Term
ALEXANDER/SHERWIN
Intentionalism as a form of legal interpretation. |
|
Definition
| Dictionary definitions often represent how speakers intend to use a word. Signs created without intent aren't signs-like clouds. |
|
|
Term
ALEXANDER/SHERWIN
View on Whether legal interpretation is different than other forms of interpretation. |
|
Definition
| Posited laws are simply determinations by lawmakers about what people should do. They are not any different than mundane interactions about what to do. If the meaning is unclear, we consider what the speaker would have intended. Our interpretations are informed by background information about the subject. Ex: Church sign.-Law is no different. what seems to matter is what a lawmaker would think if confronted by case |
|
|
Term
ALEXANDER/SHERWIN
Way we should determine the meaning of unclear, broad, or ambiguous legal texts |
|
Definition
| H. Why should we care about interpreting? - In the case of law, we (frequently) want to make use of the expertise of lawmakers. To do this, we have to figure out what they intended. [Chef/cookbook example.] |
|
|
Term
ALEXANDER/SHERWIN
Why might this be attractive if we accept a razian account of authority? |
|
Definition
It is consistent with Raz’s account of legal authority:
1. Raz might be wrong, but his theory of authority is very plausible and very influential.
2. Raz’s theory requires that we be able to identify the law on the basis of social facts
3. Making the content of law dependent on intentions seems to satisfy this requirement |
|
|
Term
DWORKIN
Critique of “speaker’s meaning” theory of interpretation (i.e. intentionalism) [4 Major Problems] |
|
Definition
A. Who are the authors? -> which ones count? the endurance of the statute – it has not been repealed – ought later legislators count for that reason?
B. How do they combine? -> What to do when intentions differ
C. Which mental state? -> 1. Special problem when you cannot choose your words; Render’s political aspirations irrelevant
D. Counterfactual Mental States: what to when there are no intentions? -> Smith may have voted for the amendment for all kinds of reasons – blackmailed, not antagonize speaker of the house,etc. |
|
|
Term
DWORKIN
Dworkin’s alternative method of statutory interpretation (i.e. Hercules’ method) and how, precisely, it differs from intentionalism |
|
Definition
The issue can only be settled by addressing questions of political morality. A. Best substantive result vs. best justification of past legislative event
1. Not concerned only with his convictions concerning the circumstance, but with what justifies legislation in a democracy, the political history, etc.
1. Which principle and policies best justify the plain meaning of the statute |
|
|
Term
DWORKIN
- Role of legislative history in statutory interpretation |
|
Definition
1. Statements of congresspersons taken as relevant in statutory interpretation
2. Official statements of purpose, when made in some canonical form (e.g. committee reports), should be treated as acts of the state personified
a) Objection: have formal process in place for making something law
3. Treating statements as such best serves integrity, the sense that a community acts out of coherent commitment to policy and principle and encourages citizens to rely on a coherent scheme - committee statements are reports about what the piece of legislation is up to
a) Treating it otherwise would have the state doing one thing while saying another – big no, no for integrity (right?) |
|
|
Term
DWORKIN
How statutes can change in meaning over time |
|
Definition
A. Hercules method rejects the idea that the statute was created at a discrete moment in time – its ongoing validity depends on the continuing assent of legislatures (and, consequently, public opinion)
C. Fairness requires consideration of how public opinion has changed
1. The statute was not repealed
2. So must look at ongoing public opinion
E. As time passes, will pay less and less attention to original legislative history – THIS IS NOT AMENDING (DWORKIN ASSERTS), BUT RECOGNIZING THAT STATUTORY MEANING CHANGES OVER TIME. |
|
|
Term
DWORKIN
Weight of fairness vs. justice in statutory interpretation |
|
Definition
a) He may recognize that his own views are eccentric
b) Recognizes reading of statute worse if it supposes that congress engaged in paternalism rather than respecting people’s choice
c) Fairness requires respecting public opinion
d) For same reason, must respect public expressions by legislators – their statements are likely to reflect the opinion of their constituents |
|
|
Term
DWORKIN
Historicism and Dworkin’s critique of it |
|
Definition
Historicism-A. Eligible interpretations of the Constitution limited to principles that express the historical intentions of the framers
commitment to historicism is subverted as interpreter is led away from concrete convictions about the issue |
|
|
Term
DWORKIN
Passivism and Dworkin’s critique of it |
|
Definition
Passivism: Should show deference to other branches of government B. So, must frame the passivist’s view that the judicial branch ought be deferent to other branches in matters which are unclear in terms of political morality: should the constitution be interpreted in terms of what the majority wants?
