Time: Winter, Sophomore Year
The Class: Philosophy of Law (aka Philawsophy)
The Assignment: Pick two philosophies and compare how they would each be applied to one of the cases discussed in class, then argue for which you find most convincing. (Or, as always, something like that.)
We’re doing something a bit different this time, a temporary jaunt out of the cozy reading room of the English department and into the stuffy reading room of the Philosophy department. I wondered whether this (and possibly the next one as well, I haven’t decided yet) might be too esoteric even for this series, but re-reading it I actually like it and I think it could be useful. My professor thought so too, as the summer after this class they emailed me to ask if I could send them all of my papers because I “did very well in tackling some material that other students had a hard time with” (specifically, I was “one of the few students who ‘got’ Dworkinian political morality and the difference between his approach and Scalia’s”), and they wanted to “review what [I] wrote (which [they] recall[ed] being very impressed with)” to see if they could “figure out how to re-frame the questions” on the syllabus “so as to better elicit that type of response.”
Look, I have so little to brag about, let me have this.
Final Draft
Positivism, Interpretivism, and the Fourth Amendment
In this paper I will be discussing interpretations of the Fourth Amendment as it applies to the case Kyllo v. United States; specifically, interpretations from two fields of legal theory, positivism and interpretivism. I will begin by discussing the main tenets of these theories and their relationship to each other, so as to have a groundwork of information on which to base my discussion of the aforementioned case, and conclude with framework I find most convincing, and whether, according to that framework, the case was decided correctly.
I will start with legal positivism. Legal positivism holds that law is not based on morality. This is not to say that laws and moral values are mutually exclusive. Rather, positivists are saying that the validity of a law is based on its pedigree, i.e. whether it was made using the proper process, rather than its correlation with moral values. What the pedigree test requires is one of the main sources of variation between positivist thinkers.
One of the earliest legal positivists was John Austin. For Austin, positive law takes the form of general commands from a sovereign, backed by threat of sanction. Sanction here means “some harm, pain, or evil that is conditional upon the failure of a person to comply with the [commands] of the sovereign” (Wacks 24). This threat of sanction, or “’the smallest chance of incurring the smallest evil,’” constitutes Austin’s conception of legal obligation (24).
Austin’s theory, though perhaps compelling in its simplicity, is incomplete, accounting only for criminal law and not for, say, a legal contract, or a law empowering a person to hold a political office, as neither of these take the form of a command backed by sanction. For a modern society, especially a democratic one, I believe a more sophisticated approach is required.
Enter H. L. A. Hart. Hart, like Austin, believed law should be separate from morality. However, he posited a more complex theory of law. Hart believed law consisted, not of commands, but of obligation-imposing rules. The main difference between a rule and a command is that a rule exists when a society, not a sovereign, places a great demand on a person to behave in a certain way, with this demand being so great that sanctions are employed to ensure conformity (Feinberg et al. 91). So, for example, things like social etiquette or grammar are not obligation-imposing rules, since sanctions are not generally employed against non-conformers. Hart also says that a rule must be generally accepted from an internal point of view, meaning people regard the rule as justified in and of itself, not because it is backed by sanction (91).
Hart says a society operating under these rules, which he calls primary rules, would have to account for certain facts of human nature, such as the fact that we are all vulnerable to harm and not everyone will understand the long-term benefits of a rule, or have the strength to make the necessary sacrifice to obey it (Feinberg et al. 29-31). He says, though, that a society with only primary rules would face three problems: uncertainty, stasis, and inefficiency.
To solve these problems, Hart proposes, a legal system requires another category of rules, called secondary rules. These secondary rules consist of rules of change, rules of adjudication, and what Hart calls the rule of recognition. Rules of change and adjudication are fairly straightforward, providing a process by which laws can be changed and establishing judges to apply them (Altman 72). The rule of recognition is the rule by which a law is deemed to be valid (72). So, where Austin’s pedigree test would start by asking whether a law was a command given by a sovereign, Hart’s pedigree test would by asking whether a law passed the rule of recognition. The rule of recognition varies depending on the type of legal system in place; in the United States, for example, the rule of recognition would be the Constitution. What’s important is that Hart believes laws should be based on this rule, not on morality.
