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Appeal to the People's Court : Rethinking Law, Judging, and Punishment [1 ed.]
 9789004365711, 9789004363854

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Appeal to the People’s Court

Value Inquiry Book Series Founding Editor Robert Ginsberg Executive Editor Leonidas Donskis† Managing Editor J.D. Mininger

volume 318

Studies in Jurisprudence Editor Vincent L. Luizzi, Texas State University Guest Editor Richard Hull, University at Buffalo

The titles published in this series are listed at and

Appeal to the People’s Court Rethinking Law, Judging, and Punishment By

Vincent Luizzi

leiden | boston

Cover illustration: Will Bullas, “Kangaroo Court,” oil on canvas (2014); used by permission of the artist. Sketch of Vincent Luizzi found in ‘About the Author’, p. 154: “Judge Luizzi,” by David Cano; pencil on paper drawing, 2017, used by permission of the artist. Library of Congress Cataloging-in-Publication Data Names: Luizzi, Vincent, author. Title: Appeal to the people's court : rethinking law, judging, and punishment / by Vincent Luizzi. Description: Leiden ; Boston : Brill-Rodopi, 2018. | Series: Value inquiry book series, ISSN 0929-8436 ; volume 318. Studies in jurisprudence | Includes bibliographical references and index. Identifiers: LCCN 2018011074 (print) | LCCN 2018014777 (ebook) | ISBN 9789004365711 (E-book) | ISBN 9789004363854 (pbk. : alk. paper) Subjects: LCSH: Justice, Administration of--Philosophy. | Law--Philosophy. | Jurisprudence--Philosophy. | Judgment. | Punishment. | Courts. Classification: LCC K240 (ebook) | LCC K240 .L85 2018 (print) | DDC 340/.1--dc23 LC record available at

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: issn 0929-8436 isbn 978-90-04-36385-4 (paperback) isbn 978-90-04-36571-1 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

For my sisters, Elnina and AnitaJoan

In all the world and in all of life there is nothing more important to determine than what is right. c.i. lewis The Ground and Nature of the Right Columbia University Press, 1955

Contents Guest Editorial Foreword ix Richard T. Hull Preface x Introduction: People’s Courts and Legal Philosophy 1 1 Spotlight on People’s Courts 10 2 Law 30 3 Judging 74 4 Punishment 98 Conclusion 144 References 147 About the Author 154 Index 155

Guest Editorial Foreword With his background in both philosophy and law, as well as his longtime ­service as a municipal court judge in Texas, Vincent Luizzi is eminently qualified to write this book. He writes with both the passion of an experienced people’s court judge and the clarity of a well-honed philosophical mind. His research takes up primary subjects of jurisprudence—law, judging, and punishment— and he offers a mature, insightful look at them through the lens of a people’s court. For each of these topics, the author underscores how values figure into a dynamic reconception of these traditional concepts. Luizzi enlivens the work with accounts of his visits to people’s courts in the United States and abroad—in the United Kingdom, Indonesia, Hungary, and China—and with first-hand accounts of his communications with their judges. This work will have wide public appeal in addition to its being a significant contribution to both the philosophical and legal communities, because it is written in a way that is accessible and because it addresses topics relevant to current public interests. A lucid, first-hand account of the working of people’s courts, both here and abroad, comprises a unique contribution to the field. Founded as Natural Law Studies, the vibs special series Studies in Jurisprudence publishes works in all areas of philosophy of law and maintains a special interest in the relationship between values and morality and the laws of nations and peoples. Thus, Appeal to the People’s Court: Rethinking Law, Judging, and Punishment precisely reflects well the objective of the series, and as such, constitutes a superb addition to it. Richard T. Hull Professor Emeritus of Philosophy University at Buffalo