Dworkin: Passivism does not provide justice for the minority: legislators are responsive to majorities (elections!) – so why would we think that they are going to be properly considerate of minority rights |
|
|
Term
DWORKIN
Weight of justice vs. fairness in constitutional interpretation |
|
Definition
a) Majority is only to be constrained when majority thinks so
b) Fairness is preferred to justice in constitutional contexts
BUT: the whole point of constitutional constraints is to place limits on majorities... Thus, justices cannot defer to majorities’ sense of what justice requires – that would be to defeat the point of having constitutional law that protects individual rights
5. Judges will have to rely upon convictions of justice in order to interpret constitutional law: because this is what makes such law the best it can be
6. Though this must be done in way that is consistent with integrity: justification of actual constitution history in terms of justice |
|
|
Term
DWORKIN
Dworkin’s method of constitutional interpretation and how he applies it to the Equal Protection Clause |
|
Definition
A. Equal consideration
1. Fairness: not part of public’s conception of equality at the time – and people tend to think that the constitution is about protecting minorities
2. Also inconsistent with justice: people deserve certain kinds of treatment even when it reduces aggregate welfare
B. Banned categories and sources would both reject school segregation as consistent with equality
1. Both fit the rough structure of people’s commitments and the overall arch of constitutional history
2. Thus, Hercules decides in favor of the plaintiffs,even though this is inconsistent with the concrete beliefs about what equality required at the time |
|
|
Term
DWORKIN
Why is Constitutional different from Statutory Interpretation |
|
Definition
A. Present not merely to facilitate the realization of the majority will
B. Foundational: must fit and justify most basic arrangements of political power |
|
|
Term
SCALIA
Distinction between common law and civil law |
|
Definition
| in the common law, judges apply law to the facts (same in civil law). They also make law-legislate. They must also distunguish current situations from previous rulings. Thus, the common-law has developed in a hodge-podge fashion where no rule is erased, but modifications are frequently introduced |
|
|
Term
SCALIA
Scalia's worries about using methods of common law in civil law |
|
Definition
1. Is the following question the appropriate question for federal courts: “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”
2. Central thesis: the question for federal courts is not this one. Such courts have the task of interpreting the legislative acts of other branches of government.
b) Only promulgated law can govern, for only promulgated law can be followed
4. Also, in “searching” for intent, judges will be inclined to read into the law their own proclivities
a) For in asking what the legislature intended, will end up asking what they should have intended |
|
|
Term
SCALIA
Originalist textualism |
|
Definition
1. Figure out what the text means, as a text, at the time of its enactment. We ought pursue the original textual meaning.
2. “To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or too hidebound to realize that new times require new laws. One need only hold the belief that judges have no authority to pursue those broader purposes or write those new laws.” |
|
|
Term
SCALIA
Arguments for Originalist Textualism |
|
Definition
“A text...should be construed reasonably, to contain all that it fairly means.”
(1) Statute: increased jail term if firearm used in drug trafficking crime
(2) Case: Weapon as barter for cocaine
(3) Court gave extra time for use of weapon (strict-constructionism)
(4) Scalia: mistake, “use a gun” fairly connoted use of a gun for what guns are normally used for – weapon, not barter item! |
|
|
Term
SCALIA
Account of statutory and constitutional interpretation |
|
Definition
A. “In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation – though not an interpretation that the language will not bear.” (37)
B. Refer to the writings of the delegates of the Constitutional Convention not in order to uncover intent, but rather to display how the text was originally understood (thus, Jay and Jefferson count, though not drafters) |
|
|
Term
SCALIA
Worries about a "living constitution" |
|
Definition
Why original rather than current meaning? Why not a “living constitution?"
