JUDGING CRIMES

In the Wake of the Plague is Norman Cantor's entry in the Be-the-Next-Jared-Diamond! Sweepstakes.   I don't think Professor Diamond needs to worry quite yet, but Cantor's book did have this interesting little aside (the book basically consists of a string of little asides, some more interesting than others):

That today we may look back on the English king of the fourteenth century [Edward III, scion of a "devilish breed" of "fighting royal monsters"] as a kind of destructive and merciless force, while to nearly all articulate and literate contemporaries he was a constitutional king and very model of chivalry and aristocratic honor, illuminates a gap between our world and fourteenth-century Europe

Fourteenth century people lacked the moral categories that could transcend traditional political and social roles.  They lacked a critical value system that judged rulers by consequences and not the formal categories in which their behavior was structured.

I've always thought that the first duty of the historian is not to patronize the past, and talk about the inability of prior folk to think things through as clearly as such models of enlightened humanity as humanities professors has always struck me as a kind of dereliction of duty.  It's a lot easier to say they were inadequate than to face the possibility that they weren't.

Anyway, what's Cantor's evidence for what "nearly all articulate and literate contemporaries" thought?  The writings collected in their archives, of course.  And might there be reasons other than cognitive incapacity why they might not insert into their official archives criticism of a "royal monster"?  What was it that Russians said during Stalin's waning years? - not so much da as duh.

Modern American lawyers live in the intellectual world of Edward III.  We're Scholastics, all of us, still employing the techniques of the 14th century Schoolmen.  (See post 129 and post 14.)  And if a historian writing 650 years in the future were to review only the published opinions of our lower courts, he/she/it could hardly avoid concluding that people of the 21st century lacked the critical value system to judge their Supreme Court by consequences rather than the formal categories in which the Court's legal reasoning was structured.

How else to explain the unquestioning way lower-court judges and practitioners of the 21st century accepted the idea that the Constitution changes meaning from one day to the next, based solely on bloc voting within the intentionally non-representative branch of government?  They had oatmeal for brains back then.  There's no  other explanation.

I was reminded of this the other day when I underwent the dreary ordeal of re-reading Justice Ginsburg's recent opinion in Cunningham v. California.  (See post 230.)  That's the opinion in which she explained that the California Supreme Court had misinterpreted the California sentencing statutes, explaining in a footnote (# 16) that the proper interpretation of state statutes is a federal question.

What hadn't occurred to me previously, though, is to add up the votes of the justices who disagreed with Justice Ginsburg regarding the constitutionality of various sentencing statutes.  In Cunningham, three justices - Breyer, Kennedy and Alito - concluded that her opinion was inconsistent with the opinion she joined in Booker, the decision from two years ago that the Federal Guidelines were, on balance, more constitutional than not.

But in Booker itself, four different justices - Scalia, Thomas, Stevens and Souter - concluded in their messily bickering way that the "remedial opinion" Justice Ginsburg joined was inconsistent with the Court's prior precedent - the very precedent on which her Cunningham opinion is ostensibly based.

That means that, of the nine current members of the Supreme Court, seven are now on record saying that Justice Ginsburg's view is incoherent, self-contradictory, an artifact of "Wonderland."  Chief Justice Roberts hasn't favored us with his own opinion, so we have a 7-1 vote.  And the one receives the obedience of every lower-court judge.

Is there any way to say this profession, in its fealty to a Court capable of producing such a result, is less deserving of condescension tinged with ridicule than England's 14th century scribes?

Legal reasoning is an extremely crude technique for analyzing reality.  That's the best thing about it.  That's what makes it so effective as a device for getting things from people.  The last thing you want in any tool is excessive refinement. 

That's why paperbacks won't be replaced by e-books until you can toss an e-book in an outside pocket of your backpack and take it camping, or leave it in an airport when you're through with it.   That's  the great strength of Mikhail Timofeevich Kalashnikov's most successful invention  - it's so crude that an uneducated farmer's son living in a mental Dark Ages can maintain it in murderous order.   Tapping a patient's knee with a rubber mallet is a crude way of measuring reflexes, and tasting tea is an extremely crude way of evaluating its quality, but neither technique can be improved upon.

So the crudeness of legal reasoning isn't necessarily a bad thing.   In many ways it's a highly-desirable quality, just as simplicity is a quality prized in shovels.  It's only when one attempts to use a shovel to prepare specimens for microscopic examination that problems arise. 

Here's a list of the four crudities that make the mental skills of lawyers and judges so extremely useful for shoveling:

1.  Almost all legal reasoning is based on categorization.  The lawyer or judge develops categories a priori and then demands that reality fit into them.    Thus Justice Scalia has recently informed us that all out-of-court statements by anybody must be either testimonial or non-testimonial, and whether a statement is testimonial depends on whether it was made during an emergency or during a non-emergency, and whether being frightened and in acute pain qualifies an emergency depends on whether the person who inflicted the pain is still on the premises or outside.   (See post 127.)   Reality is not permitted to be any more complex or subtle than the mind of the judge slotting its shards into categories.

2.  Almost all legal arguments are based on syllogistic reasoning, or sophistical pseudo-syllogistic reasoning.  (See post 129.)  The syllogism is the shank of formal logic, a device anyone can make but, when it comes to the nitty-gritty, often quite effective.   The syllogism has room for only three ideas in its head at any one time.  It's a  picture composed of primary-color Benday dots.   It's a song with only three chords.

3.  Almost all legal arguments are arguments from authority.  Inside the legal pyramid, it's enough that the Supreme Court said so - there's literally no more powerful argument.  But the argument isn't conclusive because it's true, or even logical, but only because of its source.  In logical terms, arguments from authority are worthless on their own, but in the real world nothing ends an argument more effectively than power, as the Heguenots discovered.  That's part of what Justice Jackson meant when he said of the Supreme Court: "We are not final because we are infallible, but we are infallible only because we are final."