Preface A pet project of my career as an academic and a judge has been to join philosophical inquiry with my experiences in judging in a municipal court. This book is the culmination of a thirty-five year journey that brings to light how these seemingly insignificant people’s courts, courts that handle minor offences without complex procedures, can offer valuable insights about law, judging, and punishment for the whole legal order. In a work of applied philosophy intended for the generally educated reader, I include accounts of personal experiences, visits to similar courts around the world, and conversations with their judges. Special thanks go to my colleague Richard T. Hull, a fellow Associate Editor of the Value Inquiry Book Series, for serving as Guest Editor for this volume. Richard, more than anyone I know, shares my interest in applying philosophy and making it accessible and relevant to students and the public. His stint as Director of Humanities Texas, the state agency of the National Endowment for the Humanities for bringing the humanities to the public, is a striking example of this commitment. His proximity in Austin to Texas State, my home institution in San Marcos, afforded opportunities to collaborate with him first-hand on projects in applied philosophy and ethics, like leading discussions in our Dialogue Series, assisting with its development, and coming on board as a Visiting Professor on several occasions. I am grateful to artist Will Bullas for permission to use an image of his work, ‘Kangaroo Court,’ an oil on canvass, as the cover illustration. It captures well an essential feature of how a people’s court functions—maintaining a delicate balance of formality and informality to provide for the participation of the citizenry. Note how all the cues of formality that the judge projects are counteracted by the presence of a younger kangaroo that the judge is holding. Many thanks go to David Cano for the drawing of me in the style of courtroom illustrations. State University of New York Press granted permission for me to quote passages from my A Case for Legal Ethics: Legal Ethics as a Source for a Universal Ethic. The American Bar Association granted permission for me to quote passages from my ‘Balancing of Interests in Courts,’ which appeared in its journal, Jurimetrics Journal. I thank them both for these permissions. Courtesy of Legends of are all of the Native American wisdoms that I quoted from that website in the chapter on punishment.



Throughout the work I drew on and restated ideas that I published elsewhere and am likewise grateful to these publishers for their permission to make use of this material. The works and publishers include: ‘New Technologies, New Punishments, and New Thoughts about Punishment.’ Rechtstheorie, Behest 18: Changing Structures in Modern Legal Systems and the Legal State Ideology. Edited by E. Bulygin, B. Leiser, and M. Van Hoecke, 395–404. Berlin: Duncker & Humblot, 1998. isbn 3428091477 ‘In Search of People’s Courts in China in 1999.’ Soundings: An Interdisciplinary Journal 84, no. 1/2 (Spring/Summer 2001): 105–20 Stable url: ‘Law as Acts of Citizens.’ In: Legal Philosophy: General Aspects (…) ­Proceedings of the 19th World Congress of [ivr]. Edited by M. Troper and A. Verza, 45–50. Stuttgart: Franz Steiner Verlag, 2002 isbn 9783515080262 ‘New Balance, Evil, and the Scales of Justice.’ Evil, Law, and the State: Perspectives on State Power & Violence. Edited by John T. Parry, Amsterdam: Rodopi, 2006. isbn 9042017481 Texas State University and the American Philosophical Society provided funds for travel to people’s counts here and abroad, and thanks to them too. Prof. Rui Zhu arranged for my speaking at Peking University, visiting courts in China, accompanying me, and translating for me for which I am very appreciative. Finally, I thank Elizabeth D. Boepple who edited the manuscript and prepared it for production, and Bram Oudenampsen and Jarno Florusse of Brill-Rodopi who oversaw the various stages leading to its appearance in print.


People’s Courts and Legal Philosophy In a people’s court, citizens typically represent themselves, and the court functions without lawyers. These features, which make a people’s court so different from other courts, suggest that the goings on in a people’s court would reveal little of significance about the legal order. The participants seem analogous to amateurs rehearsing for a local production of a Broadway show or firstyear medical students treating patients in an emergency room. Still, there is an important sense in which the dominant presence of the citizen in these courts forces issues that might otherwise be obscured in higher courts. Judges are obliged to think about their role as enablers of citizens representing themselves. Citizens and judges alike look to sentencing alternatives that engage the citizen in the community or make the citizen a better person. Alternatives to incarceration are entertained, such as community service or an alcohol awareness class. In keeping with this study of how people’s courts might inform our thinking about aspects of the legal order such as judging and punishing, we can also bring it to bear on the nature of law itself so that, here too, we highlight the activity of citizens. Common conceptions of law, as well as many views put forth by legal theorists, focus on rules as the main, defining feature of law. Laws are rules, to be sure, but, as rules for people to follow, the essential interconnectedness of law and the activity of citizens is evident. We can build on this insight to create a fresh conception of law that explicitly acknowledges this activity. Traditionally, law, adjudication, and punishment are among the most prominent subjects of study by legal philosophers; they figure large in any common understanding of the legal order. Importantly, the proceedings of a people’s court readily suggest ways of rethinking these concepts. These insights originate in observations about people’s courts, and articulating the specific features and details of them is part of the overall project. Equally important is establishing the plausibility of these new views about law, adjudication, and punishment, presenting the case for each one, and fully evaluating countervailing views.