The problem, says Ronald Dworkin, with judges following Hart’s theory is that, if they get a case in which there is uncertainty about the rule of recognition, there’s no guide for them to consult to make the right decision. Rather, it is important only that they make a decision, which could lead to judges using their power arbitrarily, which most would not see as fair or just. Since positivists are largely unconcerned with fairness and justice, many of them would simply accept this criticism, saying, essentially, “Well, yeah. And?” As Hart says, when there is uncertainty, “all that succeeds is success” (Feinberg et al. 136).
Dworkin’s solution to this is interpretivism. He says that judges, when faced with a hard case, don’t make just any decision. Rather, Dworkin says judges rely on moral principles to interpret how the should apply in the case, principles which can be traced back to the rule of recognition, in direct contradiction, says Dworkin, to positivist’s separation of laws and morality.
Dworkin’s use of the term ‘moral’ principles draws heavy criticism, not just from legal positivists, but even from others who believe judges should practice more interpretation than Hart would have them do. Antonin Scalia, for example, believes that judges should interpret what the words of the law might be reasonably understood to mean, not just their literal meaning. So, for example, while the literal interpretation ‘using a gun’ would such a clause to any use of a gun, Scalia would interpret the phrase mean ‘using a gun as a weapon,’ since that is what is typically understood when such a phrase is used (Feinberg et al. 178).
In fact, both Dworkin and Scalia believe statutes should be interpreted by their meaning, not the intent of those who crafted them. Where they disagree is what that meaning is. Dworkin believes the general statements of the constitution set forth general principles, not specific ones. So, the prohibition against “cruel and unusual punishment” proscribes punishment that is, in fact, cruel and unusual, according to the interpretation of the judge (Feinberg et al. 187). Scalia, on the other hand, believes the range of meaning to be limited to what the Framers could have meant at the time. So, “cruel and unusual punishment” for Scalia is, according to Dworkin, punishment that would be regarded as cruel and unusual in the 18th century (187).
In his essay “Integrity in Law,” Dworkin expands on what he considers to be the role of judicial interpretation, using the analogy of a chain novel. Each time a judge interprets a law, he’s writing the next section in the novel. Therefore, they have to consider interpretations which “fit” with the rest of the text (Feinberg et al. 161). Dworkin further says that a judge might find multiple interpretations which are equally fitting, and this is where he turns to moral principles.
Here, though, Dworkin specifies that he’s not talking about any religious moral system, but rather what he calls “political morality” (Feinberg et al. 165). Political morality consists of three concepts: justice, fairness, and due process (Wacks 48). Justice means treating the rights and goals of individuals and groups with “equal concern and respect” (48); fairness means “giv[ing] all citizens roughly equal influence in decisions that affect them” (48); and due process means following the “correct procedures for determining whether a citizen has violated the law” (48). This is a far cry from the kind of morality Dworkin’s opponents might accuse him of proposing. In fact, Dworkin opposes “the enforcement by the criminal law of private morality,” since this would violate, at the very least, the principle of justice, as it would give inordinate weight to one individual or groups goals (48).
Positivism has not taken Dworkin’s criticism lying down. Jules Colman offers a particularly interesting defense, because he accepts Dworkin’s account of law, without accepting this as refutation of positivism. First, he accepts that there might be communities whose rule of recognition specifies morality “as a truth condition” for law, meaning the law must fit the morality (Feinberg et al. 125). He denies that this disproves positivism, though, because positivism says only that there is “at least one conceivable rule of recognition” which does not rely on morality, and thus law and morality are “conceptually distinguishable,” even if they might be connected in practice (125-126).
Second, Coleman proposes that the social theory of obligation-imposing rules could also apply to cases relying on judges discretion. Coleman accepts, at least for the sake of argument, Dworkin’s argument that judges use moral principles to decide hard cases (Feinberg et al. 137). However, Coleman says that judges have a legal obligation to do this, not a moral one. This legal obligation derives “from [judges’] acceptance of the practice of resolving these disputes by offering substantive moral arguments” (137). In other words, deciding by principle is an agreed upon convention (and only in some legal systems), not a fundamental component of law.
I believe Coleman puts forth the most plausible form of positivism. He accounts for the practical reality of law, which I would say Hart failed to do, since judges usually cite some reason other than their own arbitrary discretion when deciding a hard case. Furthermore, he does this while maintaining a well-defined theory, as opposed to something like legal realism that’s more defined by what it isn’t than by what it is.
