Hudson River Valley
Ethics Forum

What Happens to the Idea of Law?

Anthony Henry Smith's response to Stanley Fish's "One Man's Opinion" (N.Y.Times OP-ED June 30, 2003) and related topics.Stanley Fish is author of "The Trouble With Principle" and is Dean of the College of Arts and Sciences the University of Illinois at Chicago.)

HAMLET: "Denmark's a prison"
ROSENCRANZ. "Then the world is one"
HAM. "A goodly one, in which there are many confines, wards, and dungeons, Denmark being one o' th' worst"
ROS. "We think not so, my lord"
HAM. "Why then 'tis none to you; for there is nothing either good or bad, but thinking makes it so. To me it is a prison"
(Shakespeare, Hamlet, Act II, scene ii)

Hamlet's statement that "thinking makes it so" would be entirely out of character for a person as bound by traditions and religious convictions as Hamlet appears to be unless he's really insane.

Is Hamlet mad or pretending? Rosencranz doesn't know for sure and at this point
in the play, neither do I. Perhaps Hamlet's "good or bad"statement is Shakespeare's personal world view.

What you think of any situation depends on how you look at the specifics. The specifics in the play are that Hamlet's either mad or pretending to be, or possibly he alternates between madness and sanity. He's either religious, or perhaps just superstitious, or perhaps an existentialist who believes existence precedes essence.Each possible set of specifics can direct the audience and the play toward different and interesting conclusions. In the end, it's always a matter of venturing one's best guess consistent with the specifics as one chooses to interpret them.

WHERE DO YOU START?

A.A. Milne has described the problem from a child's point of view: "Pooh looked at his two paws. He knew that one of them was the right and he knew that when you had decided which one of them was the right, then the other one was the left, but he could never remember how to begin." (Milne, 1928, "The House at Pooh Corner,ISBN: 0-114-0361227)

In both Shakespeare and life, starting points often seem arbitrary, but with this difference: in most real life situations a stand must be taken. Life allows few opportunities for neutrality; freedom allows none at all. Because we in the United States don't usually think of "freedom" in terms of restriction, an explanation is in order.

There's simply no way one can be neutral about freedom. Your "freedom" is purchased at the price of restrictions placed on those who would ordinarily interfere with you in ways that would deny you the exercise of that freedom. Remove the restrictions and you lose the freedom.

In the normal course of the pursuit and maintenance of freedom, sides must be taken. The only remaining issue is to consider what one can do to prevent or to minimize bloodshed.

It's interesting to consider that the prevention of bloodshed was not necessarily an enlightenment value. Sides were taken for and against"freedom" and bloodshed was a reality. The "La Marseillaise" the French national anthem written in 1792 uses the word "blood"or "bloody" four times. And consider this quote from Jefferson:"What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."
--Thomas Jefferson (to William Stephens Smith, 1787. ME 6:373, Papers 12:356)

The need to prevent bloodshed was seldom more clear than it was at the end of our American Civil War. It was then the pragmatist philosophers Oliver Wendell Holmes, Charles Sanders Pierce, William James, and John Dewey, "working along with others ... helped to make tolerance an official virtue in modern America" (Louis Menand, The Metaphysical Club, pg. 440)

In the spirit of tolerance, we act on our beliefs, recognizing in all humility that our beliefs might be wrong. But since we know we might be wrong, can our acts be justified? Menand believes they can.

"But the moral justification for our actions comes from the tolerance we have shown to other ways of being in the world, other ways of considering the case. The alternative is force. Pragmatism was designed to make it harder for people to be driven to violence by their beliefs" (Metaphysical Club, pg 440)

It is important to note this pragmatist view depends upon compromise, the kind of compromise that makes it possible to act, even though one is acting upon a best guess rather than an eternal truth.

In his recent essay "One Man'sOpinion"(N.Y. Times OP-ED, June 30, 2003), Stanley Fish reflects upon Supreme Court Justice Clarence Thomas' dissent to the majority opinion upholding the affirmative action at the University of Michigan's Law School.

