of things. They have different “natures,” as one might say, using the old-fashioned terminology.
Leo Strauss (Natural Right and History [Chicago: University of Chicago Press, 1953]) adds:
Socrates deviated from his predecessors by identifying the science of … everything that is, with the understanding of what each of the beings is. For “to be” means “to be something” and hence to be different from things which are “something else”: “to be” means therefore “to be a part” (p. 122).
For a defense of the concept of nature, see Alvin Plantinga, The Nature of Necessity (Oxford: Clarendon Press, 1974), pp. 71–81.
It also follows that when these various things meet and interact, a specifically delimitable and definable result will occur. In short, specific, delimitable causes will have specific delimitable effects.
See H.W.B. Joseph, An Introduction to Logic, 2nd rev. ed (Oxford: Clarendon Press, 1916), pp. 407–9. For a hard-hitting defense of the view that causation states a necessary relation among entities, see R. Harre and E. H. Madden, Causal Powers: A Theory of Natural Necessity (Totowa, N.J.: Rowman and Littlefield, 1975).
“It is indeed puzzling that so many modern philosophers should sniff at the very term ‘nature’ as an injection of mysticism and the supernatural.”
The observable behavior of each of these entities is the law of their natures, and this law includes what happens as a result of the interactions. The complex that we may build up of these laws may be termed the structure of natural law. What is “mystical” about that?
See Murray N. Rothbard, Individualism and the Philosophy of the Social Sciences (San Francisco: Cato Institute, 1979), p. 5.
In the field of purely physical laws, this concept will usually differ from modern positivistic terminology only on high philosophical levels; applied to man, however, the concept is far more controversial. And yet, if apples and stones and roses each have their specific natures, is man the only entity, the only being, that cannot have one? And if man does have a nature, why cannot it too be open to rational observation and reflection? If all things have natures, then surely man’s nature is open to inspection; the current brusque rejection of the concept of the nature of man is therefore arbitrary and a priori.
One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man’s reason. Man’s reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man’s nature is to invite the answer. Go thou and study and find out! It is as if one man were to assert that the nature of copper were open to rational investigation and a critic were to challenge him to “prove” this immediately by setting forth on the spot all the laws that have been discovered about copper.
Another common charge is that natural-law theorists differ among themselves, and that therefore all natural-law theories must be discarded. This charge comes with peculiar ill grace when it comes, as it often does, from utilitarian economists. For economics has been a notoriously contentious science — and yet few people advocate tossing all economics therefore into the discard. Furthermore, difference of opinion is no excuse for discarding all sides to a dispute; the responsible person is the one who uses his reason to examine the various contentions and make up his own mind.
And there is a further point: the very existence of a difference of opinion seems to imply that there is something objective about which disagreement can take place; for otherwise, there would be no contradictions in the different “opinions” and no worry about these conflicts. For a similar argument in refutation of moral subjectivism see G.E. Moore, Ethics (Oxford, 1963 [1912)), pp. 63ff.
He does not simply say a priori, “a plague on all your houses!” The fact of man’s reason does not mean that error is impossible. Even such “hard” sciences as physics and chemistry have had their errors and their fervent disputes.
The psychologist Leonard Carmichael, in “Absolutes, Relativism and the Scientific Psychology of Human Nature,” in H. Schoeck and J. Wiggins, eds., Relativism and the Study of Man (Princeton, N.J.: 1). Van Nostrand, 1961), p. 16, writes:
We do not turn aside from what we know about astronomy at any time because there is a great deal we do not know, or because so much that we once thought we knew is no longer recognized as true. May not the same argument be accepted in our thinking about ethical and esthetic judgments?
No man is omniscient or infallible — a law, by the way, of man’s nature.
The natural law ethic decrees that for all living things, “goodness” is the fulfillment of what is best for that type of creature; “goodness” is therefore relative to the nature of the creature concerned. Thus, Professor Cropsey writes:
The classical [natural law] doctrine is that each thing is excellent in the degree to which it can do the things for which its species is naturally equipped … Why is the natural good? … [Because] there is neither a way nor a reason to prevent ourselves from distinguishing between useless and serviceable beasts, for example; and … the most empirical and … rational standard of the serviceable, or the limit of the thing’s activity is set by its nature. We do not judge elephants to be good because they are natural; or because nature is morally good — whatever that would mean. We judge a particular elephant to be good by the light of what elephant nature makes it possible for elephants to do and to be.
Joseph Cropsey, “A Reply to Rothman,” American Political Science Review (June 1962): 355. As Henry Veatch writes, in For an Ontology of Morals, pp. 7–8:
Moreover, it is in virtue of a thing’s nature — i.e., of its being the kind of thing that it is — that it acts and behaves the way it does. Is it not also in virtue of a thing’s nature that we often consider ourselves able to judge what that thing might or could be, but perhaps isn’t? A plant, for example, may be seen to be underdeveloped or stunted in its growth. A bird with an injured wing is quite obviously not able to fly as well as others of the same species…. And so it is that a thing’s nature maybe thought of as being not merely that in virtue of which the thing acts or behaves in the way it does, but also as a sort of standard in terms of which we judge whether the thing’s action or behavior is all that it might have been or could have been.
In the case of man, the natural-law ethic states that goodness or badness can be determined by what fulfills or thwarts what is best for man’s nature.
For a similar approach to the meaning of goodness, see Peter Geach, “Good and Evil,” in Philippa R. Foot, ed., Theories of Ethics (London: Oxford University Press, 1967), pp. 74–82.
“The brusque rejection of the concept of the nature of man is arbitrary….”
The natural law, then, elucidates what is best for man — what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. In a significant sense, then, natural law provides man with a “science of happiness,” with the paths which will lead to his real happiness. In contrast praxeology or economics as well as the utilitarian philosophy with which this science has been closely allied, treat “happiness” in the purely formal sense as the fulfillment of those ends which people happen — for whatever reason — to place high on their scales of value. Satisfaction of those ends yields to man his “utility” or “satisfaction” or “happiness.”
Contrast John Wild, in “Natural Law and Modern Ethical Theory,” Ethics (October 1952): 2, who says:
Realistic ethics is founded on the basic distinction between human need and uncriticized individual desire or pleasure, a distinction not found in modern utilitarianism. The basic concepts of so-called “naturalistic” theories are psychological whereas those of realism are existential and ontological.
Value in the sense of valuation or utility is purely subjective, and decided by each individual. This procedure is perfectly proper for the formal science of praxeology, or economic theory, but not necessarily elsewhere. For in natural-law ethics, ends are demonstrated to be good or bad for man in varying degrees; value here is objective — determined by the natural law of man’s being, and here “happiness” for man is considered in the commonsensical, contentual sense. As Father Kenealy put it:
This philosophy maintains that there is in fact an objective moral order within the range of human intelligence, to which human societies are bound in conscience to conform and upon which the peace and happiness of personal, national and international life depend.
William J. Kenealy, S.J., “The Majesty of the Law,” Loyola Law Review (1949–50): 112–13; reprinted in Brendan F.Brown, ed., The Natural Law Reader (NewYork: Oceana, 1960), p. 123.
And the eminent English jurist, Sir William Blackstone, summed up the natural law and its relation to human happiness as follows:
This is the foundation of what we call ethics, or natural law … demonstrating that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destruction of man’s real happiness, and therefore that the law of nature forbids it.
Blackstone, Commentaries on the Laws of England, Book 1: quoted in Brown, Natural Law Reader, p. 106.
Without using the terminology of natural law, psychologist Leonard Carmichael has indicated how an objective, absolute ethic can be established for man on scientific methods, based upon biological and psychological inquiry:
because man has an unchanging and an age-old, genetically determined anatomical, physiological, and psychological make-up, there is reason to believe that at least some of the “values” that he recognized as good or bad have been discovered or have emerged as human individuals have lived together for thousands of years in many societies. Is there any reason to suggest that these values, once identified and tested, may not be thought of as essentially fixed and unchanging? For example, the wanton murder of one adult by another for the purely personal amusement of the person committing the murder, once it is recognized as a general wrong, is likely always to be so recognized. Such a murder has disadvantageous individual and social effects. Or to take a milder example from esthetics, man is always likely to recognize in a special way the balance of two complementary colors because he is born with specially constituted human eyes.- Carmichael, “Absolutes,” p.9.
One common philosophic objection to natural law ethics is that it confuses, or identifies, the realism of fact and value. For purposes of our brief discussion, John Wild’s reply will suffice:
In answer we may point out that their [natural law] view identifies value not with existence but rather with the fulfillment of tendencies determined by the structure of the existent entity. Furthermore, it identifies evil not with non-existence but rather with a mode of existence in which natural tendencies are thwarted and deprived of realization…. The young plant whose leaves are withering for lack of light is not nonexistent. It exists, but in an unhealthy or privative mode. The lame man is not nonexistent. He exists, but with a natural power partially unrealized. … This metaphysical objection is based upon the common assumption that existence is fully finished or complete. … [But] what is good is the fulfillment of being.
Wild, “Natural Law,” pp. 4–5. Wild continues on p.11:
Existence is … not a property but a structuralized activity. Such activities are a kind of fact. They can be observed and described by judgments that are true or false: human life needs material artifacts; technological endeavors need rational guidance; the child has cognitive faculties that need education. Value statements are founded on the directly verifiable fact of tendency or need. The value or realization is required not merely by us but by the existent tendency for its completion. From a sound description and analysis of the given tendency we can infer the value founded upon it This is why we do not say that moral principles are mere statements of fact, but rather that they are “founded” on facts.
On pp. 2–4, Wild says:
The ethics of natural law … recognizes prescriptive moral laws but asserts that these are founded on tendential facts which may be described…. Goodness … must … be conceived dynamically as an existential mode, the realization of natural tendency. In this view, the world is not made up of determinate structures alone, but of determinate structures in an act of existing which they determine toward further appropriate acts of existing…. No determinate structure cart be given existence without determining active tendencies. When such a tendency is fulfilled in accordance with natural law, the entity is said to be in a stable, healthy, or sound condition — adjectives of value. When it is obstructed or distorted, the entity is said to be in an unstable, diseased or unsound condition — adjectives of disvalue. Goodness and badness in their ontological sense are not phases of abstract structure, but rather modes of existence, ways in which the existential tendencies determined by such structures are either fulfilled or barely sustained in a deprived, distorted state.
After stating that ethics, for man as for any other entity, are determined by investigating verifiable existing tendencies of that entity, Wild asks a question crucial to all non-theological ethics: “why are such principles felt to be binding on me?” How do such universal tendencies of human nature become incorporated into a person’s subjective value scale? Because
the factual needs which underlie the whole procedure are common to man. The values founded on them are universal. Hence, if I made no mistake in my tendential analysis of human nature, and if I understand myself, I must exemplify the tendency and must feel it subjectively as an imperative urge to action.
Ibid., p. 12. For more on a defense of natural law ethics, see John Wild, Plato’s Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953); Henry Veatch, Rational Man: A Modern Interpretation of Aristotelian Ethics (Bloomington: University of Indiana Press, 1962); and Veatch, For An Ontology of Morals.
David Hume is the philosopher supposed by modern philosophers to have effectively demolished the theory of natural law. Hume’s “demolition” was two-pronged: the raising of the alleged “fact-value” dichotomy, thus debarring the inference of value from fact, and his view that reason is and can only be a slave to the passions.