D. A living constitution permits the judge to engage in common law methods to overall the other, more democratic, branches of government
distinguishing will be at work – will make precedents into what (according to the judges) they ought to mean |
|
|
Term
SCALIA
Dworkin's reply to Scalia |
|
Definition
A. Scalia “begins with a general theory that entails a style of constitutional adjudication which he ends by denouncing.” (115)
B. Semantic (what someone intends to say) vs. Expectation (the concrete results one intends to follow) intention: Scalia only deferent to the former.
1. Boss example
2. Using a firearm... (Scalia defers to semantic intention)
3. “The law, as Scalia emphasizes, is what Congress has said, which is fixed by the best interpretation of the language used, not by what some proportion of its members wanted or expected or assumed would happen, or would have wanted or expectged or assumed if they had thought of the case.” (118)
C. Now consider originalism: semantic vs. expectation
1. Do we read the clauses to mean what they mean semantically or to have meaning in terms of the expectations of the framers?
2. Take the Equal Protection Clause
3. On Scalia’s own theory, we should understand this as laying down a principle of political morality to be enforced by the courts – the expectations are irrelevant
4. And thus, judges must use judgment in applying these clauses – they must try to figure out what equal protection, due process, and cruel and unusual punishment mean
5. And this, for Dworkin, means exercising moral judgment |
|
|
Term
SCALIA
Scalia's reply to Dworkin |
|
Definition
A. Agree with Dworkin’s distinction, and that semantic intentions are what are important
B. Concerning the 8th Amendment – what it abstracts is not a moral principle of cruelty, but the moral principles of the time
1. Americans of 1791 were enshrining their moral values, and we have conclusive textual evidence that cruel to them did not include the death penalty |
|
|
Term
LYONS
Difference between metaphysical, epistemological, and ethical questions in legal philosophy |
|
Definition
|
|
Term
LYONS
His defense of the Griswold decision. |
|
Definition
A. The penumbra claim: innocuous and normal feature of constitutional law
1. Example: freedom of association; not explicitly mentioned, but regarded as following from the explicit provisions of the 1st Amendment
B. Separation of powers doctrine and Ollie North: doctrine not explicitly mentioned, but we must develop a sense of its justification in order to address North’s case. Here, we recognize the checks and balances is also at work in the structure of the constitution. |
|
|
Term
LYONS
Way in which he suggests reconceiving orginalism |
|
Definition
A. Originalist intentionalism non-starter (some criticisms here similar to Dworkin’s)
B. Motivation might be to eliminate moral judgment in judicial decisions
1. But, moral judgment seems necessary
2. Take, e.g., the Just Compensation Clause of the 5th Amendment
C. However, we might understand the appeal to original intent as instead appealing to the original justifying rationales of the specific provisions and the structure of the constitution
1. Looking at documents like the Federalist Papers might give us an understanding of what would justify the particular provisions
2. We can construe law in terms of these justifications
D. Again, take North’s case |
|
|
Term
LYONS
Argument for this method and its implication for Taney’s decision in Dred Scott. |
|
Definition
B. “Any call for respect of our civil and political institutions presupposes that they satisfy some basic moral requirements.” (195)
C. In other words, we have a right to be treated by the government in a morally defensible way
D. Thus, we should interpret constitutional provisions so as to serve rationales the justify those provisions
1. This will maximize the likelihood that people will be treated decently
2. To justifiably interfere with people’s interests: need more than bare legal justification
3. When something regrettable must be done, must appeal to values which justify the system as a whole
E. So, in the case of Dred Scott, Taney ought to have read the provisions concerning citizenship in the most morally defensible way possible |
|
|
Term
VEITCH
What are the basic claims of the book: what precisely is he trying to show overall? |
|
Definition
|
|
Term
VEITCH
- Idea of “organized irresponsibility” |
|
Definition
Law assigns individual responsibilities, E.g. a contract demands specific actions from specific persons
It also is involved in organizing irresponsibility: that is, it facilitates the systematic dispersal and disavowal of individual responsibility such that it, in certain cases, it makes it look like no one is really responsible for atrocities
legal institutions, by their nature, promote and facilitate this dispersal.
