[1.4.] Recap: Hobbes, Socrates, Rawls.

 

We began with the question, “Is there a moral obligation to obey the law?”

 

·         Hobbes’ answer seems to be yes: there is no morality outside a system of law, and once one turns over his “right of nature” to the absolute authority, he is obligated to obey that authority.

 

·         Socrates’ answer is more straightforwardly yes: because of the benefits one derives from one’s government, one is obligated not to contribute to its demise by breaking the law; and one’s continued, voluntary presence in a society commits one to an implied contractual agreement according to which he will obey the law, come what may.

 

·         Rawls holds that we have a serious, although prima facie (non-absolute) obligation to obey the law. But he also believes that civil disobedience is sometimes morally justified. He considers what the organizing principles of a just society would be like, and then describes the conditions in which one would be justified in engaging in civil disobedience in such a society.

 

 

[1.5.] Civil Law vs. Common Law.[1]

 

Each legal system (be it the system of a country or of a state) is at least somewhat different than every other; no two systems are exactly alike.

 

However, in the western world, most systems of law can be grouped into two “families”: civil law systems and common law systems.

 

civil law legal system (df.): a codified system of law encompassed in an explicit set of principles enacted by a legislative body.[2]

·         “the basic law is set out in codes. These are statutes, or rather superstatutes, enacted by the national parliament, which arrange whole fields of law in an orderly, logical, and comprehensive way.”[3]

·         the historical antecedent of modern civil law systems is Roman law. The civil law tradition of the Romans was revived in western Europe in the medieval period

·         the most important civil code of modern times was France’s Napoleonic Code (1804), which consisted of a number of books, each of which set out rules governing different areas of life:

 

The first book of the code deals with the law of persons: the enjoyment of civil rights, the protection of personality, domicile, guardianship, tutorship, relations of parents and children, marriage, personal relations of spouses, and the dissolution of marriage by annulment or divorce. The code subordinated women to their fathers and husbands, who controlled all family property, determined the fate of children, and were favoured in divorce proceedings. Many of these provisions were only reformed in the second half of the 20th century. The second book deals with the law of things: the regulation of property rights—ownership, usufruct [the legal right to derive property or benefit from something that belongs to someone else], and servitudes. The third book deals with the methods of acquiring rights: by succession, donation, marriage settlement, and obligations. In the last chapters, the code regulates a number of nominate contracts, legal and conventional mortgages, limitations of actions, and prescriptions of rights.[4]

 

·         most continental European countries and the state of Louisiana have civil law systems; also, countries which were once colonies of continental European countries (e.g., in Latin America and Africa) have civil law systems

 

common law legal system (df.): a system of law based on customs and traditions and that has developed over a long period of time out of decisions made by judges in many individual cases (i.e., case law).

·         while the civil law of the Romans was revived in western Europe in the medieval period, there was one country that resisted its influence: England, where the traditional common law system never waned.

·         in England, the Parliament was not a significant source of law, and it especially did not create or adopt any systematic, codified set of rules such as the Napoleonic Code; the primary source of law was case law.

·         the United States (except for Louisiana) and England have common law systems, as do former colonies of Great Britain; in fact, “[a]ll common-law countries were once colonies of Great Britain, or, in some cases, colonies of colonies.”[5]

·         statutory laws, i.e., laws enacted by a legislature (law-making body, such as the U. S. Congress and individual state legislatures), may be found in common law systems; the legal system of the United States is a common law system, and yet we still recognize statutory law enacted by federal and state legislatures.

 

precedent (df.): an earlier judicial decision that judges rely on when deciding subsequent similar cases.

·         systems of common law rely heavily on precedents set by past judicial decisions; judges within civil law legal systems do not rely on precedent.

·         “To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation. If the precedent is from the same or a superior jurisdiction (as the state’s supreme court), it is binding upon the court and must be followed; if the precedent is from another jurisdiction (as another state’s supreme court), it is considered only persuasive. Precedents may be overruled esp. by the same court that originally rendered the decision.”[6]

 

stare decisis (df..): literally, “to stand on decisions” or “let the decision stand.” The practice of courts in common law legal systems of recognizing previous judicial decisions as precedents.

 

 

[1.6.] Adversarial Systems vs. Scientific Inquiry?[7]

 

Civil law systems are inquisitorial:

 

inquisitorial system (df.): a system in which judges are active in investigating what the facts of the case are and in which judges rather than attorneys call and question witnesses.

 

On the other hand, common law legal systems, including the American legal system, are adversarial:

 

adversarial system (df.): a system in which the role of the court is to serve as an impartial judge between opposing parties, each of which attempts to convince the court of its own version of the facts.

 

The very idea of an adversarial legal system (such as our own) raises the question: what is the relationship between a trial (be it criminal or civil) and inquiry? Is a trial a form of inquiry, like the sciences, or is it something else?

 

Similarities between a trial and scientific inquiry:

1.       A jury is asked to arrive at the correct answer to a factual question (has the defendant’s guilt or liability been proved to some significant degree?), and a scientist hopes to arrive at the correct answer to some factual question.

2.       The decision of the jury is constrained by the evidence with which they are presented, just as the findings of a scientist are constrained by the evidence.

 

Differences between a trial and scientific inquiry

 

1.       The question a jury is charged with answering is extremely specific question and cannot shift course to pursue a different or more interesting question.

 

2.       The jury’s decision is constrained by a number of legal principles, e.g. “that it is worse to convict the innocent than to free the guilty; that constitutional rights must be observed; that people should not be discouraged from making repairs which, if made earlier, might have prevented the events for which they are being sued; and so forth.”[8]

 

3.       The relevant facts are presented by lawyers who act, not as inquirers, but as advocates, parties tasked with arguing in defense of claims established in advance and who are responsible for making the most convincing case possible for their view, even if there is stronger evidence in support of the opposite view.

 

Susan Haack describes this difference as follows:

 

                Scientists, like historians, detectives, investigative journalists, legal and literary scholars, etc., are by profession inquirers. Inquiry is an attempt to discover the truth of some question or questions; so the obligation of a scientist, qua inquirer, is to seek out all the evidence he can, to assess its worth as impartially as possible, to draw conclusions only if and as the evidence warrants doing so, and when the available evidence is inadequate, to try, acknowledging that at present he simply doesn’t know, to get better evidence. Attorneys, by contrast, like lobbyists or clergymen, are by profession not inquirers, but advocates. Advocacy is an attempt to make a case for the truth of some proposition or propositions; and so the obligation of an attorney, qua advocate, is to seek out evidence favoring the proposition(s) in question, to present it as persuasively as possible, and to play down, or explain away, unfavorable evidence—or to look for legal grounds for its exclusion.[9]

 

4. The law cannot afford to wait for long periods of time before a decision is reached. In a trial, a judgment must rendered, even if the evidence is not very strong. Haack describes the difference as follows:

 

As C. S. Peirce observed ..., the idea of science is to keep working at a question, sometimes for generation after generation, until the truth is finally attained. By now, there is a vast body of scientific knowledge, well-warranted by evidence, and unlikely to be overturned. But many, many scientific questions are as yet unanswered (not to mention those as yet unaskable), and not all scientific theories are well-supported by good evidence: Most get discarded as the evidence turns out against them; nearly all, at some stage of their careers, are only tenuously-supported speculations; and even the best-warranted are in principle subject to revision should new evidence demand it. For preparedness to revise even the most entrenched claim in the face of unfavorable evidence is essential to scientific inquiry; as is agnosticism, willingness, that is, to admit that you just don’t know. In the law, however, a judgment must be reached—a “quick, final, and binding” judgment, in Justice Blackmun’s words—however weak or defective the available evidence may be. Peirce comments that this is why the law needs standards of proof; more clearly, it is why the law needs statutes of limitations, restrictions on the introduction of new evidence, and final courts of appeal.[10]

 

 

Stopping point for Friday January 26. For next time, read pp.34-40.