Having decided upon the champions, so to speak, for positivism and interpretivism, I will now look at how Dworkin and Coleman would interpret the Fourth Amendment in the case of Kyllo v. United States. First, a brief summary of the case. Danny Lee Kyllo was suspected of growing marijuana in his home. Federal law enforcement used a “thermal imaging device” from outside the house to monitor heat levels, and found “an unusual amount of heat” coming from the garage (“Kyllo v. United States”). Law enforcement used this information to obtain a search warrant for the house, and found marijuana plants. Kyllo was then charged with and convicted of growing marijuana illegally. Kyllo appealed on the basis that the thermal imaging was an illegal search under the Fourth Amendment, and the Supreme Court ruled in his favor.
Dworkin might first decide which interpretations fit the ‘chain novel’ of Fourth Amendment jurisprudence. He might look at, for example, California v. Ciraolo, where the Supreme Court ruled that warrantless aerial observation of a person’s backyard was not a violation of the Fourth Amendment, because the police were “traveling in the public airways…in order to observe what is visible to the naked eye” (qtd. in “California v. Ciraolo”). One might argue, similarly to John Paul Stevens in his opinion on Kyllo, that heat waves are equally public, and the thermal imaging device was functioning in the same way as the airplane in Ciraolo (“Kyllo v. United States”).
One might also look at Florida v. Wells, which held that, according to another case, Colorado v. Bertine, it was a violation of the Fourth Amendment to open “closed containers found during a legitimate inventory search” unless there was a “policy specifically requiring it” (Florida). Going by this interpretation, one might argue that the police did violate the Fourth Amendment, assuming they had no specific policy regarding the use thermal imaging devices (which I will for the sake of this discussion).
A third interpretation might hold that the Amendment was violated because Katz had a “reasonable expectation of privacy,” a term deriving from the Katz v. United States. This case expanded the list of protected locations (those being “persons, houses, papers, and effects”) to include anywhere a person would reasonably expect to be private (in the case of Katz, this was an enclosed, single-occupant phone booth). And of course, there’s the interpretation that the imaging constituted a search of his house, pure and simple, and therefore required a warrant. In this case, however, we know what Dworkin’s view of the Fourth Amendment is generally, since he has said that he believes it to be expressing a general principle of privacy, rather than just the specific protections listed within it. Therefore, I think we can eliminate the fourth interpretation, as the third one is essentially a more general form of the fourth.
No doubt there are other possible interpretations, but these will suffice for the purposes of demonstrating Dworkin’s theory. Noting that all of these interpretations fit, Dworkin would then have to decide which was morally best (keeping in mind that this refers to political morality). Dworkin acknowledges, though, that how the three principles of political morality are weighed against each other will depend up on the judge and the case (Feinberg et al. 169-170). For example, a judge who considers the principle of due process particularly important would pick the second interpretation. A judge more interested in fairness or justice might look at the first interpretation, since it emphasizes the public (and therefore equally accessible) nature of the evidence. I can’t say for sure what Dworkin would choose, but I’m inclined to believe he would want to strengthen the right to privacy, and would therefore choose interpretation number three.
I’m even less sure as to how Coleman would decide the case. For him, it would depend on what the convention for judges was, so it’s entirely possible that would end up deciding it the same way as Dworkin, although not necessarily with the same interpretation; as a legal positivist, I’m guessing the third interpretation might be going too far for him, unless there was a particularly strong convention in favor of it.
As you can see, Dworkin’s theory is much easier to apply with at least some degree of surety. It also accounts for the evolution of jurisprudence without the danger of a sudden shift that Coleman’s theory would be open to (imagine if a conspiracy of judges decided that all hard cases should be decided in favor of the plaintiff; ridiculous, but not impossible, and it would be perfectly fine according to Coleman). And while I don’t believe law originated as having moral underpinnings, but rather as social construct to help society function, neither does the Constitution say that it’s purpose is to merely provide for a functioning society. “In order to form a more perfect Union” and “establish Justice;” that’s the purpose of the Constitution.
However, it is easy to forget (and I nearly did) that The Law is not just the law of the United States. There are plenty of other legal systems, some similar, some very different, and on a purely philosophical basis, this variance should be accounted for. The social theory, as stated by Hart and expounded upon by Coleman, does this fairly well, I think; it gives a skeleton of law, but the flesh of it comes from the whatever community the law belongs to.