Fish, Dean of the College of Arts and Sciences at the University of Illinois at
Chicago, and author of The Trouble With Principle, is no stranger to Justice
Thomas or to the subject of affirmative action.

Fish comments: "If, as Justice Sandra Day O'Conner predicts, in 25 years the
interests cited by the law school will be found to be insufficiently compelling to pass constitutional muster, then they cannot pass constitutional muster today, for "the Constitution means the same thing today as it will in 300 months". Fish continues: "If it doesn't, Justice Thomas would say, what happens to the idea of law?"

The real subject here isn't the idea of law, it's the idea of infallible law, handed down as holy writ. The United States is not a religious institution, and the law
isn't a sacred document, although it has approximated being one from time to time.

Here's another point of confusion: the law alone is not"justice", but rather serves
as a guide toward justice. In matters of law, one size cannot fit all; the interpretation and tailoring is what judges and juries are for. To obey the letter of the law is to guarantee injustice in most specific situations. To obtain justice, it is necessary to act in a manner consistent with the spirit and intention of the law as revealed by usage (precedent) in similar situations or as established or
interpreted by judge and jury. In the common law tradition, written law performs an important service as both a guide toward justice and a reminder of the backdrop of history against which to view the present specifics.

A legal system depending on interpretation of the law is vulnerable to abuse by
rulers, powerful individuals and special interests. It is a matter of concern that a
common law system can be abused by judges who would interpret so broadly, they would in effect be making new laws from the bench and thus usurping the authority of the legislature. However, abuse can be impeded by close reliance on the common law tradition and further mitigated by the judicial system supported by a system of appeals and review.

"Manners are of more importance than laws. Upon them, in a great measure the laws depend. The law touches us but here and there, and now and then. Manners are what vex and soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in. They give their whole form and colour to our lives. According
to their quality, they aid morals, they supply them, or they totally destroy them."
-Edmund Burke, 1796

("First Letter on a Regicide Peace," The Writings and Speeches of Edmund Burke, Vol. IX, Oxford: Clarendon Press, 1991, p.242)

Much of what started here in the Hudson Valley as our local heritage has, in the
fullness of time, become our national heritage. Among other things, that heritage includes a three part legacy derived from English Common Law and observed by us since colonial times. This legacy has been described by England's Lord Justice of Appeal, John Fletcher Moulton, First Baron of Bank in a speech delivered shortly before his death in 1921 and printed as "Law and Manners" in the July 1924 Atlantic Monthly magazine as consisting of three parts or "realms."

The first realm consists of free choice, within which one has complete freedom to choose as one will, as in whom to marry, what religion to follow and the like.

The third realm consists of positive law. This is law you must obey, like stopping for a red light, and observing speed limits.

But between free choice and positive law there is the second realm that determines most of our conduct. This consists of a large body of unenforceable law, sometimes called "manners" or "ethics"

Unenforceable law consists of choices we make guided by our sense of the "right"
thing to do. "Obedience to the unenforceable" is vital to a healthy civic life. When the Titanic sank, no one could possibly have enforced the unwritten rule that women and children should be saved first, yet most were guided by that custom.

On September 11th, nothing in positive law could have compelled those heroes to dash up the stairs of the World Trade Center and risk their own lives in an effort to save others. They acted in accord with their sense of what they believedto be "right". For any authority to obtain legitimacy, obedience to positive, written law alone is not enough. It is absolutely necessary to respect the
unenforceable manners and customs we call "ethics"

"Tempering the Letter of the Law to Obtain Justice in the Hudson River Valley"

In order to obtain justice, the law must be interpreted in view of the specifics of the present situation. For example, pardons could be a valuable tool for justice, but they will probably continue to be abused until it is understood that pardons are not for the purpose of showing mercy. "Pardons should be used not to temper justice with mercy, but to achieve justice when the judicial system has failed to do so". (Kathleen Dean Moore, author of "Pardons" 1989, Oxford University Press. Taken from a N.Y. Times OP-ED
article,"When Mercy Weakens Justice")

On August 21, 2003, Kathy Boudin who served 22 years in prison for her part in
the deaths of three men who were killed during a 1981 armored car heist in Nyack, New York, was granted parole. She was convicted of felony murder; in other words, if you are present at a killing, you are considered to be as guilty as the person who pulled the trigger.