“No man is omniscient or infallible — a law, by the way, of man’s nature.”
Hume in fact failed to prove that values cannot be derived from facts. It is frequently alleged that nothing can be in the conclusion of an argument which was not in one of the premises; and that therefore, an “ought” conclusion cannot follow from descriptive premises. But a conclusion follows from both premises taken together; the “ought” need not be present in either one of the premises so long as it has been validly deduced. To say that it cannot be so deduced simply begs the question. See Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), pp. 99–105.
In short, in contrast to the natural-law view that man’s reason can discover the proper ends for man to follow, Hume held that only the emotions can ultimately set man’s ends, and that reason’s place is as the technician and handmaiden to the emotions. (Here Hume has been followed by modern social scientists since Max Weber.) According to this view, people’s emotions are assumed to be primary and unanalyzable givens.
Professor Hesselberg has shown, however, that Hume, in the course of his own discussions, was compelled to reintroduce a natural-law conception into his social philosophy and particularly into his theory of justice, thus illustrating the gibe of Etienne Gilson: “The natural law always buries its undertakers.” For Hume, in Hesselberg’s words, “recognized and accepted that the social … order is an indispensable prerequisite to man’s well-being and happiness: and that this is a statement of fact.” The social order, therefore, must be maintained by man. Hesselberg continues:
But a social order is not possible unless man is able to conceive what it is, and what its advantages are, and also conceive those norms of conduct which are necessary to its establishment and preservation, namely, respect for another’s person and for his rightful possessions, which is the substance of justice … But justice is the product of reason, not the passions. And justice is the necessary support of the social order; and the social order is necessary to man’s well-being and happiness. If this is so, the norms of justice must control and regulate the passions, and not vice versa.
A. Kenneth Hesselberg, “Hume, Natural Law and Justice,” Duquesne Review (Spring 1961): 46–47.
Hesselberg concludes that “thus Hume’s original ‘primacy of the passions’ thesis is seen to be utterly untenable for his social and political theory, and … he is compelled to reintroduce reason as a cognitive-normative factor in human social relations.”
Indeed, in discussing justice and the importance of the rights of private property, Hume was compelled to write that reason can establish such a social ethic: “nature provides a remedy in the judgment and understanding for what is irregular and uncommodious in the affections” — in short, reason can be superior to the passions.
David Hume, A Treatise of Human Nature, quoted in Hesselberg, “Hume, Natural Law, and Justice,” p. 61. Hesselberg adds perceptively that Hume’s sharp ought-is dichotomy in the earlier chapters of Hume’s Treatise stemmed from his restricting the meaning of “reason” to finding pleasure — pain objects, and determining the means to achieve them. But, in the later chapters on justice, the very nature of the concept compelled Hume “to assign a third role to reason, namely its power to judge actions in terms of their suitability, or conformity or disconformity, to man’s social nature, and thus paved the way for the return to a natural law concept of justice.” Ibid., pp. 61–62.
For some doubt whether or not Hume himself intended to assert the fact-value dichotomy, see A.C. MacIntyre, “Hume on ‘Is’ and ‘Ought,” in W.D. Hudson, ed., The Is-Ought Question (London: Macmillan, 1969), pp. 35–50.
We have seen from our discussion that the doctrine of natural law — the view that an objective ethics can be established through reason — has had to face two powerful groups of enemies in the modern world: both anxious to denigrate the power of man’s reason to decide upon his destiny. These are the fideists who believe that ethics can only be given to man by supernatural revelation, and the skeptics who believe that man must take his ethics from arbitrary whim or emotion. We may sum up with Professor Grant’s harsh but penetrating view of the strange contemporary alliance between those who doubt the capacity of human reason in the name of scepticism (probably scientific in origin) and those who denigrate its capacity in the name of revealed religion. It is only necessary to study the thought of Ockham to see how ancient this strange alliance is. For in Ockham can be seen how philosophic nominalism, unable to face the question of practical certainty, solves it by the arbitrary hypothesis of revelation. The will detached from the intellect (as it must be in a nominalism) can seek certainty only through such arbitrary hypotheses.
The interesting fact historically is that these two anti-rationalist traditions — that of the liberal skeptic and the Protestant revelationist — should originally have come from two … opposite views of man. The Protestant dependence upon revelation arose from a great pessimism about human nature … The immediately apprehended values of the liberal originate in a great optimism. Yet … after all, is not the dominating tradition in North America a Protestantism which has been transformed by pragmatic technology and liberal aspirations?
George P. Grant, “Plato and Popper,” The Canadian Journal of Economics and Political Science (May 1954): 191–92.
NATURAL LAW VERSUS POSITIVE LAW
If, then, the natural law is discovered by reason from “the basic inclinations of human nature … absolute, immutable, and of universal validity for all times and places,” it follows that the natural law provides an objective set of ethical norms by which to gauge human actions at any time or place.
Edwin W. Patterson, Jurisprudence Men and Ideas of the Law (Brooklyn, N.Y.: Foundation Press, 1953), p. 333.
The natural law is, in essence, a profoundly “radical” ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State. At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.
“The natural law always buries its undertakers.”
– Etienne Gilson
In fact, the legal principles of any society can be established in three alternate ways: (a) by following the traditional custom of the tribe or community; (b) by obeying the arbitrary, ad hoc will of those who rule the State apparatus; or (c) by the use of man’s reason in discovering the natural law — in short, by slavish conformity to custom, by arbitrary whim, or by use of man’s reason. These are essentially the only possible ways for establishing positive law. Here we may simply affirm that the latter method is at once the most appropriate for man at his most nobly and fully human, and the most potentially “revolutionary” vis-à-vis any given status quo.
In our century, widespread ignorance of and scorn for the very existence of the natural law has limited people’s advocacy of legal structures to (a) or (b), or some blend of the two. This even holds for those who try to hew to a policy of individual liberty. Thus, there are those libertarians who would simply and uncritically adopt the common law, despite its many anti-libertarian flaws. Others, like Henry Hazlitt, would scrap all constitutional limitations on government to rely solely on the majority will as expressed by the legislature. Neither group seems to understand the concept of a structure of rational natural law to be used as a guidepost for shaping and reshaping whatever positive law may be in existence.
Hazlitt’s reaction to my own brief discussion of the legal norms essential to any free-market economy [in Man, Economy, and State: A Treatise on Economic Principles (Princeton, N.J.: D. Van Nostrand, 1962] was a curious one. While critical of blind adherence to common law in other writers, Hazlitt could only react in puzzlement to my approach; calling it “abstract doctrinaire logic” and “extreme a priorism,” he chided me for “trying to substitute his own instant jurisprudence for the common law principles built up through generations of human experience.” It is curious that Hazlitt feels common law to be inferior to arbitrary majority will, and yet to be superior to human reason! Henry Hazlitt, “The Economics of Freedom,” National Review (September 25, 1962): 232.
While natural-law theory has often been used erroneously in defense of the political status quo, its radical and “revolutionary” implications were brilliantly understood by the great Catholic libertarian historian Lord Acton. Acton saw clearly that the deep flaw in the ancient Greek — and their later followers’ — conception of natural law political philosophy was to identify politics and morals, and then to place the supreme social moral agent in the State. From Plato and Aristotle, the State’s proclaimed supremacy was founded in their view that “morality was undistinguished from religion and politics from morals; and in religion, morality, and politics there was only one legislator and one authority.”
John Edward Emerich Dalberg-Acton, Essays on Freedom and Power (Glencoe, Ill.: Free Press, 1948), p. 45. Also see Gertrude Himmelfarb, Lord Acton: A Study in Conscience and Politics (Chicago: University of Chicago Press, 1962), p. 135.
Acton added that the Stoics developed the correct, non-State principles of natural law political philosophy, which were then revived in the modern period by Grotius and his followers. “From that time it became possible to make politics a matter of principle and of conscience.” The reaction of the State to this theoretical development was horror:
When Cumberland and Pufendorf unfolded the true significance of [Grotius’s] doctrine, every settled authority, every triumphant interest recoiled aghast … It was manifest that all persons who had learned that political science is an affair of conscience rather than of might and expediency, must regard their adversaries as men without principle.
Acton, Essays, p. 74. Himmelfarb correctly noted that “for Acton, politics was a science, the application of the principles of morality.” Gertrude Himmelfarb, “Introduction,” ibid., p. xxxvii
Acton saw clearly that any set of objective moral principles rooted in the nature of man must inevitably come into conflict with custom and with positive law. To Acton, such an irrepressible conflict was an essential attribute of classical liberalism: “Liberalism wishes for what ought to be, irrespective of what is.”
Himmelfarb, Lord Acton, p. 204. Contrast the exclamation of bewilderment and horror by the leading nineteenth-century German Conservative, Adam Muller: “A natural law which differs from the positive law!” See Robert W. Lougee, “German Romanticism and Political Thought,” Review of Politics (October 1959): 637.
As Himmelfarb writes of Acton’s philosophy:
the past was allowed no authority except as it happened to conform to morality. To take seriously this Liberal theory of history, to give precedence to “what ought to be” over “what is” was, he admitted, virtually to install a “revolution in permanence.”
And so, for Acton, the individual, armed with natural law moral principles, is then in a firm position from which to criticize existing regimes and institutions, to hold them up to the strong and harsh light of reason. Even the far less politically oriented John Wild has trenchantly described the inherently radical nature of natural-law theory:
the philosophy of natural law defends the rational dignity of the human individual and his right and duty to criticize by word and deed any existent institution or social structure in terms of those universal moral principles which can be apprehended by the individual intellect alone.
John Wild, Plato’s Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953), p. 176. Note the similar assessment by the conservative Otto Gierke, in Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1957), pp. 35–36, who was for that reason hostile to natural law:
In opposition to positive jurisprudence which still continued to show a Conservative trend, the natural-law theory of the State was Radical to the very core of its being … It was also directed… not to the purpose of scientific explanation of the past, but to… the exposition and justification of a new future which was to be called into existence.
“The legal principles of any society can be established in three alternate ways … by slavish conformity to custom, by arbitrary whim, or by use of man’s reason.”
If the very idea of natural law is essentially “radical” and deeply critical of existing political institutions, then how has natural law become generally classified as “conservative”? Professor Parthemos considers natural law to be “conservative” because its principles are universal, fixed, and immutable, and hence are “absolute” principles of justice.
George S. Parthemos, “Contemporary Juristic Theory, Civil Rights, and American
Politics,” Annals of the American Academy of Political and Social Science (November 1962): 101–2.
Very true — but how does fixity of principle imply “conservatism”? On the contrary, the fact that natural-law theorists derive from the very nature of man a fixed structure of law independent of time and place, or of habit or authority or group norms, makes that law a mighty force for radical change. The only exception would be the surely rare case where the positive law happens to coincide in every aspect with the natural law as discerned by human reason.
The conservative political scientist Samuel Huntington recognizes the rarity of this event:
No ideational theory can be used to defend existing institutions satisfactorily, even when those institutions in general reflect the values of that ideology. The perfect nature of the ideology’s ideal and the imperfect nature and inevitable mutation of the institutions create a gap between the two. The ideal becomes a standard by which to criticize the institutions, much to the embarrassment of those who believe in the ideal and yet still wish to defend the institutions.