The investigation and establishment of the claims made in this volume rest on the collection and evaluation of arguments, ideas, theories, and evidence, © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004365711_002



some of which include first-hand accounts of my judging in a municipal court, a variant of a people’s court, along with observations about the nature of philosophizing and judging. However idiosyncratic including such accounts in this approach might appear, it stems from long traditions in law and philosophy. In law, cases are built on the testimony of individual witnesses, some of who may be experts and especially well suited to be offering information and evaluating it. In philosophy, from ancient through modern times, thinkers have coupled their ideas about how to philosophize with their philosophizing about substantive issues; they recount experiences that led to, illustrate, or assist in establishing their views. Thus, we find Socrates offering his dialectical method as he tells about his investigation into an oracle’s remark about his being the wisest of men. Descartes, in a personal quest for certainty, and faced with his own doubts about the veracity of what other people had taught him, formulated his famous method of doubt, to accept as true only what is self-evident, clear, and distinct. For example, in my experience with continuing education classes for judges of people’s courts, speakers frequently advise the judges that citizens primarily want the judge to listen to their accounts and to acknowledge that they have a side to tell. Judges themselves make this point. Because my experience ­differs, it seems worthwhile to relate and evaluate it. I find that this listening and ­acknowledging function, however important, by no means addresses the range of wants and expectations of the citizenry. Some citizens are fixated on prevailing or securing a windfall after a gamble, such as might occur when a case is dismissed because the police officer scheduled to testify does not a­ ppear. Some of them want to inconvenience or badger the police officer as a means of getting even. Sometimes they want the judge to listen, to be sure, but it is not so much to have someone hear their side as it is for the judge to take some specific action on a matter. Sometimes the actions they request are beyond the scope of judicial powers, like having the city remove tree branches that make it difficult for a driver to see a stop sign. Many requests are quite appropriate for a judge to act on. A citizen may not be contesting a charge but wants to keep it off his or her record because, for example, insurance rates may rise once ‘running a red light’ shows up on the record, or because records with offenses like theft and assault may impede access to a job or educational institution. In these cases some form of probation that leads to a dismissal may be appropriate. A citizen may be seeking release from custody with a personal promise to appear at a future hearing without posting bail. Examples like these require the judge to explore and evaluate the circumstances surrounding the request for a specific action to be taken. They show how a simplistic adage, that citizens just want judges to listen to

People’ s Courts and Legal Philosophy


their side, serves poorly to guide judges in thinking about the citizenry and shows how first-hand experience becomes important for making this limitation apparent.

Rethinking Adjudication: A Dilemma Prompts Judges to Reflect on Their Roles

Similar experiences have also made it apparent that forces are at work in people’s courts that involve a complex dynamic between judge and citizen. A primary one involves what I call the dilemma of the people’s court judge. Its exploration shows how judges at this level confront a problem whose solution demands reflection on adjudication and the role of a judge. Their doing so serves as a model for judges and citizens alike to debate and decide how best to conceive judges and adjudication. In serving as a municipal judge in San Marcos, Texas, I became increasingly aware that successful adjudication in a court at this level, where citizens typically represent themselves, requires the introduction of enough informality into an otherwise formal proceeding to allow for this direct involvement of the citizenry. The judge’ s dilemma is defined by the conflicting demands of running both a formal proceeding and an informal one. It becomes imperative for the judge to address the dilemma, and, in doing so, the judge becomes an active inquirer into how best to conceive the role of judge or the institution of judging. In so doing, the judge in effect is rejecting a predominant view that there is a single, fixed conception or model of judging, like that of the judge mechanically applying rules to facts. This approach builds on my call in A Case for Legal Ethics for people in any of their roles—citizen, parent, worker, or parishioner—to construct viable conceptions of the roles they occupy (Luizzi 1993). The approach requires ­people to identify competing variables that might figure into their roles and forge critically reflective roles. For example, the traditional conception of a professional depicts someone who has special skills and knowledge that create special obligations in a career of public service. Law, like medicine, education, and religion, was conceived as an occupation for people responding to a special calling. In this model, it would be quite inappropriate for these people to advertise. Still, as lawyers developed an identity that overlapped that of a person in business, the profession and individual lawyers brought advertising within the legitimate activities of a lawyer. Individual lawyers still have to decide for themselves whether to build this feature into the role they occupy.