Organized irresponsibility also serves to legitimate suffering |
|
|
Term
VEITCH
Specific ways (3 of them) in the which social systems in general organize irresponsibility and how, in some detail, they are (in his view) able to do it |
|
Definition
|
|
Term
WELLMAN
What does statism, in general, claim? |
|
Definition
A. “I am not an anarchist because I believe political states provide vitally important benefits that could not be secured in their absence, and they supply these benefits without requiring their subjects to make unreasonable sacrifices.”
In other words:
1. State supplies crucial benefits
2. These benefits otherwise unavailable (no state, no benefits of type x, which are crucial)
3. States can provide benefits without imposing unreasonable costs |
|
|
Term
WELLMAN
Samaritanism and his defense of it |
|
Definition
I. Summary of Samaritanism: Each of us has an obligation to comply with and support the law of our country because we owe it to each other to keep each other from the political peril of the state of nature and thus must do our fair share in maintaining institutions which remove political peril.
DEFENSE:
A. Some state actions may require other principles (e.g. redistribution)
B. And some actions may not be justified at all (e.g. coercing voting)
C. Thus, no reason to reject Samaritanism if it does not justify all that states actually do
D. Will take up voting and military service. The point is to show that states may regulate where they ought not and one of the virtues of Samaritanism is it helps us identify when they are overstepping their rightful authority. |
|
|
Term
WELLMAN
The legitimacy (or lack thereof) of legally required voting and conscription and his reasoning for his position on these |
|
Definition
III. The Duty to Vote
A. On the face of it, legally demanding that people vote is not justified
1. Does not save anyone from peril
2. Normally, a single vote will not have any discernable effect in any given election
B. One rationale for legally requiring the vote: What if everyone figured their vote didn’t matter?
1. If the point is one about fairness, then it is hard to see its significance
a) Normally, we talk about people unfairly taking advantage of others when there is a shifting of burdens, e.g. by not paying taxes
b) In the case of voting, I don’t add to anyone’s burdens – in fact, I grant others more political influence
2. The point might be different: a healthy democracy is valuable, and the only way to have a healthy democracy is by people generally taking their vote seriously
a) Democracy might be valuable in itself (along the lines of Waldron’s view) or because it leads to better outcomes
b) In any case, an unhealthy democracy does not leave anyone imperiled – so Samaritanism will not ground the legitimacy of the forced vote
(1) Really? Wellman takes this to be obvious, but is it so obvious?
c) So, we might try to justify coercion on different principles, that democracy is an especially important good
d) “I think it is impermissible to force people to do their fair share to sustain healthy democracies because, even if having a healthy democracy is a public good, it does not seem important enough to ground an enforceable duty.”
(1) Mother Teresa: you want to force her to vote when she could be saving lives?
(2) More generally, it is important that we have significant control over how we conduct our lives. This is what makes valuable personal pursuits (e.g. friendship, family, literature, art, etc.) possible
(3) Thus, we should want a very compelling case for government intervention in personal liberty
C. Upshot is that it is not legitimate for states to force citizens to vote
IV. Military Service
A. Military service in times of peril, a special challenge: “while military service might rescue one’s compatriots from peril, it appears far too costly to count as a merely a samaritan chore.” (65)
1. Think about this in terms of the drowning baby example – if saving the baby requires you to risk your life, it is less clear that you are obligated to save the baby.
2. Similar point holds here in terms of the costs of keeping others from peril – if too high, then one does not have a duty
B. Samaritanism should bite this bullet: it is true, Wellman says, that Samaritanism cannot legitimate the draft. But, that is not a fault, as forced conscription may not be legitimate.
1. Should depend upon voluntary enlistment: and if the threat is really grave, we should expect that many would enlist
2. Moreover, other methods of increasing enlistment: e.g. raising salaries dramatically
3. Does this incentive unjustly leave it to the financially less well-off to fight wars? Not in Wellman’s view:
a) Financial incentives are morally different than legal coercion backed by criminal sanctions
b) If people’s financial situation is so dire that they feel that they have little option but to join the military, then the injustice resides with the prevailing economic circumstances, not in creating incentives to join the military to save the country. |
|
|
Term
|
Definition
| A. “I contend that there is a general obligation to obey neither unjust laws nor any law of an illegitimate regime...there are potentially weighty moral reasons to actively resist unjust laws and illegitimate regimes.” |
|
|
Term
WELLMAN
The permissibility of civil disobedience on his theory |
|
Definition
A. Civil disobedience seems to raise special moral questions when we assert that there is a general political obligation to obey the laws of generally just and legitimate regimes.