Huntington then adds the footnote: “Hence any theory of natural law as a set of transcendent and universal moral principles is inherently non-conservative…. Opposition to natural law [is] … a distinguishing characteristic of conservatism.” Samuel P. Huntington “Conservatism as an Ideology,” American Political Science Review (June 1957): 458–59. See also Murray N. Rothbard, “Huntington on Conservatism: A Comment,” American Political Science Review (September 1957): 784–87.
NATURAL LAW AND NATURAL RIGHTS
As we have indicated, the great failing of natural-law theory — from Plato and Aristotle to the Thomists and down to Leo Strauss and his followers in the present day — is to have been profoundly statist rather than individualist. This “classical” natural-law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle’s correct dictum that man is a “social animal,” that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of “society” and “the State,” and thence to the State as the major locus of virtuous action.
For a critique of such typical confusion by a modern Thomist, see Murray N. Rothbard, Power and Market, 2nd ed. (Kansas City: Sheed Andrews and McMeel, 1977), pp. 237–38. Leo Strauss’s defense of classical natural law and his assault on individualistic natural-rights theory may be found in his Natural Rights and History (Chicago: University of Chicago Press, 1953).
It was, in contrast, the Levellers and particularly John Locke in seventeenth-century England who transformed classical natural law into a theory grounded on methodological and hence political individualism. From the Lockean emphasis on the individual as the unit of action, as the entity who thinks, feels, chooses, and acts, stemmed his conception of natural law in politics as establishing the natural rights of each individual. It was the Lockean individualist tradition that profoundly influenced the later American revolutionaries and the dominant tradition of libertarian political thought in the revolutionary new nation. It is this tradition of natural-rights libertarianism upon which the present volume attempts to build.
Locke’s celebrated “Second Treatise on Government” was certainly one of the first systematic elaborations of libertarian, individualistic, natural-rights theory. Indeed, the similarity between Locke’ s view and the theory set forth below will become evident from the following passage:
[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer; no man but he can have a right to what that is once joined to….
He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then when did they begin to be his? And ’tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than nature, the common mother of all, had done: and so they become his private right. And will any one say he had no right to those acorns or apples he thus appropriated, because he had not the consent of all mankind to make them his? … If such a consent as that was necessary man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that ’tis the taking part of what is common, and removing it out of the state Nature leaves it in, which begins the property; without which the common is of no use.
John Locke, An Essay Concerning the True Origin, Extent, and End of Civil Government, V. pp.27–28, in Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960), pp. 305–7.
“All persons who had learned that political science is an affair of conscience rather than of might and expediency, must regard their adversaries as men without principle.”
– Lord Acton
It should not be surprising that Locke’s natural-rights theory, as historians of political thought have shown, was riddled with contradictions and inconsistencies After all, the pioneers of any discipline, any science, are bound to suffer from inconsistencies and lacunae that will be corrected by those that come after them. Divergences from Locke in the present work are only surprising to those steeped in the unfortunate modern fashion that has virtually abolished constructive political philosophy in favor of a mere antiquarian interest in older texts. In fact, libertarian natural-rights theory continued to be expanded and purified after Locke, reaching its culmination in the nineteenth century works of Herbert Spencer and Lysander Spooner.
Current scholars, ranging from Marxists to Straussians consider Thomas Hobbes rather than Locke as the founder of systematic individualist, natural rights theory. For a refutation of this view and a vindication of the older view of Hobbes as a statist and a totalitarian see Williamson M. Evers, “Hobbes and Liberalism,” The Libertarian Forum (May 1975): 4–6. Also see Evers, “Social Contract: A Critique,” The Journal of Libertarian Studies 1 (Summer 1977): 187–88. For a stress upon Hobbes’s absolutism by a pro-Hobbesian German political theorist, see Carl Schmitt, Der Leviathan in der Staatslehre Thomas Hobbes (Hamburg, 1938). Schmitt was for a time a pro-Nazi theorist.
The myriad of post-Locke and post-Leveller natural-rights theorists made clear their view that these rights stem from the nature of man and of the world around him. A few strikingly worded examples: nineteenth-century German-American theorist Francis Lieber, in his earlier and more libertarian treatise, wrote: “The law of nature or natural law … is the law, the body of rights, which we deduce from the essential nature of man.” And the prominent nineteenth-century American Unitarian minister, William Ellery Channing: “All men have the same rational nature and the same power of conscience, and all are equally made for indefinite improvement of these divine faculties and for the happiness to be found in their virtuous use.” And Theodore Woolsey, one of the last of the systematic natural rights theorists in nineteenth-century America: natural rights are those “which, by fair deduction from the present physical, moral, social, religious characteristics of man, he must be invested with … in order to fulfill the ends to which his nature calls him.”
Francis Lieber, Manual of Political Ethics (1838); Theodore Woolsey, Political Science (1877); cited in Benjamin F. Wright, Jr., American Interpretations of Natural Law (Cambridge, Mass.: Harvard University Press, 1931), pp. 261ff., 255ff., 276ff. William Ellery Channing, Works (Boston: American Unitarian Association, 1895), p. 693.
If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori is its individualist, natural-rights branch. As the nineteenth-century American natural-rights theorist Elisha P. Hurlbut put it:
The laws shall be merely declaratory of natural rights and natural wrongs, and … whatever is indifferent to the laws of nature shall be left unnoticed by human legislation … and legal tyranny arises whenever there is a departure from this simple principle.
Elisha P. Hurlbut, Essays on Human Rights and Their Political Guarantees (1845), cited in Wright, American Interpretations, pp. 257 ff.
A notable example of the revolutionary use of natural rights is, of course, the American Revolution, which was grounded in a radically revolutionary development of Lockean theory during the eighteenth century.
See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967).
The famous words of the Declaration of Independence, as Jefferson himself made clear, were enunciating nothing new, but were simply a brilliantly written distillation of the views held by the Americans of the day:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it.
Particularly striking is the flaming prose of the great abolitionist William Lloyd Garrison, applying natural-rights theory in a revolutionary way to the question of slavery:
The right to enjoy liberty is inalienable. … Every man has a right to his own body — to the products of his own labor — to the protection of law. … That all these laws which are now in force, admitting the right of slavery are, therefore, before God, utterly null and void … and therefore they ought instantly to be abrogated.
William Lloyd Garrison, “Declaration of Sentiments of the American Anti-Slavery Convention” (December 1833), cited in W. and J. Pease, eds., The Antislavery Argument (Indianapolis: Bobbs-Merrill, 1965).
We shall be speaking throughout this work of “rights,” in particular the rights of individuals to property in their persons and in material objects. But how do we define “rights”? “Right” has cogently and trenchantly been defined by Professor Sadowsky:
When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.
James A. Sadowsky, S.J., “Private Property and Collective Ownership,” in Tibor Machan, ed., The Libertarian Alternative (Chicago: Nelson-Hall, 1974), pp. 120–21.
Sadowsky’s definition highlights the crucial distinction we shall make throughout this work between a man’s right and the morality or immorality of his exercise of that right. We will contend that it is a man’s right to do whatever he wishes with his person; it is his right not to be molested or interfered with by violence from exercising that right. But what may be the moral or immoral ways of exercising that right is a question of personal ethics rather than of political philosophy — which is concerned solely with matters of right, and of the proper or improper exercise of physical violence in human relations. The importance of this crucial distinction cannot be overemphasized. Or, as Elisha Hurlbut concisely put it: “The exercise of a faculty [by an individual] is its only use. The manner of its exercise is one thing; that involves a question of morals. The right to its exercise is another thing.”
Hurlbut, cited in Wright, American Interpretations, pp. 257 ff.
THE TASK OF POLITICAL PHILOSOPHY
It is not the intention of this book to expound or defend at length the philosophy of natural law, or to elaborate a natural-law ethic for the personal morality of man. The intention is to set forth a social ethic of liberty i.e., to elaborate that subset of the natural law that develops the concept of natural rights, and that deals with the proper sphere of “politics,” i.e., with violence and non-violence as modes of interpersonal relations. In short, to set forth a political philosophy of liberty.
In our view the major task of “political science” or better, “political philosophy” is to construct the edifice of natural law pertinent to the political scene. That this task has been almost completely neglected in this century by political scientists is all too clear. Political science has either pursued a positivistic and scientistic “model building,” in vain imitation of the methodology and content of the physical sciences, or it has engaged in purely empirical fact-grubbing. The contemporary political scientist believes that he can avoid the necessity of moral judgments, and that he can help frame public policy without committing himself to any ethical position. And yet as soon as anyone makes any policy suggestion, however narrow or limited, an ethical judgment — sound or unsound — has willy-nilly been made.
Cf. W. Zajdlic, “The Limitations of Social Sciences,” Kyklos 9 (1956): 68–71.
The difference between the political scientist and the political philosopher is that the “scientist’s” moral judgments are covert and implicit, and therefore not subject to detailed scrutiny, and hence more likely to be unsound. Moreover, the avoidance of explicit ethical judgments leads political scientists to one overriding implicit value judgment — that in favor of the political status quo as it happens to prevail in any given society. At the very least, his lack of a systematic political ethics precludes the political scientist from persuading anyone of the value of any change from the status quo.
In the meanwhile, furthermore, present-day political philosophers generally confine themselves, also in a Wertfrei manner, to antiquarian descriptions and exegeses of the views of other, long-gone political philosophers. In so doing, they are evading the major task of political philosophy, in the words of Thomas Thorson, “the philosophic justification of value positions relevant to politics.”
Hence, as Thorson points out, political philosophy is a subdivision of the philosophy of ethics, in contrast to “political theory” as well as positivistic analytic philosophy. See Thomas Landon Thorson, “Political Values and Analytic Philosophy,” Journal of Politics (November 1961): 712n. Perhaps Professor Holton is right that “the decline in political philosophy is one part of a general decline,” not only in philosophy itself, but also “in the status of rationality and ideas as such.” Holton goes on to add that the two major challenges to genuine political philosophy in recent decades have come from historicism — the view that all ideas and truths are relative to particular historical conditions — and scientism, the imitation of the physical sciences. James Holton, “Is Political Philosophy Dead?” Western Political Quarterly (September 1961): 75ff.
In order to advocate public policy, therefore, a system of social or political ethics must be constructed. In former centuries this was the crucial task of political philosophy. But in the contemporary world, political theory, in the name of a spurious “science,” has cast out ethical philosophy, and has itself become barren as a guide to the inquiring citizen. The same course has been taken in each of the disciplines of the social sciences and of philosophy by abandoning the procedures of natural law. Let us then cast out the hobgoblins of Wertfreiheit, of positivism, of scientism. Ignoring the imperious demands of an arbitrary status quo, let us hammer out — hackneyed cliché though it may be — a natural-law and natural-rights standard to which the wise and honest may repair. Specifically, let us seek to establish the political philosophy of liberty and of the proper sphere of law, property rights, and the State.
Positivism and the Separation of Law and Morals
From Harvard Law Review, Vol. 71 (1958), pp.593-529
John Austin – “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”
Sir William Blackstone in his “Commentaries said,” that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original.”
The Nazi Experience
Many German thinkers who lived through the Nazi regime, reflected upon its evil manifestations in the legal system and converted to Natural Law.
One of these thinkers, Gustav Radbruch, had himself shared the “positivist” doctrine until the Nazi tyranny, but he was converted by this experience.