Therefore, I have a split conclusion. For the law in the United States, I find Dworkin’s interpretivism to be most convincing. For Law, however, I find myself, albeit somewhat grudgingly, turning to Coleman.
Of course, the case of Kyllo v. United States falls squarely under the law of the United States, and so to answer whether the case was decided correctly, I return, comfortably, to Dworkin’s theory. While I don’t necessarily view of the Fourth Amendment quite as generally as Dworkin, I do find his (probable) decision to be morally best, as it arguably strengthens all three principles. Therefore, while I’m in favor the Supreme Court’s decision superficially, in that it acquitted Kyllo, I don’t believe that Scalia’s interpretation of the Fourth Amendment as applying strictly to property is the best interpretation.
Bibliography
Feinberg, Joel, et al. Philosophy of Law. 9th ed. Boston:
Wadsworth, Cengage Learning, 2014. Print.
Wacks, Raymond. Philosophy of Law: A Very Short Introduction. New York: Oxford University Press,
2006. Print.
Altman, Andrew. Arguing About Law: An Introduction to Legal Philosophy. 2nd ed. Belmont:
Wadsworth/Thomson Learning, 2001. Print.
“Kyllo v. United States.” Wikipedia. Web.
“California v. Ciraolo.” Wikipedia. Web.
Florida v. Wells. 495 U.S. 1. Florida State Supreme Court. 1989. Wikisource. Web.
Grade: A -> Late -> A- (that’s literally what my professor wrote)
Professor’s Comments: “B/c late: LESS COMMENTS” [You know, I think this paper might’ve been late]
“Very good intro. The only suggestion I have is to also preview the concrete conclusion you’ll argue for & the general considerations that you think lead to it.”
[on my definition of legal positivism] “excellent. Accurate & to-the-point definition that also quickly moves past any misconceptions.”
[on Austin] “Might be good here to speak to the oddness of Austin’s theory of obligation as well as the assumption he seems to have about why people follow the law”
[on my transition to Hart] “Excellent economy of writing.”
[on my discussion of Hart, after some generally positive miscellany like “yes” and “bingo”] “You are right to note the internal point of view but since it is such a key component to his theory a bit more commentary would’ve been good.”
[on Hart’s 3 problems] “Would be good to define both primary rules & these problems in a bit more detail”
[just a note here that apparently in the draft I turned in I referred to Dworkin as “Richard” rather than Ronald, for reasons that I think are obvious. It looks like I probably corrected that mistake before replying to the aforementioned email, and since it is actually kind of a big deal I’m leaving the correction in the “Final Draft” above, but I do want to acknowledge it here just to maintain the integrity of this project, since I make a point of not editing any of these papers beyond what I did at the time. And obviously my professor did note the mistake in their feedback but fortunately didn’t make a big deal of it.]
[on judicial discretion] “Would’ve been good here to articulate the ‘problem’ of discretion a bit more” “Would’ve been good in section above to speak to how Hart’s positivism views law as a set of rules applied to hard facts of cases…[sic] & in so doing denies principles a role & also denies judges have any legal duty to decide one way or another (you implicitly gesture toward the second point.)”
[on my initial description of Dworkin’s philosophy] “I hope you eventually get into the concrete details of Dworkin’s political morality & his 2 [sic] criteria…[sic] b/c the characterization here is incomplete”
[on my description of Scalia’s textualism as referring to “what the words of the law might be reasonably understood to mean”] “At the time of enactment by the public”
[on judges consideration how their interpretations fit] “would be good to expand a bit on what ‘fit’ amounts to.”
[and then of course when I do describe Dworkin’s political morality I get a] “Bingo!”
[on me saying that Coleman says that judges have a legal obligation to refer to moral principles] “Well, Coleman seems to say something less than this, as he refers to conventions that are widely accepted by judges”
[on my setting up the framing of Dworkin v. Coleman deciding Kyllo] “Yep. Smart way to proceed. You may also eventually wish to cite the text of the 4th Amendment & identify the vague parts that cause controversy in this case.”
[the most life-altering feedback I ever got, on my parenthetical statement about assuming something for the sake of this discussion] “You can footnote this sort of an ‘aside’ comment.”
My Comments: Yeah, that was “LESS COMMENTS.” That was more comments than I got on most papers in college. And I didn’t even include all the bingos.