1. For if that is the case, it appears that we have an obligation to support just institutions and their demands
2. Yet no state is perfectly just, so (if we have an obligation to promote justice), we might have a competing reason to oppose the injustice in certain circumstances
3. Unlike Wellman, liberal political theorist John Rawls thought that we have a duty to comply with particular unjust legal requirements when the political institutions issuing them are predominantly just
4. No less, thought Rawls, in such a circumstance, one has competing duties – one to the institutions, another to seeing justice served
B. Rawls defines civil disobedience as: “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” (A Theory of Justice, 320)
1. Rawls reasons that if the injustice is serious and persistent, and the normal political channels have been tried to no avail (e.g. writing letters to your representatives, public protest, etc.), then civil disobedience can be justified
2. Legitimate civil disobedience, in Rawls’ view, addresses the sense of justice of the community and publicly demands change
3. Ultimately, in Rawls’ view, civil disobedience is justified by one’s duty to promote justice – a duty which can outweigh the duty of fidelity to just institutions under the right circumstances.
C. It is important to notice that the question of justifiable disobedience to the law only seems important if there is a general obligation of to the law. If I don’t have an obligation to the law simply because it is the law, then my disobedience is not prima facie wrong – though it could be wrong for other reasons. |
|
|
Term
MLK
His defense of non-revolutionary civil-disobedience |
|
Definition
1. “[T]here are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all’”
2. Let’s take the last sentence first. It might look as if King is a radical natural law theorist. This is probably not quite right.
a) First, he just said that there are two types of laws.
b) Second, this is a political document – he is trying to have an effect on the reader. So, we might interpret some of what he says as a rhetorical strategy rather than an attempt to develop a nuanced philosophical position.
c) Third, and relatedly, King is involved in an attempt to liberate southern blacks from oppression, not answer abstruse questions of legal metaphysics.
d) So, we should probably interpret him as saying that laws which are unjust do not produce the reasons for compliance that just laws do.
3. Concerning the second to last sentence – we can see a difference in his position and Wellman’s (though they appear similar in other ways). King says that people have a moral responsibility to disobey unjust laws.
a) That is a strong claim.
b) It at least implies that you have a prima facie obligation to disobey unjust laws.
c) And thus, that you are presumptively acting irresponsibly by not disobeying.
d) Wellman states that such a moral duty asks too much of the individual, it is unreasonable.
e) We can see, though, why King is attracted to the claim:
(1) If you have an obligation to just laws because they are just (and this seems to be what King is indicating the first lines of the quote)
(2) Then promoting or sustaining justice seems to be morally obligatory
(3) If that is the case, then one has reason to bring about justice in unjust circumstances – because one’s duty is to realize justice
(4) Thus, insofar as noncompliance makes it more likely that justice will be realized, one has a duty not to comply with the law (and maybe actively resist)
4. How do we figure out when a law is unjust? King suggests some criteria:
a) Degradation of the human personality – treats a class of people as inferiors
b) Laws which apply to a minority but which the majority is unwilling to apply to itself
c) Laws which the minority had no significant part in enacting
B. Something to think about:
1. Taxes. If we accept a natural duty view (Wellman, Rawls, King), then what does this indicate about our obligation to pay taxes in a generally legitimate regime that one thinks is engaging in unjust behavior? Can someone withhold (or, are they duty-bound to withhold?) some or all of their tax revenue? |
|
|
Term
SIMMONS
What is philosophical anarchism? |
|
Definition
| The view that the mere fact that an action is legally required or that a stable government holds power within a reasonably just state is insufficient to establish a moral presumption in favor of legal compliance |
|
|
Term
SIMMONS
Why does he regard the question of political obligation as important? |
|
Definition
1. We are daily faced with the question of compliance
2. If we do have an powerful political obligation, then:
a) Compliance may be morally required even if it restricts one’s liberty, and no one will be harmed by disobedience. For example, getting “high” in a small cabin in the woods, far from others and containing no sharp objects, would be immoral (at least, prima facie, immoral).