Before his conversion Radbruch held that resistance to law was a matter for the personal conscience, to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience.
Radbruch, however, had concluded from the ease with which the Nazi regime had exploited subservience to mere law-or expressed, as he thought, in the “positivist” slogan “law as law” (Gesetz als Gesetz)-and from the failure of the German legal profession to protest against the enormities which they were required to perpetrate in the name of law, that “positivism” (meaning here the insistence on the separation of law as it is from law as it ought to be) had powerfully contributed to the horrors.
His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality.
No positive enactment or statute, however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality.
However, this position contradicts the very basic assertions of positivists like John Austin, who in the Province of Jurisprudence Determined said,
“The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God. ..the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.”
The Grudge Informer Case
Judgment of July 27,1949, Oberlandesgericht, Bam berg, 5 Siiddeutsche Juristen-Zeitung 207 (Germany 1950)
In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people.
The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitsberaubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained i
The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime.n force continuously since its enactment.
The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, to quote the words of he court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.”
HLA Hart uses this case to make the following point:
This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the over throw of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective-that of punishing woman for an outrageously immoral act-but his was secured only by declaring a statute established since 1934 not to have the force of law, and at east the wisdom of this course must be doubted.
This reasoning Hart argue offends the very basic legal principle of Nulla Poena Sine Lege.
“No penalty without a law“, it refers to the legal principle that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of virtually all modern democracies.
There were, of course, two other choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way.
What about “Nullum crimen, nulla poena sine praevia lege poenali“?
Which means penal law cannot be enacted retroactively.
“Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour.”
It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems. Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are.
“The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort.” The Morality of Law
– Lon Luvois Fuller (1902 – 1978)
Lon Fuller develops and defends a modern version of Natural Law Legal Theory.
Like any NLLT, it holds that there is a conceptual connection between law and morality.
Fuller’s theory differs from Classical NLLT in at least two ways: nIt is not committed to Natural Law Ethical Theory
It applies at the level of the entire system, not of individual laws. (That is, it asserts a holistic connection, not an atomistic connection, between law and morality.)
Eight Ways to Fail to Make Law
Rex, the newly installed king, is determined to improve the legal system of his country.
He sets about to make reforms in the legal system only to make one blunder after another.
If Fuller is right, Rex fails on eight occasions to make law, and for eight different reasons.
Failure #1: No Generality
Because Rex finds it hard to draft general rules, he decides to take legal disputes on a “case-by-case” basis.
There are not general rules at all—only particular decisions in particular cases.
Failure #2: Secret Rules
When the “case-by-case” method failed, Rex made general rules, but refused to publish them.
Though he tried to apply the rules as he had written them, only he knew what the rules were.
Failure #3: Retroactivity
When the problems with the secret statute approach to law were apparent, Rex decided he would decide all cases at the end of the year and publish the rules of law he had used to decide them.
No rules of law were made before they were applied.
Failure #4: Unintelligibility
After complaints about the ex post facto approach to law, Rex finally published a legal code. It was, though, (like our tax code) completely unintelligible.
Though citizens had a published code in advance, they could not understand it.
Failure #5: Logical Inconsistency
Hurt by objections to his first attempt at publishing a code in advance, Rex worked to make the code intelligible. Unfortunately, the new code was highly contradictory
Not a single provision existed that was not contradicted by another provision.
Failure #6: Requiring Impossible Actions
When his subjects rejected his contradictory code, Rex was, frankly, irritated with them
He published a code that required of his subjects actions that it was impossible for them to perform.
Failure #7: Excessive Change
Rex worked hard to redraft the law—even enlisting the help of a group of experts.
No sooner had the new code gone into effect than it was completely replaced by another, and that by another, and another.
The law changed day-by-day, minute-by-minute.
Failure #8: Not Applied as Stated
Finally, Rex decided to solve the problems with the excessive changes in the code by deciding cases himself.
Sometimes he would decide them in accordance with the code, often not.
The statutes were no help in determining how a case would be decided.
8 Ways to Fail to Make Law
Fuller argues that the parable shows that law must, as a conceptual matter, in general be:
Prospective (non retroactive);
Such as to require only the possible;
Relatively constant over time; and,
Applied as stated.
These eight requirements are uncontroversial requirements on the existence of a legal system.
Complete failure in any of the eight respects entails the absence of a legal system—not merely the absence of a good legal system
Each of the eight requirements is, as well, a moral requirement.
To the degree that any system of social control falls short with respect to any of these, it is morally deficient.
These requirements constitute a sort of “procedural moral requirement” for legal systems.
Procedural Moral Requirement: They do not place a “content restriction” on legal systems.
Legal Systems: They do not place any restrictions on individual laws. Individual laws may have any of these eight features and still be valid in virtue of their place in an existing legal system
“It’s Already In There!” Positivists have always said that law is a system of social control through rules. That means that whatever is necessary for social control through rules is a requirement on a legal system. Fuller has just drawn out an implication of positivism.
The classical debate between positivism and NLLT has always been whether there are substantive limits on what can count as a law or a legal system.
Fuller’s “Inner Morality of Law” argument does not show that there are such limits.
Furthermore, NLLT has always argued that there is a connection between law and morality that is “special to law”. That is, it is something about a system’s being a legal system that establishes the connection.
Fuller’s “Inner Morality of Law” theory holds equally of all systems of social control through rules.
The costs crisis – mediation as a solution? CEDR’s submission to the Jackson Inquiry into legal costs – by Dr. Karl Mackie, Barrister and Chief Executive of CEDR and Tony Allen, Solicitor and a Director of CEDR
NOTE: This is a revised submission based on a first draft which was written before the Interim Report of Sir Rupert Jackson was published and which now responds to a number of points raised by him in that Report, and also other recent developments. This version replaces the earlier version and can be regarded as embodying all CEDR’s responses to the request for views. Also attached are papers by Tony Allen, firstly dealing with the new Pre-issue Conduct Practice Direction and secondly (as requested by Sir Rupert) with his own experience of mediation of personal injury and clinical negligence cases.
CEDR’s role in promoting the cost-effectiveness of mediation
CEDR – the Centre for Effective Dispute Resolution – was set up as a not-for-profit in 1990 by the CBI and a group of lawyers who were determined to find a cheaper and quicker means of resolving disputes than was then offered by the civil justice system. It did so through three related routes – first by offering ADR services of high quality, primarily mediation, but also neutral evaluation, expert determination and adjudication; second, by training mediators of high quality to deliver both its own services and to make available a cadre of mediators nationwide in a wide spectrum of professions and businesses to help transform thinking and experience throughout the legal and commercial community; and thirdly to raise awareness of the benefits of alternative dispute mechanisms for civil justice within both that community, and also government and the judiciary.
Twenty years on from CEDR’s foundation, the face of civil justice has undoubtedly changed. We whole-heartedly endorse Sir Rupert’s analysis of the impact of the CPR which opens his Interim Report. The Civil Procedure Rules 1999 emerged from the Woolf Access to Justice process, and CEDR made a full contribution to consultations initiated by Lord Woolf as the basis for his reports. The CPR have undoubtedly brought a more simplified unified look to the system, with a number of useful procedural reforms such as Part 24 and Part 36. What has undoubtedly changed dramatically is the litigation culture as a whole. A less adversarial and more co-operative approach to dispute resolution is widespread entirely congruent with the fact that alternative dispute resolution occupies a significant status in civil justice thinking and practice. Our system requires parties to place their cards “on the table”. The most dramatic lesson learned from CEDR’s privileged opportunities to train mediators and consult on civil justice reforms in a number of common law and civil law jurisdictions world-wide is that in most others, not to ambush is technically negligent. Here, to ambush an opponent risks an adjournment with costs sanctions for the ambusher. This may take some of the fun out of justice for lawyers, but it certainly and very properly removes uncertainty and improves advance risk analysis for parties, the people and business for whose benefit the litigation system exists.
Lord Woolf’s first ambition was to reduce costs and delay. While delay has been much reduced by the overall package of reforms, except perhaps in certain limited areas where business has grown (such as in asylum and associated administrative cases), the cost of litigation appears to have escalated. Why should this be so, from CEDR’s standpoint, being an organisation which is dedicated to reducing not only the delay but the cost of litigation?
CEDR’s own research into costs savings through mediation
CEDR has regularly conducted surveys of the mediation market-place for its biennial Congress, the most recent of which was in November 2007. The findings which have emerged from the most recent survey of users of mediation about the costs which the mediation process can properly be claimed to save are that by achieving earlier resolution of cases that would otherwise have proceeded through litigation, the commercial mediation profession will in 2007 have saved UK business in excess of £1 billion a year in wasted management time, damaged relationships, lost productivity and legal fees. Since 1990, mediation as an activity has contributed savings of £6.3 billion to business. By way of a comparator to these figures, CEDR’s audit results suggest that the aggregate value of the mediation profession in terms of total fee income, is around £8.2 million. But there are simply no figures to demonstrate what mediation has saved in terms of time and cost in areas of personal litigation such as personal injury, employment, private property disputes and so on.
The cost of mediation itself
Mediations of substantial claims by experienced mediators are normally charged out at an hourly rate for the mediator, based on a projected estimated time for each dispute. Thus typically a mediator may be charged at anything between £200 to £400 per hour on the basis of four or five hours preparation and a ten hour mediation day.
There are those who complain that mediation adds to costs, especially when it does not produce a settlement of a dispute. A mediation usually involves a team of lawyers plus a mediator for a day of about eight to eleven hours, plus preparation for all which may occupy another working day for both legal teams and perhaps four to five hours for the mediator. This is an appreciable investment of time when converted into hourly rates, the main component of which is the cost of each legal team, rather than the mediator. The investment pays off in anything from 60-90% of cases, depending on the sector, the mediator, and on the willingness of the parties to buy up the risks in their respective cases. Many which do not settle on the mediation day settle later and as a direct result of the shifts in thinking produced by the mediation. But even in mediations which do not settle and lead to trial or appeal, preparation work that will have been needed to be done anyway is done at an earlier stage than otherwise, and the issues thereby usefully defined and limited. For this reason mediators tend to talk not of failed mediations but mediations which did not settle the claim immediately or at all. It is almost never the mediation process or the mediator which obstruct settlement at a mediation: the intrinsic value of both of these in enhancing settlement negotiations has been proven time and again. It is usually the assertion of a genuine difference, or (more often in CEDR’s experience) intransigence or unwillingness of one or other party, and sometimes both parties, to buy up their risk on legal, expert or factual issues, or the huge costs at stake, which get in the way of settlement.
Until recently it did not appear possible to monitor or restrict the size of a legal team at any mediation. Now that CEDR’s standard mediation agreement and others provide for the costs of preparation and attendance at the mediation, together with the fees of the mediator and any provider, to be treated as costs in the case, whether or not the mediation settles the case, it becomes possible for a paying party to argue that the size of an opponent’s team was disproportionately large or expensive. Such a point can be made either in advance of the mediation or at a later detailed assessment hearing. It is almost always the case that the hourly rates of lawyers are by far the highest component in the cost of any mediation. As mediation really does not need more than one or at most two lawyers per party, this should be quite an effective sanction, once it is realised that it exists.