Gary McGivern, who coedited the Hudson River Sloop Clearwater's newsletter, "The Navigator," was convicted on the same basis, with this important difference:
Kathy Boudin chose to put herself in company with people who might kill in a
situation where they might be expected to kill. McGivern did not choose to be in
the car when the police officer was killed, he was forced to be there. He was being transported by the police with other prisoners. There were two officers and three prisoners. A prisoner took an officer's gun. At the end of the shooting, one officer and two prisoners survived. The two prisoners said the shooting was done by the prisoner who died. The surviving officer accused McGivern of the murder of the officer. The only thing that could be proved was that McGivern and the
surviving prisoner were present at the time of the murder and by law, were guilty of felony murder, just as guilty as if they had pulled the trigger. It was only necessary to prove they were present to convict them.

It took prosecutor Michael Kavanagh three trials, but with the focus of Inspector Javert in "Les Miserables", he finally got his felony murder conviction. Kavanaugh,now an Ulster County Supreme Court Judge, apparently sees no conflict between following the letter of the law and obtaining justice. He says "they were as guilty as sin." They were. Kavanaugh demonstrated well beyond any
reasonable doubt they were guilty as sin of being present. So were all the people in Ford's Theater when Lincoln was shot, any one of whom may have been complicit.

Kavanaugh appears to remain thoroughly convinced of the deed he could not prove, that the prisoners McGivern and Culhane both killed the sheriff's deputy. Here's how Kavanaugh was quoted : "His whole life was a waste. It was a life totally devoted to crime and whatever indulged him. He hurt a lot of people," said Michael Kavanagh, the man who
prosecuted McGivern and co-defendant Charles Culhane.

"He and Culhane were both very bright people. That was how they were able to
attract the rich and famous to support them despite the fact they were guilty as sin," said Kavanagh, now an Ulster County Supreme Court judge. "He fooled a lot of people. He didn't fool me." (Paul Brooks in the Times-Herald Record, "Gary McGivern, murderer who got clemency, dies" Nov. 20, 2001)

After 21 years in prison McGivern was unprepared for life as a free person. He
quickly ran afoul of the law and society and was imprisoned for violation of parole. Here's how it was reported by Paul Brooks at the time of McGivern's death at age 57 in prison:

"McGivern served 21 years in state prison in connection with the 1968 slaying of a Westchester County sheriff's deputy. He, Culhane and another prisoner were being transported by the deputy along the state Thruway when one or more of the inmates tried to escape. McGivern and Culhane blamed the third inmate, who was killed in the incident, for slaying the officer.
Both Culhane and McGivern were eventually found guilty of capital murder and placed on death row before their convictions were struck down on appeal. They were later convicted of felony murder.McGivern was the beneficiary of a well-publicized clemency campaign in the
mid-1980s that was boosted by support from such celebrities as singer Pete Seeger
and conservative columnist William F. Buckley. Police supporters contended that
McGivern and Culhane were as responsible for the deputy's slaying as the dead prisoner.
Cuomo granted McGivern clemency in 1985, and McGivern won parole in 1989."

The deaths of Sgt. Edward O'Grady and Officer Waverly Brown of the Nyack
Police Department and Peter Paige, the Brink's guard left 9 children fatherless. There can be little doubt Kathy Boudin, knowing that murder was a possibile outcome, chose to participate and to facilitate the activity that resulted in three deaths. During her incarceration, Kathy Boudin has been visited by her son, who was also a victim of her actions.