b) It creates a moral presumption in favor of legal compliance. If there is a powerful obligation, then normally compliance is required. Disobedience, then, is presumptively wrong – it requires special justification. |
|
|
Term
SIMMONS
- The three families of theories that attempt to ground a general duty to the law and why, for each, they fail (focus specifically here on his reply to a theory like Dworkin’s, transactional theories, and his reply to Wellman) |
|
Definition
1. General/Special
a) General: owed by us to persons generally (e.g. do not kill)
b) Special: owed by us to specific persons because of special relationship (obligations to friends/family, promises)
2. Voluntary/Non-Voluntary
a) Voluntary: owed by us because voluntarily assumed (e.g. promising)
b) Non-Voluntary: owed simply because we are persons (e.g. do not kill)
3. Three different classes of moral requirements, and thus, three different classes of argument for political obligation (there are no general, voluntary moral requirements)
a) Associative: Non-voluntary, special. (e.g. Familial obligations) Dworkin’s account is an example.
b) Transactional: Voluntary, special. (e.g. Contract) Socrates: free acceptance of cooperative benefits
c) Natural Duty: non-voluntary, general (e.g. do not kill) Wellman’s samaritan account.
B. Transactional Accounts
1. Initially attractive: it seems clear that promises and contracts, for example, produce obligations.
2. However, none the possible transactions can ground political obligation.
3. Actual Consent: an actual, direct indication of consent to political authority (e.g. an oath)
a) However, most citizens of most states have done nothing like this
4. Tacit Consent: continued residence in the state, it has been argued, is tacit acceptance of its authority
a) “Mere continued residence or nonresistance...are in fact remarkably bad candidates for acts of consent to obey. For many citizens there are few acceptable options to remaining in their states and obeying (most) law, and for most persons active resistance to the state is in effect impossible.” (118)
b) Thus, continued residence is hardly voluntary
c) And non-voluntary transactions seem incapable of producing obligations
5. Gratitude: State has provided many essential benefits to you, thus you owe the state compliance
a) Simmons primary objection here is that even if receiving certain benefits produces a reason to give something in return, the one who provides the benefit does not get to stipulate the terms of the reward
b) For example, if I give you some unsolicited advice about graduate or law school that turns out to be useful to you, I don’t then get to say “You owe me $150”.
c) But this is what a political obligation based on gratitude would amount to saying: the state benefits you, so you owe it back according to the terms it sets.
C. Associative Obligations: Dworkin’s account
1. Remember that Dworkin argues that we have obligations to our own political community if that community treats everyone equally according to the same body of political principles that express concern for the well-being of each member.
a) Otherwise said, we owe our allegiance to the community when it treats us in the right way – at least when the community’s law can be interpreted as expressing a coherent conception of justice and fairness that conveys equal concern.
2. Here’s the problem (in Simmons’ view): Dworkin’s account attempts to establish a non-voluntary, special obligation to the state. But it fails to do so – it ultimately boils down to a natural duty theory or a transactional theory.
3. If we owe obedience to the state because it treats people in the right way (the way they deserve to be treated), then the argument must be that we ought support such institutions because it treats people in the way they, in general, ought to be treated
a) But this is basically the same claim as the natural duty account
b) So Dworkin will have a hard time explaining why we owe allegiance to any particular state - since it may be the case that other states meet the requirements of integrity better, or would benefit more from my contributions (i.e. the particularity problem)
4. If Dworkin replies: ‘but you are treated with equal concern by a particular state, therefore you owe allegiance to that state’
a) This will not serve him well either, because then it makes his theory into a transactional one:
b) You accepted the benefits of the state, therefore you owe allegiance to that state
5. But this will face the problems of transactional theories
6. So, either Dworkin cannot tie the citizen to any particular state, or his theory depends on transactions between the state and citizen as grounding obligations – in either case, the theory will be unsuccessful in grounding political obligations |
|
|