4.  Lawyers' arguments are based on backward syllogisms.  The lawyer begins with the conclusion - what the client wants.  The middle premise is comprised of the facts of the case, or rather of the evidence admissible at trial.  The major premise, the first element of the syllogism, is the goal of legal research.  When a lawyer conducts research, what she's trying to do is come up with some statement of a legal principle that can be slotted in at the top of the syllogism to justify the bottom. 

Future posts will show the four crudities in action.

The law attracts so many talented, intelligent people, who devote so much ingenuity to their profession, that it's sometimes hard to remember the extreme crudity of the intellectual tools we work with.  I mean "crude" in a comparative way: a chainsaw is crude compared to a jeweler's saw, but that doesn't make the chainsaw a bad thing, as long as you don't use it on jewelry.  

Or, to draw an analogy from one of the other traditional learned professions, a doctor who diagnoses strep throat by smell, or shingles by sight, or a hernia by the way they diagnose hernias, is using extremely crude diagnostic tools, ones that almost certainly go all the way back to Galen  and before.

Legal reasoning is crude in this comparative sense.  Lawyers are the last Scholastics.  We're trained to accept "that the proper method of knowing involve[s] syllogistic demonstration – deduction from universal first principles or premises taken to have self-evidential status."   That's a quote from David C. Lindberg's The Beginnings of Western Science: The European Scientific Tradition in Philosophical, Religious, and Institutional Context, 600 B.C. to A.D. 1450, a book that explains everything you need to know about the origins of the intellectual techniques American law students spend three years mastering.  (See post 14.)

The sciences abandoned Scholastic techniques in the century following Francis Bacon.  One of the distempers of learning Bacon attacked was "contentious learning ('vain altercations')", by which he "was referring mainly to Aristotelian philosophy and theology and especially to the Scholastic tradition of logical hair-splitting and metaphysical quibbling."  "Contentious learning" is a pretty good way to sum up most legal scholarship and most "scholarly" (i.e., heavily freighted with citations) judicial opinions.

In Bacon's own words, the Scholastics "rather crushed the sciences with a multitude of treatises, than increased their weight."  (New Organon, Book One, 78.)  They pursued logical speculations to absurd lengths.  Out of "no great quantity of matter and infinite agitation of wit [they would] spin out unto those laborious webs of learning which are extant in their books." (Advancement of Learning, Book One, IV.5.)  They exemplified "the first distemper of learning, when men study words and not matter". (Advancement of Learning, Book One, IV.3).  And, my favorite:

Surely, like as many substances in nature which are solid do putrefy and corrupt into worms; so it is the property of good and sound knowledge to putrefy and dissolve into a number of subtle, idle, unwholesome, and, as I may term them, vermiculate questions, which have indeed a kind of quickness and life of spirit, but no soundness of matter or goodness of quality.  (Advancement of Learning, Book One, IV.5.)

Bacon was referring specifically to the belief, common until Pasteur's time, that worms spontaneously generated in decaying flesh.  (See Roy Porter, The Greatest Benefit to Mankind, pp. 428-30. ) 

The image exactly captures the way the law actually works in the United States: a principle, grand and noble in itself, is divided into endless subsidiary questions the way a body is turned into worms.  And each one of the worms is then treated as if it were the original body, so that, for instance, the difference between serving a search warrant now or ten seconds from now is the difference between having a fourth amendment and watching it evaporate.  (See post 124 and post 126 and post 128.)

American judges hold that when a person consents to a search by police, and the search uncovers evidence of wrongdoing, it's not enough for the prosecution to show the consent was given voluntarily.  There must also be independent proof that the consent was not coerced.  And these aren't the corrupt and incompetent judges I sometimes write about.  Perfectly intelligent, capable people are willing to accept  that a person's consent can be simultaneously voluntary and coerced, much as a mind as luminous as St. Thomas's could devote its days to wondering if two angels could be in the same place at one time. 

In the twenty-first century the signature form of American legal scholarship remains the treatise - the very blocks of dead weight under which the Scholastics crushed learning, in Bacon's magisterial sneer.   Legal treatises gather together what lawyers, with the authentic Scholastic note of reverence, call the "authorities" on a given subject.  Summaries of the authorities and long quotations from them are strung together with transitional passages of commentary and the occasional editorial comment. 

St. Thomas or John Duns Scotus or William of Ockham could walk into any law library today, take from the shelf any volume of LaFave on Search and Seizure (4,200-plus pages for the 54-word fourth amendment) or Wright and Miller on Federal Practice and Procedure (64 volumes and counting), and instantly recognize the scholarly method.

American law students are trained to accept "that the proper method of knowing involve[s] syllogistic demonstration – deduction from universal first principles or premises taken to have self-evidential status."  The first principles of constitutional adjudication are set forth in the Constitution itself, of course, but the premises from which most lawyers work are set out in judicial opinions -- from the Supreme Court, first of all. 

The Supreme Court's premises have self-evidential status because they are enforced.  The Court can overturn any lower court that defies it.  That doesn't stop lower court judges from trying (see item 11), but it explains why they try to disguise what they're doing.  By and large, the assumption on which American lawyers work is that "the Constitution" and "rulings of the Supreme Court" are synonymous terms.

The quotation with which I began this post is from David C. Lindberg's The Beginnings of Western Science: The European Scientific Tradition in Philosophical, Religious, and Institutional Context, 600 B.C. to A.D. 1450, a book that explains everything you need to know about the origins of the intellectual techniques American law students spend three years mastering.