CEDR’s views about the high cost of litigation
So what is CEDR’s view about what is keeping the cost of litigation up? Firstly, there can be little doubt that mediation is still under-used. Estimates are difficult where there is no central repository of information about mediation but there seem to be something like 4,000 mediations per year, excluding the over 2,000 small claims mediations so successfully conducted each year through the small claims in-court mediators (where legal costs are normally not at issue, and savings are measured in terms of District Judge small claims trials saved). This is contrasted with the aggregate number of proceedings issued in the QB and Chancery Divisions and the County Courts in 2006-07, the last year for which statistics are available, a total of a little over 2,036,000 claims.
CEDR’s impression from its own statistics is that mediation is being used reasonably regularly (especially in London and main regional centres) in commercial, property, finance and professional indemnity disputes, with employment disputes (mostly within the jurisdiction of the Employment Tribunal) adding a further 16% to its caseload. But in the largest single area of litigation, namely personal injury and its smaller associated area (where mediation is particularly apposite) clinical negligence, CEDR’s caseload has reduced from 8% to 6% in the last three years. This is in part attributable to an adjustment in CEDR’s market share, with more PI mediation providers in competition perhaps dealing with a globally larger caseload. But overall the picture is clear – that despite the efforts of CEDR and others over at least ten years, the take-up of mediation in these sectors is still disproportionately low when measured both against its success rate and the anecdotal evidence from feedback taken from participants which CEDR records after nearly every mediation. It is noteworthy that the NHS Litigation Authority asserts publicly its willingness to mediate such cases, but comments that it is hardly ever invited to mediate by claimant solicitors in this field.
We know that the vast majority of litigation now settles. Figures vary but most quote a rate of over 90%. This is a trend which existed before the CPR and which the Woolf reforms have undoubtedly done everything to support and increase, making trial a last resort. So the civil justice process, largely designed with trial in mind, has to be tested against its capacity to generate settlement. The question arises as to whether it makes adequate provision for achieving good settlements early enough, in default of which a swift and inexpensive route to trial remains open. CEDR believes that the best chance of early settlement is still not being taken. CEDR shares the recently asserted view by Dame Hazel Genn in her 2008 Hamlyn Lectures that civil justice needs status and better funding, but firmly rejects her apparent view that settlement is itself undermining the strength of the civil courts by starving them of the opportunity to declare the law. There is no evidence whatsoever in the Law Reports of impoverishment of the quantity or quality of judicial decisions. Nor could the courts cope with 90% more cases. Nor are risk-discounted settlements, reached in the shadow of the law, necessarily any less “just” than judgements.
The pre-action protocols (PAPs) were and are a brave effort to bring the first safe settlement moment as early as possible and indeed prior to the issue of proceedings. CEDR feels a considerable degree of frustration about the apparent ineffectiveness of the PAPs in reducing the number of issued claims. Breach of their requirements have remained signally under- or unenforced by courts when proceedings are later issued. CEDR’s firm view is that such proper enforcement, especially of the requirements to try ADR as spelt out in all the PAPs and their Practice Direction (the PAP/PD), would have led to substantial savings in litigation costs. Indeed, the whole rationale of the Woolf reforms in relation “front-loading” of work had this in mind. Where the PAPs are observed properly and timeously, each party to a dispute should usually have enough knowledge safely to settle without exposing their lawyers to charges of professional negligence for advising settlement on an insufficient basis. The only decided case of which we are aware in which a costs sanction was nearly imposed because one party failed to mediate before issue is Burchell v Bullard  EWCA Civ 358, and even there the criticism was mainly directed at failure to respond to an invitation rather than failure to comply with the requirements of the Construction and Engineering Protocol.
We are told that in the construction sector, there is perceived to be a significant disincentive to early mediation in that the fees and costs associated with a pre-issue mediation cannot be recovered, citing Lobster Group v Heidelberg Graphic Equipment Ltd and another  EWHC 413 TCC, a decision of Coulson J. We are not convinced that this decision is a general authority for that proposition. In Lobster, Coulson J declined to include the costs of a pre-issue mediation in an order for security for costs. The mediation took place 2 ½ years before proceedings and was not expressed to be in compliance with the relevant PAP. Furthermore, the parties had agreed to bear their own costs of preparation and attendance, and to share the mediation fees. Coulson J drew a distinction between the costs of work done in compliance with the pre-action protocol and “costs of a separate pre-action mediation”, which he regarded as not being “costs of and incidental to the proceedings”, as required by the Supreme Court Act 1981 s.51 if they are to be treated as recoverable costs. However, most standard mediation agreements (and this includes the CEDR Model Agreement and Procedure) now provide that mediation fees and associated legal costs may be treated as costs in the case where a court is invited to rule on them, even if initially shared or borne by each party. Coulson J made this the main basis for his decision not to reopen the previous agreement. Of course, so long as costs may be regarded as “incidental to the proceedings” CPR 44.3(6) makes it clear that these can include costs incurred before proceedings have begun. Indeed, in personal injury claims, there is an expectation that where a claim is settled before issue of proceedings, the defendant will pay the claimant’s costs on the standard basis or in accordance with any predictive costs tariff such as is included in CPR Part 45. The practice in pre-issue mediations of personal injury claims is to expect the defendant who pays more than any previously offered sum, whether formally under CPR Part 36 or not, to pay for the mediation fees and associated costs in addition to damages and any other agreed outcome. The position has however been further clarified by Roundstone Nurseries Ltd v Stephenson Holdings Ltd  EWHC 1431 TCC, in which it was held that the costs of a pre-issue mediation held in accordance with the PAP were recoverable. Thus the costs associated with any mediation held pre-issue, and specifically in accordance with a PAP, will be recoverable if the parties agree that this should be so before at or after the mediation. In passing, it is worth noting that, once mediation costs are justiciable in principle, there should be no reason why mediation fees and costs could not form the subject of “costs-only” proceedings as to quantum of costs, under CPR Part 44.12A.
Procedural judges need to raise questions of their own motion about whether mediation has been tried before issue and where dissatisfied with the replies impose a sanction on either or both parties. It is too easy for lawyers on both sides to have a brief conversation about how impossible settlement is before issue and to dress that up as an attempt to comply with each PAP’s ADR requirements. It is tempting for a lawyer to think that “if I am reasonable with the opponent’s dereliction this time, he will be reasonable about mine next time”. This may suit the lawyers but does it suit either their clients or the legal system with its overriding objective to allot an appropriate proportion of the court’s resources to each case. This is why case management was taken from the legal profession and conferred on the judges, who should properly take the initiative over compliance with PAP requirements, using a proactive inquisitorial approach rather than expecting only to determine issues that one party raises adversarially.
Even if there is good reason for not mediating a case to conclusion on all aspects shortly before issue, there is no reason why liability cannot be dealt with separately. Limitation periods are generous, even where three years , and it is noticeable that many mediations of personal injury cases, whether before or after issue, are of cases where the full limitation period was exploited before issue, so that the facts can be anywhere from three to six years old by the time of mediation or trial, sometimes more. Three years is a long enough time to sort out liability in virtually any case. And even where for good reason, issues in a given case mean that mediation cannot safely take place before issue of proceedings, the court is entitled to keep a close note of case management timetables to ensure that it is inserted at the right moment.
A degree of oversight and if need be compulsion may even be needed to be exercised over procedural judges in terms of implementing such a policy. The degree to which ADR Orders are made around the country seems to vary wildly. Some District Judges and Masters are enthusiasts and some are not. Some were in legal practice since mediation became a commonplace feature of the civil justice scene: many were not and have no direct experience of it except as something which sounds vaguely in competition with mainstream civil justice and is therefore not to be welcomed or fostered. It is not clear to us to what extent there is informed training of judges about ADR through the Judicial Studies Board. CEDR was hired some years ago to deliver 30 minutes of such training and was funded by the DCA to produce a video as part of that component of the refresher training for Circuit and District Judges, but we have heard nothing more of that for over two years. Lack of knowledge and experience about ADR must inevitably influence judicial decision-making when it comes to ordering ADR in the ways commended by Halsey v Milton Keynes NHST. In our view, it should be a rare case where a trial takes place without a previous mediation.
A previous round table or joint settlement conference should not be adequate as compliance, as these suffer from a number of disadvantages, where mediation offers positive procedural benefits. These include contractual formality for the process, and the presence of a neutral to promote the interests of lay parties and to enhance negotiations by discovering true positions in confidential meetings with each party. We should like mediations to take place through voluntary choice by parties on the advice of their legal advisers without the need for court pressure, but there is still a palpable lack of information about and experience of mediation among practitioners, which is artificially hampering the use of mediation and depriving parties of informed choice. Lord Clarke MR has tellingly spoken several times about this. While “magic circle” firms in London and the regions are well informed, this is not so of the vast majority of law firms around the country. Even in firms where one partner may know something about the process, it remains less than comprehensively disseminated. In that case, it seems clear both from Halsey that ADR Orders may be made, and further from subsequent strong suggestions by Lord Phillips of Worth Matravers and Lord Clarke MR that Halsey is not to be regarded as authority for the proposition that ADR Orders cannot be made against the wishes of either or both of the parties. The norm should be for mediations to precede issue of proceedings, with sanctions where this is not attempted. This is especially important with fast-track cases, where full mediation after issue is less likely to be cost-effective. The courts should know however that there is inexpensive mediation on offer through the National Mediation Helpline, and with special low-cost schemes which include telephone mediation as available through CEDR’s Personal Injury Unit (PIU). Where not to mediate before issue is excusable in multi-track cases, mediation should be built into the case management timetable in all cases except where good reason is given for excusing it.
The wording of the Protocols themselves
CEDR understands that a comprehensive review of the PAPs is under way, something which CEDR supports firmly. CEDR has been arguing for some time that the current wording of the PAPs as it relates to ADR is confusing and inaccurate. Sir Rupert’s Interim Report actually quotes one of the key misleading passages, which has found its way into them all as standard wording and is currently still there, although it has just been removed from the new Pre-action Conduct Practice Direction. That wording is:
“It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”.
CEDR objected at the time of the first draft of the 41st amendment that this sits very uncomfortably with the first part of the PAP, in the section dealing with ADR and costs sanctions. It also represents a very misleading summary of the law as enunciated by the Court of Appeal in Halsey and related cases before and after. Leaving aside whether the Court of Appeal’s controversial view as to the possibility that compulsory ADR would be in breach of Article 6 of the ECHR is right (it is certainly obiter in that judgment, a view since endorsed by Lord Clarke MR, with further doubt cast on that aspect of Halsey by Lord Phillips of Worth Matravers), Halsey expressly approved use by the courts of the Commercial Court ADR Order found in Appendix 7 of the A&CC Guide. The Admiralty and Commercial Court has continued to make such orders since about 1994 without difficulty or embarrassment, and with apparent full willingness to comply. The same might be thought true of the Technology and Construction Court, with tight case management in place for many years by trial judges. However, in relatively close-knit jurisdictions like those, there is less need to compel compliance or to threaten costs sanctions. In the hurly-burly of the Queen’s Bench and Chancery Divisions and the associated jurisdictions in the County Courts, a very different atmosphere and a much looser discipline inevitably prevails. Also Halsey gave approval of the “Ungley” order, though this frankly occurs so late in the life of a case (shortly before trial) that there is much less scope for costs saving by then. The court also made it clear that a successful litigant can be penalised for declining to use ADR, especially if this is done in the teeth of an ADR “Order” or even a judicial recommendation to use ADR (such as when a single judge suggests it when granting permission to appeal, as occurred in Dunnett).
