Wednesday, June 06, 2007

Politics and law.

I saw this a little bit ago, and had to comment. The basic complaint is an old one, familiar to both left and right, that courts should not be "politicized". The short version of what I have to say is that it's pure bullshit. There's no hard line between law and politics (nor between law and morality).

The long version works like this. The standard story in philosophy of law, from H.L.A. Hart, is that law is a system of two broad kinds of rules. Primary rules are social standards (implicit or explicit) which prohibit, permit and require certain behaviours. "Don't sleep in the park" is a primary rule, as is "hold the door if someone's following behind you". A system solely of primary rules has some problems, though: you have no mechanism for determining precisely when a rule has been violated; you have no mechanism for changing or identifying rules; and you have no mechanism for determining when someone's punishment for breaking a rule was or was not sufficient. In short, it's a pretty vague and fuzzy system.

So, you add on a second level of rules: rules about the primary rules, which we may thus call secondary rules. Secondary rules tell you how to recognize a primary rule and how to enforce and change primary rules. A system of primary and secondary rules is a system of law.

There's a problem, though, when you try to pry this system of primary and secondary rules off from politics or morality, namely that there's no non-question-begging, non-arbitrary, non-ad hoc way to distinguish primary rules of law from rules of morality or rules of politics. For the sake of introducing some terms, you can't distinguish primary rules from principles (what is good/right or bad/wrong) or policies (instantiating what is good/right or bad/wrong in social context) or procedures (how to enact the policies). The problem with reducing law to rules is that politics and morality work on the basis of rules, too. Unless we want to introduce some strange hypothesis about how these rules differ in kind -- and I don't see what that would look like -- then it has to follow that morality, politics and law exist in the same "space". (I could probably throw etiquette in there, too.)

Now, this may be an objection to that model of law. But if it is, then what is the law supposed to look like such that moral and political commitments play no role in it? The only option I can see is a purely procedural one: law is just a matter of following strict rules. I'd call this the "chess model of law", as the rules of chess seem to work like this. That is, they're strict: the rules lay out exactly what a pawn can and can't do, and what a knight can and can't do, etc., and what constitutes a win, and what constitutes a loss, etc., and how to set up the board, etc, etc. Once we get a complete set of the rules of chess, we can, by following them precisely, play chess without ever having to introduce any non-chess-related considerations into the game. So, if law is a system of strict rules, it has to work like chess: once we know all the rules, we can just follow them precisely, play the "game" of law, and never have to inject any outside considerations.

This should be pretty obviously weird; here's why it's also wrong. Common law doesn't work like this. Common law is judge-made law (what the courts are supposed to be creating, at least in the Anglo-American tradition) and is contained in judicial decisions. But, as anyone whose had the (mis)fortune to read some judicial decisions knows, you can't just read off the common law from the decisions: you have to interpret them, "read between the lines", and such like. And what guides this process? There's really two options: the other source of law (statutes) or something extra-legal, like politics or morality (which would take us outside the strict rule understanding of law). (I'm omitting custom as a source of law as it seems to be of progressively less importance in contemporary legal systems. But the argument could easily be extended.)

So, let's look at statutes. Statutes are pretty direct, unlike judicial decisions: they actually say what the law is. The problem, though, is that the language they use is incapable of being as precise as it would have to be in order to constitute a set of strict rules. Strict rule have, as far as I can see, at least two necessary features: the concepts they use have clear necessary and sufficient conditions as their definitions, and the connections they draw between the concepts are expressible truth-functionally.

So, turning back to chess, we can define a pawn in terms of necessary and sufficient conditions: "a piece that occupies the second rank from the perspective of each player at the beginning of the game". That completely defines what a pawn is, but not what it does. So, we could introduce a rule defining a pawn's movement: "if there is a piece directly in front of a pawn, a pawn may not move; in all other cases, on the first move, a pawn may move two squares forward, on any other move, a pawn may move one square forward". These definitions would require augmentation with definitions of "rank" and "square" and what constituted "directly in front of", but these, I think, could also be provided.

The question is whether we could ever do that for statutory law. Let's take an easy example: "No dogs allowed." For this to be a strict rule, we would need a set of necessary and sufficient conditions for the concepts deployed, and we would have to be able to express the rule in formal truth-functional terms. So, we don't have to define what "no" means, as it can be represented as a truth-functional negation of "dogs allowed". This means we need necessary and sufficient conditions for "dogs" and "allowed". Good luck with that: even "dog" is incredibly difficult to capture in terms of necessary and sufficient conditions. Do dogs have to have four legs? Must they have fur? Do they need to have tails? If we took a dog and swapped 1% of its DNA with DNA of a cat, would it still be a dog? How about 5%? 20%? What about chihuahuas, anyway -- aren't they just rats that make funny noises? And so on, and so forth.

If we can't get the kind of definitions of concepts we need for a simple rule like "no dogs allowed", then it's highly unlikely we can get the definitions we need for more complex rules like, oh, say, the tax code. Which means that the strict rule understanding of law is wrong: we have to go extra-legal in order to understand what the law is trying to tell us to do. The best and most obvious source for extra-legal material that would be relevant is -- surprise! -- one of politics, morality or etiquette. That is, the other sources of social rules.

Excluding politics from this list would just be arbitrary (especially given the close ties between politics and morality). So, on the whole, it looks like politics must be connected with law.

No comments: