Sago Boulevard

A drunk driver causes a car accident which leads to a death. In most cases, the applicable crime is involuntary manslaughter but law isn’t my subject today. Pam Stubbart of The Excluded Middle wonders about the seeming lack of mens rea in this kind of case. (via Philosophers’ Carnival #49). Since alcohol impairs one’s ability to reason, a drunk driver may lack the very ability to intend to kill. One obvious response is that the drunk drivers chooses to drink and is thus responsible for his subsequent actions. To this, Stubbart responds that (more…)

In American politics, compromising and building consensus are greatly valued. And rightfully so. Speaking broadly, we believe that people in a given community should ideally have equal decision-making power. We further realize that different people have conflicting views about issues of great importance. Compromise seems to be an appropriate way to accommodate varying political values among our citizenry. However, Ronald Dworkin demonstrates that a certain kind of political compromise would be unacceptable. In Law’s Empire, he offers the following puzzle. (more…)

See here. The last paragraph is the most powerful. A more thorough post on the retributivist theory of justice is in the works. I basically agree with Lewis but there’s at least one compelling argument Lewis doesn’t make that I want to explore. Stay tuned.

In an old post, about a year ago, I suggested that Originalism with respect to constitutional interpretation is fundamentally different from an traditional approach to interpreting Halakhah. Here’s the relevant excerpt:

The Torah itself is God’s message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God’s will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you’re also trying to figure out what the author had in mind while writing it. You can’t separate those two tasks.

The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison’s intention with the text of the Constitution is incidental.

George objects to my distinction. In a recent email (it’s actually not so recent but I procrastinated responding to him), he writes:

how is the constitution not simply the will of the cont[i]nental congress (representing the will of the nation). if it is how it that diffrent from reading and interpreting a letter a friend sent you?

The key difference between the Constitution as “the will of the [C]ont[i]nental [C]ongress” and Halakhah as God’s will is one of justification. The Torah’s authority is justified by God having commanded it. (That’s an oversimplification but I don’t want to get into the Euthyphro dilemma right now.) The goal of interpreting the Torah (and, by extension, Halakhah in general) is to identify what message God intends to convey because what justifies it is God intending to convey it. Interpreting a letter from a friend is similar insofar as the goal is to figure out what my friend wants to tell me. The letter would have no function otherwise.

The Constitution, on the other hand, does not derive its authority from James Madison or the Continental Congress. Had it been written by a 10-year-old who was bored one day during math class and then ratified by the states, it would have the same status that it has today.

One of the common cases made against capital punishment is that it is too-often enforced unequally along racial and socio-economic lines. In response to this, Ernest van den Haag (”In Defense of the Death Penalty”) offers an argument that I think has implications for a more general issue in philosophy of law, namely the problem of selective prosecution. (more…)

There’s a classic debate in philosophy of law about the status of so-called immoral legal systems. The example typically used is Nazism and question is framed as follows. Do we say, as Lon Fuller famously argued, that “laws” passed by the German legislature in the 1930s cannot accurately be called “laws” by viture of their flagrantly immoral nature? Or do we say, along with H. L. A. Hart, that Nazi law is in fact “law”, insofar as it follows from a recognizably legal process?

In Law’s Empire, Ronald Dworkin argues (I think compellingly) that this debate is largely based on theories of law which overstate the role of semantic rules in legal interpreation. There is a widely-used sense of “law” in which Nazi law clearly qualifies. That is, we often use the term to refer simply to the product of legislative actions. Yet, when we speak of the “rule of law” and “respect for law”, we have in mind a loftier notion of justice that Nazi law lacked. In Dworkin’s words (p. 103-104):

We need not deny that the Nazi system was an example of law… because there is an available sense in which it plainly was law. But we have no difficulty in understanding someone who does say that Nazi law was not really law, or was law in a degenerate sense, or was less than fully law. For he is not then using “law” in that sense… His judgment is now a special kind of political judgment for which his language, if the context makes this clear, is entirely appropriate.

In light of my previous post, I want to distinguish between what I identified as “God’s intention” from the so-called originalist theory of constitutional interpretation. I agree with Nephtuli that there are significant differences but I would go even a step further. The Torah itself is God’s message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God’s will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you’re also trying to figure out what the author had in mind while writing it. You can’t separate those two tasks.

The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison’s intention with the text of the Constitution is incidental. The goal of constitutional interpretation is to interpret the Constitution. Madison’s intention or that of any of the Founding Fathers is useful only insofar as it helps illuminate the text.