Module 1: The Rule of Law Lecture

Module 1: The Rule of Law Lecture Introduction - The Rule of Law The Indeterminacy of Law: • The nature of law at a fundamental level • The law and relationship to politics • The myth of the rule of law article: ○ Classic debate over the indeterminacy of the law ○ What is indeterminacy of law? § Law is inherently indeterminate because it is expressed using language which is vague and subject to interpretation. § Language and law have no consistent or definite meanings □ They are given meaning when they are interpreted by necessarily fallible and political human beings § No legally correct answers - only competing policy positions Doublethink: • The law is indeterminate, made up of judges ○ We are conditioned to believe that the law is made up of neutral rules that can be consistently and objectively applied by impartial judges to achieve fair and just outcomes. • Law is inherently political ○ Legislators are influenced by special interests § More palatable to be ruled by neutral ideas than self-interested politicians ○ The personal ideologies of Supreme Court Justices influences their case decisions § Judges who issue unexpected or undesirable legal outcomes are accused of partiality □ Partisan political variety □ Legislating from the bench • Law is a body of consistent, neutral rules amendable to impartial interpretation § Judges who issue unexpected or undesirable legal outcomes are accused of partiality □ Partisan political variety □ Legislating from the bench • Law is a body of consistent, neutral rules amendable to impartial interpretation ○ Legislators enact socially beneficial public policy ○ Judges apply definite and consistent principles to cases in an objective manner ○ "The law" is an objective embodiment of justice • We are well attuned to the inherently partisan political nature of judges ○ When a new Supreme Court nominee is being vetted • Our ability to honestly and genuinely hold these two belief is doublethink. The Myth: • Why should we worry about whether the law is neutral and fairly applied or if it is made up entirely by judges? ○ If we ignore the indeterminate and political nature of the law, we are at risk of blind submissions to government authority § We are co-conspirators in discrimination and persecution ○ We have to be aware of the nature of the law so we can guard against state usurpation of individual freedom. • America is a government of laws and not people ○ The indeterminacy of laws is the main tool used by those in power to protect their power. ○ The myth of the rule of law makes people docile and complacent § Usurpation by the state of protected rights and liberties through blind adherence to laws that are sexist, racist, and classist. • Harts Noble Dream: ○ Neutral Rules, Objectively Applied ○ Absence of Arbitrariness ○ Fairness and Impartiality • Allegiance and Affection of Citizenry • Submission to State Authority & Support for State Curtailment of Freedom Variations of the Theory of Indeterminacy: ○ • Allegiance and Affection of Citizenry • Submission to State Authority & Support for State Curtailment of Freedom Variations of the Theory of Indeterminacy: • Ronald Dworkin - argued that the law is fully determinate, theory referred to as legal holism ○ Legal Holism: § Specific rules conflict or fail to provide adequate guidance, there are overarching legal principles that inform the judge of the correct decision • Says that there always is a right legal answer • The law is not made, it is discovered and judges have obligation to try to discover it using the principles of the legal system rather than doing whatever they feel is politically expedient ○ If a judge fails to discover the right answer, that’s because of the limitations of the human mind • The rule of the law is not a myth • The law as it is now is influenced to varying degrees by the legislator making it or the judge deciding it. The Core vs. The Penumbra: • Legal positivism ○ Positivists recognized that law is comprised of rules which are in turn comprised of words § Words have common and accepted meanings not indeterminate § Words and laws have conventional and accepted meanings comprise the core of the law • The Core: ○ The law is fixed and determined ○ Core cases are easy § Rarely result in the type of litigation that creates case law, rarely go to court • The Penumbra: ○ Positivists judges have so called "hard" discretion ○ The law effectively runs out and judges have to make it ○ Cases are interesting § These cases make it to the judges and where the law is not plainly dispositive ○ Positivists judges have so called "hard" discretion ○ The law effectively runs out and judges have to make it ○ Cases are interesting § These cases make it to the judges and where the law is not plainly dispositive The Nightmare vs. Noble Dream • Presents a similar view of the law as wholly indeterminate, inherently political and judge made • Nightmare - Law is inherently political: ○ Legislators are influenced by special interests ○ The personal ideologies of Supreme Court Justices influences their case decisions ○ Incompatible with democracy ○ Draws on Legal Realism/CLS • Noble Dream - Law is consistent, neutral, & impartial: ○ Legislators enact socially beneficial public policy ○ Judges apply definite and consistent principles to cases in an objective manner ○ "the law" is an objective embodiment of justice ○ Draws on legal formalism / holism • The noble dream aligns with the view of the law that others sees as a myth - a neutral and consistent body of rules amendable to impartial application • Sometimes the law is the nightmare and sometimes is the noble dream ○ Sometimes it is clear such that judges can easily apply it ○ Sometimes it is less clear § No right answer, judges must create the law • Ronald Dworkin - would say judges have no business making law ○ They ought to draw on broader legal principles to decide the correct outcome § There is a single correct outcome - whether we are capable of ascertaining it or not relates to our abilities and failings as thinkers and not to a flaw or gap in the law • The job of the judge is never to make the law but to consult broader legal principles in an attempt to reach the correct decision. Order & Justice: flaw or gap in the law • The job of the judge is never to make the law but to consult broader legal principles in an attempt to reach the correct decision. Order & Justice: • The battle between order and justice ○ More of a partnership than a battle • Determinacy - used to achieve consistency and order in society ○ Inflexibility = order ○ Consistency = systemic fairness • Indeterminacy - provides flexibility needed to adapt laws to individual circumstances ○ Flexibility = individual justice ○ Unchecked discretion = favoritism / discrimination ○ Indeterminacy is necessary and desirable ○ Promotes justice - cannot do so on its own § Justice requires fairness in the form of equal treatment of similarly situated people The Judiciary: • Changing bench = changing law ○ The law looks to be stable because of the homogeneity of those who make up "the bench" • Historical Judges: ○ Wealthy, white men educated at the same institution ○ There opinions rarely differ • New Activist Judges: ○ Nothing different about the way they decide cases ○ Make law based on their own beliefs and experiences • The bench has begun to diversify somewhat in terms of race, gender, and class. ○ There is a belief and experiences of these new judges that differ from those of the standard cadre of wealthy, white, male judges. • Judges were always "activists" ○ Law was made by judges ○ Today there is new and different opinions coming from a slowly diversifying bench. ○ Law was made by judges ○ Today there is new and different opinions coming from a slowly diversifying bench.