That wording (from the original Construction and Engineering Protocol) was of course drafted long before the decisions of Dunnett and Halsey. Its reproduction in the later unification of the PAPs has all the hallmarks of a cut-and-paste job, to which little thought was given. For the PAPs to use wording which is effectively ambiguous in this way has been less than helpful. The cases and the principles they decide are pretty clear, and we believe that the right step to take is simply to delete this sentence. Fortunately this wording appears to be on the way out. As noted above, it has been deleted from the new Pre-action Conduct Practice Direction since 6 April 2009 (which merely now says that “although ADR is not compulsory….”). The old wording still appears currently in each of the PAPs, however. Whether this is intended to show that these words should be given special emphasis or are about to be deleted is not explained!
A recent paper written by Tony Allen reviews the effect of the new Pre-issue Conduct Practice Direction (the PCPD), comparing it with the old Practice Direction. The PCPD certainly promoted ADR more clearly as a proper pre-issue step, without its being made compulsory. We believe that improved performance of the obligations imposed by the PAPs, buttressed by proper enforcement by the judiciary, would make major savings by encouraging settlement of a greatly increased proportion of claims before issue of proceedings and therefore to the overall cost of litigation.
Case studies: the existing costs regime and mediated settlements
CEDR sent out a limited circulation questionnaire to its most frequently used senior mediators to ask what impact the costs of litigation has had in their experience on success or otherwise in settling disputes at mediations. Inevitably the response was too small to analyse statistically, but there are some telling pieces of anecdotal evidence which may be of interest to the Jackson review. We set out the most significant of those as case studies under various self-explanatory headings, with some comments in italics where necessary.
Costs incurred getting in the way of settlement
Case study A
In a mediation of a construction dispute between C and D, the gap between them was closed from £400,000 to £10,000. D made an offer which amounted to what C could get at trial, plus more than standard basis costs. C’s solicitor insisted on payment of his costs in full (these costs looked to the mediator to be high). D would not go so far and C was not told (at least not in the mediator’s presence) that he could have his own solicitor’s costs assessed if too high. Settlement on either standard or indemnity basis later with detailed assessment if not agreed, was not acceptable either. Settlement was not achieved and trial took place, resulting in an order for indemnity costs against D.
Case study B
An early attempt at mediation in a dispute between C and D was aborted when D discovered that the mediator had no accreditation. C refused an alternative mediator unless their legal costs of the abortive mediation were paid. D applied for a mediation stay but C resisted and the Master delayed this until evidence had been exchanged. By the time of the mediation proper, £200,000 costs had been incurred under C’s CFA, and D, who made concessions on the claim, refused to pay costs at that level, and settlement consequently was not achieved at the mediation.
Case study C
Liability for PI claim was admitted early but quantum (especially future loss) heavily disputed, and at trial C failed to beat a Part 36 offer of £35,000 by under £1,000. C suffered the normal costs sanction and had to bear both sides’ costs of trial. C appealed. At mediation, C’s costs were said to be over £200,000, embodying a success fee of 100%. D was prepared to offer no more than £100,000 inclusive of costs. The mediation failed. Shortly before the appeal, D offered a global sum of £160,000 including costs which C accepted. C’s solicitors privately agreed to take a considerably reduced costs figure in case they lost costs altogether (though of course C would be deemed to have “won” anyway, having been advised to reject the Part 36 offer). It was an interesting example of solicitors and their barrister working under a CFA acknowledging that they too faced a risk and buying it up, along with their client.
Mediating costs disputes in group litigation
Case study D
A group litigation claim was settled in a global sum of £3.2 million between about 500 claimants and various public bodies with unified representation. The costs claimed by the claimants’ solicitors were sought in the sum of £3.5 million despite a costs cap which applied to a period of 18 months prior to trial. After two days mediation, a figure of £1.7 million plus VAT was agreed.
Case Study E
The claims of just over 1900 claimants were settled for an aggregate of just over £3.3 million, but costs of the two claimant group law firms were bitterly disputed. D offered £1.3 million and paid it on account. A day’s mediation was required to settle the generic and individual costs claimed at a global figure of £1.6 million, with a further £300,000 paid.
Public funded cases
Case study F
C claimed up to £100,000 damages for a failed gynaecological operation which had led to temporary incontinence until repaired. Conflicting evidence on breach of duty had come from experts for C and D Trust. At pre-trial review, the judge advised mediation. For D Trust to pay 1p damages to C, they had to pay £48,000 in costs to C’s solicitors because of the statutory charge. They declined, the case was tried and C got nothing. Had an early mediation been held, there was every chance that C and D Trust would both have bought off the risk of losing at a time when C’s costs were modest.
Before the event insurance
Case study G
A had suffered four successive whiplash accidents within a two year period. She settled the first shortly after the second, and settled the third and fourth just before trial. She pursued the second claim against D2 funded by her BTE insurance up to a limit of £50,000, but lost badly against a Part 36 offer of £5,000. She appealed. At a Court of Appeal mediation D2’s insurers offered her £30,000 but on condition that they received £40,000 of the BTE indemnity fund for their costs of trial and appeal, leaving C’s lawyers with £10,000. C was prepared to accept that offer but her lawyers were not. The appeal failed.
After the event insurance and Conditional Fee Agreements
Mediators comment that CFAs with ATE insurance produces a very unhealthy strain bordering on conflict of interest between client, lawyers and even insurer. This is exacerbated when defendants choose to solve the problem by proposing a global settlement, leaving the recipient to fight over the division of spoils. Solicitors are prepared sometimes to compromise on their success fees to facilitate a settlement.
Case study H
H and W claimed harassment against F Finance in seeking to enforce loans. H was terminally ill and unlikely to survive to trial. H and W’s solicitor acted under a CFA with 100% uplift, and were acting for other claimants in similar cases, so had a wider interest in the result. Within the confidentiality of a mediation, F Finance were prepared to offer much more than they feared they might be liable for if they lost, but would not offer 100% uplift on their solicitors’ costs. The solicitors would not compromise on their uplift, no deal was reached and the case went to trial. As in Case Study F, the mediator was confronted with a form of conflict of interest between clients and their lawyer, where the lawyer’s interests were not fully aligned with the clients’ interests.
Case study I
At a mediation late in a case, where there had been stepped premiums for the ATE insurance policy supporting the CFA, the threat that a huge premium would shortly be incurred if settlement did not emerge encouraged D to propose a satisfactory settlement figure.
Case study J
In a mediation between a US company D Inc and its UK agent C, C claimed past c0mmissions of £180,000 plus costs of £96,000 to date. D Inc offered £100,000 all-in, buying up their risk by offering their estimated irrecoverable costs should they lose. C’s lawyer wanted his full mark–up which produced a total costs claim of £168,000. Settlement was only achieved after the mediation day but agreeing a payment of £161,000, paid as to £156,000 to C’s solicitor and £5,000 to C.
See also Case study C above
The impact of past and future litigation costs estimates
CEDR’s respondents all commented upon the huge impact on persuading parties to settle that a review of past and future projected costs had upon settlement. Many solicitors are advising their clients that the cost of litigation is prohibitive for lower value claims and hence that mediation may be a better forum with less cost at stake. In commercial disputes between unequally strong companies, there is often a real risk that the weaker will be forced into liquidation by the potential damages and costs burden. Where a mediator gets this recognised by a strong party, it makes finding a sensible solution easier.
Case study K
In a six-party construction case twelve years ago, where two contractors were suing clients on their final accounts, who in turn were seeking to blame their professional advisers, the costs to date of all parties six weeks before a 12 week trial with most parties represented by leading counsel were £6 million. The negligence claim settled for £250,000, with the client forced to pay the bulk of the final accounts and seriously out of pocket on damages and costs.
Case study L
At a recent mediation, the parties divulged to each other the fact that the costs to date were £250,000 and that proceeding through trial would cost another £450,000. The parties were “shocked” into settlement.
Case study M
A and B were employed by C Ltd as dry-lining subcontractors on a major building site, and were badly injured by the collapse of a wall on which they were working, which had been built by D Ltd on the instructions and design (such as it was) of E plc, the main contractor. E plc pleased guilty to an HSE offence and settled the claims and A and B for a total of just under £500,000 including the legal costs of A and B. E plc then sought contribution from C Ltd and D Ltd, offering to bear one third each. The Part 20 proceedings were mediated shortly before trial. E plc had entered a CFA with their lawyers which entitled the lawyers to a success fee in the event of obtaining a contribution from either or both of C Ltd and D Ltd, recoverable from those Part 20 defendants in the event of a “win” as so defined. This would have added more than £250,000 to the settlement of A’s and B’s claims on a 100% basis. In the event, the lawyers compromised on their costs substantially, accepting a contribution of £289,000 offered as one-third of the total sum, leaving E plc to bear two-thirds.
Agreement on costs and detailed assessment
In many cases, exhaustion has set in by the time settlement is reached, and parties are often content to agree that costs shall be allowed to the successful party on the standard basis, subject to detailed assessment if not agreed. That is usually the last that the mediator hears. This is how many settlements will doubtless be negotiated outside mediation. Our impression is that costs are normally agreed rather than resort to detailed assessment which seems to be regarded as hugely cumbersome and expensive as a process. Costs are also quite frequently agreed at the mediation as well, especially if the defendants want to press for some concessions from the claimant’s solicitors in relation to their CFA success fee.
In some mediations, especially where there is a CFA, the defendants will try to offer costs inclusive global settlements. This creates tension between claimant and legal team, but occasionally, as in Case studies C and M above, the lawyers will acknowledge their own risks as to reputation with their client or the possibility of the client losing and thus the no-win-no-fee basis depriving them of costs altogether and accept such offers.
Hourly rates, agreed and fixed fees
It may not seem to lie comfortably in the mouths of an organisation which puts mediators out effectively on an hourly rate to criticise the hourly rate regime. In fact the hourly rates quoted by CEDR are almost always rolled up into an agreed allocation of time, in effect capping the hours allocated, and turning the mediator’s fee into an agreed fixed sum for an agreed period. An hourly rate for extra hours is quoted and agreed in advance, but the parties have separate autonomy over whether to require the mediator to stay. With the court excluded from knowing anything about the circumstances in which a mediation ends, either party can walk out with impunity. Remarkably, this is very rare, and extra hours are often agreed which lead to settlement.
But our general point is that hourly rates without control or a cap are effectively a blank cheque for a lawyer. They are of course always under possible scrutiny through detailed assessment, but the mediations we have done on major costs disputes suggest that this is regarded by all as a desperate last resort. In such cases, the argument has been deployed that hours spent on cases should be less if cases are undertaken by expert lawyers. If that is the case there may be little practical difference between more hours by a junior lawyer and fewer hours by a more senior lawyer. This suggests that scales of fees might be possible. It is undoubtedly true that where there is a ceiling on recoverable costs for work, there is an incentive to do it efficiently and even innovatively. It also will put a premium on settling early, if prolonged litigation or a timely settlement are going to produce broadly the same reward regardless of time invested. Of course there is the argument that quality suffers if remuneration is capped, but this is a balance that will always need to be struck. Conversely, so long as a lawyer can charge for time spent without any realistic controls, especially if he is entitled to add a success fee of up to double his hourly rate without any close control on whether he is doing unremunerative work on cases that fail for which the success fee is supposed to compensate him, he will continue to do so. Detailed assessment does not operate as an adequate deterrent to full charging because it is so relatively rare, so other controls may in the public interest be necessary.