[on them saying I better get around to defining Dworkin’s political morality] I don’t think any other professor gave me this kind of “I am reading this for the first time and I really hope you’re not about to fuck this up as much as it seems like you’re going to” feedback. I’m doing a thing! Let me cook!
[on my incomplete description of Scalia’s textualism] I also twigged this while I was re-rereading, I clearly knew that because I refer to it later in the paper (and in the Summary paper (see below) I wrote earlier in the course) but it’s a huge thing to leave out here, that’s like the main defining feature of Scalia’s (supposed) philosophy, is his (supposed) reference to what the words would have meant at the time (not going to get into whether he actually stuck to that and wasn’t a giant fucking hypocrite.)
[on Coleman] They’re right that “legal obligation” is too strong. Should’ve been “judges don’t have a moral obligation but instead are following a generally held judicial convention of referring to moral arguments when deciding hard cases” or something.
[on the comment about using footnotes] My next paper for this class had 17 footnotes. For a 4-page paper. Page 3 is like 30% footnotes. They had no idea what they were unleashing.
I think what strikes me most about this paper is that, as with my late paper from last time, I clearly got on a roll once I fought through the writer’s block—the difference here being that it actually mostly makes sense. I mean, you can tell I’m really cooking because I’m leaving out words left and right (“while the literal interpretation ‘using a gun’ would such a clause to any use of a gun, Scalia would interpret the phrase mean ‘using a gun as a weapon,'”) and setting up ideas that I then forget to explain in the next paragraph, but still, it generally holds together.
With English papers I was typically being asked to develop some opinion, some analytical insight, which if I find the subject kind of boring or opaque can be really difficult. As I’ve discussed previously, the solution is usually to find a way to incorporate something I am interested in, such as Tolkien or Benjamin or the Kathy Bates version of Annie!. Here, that’s not really a possibility. Like, most of the ideas in this paper aren’t really mine, they’re from the various texts we read for class. But I had to piece them all together, and apply them, in a way that was concise and coherent, and I think I did that as I well as I did (setting aside the aforementioned flaws) by tapping into my puzzle-solving instincts. And I love solving puzzles (up to a point).
So, even if there’s not room to bring the things you love into the text itself, you might still find a way to bring them into the writing process to help make it more engaging.
(All that being said, I’m not sure if I actually find my argument in the paper super convincing if only because I feel like my bias toward Dworkin is pretty obvious from the start and informs how I trace out the interpretations of the case. But I think my professor had the same bias so that’s why I got away with it.)
[On the bibliography] No, you’re not imagining it, those are Wikipedia citations. DON’T DO THAT. Wikipedia is great for general knowledge and as a starting point for research, but anything you read on there that you want to use in an academic context, you gotta at least look at the original source that the Wikipedia article is citing. We were, if I recall, explicitly allowed to cite those because my professor didn’t feel like giving us a crash course in parsing court documents. Unless stated otherwise, assume your professor will mark you down, if not give you an F, for citing Wikipedia.
Pre-Production
Outline
Only summarize those parts of X’s views that are directly relevant to what you’re going to go on to do. [NB: I’m pretty sure this was verbatim from the assignment, not my own insight.]
I. Intro (.5 para)
II. Positivism (1-2)
1. Austin
A. Summary (1.5 para)
2. Hart
A. Summary (1-2 para)
3. Coleman
A. Summary (1-3 para)
1. (Dworkin?) (1-2 para)
4. Pick a “finalist” for positivism (1-2 para)
III. Interpretivism 1-2 pg)
1. Dworkin
A. Summary (2-3 para)
1. (Coleman?) (1-2 para)
2. Scalia
A. Summary (1-2 para)
3. Pick a “finalist” for interpretivism (1-2 para)
IV. Finals (2-3 pg)
V. Decision analysis (.5-1.3 pg)
bibliography
Feinberg, Joel, et al. Philosophy of Law. 9th ed. Boston:
Wadsworth, Cengage Learning, 2014. Print.
Wacks, Raymond. Philosophy of Law: A Very Short
Introduction. New York: Oxford University Press,
2006. Print.
Altman
“Kyllo v. United States.” Wikipedia. Web.
“California v. Ciraolo.” Wikipedia. Web.
Florida v. Wells. 495 U.S. 1. Florida State Supreme Court. 1989. Wikisource. Web.
Certain of Eventual Failure 