I had an uncle who lived in New Milford,Conn., a tall, powerfully built man. He worked on a train as a guard for Wells Fargo many, many years ago. When confronted by actual robbers, my uncle got a case of "buck fever" and was unable to pull the trigger. The holdup men told him to sit down and relax as
they took all the money they could carry and fled. My uncle was charged as being an accomplice, but the judge hearing the case realized he was dealing with a big, dumb kid and let him go. I tell this story for a reason. Country bumpkin that he was, my uncle knew he might be killed by holdup men from the day he took the job as a guard. Does it matter in any way that the people who were
killed knew from the beginning that they might be killed and took the dangerous
job nevertheless?

Kathleen Dean Moore reminds us in her book "Pardons" that the tradition of
pardons has come down to us from medieval times. Then, a pardon was a gift
from a king. It was the king's law that had been violated and he had the right to forgive the offense if he wished. In modern times, a pardon is properly used to correct an injustice.

Until last year, it was still legal to execute the retarded in the United States. Prior to the change of that law, an executive have used the power of the pardon to bring justice to a retarded person under sentence of death. It's an example of how pardons might be used to bring sense and humanity to bear on the human interactions, even when the law itself is the obstacle.

The United States Constitution was never intended to be a "stopped clock" sure to be right only twice daily, but rather to be a living document, one that would always be subject to cautious, thoughtful interpretation and revision as needed. No one in the 18th century was foolish enough to imagine he was
participating in the creation of an infallible document to serve as a center piece
for a state religion. Interpretation and revision by amendment was anticipated and provided for.

"Neutral Principles"

Fish states:
"A proper assessment (of Justice Clarence Thomas' arguments) might begin by
challenging the assumption that neutral principles, abstracted from history, are
capable all by themselves of deciding issues that arise only in historical
circumstances."Neutral principles are open to challenge. As Fish points out in his book"The
Trouble With Principle", a "principle", by its very definition is not neutral. It takes a stand. A principle cannot exist without favoring those who agree with the principle over those who don't. Therefore, principles cannot be neutral.
Consider "fairness"as a neutral principle. To exercise fairness as a neutral principle to both sides in an issue, one must act in such a way as to give neither side an advantage. But "being fair" implies there is something to "be fair" about. At some point a side must be taken. One may as well not act at all, if every action favoring one side must be balanced by a corresponding action favoring
the other. But principles are never neutral. They take sides by definition. Principles must favor principled action over any other action.
It's easy to lose sight of the issue at stake. The principle of "fairness" is sometimes
taken to mean both sides of an issue are heard. In fact, it isn't being "fair" simply
because you're following a procedure with rules any more than it's "fair" that we stop for lunch at a scheduled time.

Fish states: "Although Justice O'Connor, like her colleagues, speaks, and is expected to
speak, in the timeless language of principle, she is in fact alert, as her deference
to the briefs from industry and the military shows, to the real-world consequences of what she decides."

Justice Thomas is not the only one in search of timeless tools to deal with the untidiness of the situations time throws up. It is the law's claim precisely to base itself in such tools. But I believe this search has failed, and therefore we will always be engaging in the ad hoc, pragmatic reasoning of which Justice Thomas accuses the majority. "

The concept of neutral principles enters the discussion in response to our need to discover something we know for certain to serve as a starting point; a foundation upon which to build an edifice of ethics/values. Neutral principles, if they existed, would exist as timeless truths, separate from any immediate situation and independent of history.

And yet it seems that almost any starting point must be arbitrary since so little can be known for certain . (DeCarte's ";I think, therefore I am" comes to mind. Poor, mad Ophelia in distributing flowers, includes pansies:"And there is pansies, that's for thoughts"

Indeed, most of modern ethics could be described as "faith based", starting from points grounded in thoughts of actions and outcomes for which we hope, or are willing to accept completely on faith. Our very lives are lived out in accord with a script of "useful fiction". a story we tell ourselves about what will most probably happen if things work out to be at leastan approximation of the events we anticipate. We cross the swift moving current of daily events stepping carefully from one certain fact to another and filling in the great void of the unknown between with "useful fiction" to smooth our way.
Without that simple fiction filling in the void, life would be terrifying and overwhelming. Ordinary events like taking a trip in a car would require heroic effort. Nevertheless, it is a grave although common error to mistake the difference between reality and a useful fiction.