Many of our observations stem from what we have seen peripherally at mediations and may not be regarded as derived from mainstream experience. However, the main thrust of our comments is to suggest that there are major unrecovered costs savings available if mediation were to be used more systematically at an earlier stage in disputes. CEDR has received little feedback that mediations fail to settle cases simply because the process is attempted too early. There is inevitably a tension between settling before costs have been incurred as opposed to settling later when information is fully exchanged. The salutary lesson of Case Study B above serves as a reminder of the huge expense that can be incurred if litigation takes the orthodox course. The other tension is for lawyers anxious not to be accused later of settling at an under-value. But clients are entitled to choose when and at what level to settle, and there are ways in which lawyers can protect themselves against allegations of under-settling. Expert lawyers should be able to guide clients adequately on liability and at least the principle of causation by the end of any limitation period, and indeed by the end of properly observed obligations under the pre-action protocols. Even if prognosis or damages quantification still require investigation, some issues can be sorted out by then at the latest. In these days of split trial orders, lawyers on both sides of the claims divide are much more inured to being unable to play one aspect off against another.
So our primary solutions are to suggest that:
- greater attention is paid to requiring pre-issue mediation in accordance with the ADR requirements of the pre-action protocols;
- the PAPs to be revised and made to accord with the true current thinking as to pre-issue ADR;
- failure to observe these without reasonable explanation should result in costs sanctions for either or both parties;
- any continuing doubt over the position over costs in relation to pre-issue mediations, particularly where held in response to the requirements of any pre-action protocol or CPR Practice Direction, be clarified and the true position confirmed, so as to make such fees and costs recoverable in default of agreement to the contrary;
- in cases where later mediation is deemed right on all or some of the issues, this is planned early on into an appropriate window of the case management timetable, and the failure by parties to have mediated by the time of any case management hearing (whether CMC or PTR or a specific application) be queried as a matter of course by the procedural judge.
On other aspects, we express concerns about the use of CFAs and the conflicts of interest that these generate, especially bearing in mind that they are hugely difficult to explain to lay clients. We are keen to see settlement incentivised by reducing the reliance on hourly rates uncapped by time, so that those who try to arrange early settlement can aspire to a premium level of costs. CEDR will meanwhile do what it can to keep its own charges down consistent with its overall aim to cut the cost of conflict as much as we can while ensuring that the very special skills of mediators receive adequate remuneration commensurate with those skills.
Thanks are due to experienced CEDR Solve Direct mediators Stephen Bate, Sir Henry Brooke, Michael Cover, Terry Jones, Francis Neate, Nicholas Pearson, Joe Shammah and David Miles for both their contributions to this report and contacts.
‘Case Management’ as a system of rules has not been introduced in India. For the first time, pursuant to the direction issued by the Supreme Court of India in SALEM ADVOCATES BAR ASSOCIATION vs. UNION OF INDIA, the Committee constituted by the Supreme Court in that case has circulated Model Rules in a Consultation Paper sent to the High Courts, Bar Councils and Bar Associations. Some responses have come in to this paper.
In the Consultation Paper prepared by the Committee appointed by the Supreme Court, it has tried to explain the concept of ‘Case Management’. It has referred to Lord Woolf’s Interim Report on ‘Access to Justice’ (http://www.lcd.gov.uk/civil/interim/chap5.htm) and to the final Report of Lord Woolf (http://www.lcd.gov.uk/civil/final/contents.htm) and the Report of the Australian Law Reform Commission on ‘Judicial and Case Management’ (1996) (http://www.austlii.edu.au/au/other/alrc/ publications/bp/3/management.html).
In the United States of America, sec. 479(c)(1)-(3) of the Civil Justice Reform Act, 1990 (28.U.S.SC) which required ‘case management’ systems be introduced, was adopted in response to strong and persistent demand for reform of the civil litigation process to reduce cost and delay. In enacting it, Congress stated:
“Evidence suggests that an effective litigation management and cost-and-delay-reduction programme should incorporate several interrelated principles – including –
(A) the differential treatment of cases that provides for individualized and specific management according to their needs, complexity, duration and probable litigation careers;
(B) early involvement of a judicial officer in planning the progress of a case, controlling the discovery process, and scheduling hearings, trials and other litigation events;
(C) regular communication between a judicial officer and attorneys during the pre-trial process.”
(See Manual for Litigation Management and Cost and Delay Reduction, Federal Judicial Centre, 1992, Washington DC)
In the United States, where now case-management systems are firmly established, the Federal Judicial Centre, Washington D.C. has referred to the ‘active role’ of the Judge:
“to anticipate problems before they arise rather than waiting passively for matters to be presented by counsel. Because the attorneys may be immersed in the details of the case, innovation and creativity in formulating any litigation plan may frequently depend on the court.”
The courts’ substantive role consists of the ‘Judge’s involvement’ not merely limited to procedural matters but refers to his becoming familiar, at an early stage, with the substantive issues in order to make informal rulings on issues, dispositions, and narrowing, and on related matters such as scheduling, bifurcation and consideration and discovery control’. The Judge periodically ‘monitors’ the progress of the litigation to see that schedules are being followed and to consider necessary modifications in the litigation plan. The Judge may call for interim reports between scheduled conferences. But, at the same time, time-limits and the controls and requirements are not imposed arbitrarily or without considering the views of counsel, and are subject to revision when warranted by the circumstances. Once having established a programme, however, the Judge expects schedules to be met and when necessary impose appropriate sanctions for dereliction and dilatory tactics (Manual of Complex Litigation, 3rd, 1994, Federal Judicial Centre, Washington D.C., quoted in Lord Woolf’s Interim Report, Chapter 5, para 20).
In Canada, according to the Ministry of Attorney General Ontario, Canada, 1993 as quoted in Lord Woolf’s Interim Report, Chapter 5, Para 18, it is stated as follows:
“Case management is a comprehensive system of management of time and events in a law-suit as it proceeds through the justice system, from initiation to resolution. The two essential components of case-management system are the setting of a time table for predetermined events and suspension of the progress of the law-suit through its time-table”.
In Australia, Prof. Sallman of the Australian Institute of Judicial Administration (quoted in Lord Woolf’s interim report, Chapter 5, para 9) stated as follows:
“The Revolution has involved a dramatic shift from a laissez faire approach in conducting court-business to an acceptance by courts of the philosophical principle that it is their responsibility to take interest in cases from a much earlier stage in the process and manage them through a series of milestones to check-posts. Most courts have now acted upon this philosophy and introduced a variety of schemes, the common denominator of which is substantially increased court supervision and, in some instances, control … The essence of it is the adoption by courts of a systematic, managerial approach to dealing with case loads.”
(UK) Lord Woolf’s Reports on ‘Case Management’:
Lord Woolf’s ‘case management’ recommendations, to the extent relevant for us, are as follows:
(1) There should be a fundamental transfer in the responsibility for the management of civil litigation from litigants and their legal advisors to the courts;
(2) The management should be provided by a three tier system:
(i) an increase in small claim jurisdiction;
(ii) a new fast track for cases in the lower end of the scale; and
(iii) a new multi-track for the remaining cases
(3) The court shall have an enlarged jurisdiction to give summary judgment on the application of the claimant or defendant or an courts’ own initiation, on the ground that a case (or past of a case) has no realistic prospect of success.
(4) All cases where a defence is received will be examined by a ‘procedural judge’ who will allocate the case to the appropriate track.
(5) In the large court centers, Judges engaged on the management and trial of civil proceedings, should work in turns and normally a case should be handled only by members of the same team.
(6) The fast-track, which is primarily for cases where the value does not exceed 10,000 pounds, will have a set time-table of 20-30 weeks, limited discovery, a trial confined to not more than 3 hours and no oral evidence from experts; and would also have fixed costs.
(7) On the multi-track, case-management will usually be provided by at least two interlocutory management hearings; the first will usually be a ‘case-management conference’ shortly after the defence is received (usually conducted by the procedural Judge) and the second will be a pre-trial review (monthly conducted by the trial Judge).
(8) The multi-track cases will proceed according to the fixed time-table and initially to an approximate date of trial and subsequently to a fixed date of trial.
These recommendations were finalized in a very elaborate final report by Lord Woolf.
Objections to ‘case management’ and answers thereto:
In as much as it appears to us that the same objections are likely from the Bar and the Bench in India as in UK, we shall refer to them as raised in UK (see Section II, Chapter I of Lord Woolf’s final Report):
(a) The first objection was that the proposals will undermine the adversarial nature of the civil justice system;
(b) Judges are not well-equipped to manage;
(c) Reading the papers of the case, conducting conferences and pre-trial reviews, will add significantly to the burden of hard-pressed Masters and District Judges;
(d) It would also mean increase in the number of interlocutory hearings;
(e) More staff and sources will be necessary.
In reply to the above objectives, Lord Woolf pointed out that:
(a) the adversarial role will continue but will function in an environment which will focus on the key issues rather than allowing every issue to be pursued regardless of expense and time, as at present;
(b) there functions will not be performed by all Judges but only by procedural Judges (i.e. Masters and District Judge), although in complex cases, Civil Judges and High Court Judges will perform the tasks;
(c) Some steps indicated by the procedural Judges may be altered by trial Judges;
(d) All cases need not go through the system but cases will be selected for the purpose;
(e) There is need for training both Judges and staff;
(f) The proposals do add additional burden but the idea is to persuade parties to take to ADR systems in most cases, leaving complex cases alone for the courts;
(g) In several cases, the issues can be identified at an early stage and at the pre-trial review, and courts will try to minimize the time and expense;
(h) Case management hearings will then replace rather than add to the present system of interlocutory hearings;
(i) As agreed by the Bar Council and Law Society, additional staff and funds will be necessary;
(j) Counsel shall have to file statements as to submissions;
(k) Existing available resources have to be prioritized;
(l) Law clerks must be employed to help the Judge in these tasks;
(m) Increased use of information technology will help to release some staff for the other additional work.
Simple cases should be allocated to ‘fast track’ and complex cases to ‘multi-track’. However, some cases have to be excluded from ‘fast-track’.
Lord Woolf in his final Report recommended exclusion of the following cases from the ‘fast-track’, namely, suits:
(a) which raise issues of public importance; or
(b) which are test cases; or
(c) where oral evidence of experts is necessary; or
(d) which require lengthy oral arguments or significant oral evidence which cannot be accommodated within the fast track hearing time; or
(e) which involve substantial documentary evidence.
Transfer from ‘fast-track’ to ‘multi-track’, is also be permissible in appropriate cases.
The Australian Law Reform Commission (1997)
The Australian Law Reform Commission in a background paper called “Judicial and Case Management” (1999) has elaborately considered this subject.
It defines ‘Judicial Management’ as a term used to describe all aspects of judicial involvement in the administration and management of courts and the cases before them. It includes procedural activism by judges in pre-trial and trial process and in ‘case management’. At its broadest, it also encompasses questions of court governance and court administration. ‘Case management’ is defined as referring to process involving the control of movement of cases through a court or tribunal (case flow management) or the control of the total workload of a court or tribunal. Case management in courts is often, but not always, performed by Judges. When it is performed by Judges, it is referred to as ‘judicial case management’.
‘Case management’ means that the ‘progress of cases’ before the courts must be ‘managed, in one sense, its direction from traditional adversarial case management which had left the pace of litigation primarily in the hands of the legal practitioners. The courts’ role was simply to respond to processes initiated by practitioners. But, the objectives of new ‘case management’ include:
(a) early resolution of disputes;
(b) reduction of trial time;
(c) more effective use of judicial resources;
(d) the establishment of trial standards;
(e) monitoring of case loads;
(f) development of information technology support;
(g) increasing accessibility to the courts;
(h) facilitating planning for the future;
(i) enhanced public accountability;
(j) the reduction of criticism of the justice system by reason of perceived inefficiency (J. Wood, ‘The Changing Face of the Case Management: The New South Wales Experience, Paper, Aug. 1994)
M. Soloman & D. Somesflot in their ‘Case Flow Management to the Trial Court’ (American Bar Association, 1997) have identified the following aspects:
(a) judicial commitment and leadership;
(b) court consultation with the legal profession;
(c) court supervision of case progress;
(d) the case of standards and goals;
(e) a monitoring information system;
(f) listing for credible dates;
(g) strict control of adjournments.
It has been stated in the Report of the Commission that case flow management has helped bring about substantial procedural, operational and cultural changes in the judicial systems of Australia.
In our country, we have not had any specific rules of case-management where Judges monitor the movement of cases throughout its career in the Court or any system of different tracks. We have ad hoc systems improvised by each High Court but not a uniform system.
One of the main items which involve considerable waste of the judicial time of every trial Judge is the system of calling out all the listed cases – which are not yet ripe for final disposal – to find out whether (a) notices are served, (b) whether defects are cured, (c) whether affidavits, reply or rejoinder affidavits are filed, (d) whether notices in applications for bringing legal representatives or record are served, (e) whether parties have taken various steps necessary to be taken at various stages of the case. This part of the work, in several trial Courts, takes more than an hour of the Judge’s time. By the time regular work is taken up, the Judge loses the freshness of the morning and is already tired. We must dispense with this system and innovate a system in lieu thereof whereby this work is delegated to a senior ministerial officer or a court manager or another judicial officer who can take up this work on a Saturday in regard to the matters to be listed in the ensuing week before all the Judges in the particular Court. One or more judicial officers may do this work on behalf of all other judicial officers in regard to the lists of all of them. May be, some other alternative can also be found. In case, default order have to be passed, the matters can be listed before Court.
Nextly, let us examine the manner in which Judges in our Courts deal with the cases every day in the trial Courts. They first take up urgent interlocutory matters on the civil side and then take up the regular matters which are ready for final disposal. So far as the matters which are taken up for final disposal are concerned, they are normally listed according to the year in which the case was filed and numbered, the older cases being listed above the latter cases.
There is normally no distinction made in our Courts between simple cases, and medium or more complex cases. All of them are put in one basket and taken up according to their year and number. In this process, simpler cases which would not have taken much time get mixed up with every other type of case and linger on in the Courts for number of years. There is no reason why simpler cases should not be put on fast track as in other countries. Those cases which are not that simple can be put in a middle track and more complex cases can be put in the normal track.
The above exercise if done at an early stage of the filing of a case, the Judge and the lawyer can easily distinguish a case which is in one track from those in other tracks. Fast track cases which are simpler can be taken up on specified dates in a week or during a fortnight/month and disposed of early rather than being kept waiting according to their year of institution and number.
In the last two decades, fortunately we have followed the procedure of clubbing cases which raise same issues. This has resulted in grouping cases which are similar or connected and helped in their disposal in a block. This process must be continued with vigour. It would help if, when cases are filed in the Court, they are assigned a particular number or identity according to the subject and statute involved and straightaway grouped by the computer. In fact, further sub-grouping is also possible. Formats must be devised which lawyers have to fill up at the time of filing of cases, so that it will be easy for the registry to group the cases. Government pleaders’ offices can also be compelled to store information in their registers or computers, stating under which statute each case falls or as to the point it raises and the Government lawyers can be frequently asked to come out with the list of cases which belong to the same category. Cases raising the same point, when they start in any Court, must be first listed for early hearing and disposed of before the flood actually invades the Court. The tendency to allow such batch-cases to accumulate into hundreds should be deprecated.
Every High Court could have a small department of experienced officers who can be asked to
(1) take up the old cases and find out why they are not ripe, what defects have to be cured, or why parties are not served with notices or why legal representatives are not brought on record or why paper books have not been filed by the counsel;
(2) club cases into groups and sub-groups containing identical issues;
(3) prepare a brief resume of the facts and the issues raised.
It is time counsel are required to file written submissions before making their oral submissions. With increase in number and inadequate Court strength, this system has been introduced in several countries to save time. If both sides are required to file their written submissions in advance, it will first compel the counsel to read the facts and case law thoroughly at home before the oral submissions are made, and it will enable them to focus on the real issues arising. The Judges can read these submissions before the oral arguments are heard and this helps in shortening the time for oral arguments. The argument that with written submissions being filed, advocacy as an art will die is not acceptable. Even after written submissions are filed, the lawyer need not read it. He can still argue to explain the submissions given in writing. In fact, greater skills are required to put the points in a nutshell. Those who are accustomed to diffused arguments will now be required to practice the art of brevity and clarity.
Case Management systems are many and can be innovated by every Court or by every Judge. But at least some of them can be and have to be standardized so that they are invariably followed. In several countries, the rules of Court or practice directions limit even the time for oral arguments. We have not gone that far. For the present, if written submissions are filed before oral submissions are made, there can be substantial saving of time. As of today, counsel try to develop the case in Court after hearing the opposite side and after hearing the reaction of the Judge. In view of the heavy pendency of the cases, it is necessary to make suitable changes in this behalf.
Yet another important aspect which is now very important is the one relating to ‘costs’. In our country, the Courts do not award costs to the successful party in most cases. Every Judge says that “in the circumstances of the cases, the parties shall bear their own costs”. In fact, no circumstances are ever mentioned. Time has come when the Court must make a positive order on the principle that costs follow the event and where costs are not awarded, the Court must assign valid reasons. The tendency of the Courts not to award costs has encouraged several litigants to abuse the legal process and delay the disposal of cases. In fact, whenever a party is found to have deliberately delayed the legal process he must be asked to pay compensatory costs or exemplary costs. In several countries, heavy costs are awarded against the unsuccessful party and such a procedure has been a serious deterrent against the institution of unreasonable and frivolous cases or raising such defences. It is time, the Courts start imposing heavy costs in deserving cases.
Court management has various aspects some with which we are familiar and are implementing, some with which we are familiar but not implementing and some with which we are not familiar. Case management and allocating cases to different tracks and deciding simpler cases early is one which we have not yet started practising. If Case Management is introduced by appropriate rules, it can surely become a very efficient tool for the proper and timely disposal of simpler cases and also for the purpose of allocating more time to complex cases.
Mediation ‘is not about just settlement’, said Professor Dame Hazel Genn earlier this month. ‘It is just about settlement.’
This pithy attack on received wisdom aptly summed up three excoriating Hamlyn lectures in which the professor of socio-legal studies at University College London stripped away some of the comfortable assumptions that have surrounded English civil justice for more than a decade.
No wonder one of her colleagues, after hearing her first talk, expressed surprise at such forthright remarks from someone who normally steers clear of ‘political’ comments. Dame Hazel’s lectures attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution.
She recalled a speech in 2000 by Baroness Scotland in which the Attorney General – at that time a minister in the Lord Chancellor’s department – had enthusiastically promoted the benefits of alternative dispute resolution (ADR). Judges should not be asking whether a case was suitable for diversion to ADR, Lady Scotland had said – the question they should be asking was why the case was thought suitable for adjudication.
Perhaps everything can be mediated, Dame Hazel commented tartly, and the courts can all become pubs and restaurants. But why would any defendant mediate if there were no courts to enforce a settlement or impose a ruling?
It was all the fault of Lord Woolf, Dame Hazel suggested. Supporters of ADR had enjoyed little success, even in the commercial field, until the then Master of the Rolls published his much-heralded review of civil justice in 1996.
As part of his research, Lord Woolf had travelled to the US, Canada and Australia, becoming convinced of the value of mediation as an essential element in reforming justice. The fundamental premise of his interim report, said Dame Hazel, was that all cases should be settled as soon as possible, and ADR should be tried both before and after the issue of proceedings in order to achieve this.
His final report was even firmer. It led, in turn, to the new Civil Procedure Rules – the so-called Woolf reforms. Their introduction 10 years ago was the single greatest change to civil procedure in England and Wales since 1883.
Lord Woolf had called his report Access to Justice. ‘Some commentators have argued that the purpose of the reforms was to provide more access and less justice,’ Dame Hazel pointedly observed. But modern civil justice reform was neither about more access nor more justice, she maintained. It was simply about diversion.
‘The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts,’ she said.
Not that she was totally opposed to ADR. It was ‘an important supplement to courts that should be made available to anyone contemplating litigation’. But it had been used as an excuse to save public money.
In response to greater spending on the criminal courts, ministers had looked for savings in civil justice. That had been achieved by ‘diversion of cases away from public courts and into private dispute resolution, stripping down court procedure and making litigants pay for court buildings, judges and the administration through full-cost fee-recovery’.
But court-users had not rushed to embrace ADR in the five years following Access to Justice. Like the horse that wouldn’t drink, litigants ‘mulishly’ rejected the courts’ encouragement.
‘It was therefore time for the judicial big guns to step in. Beginning in 2002, a series of landmark decisions were handed down from the Court of Appeal and High Court underlining the importance of ADR.’ In one case, a winning party that had refused to consider mediation was refused its costs.
‘The high-water mark in the line of cases came in May 2003 when the High Court decided that the fact that a case involved a point of law did not make it inherently unsuitable for mediation, a decision that was warmly welcomed by mediation organisations.’
The tide turned in 2004, Dame Hazel said, when the Court of Appeal held in a case called Halsey that compulsory ADR would amount to an unacceptable constraint on the right of access to the court, breaching the right to a fair trial. But the court’s comments on compulsory ADR were non-binding obiter dicta, according to the Master of the Rolls. ‘Despite the Halsey decision it is at least strongly arguable that the court retains a jurisdiction to require parties to enter into mediation,’ Sir Anthony Clarke told a conference in May.
At a conference this month organised by the Oxford University law faculty and sponsored by Herbert Smith, Sir Anthony found himself listening to another attack on the Woolf reforms – this time from Professor Michael Zander QC, a consistent critic from the start. Far from costs having been reduced by the reforms, said Zander, they had gone up. And there had been a significant increase in inconsistent judicial decision-making.
Lord Woolf seemed to agree. ‘The situation in regard to costs is worrying,’ he said in a message to the conference. ‘Are we unnecessarily restricting the discretion of the case-managing judge? Are we giving unnecessary scope to tactical advocacy?’
Though far from perfect, he still regarded the Civil Procedure Rules as ‘fit for purpose’. Dame Hazel Genn, by contrast, believes we have neglected the role of judicial decision-making in supporting social and economic order. Her Hamlyn lectures will be published by Cambridge University Press in the spring. I can’t wait for Lord Woolf’s review.