Other roles lend themselves to this sort of rethinking and development. Consider the journalist and the suggestion that they do more to strengthen their communities and reaffirm their role as critical evaluators of the news in the wake of criticism of their uncritical coverage of events leading up to the war in Iraq. The poet and politician, Václav Havel, who was the last President of Czechoslovakia and the first of the Czech Republic, calls upon politicians to rethink their roles and to be self-aware of how the comforts associated with power, like being driven by chauffeurs and having coffee made for them, can transform them for the worse. They become distant from their constituents and indifferent to the needs of common people. In Havel’ s view, we should think of requiring moral purity of politicians to minimize the corrupting influence of power and abandon the idea that politics is dirty business for politicians willing to engage in it (Havel 1991). It is likewise for judges and their activity. There are matters at issue to think about and resolve and, for the judge of a people’ s court, balancing formality and informality is a primary one. Jurisprudence has much to say about the nature of adjudication, and this investigation into the role of the judge confers on all existing theories of judging a new relevance, for it allows each of them to make a suggestion which judges may incorporate into their conception of themselves as judges. These theories may also be seen as suggestions for how citizens or legal philosophers forge conceptions of judges that we would have our judges adopt. The insight is that the dilemma of the judge of a people’s court compels these lower court judges to participate actively in forming a ­coherent conception of themselves as judges, and this activity of forging one’ s role becomes a paradigm for what other judges should be doing. This attempt cuts against almost every other theory of judging, since the others purport to render the correct view of judging to the exclusion of all others; the other theories, considered by any one theory, are dismissed as faulty. The view I offer allows for many of them to bear on the conception which judges use to direct their activity. We can factor out of the competing conceptions of judging such variables as whether judges have discretion or are constrained to apply rules to facts with no discretion, whether customs and moral rules bind judges, whether a balancing of interests is ever appropriate, and whether judicial activism or the creation of law from the bench is in the offing. These variables become the grist for critical assessment and a reflective construction of a viable conception of a judge. As much as the dilemma gets us thinking broadly about the role of the judge and makes other theories of judging relevant for constructing this role, the dilemma also suggests criticisms of the various views on judging. Their most significant deficiency is that they fail to grant judges any latitude to adopt useful

People’ s Courts and Legal Philosophy


elements of other theories for guidance. This omission in effect cuts off inquiry into the nature of judging and confines the judge’ s world and possible experiences to the four corners of any one theory.

Rethinking Law

In many ways, this work is a continuation of the U.S.’s great and enduring contribution to jurisprudence, American Legal Realism. Among the most prominent realists are Oliver Wendell Holmes, Jr., Jerome Frank, Benjamin Cardozo, Roscoe Pound, and Karl Llewellyn. One of their essential insights is that the activity of judges and courts is a key feature of the legal order and for understanding the nature of law. Jerome Frank offered the most extreme but clearest connection between the two with his equating law with the actual decision of a judge in a particular case, the decision being an action of a judge. In the standard view of law as rule or norm, we would be confident in saying what the law is in speaking about future cases. But, in Frank’ s way of thinking, until the judge rules, all there is for that case is probable law, a prediction of what the judge will do. Views like these move us away from thinking about law’s essence as being a rule as they feature judicial activity as central, what judges actually do with legal rules. If the realists reconceived law so as to highlight the acts of judges, our view is far more inclusive as it brings in the acts of all citizens. The idea is that the phenomenon of citizens guiding their conduct with legal norms is an overlooked yet essential feature of law. A woman who had been arrested for public intoxication appeared before me the following morning. She was perplexed because she felt she had done just what she should have under the circumstances. She had been drinking and wanted to comply with the law against drunk driving. She curled up in the back seat of her car, which was legally parked, and went to sleep. The arresting officer disrupted her slumbers, determined she was intoxicated, and placed her under arrest for public intoxication. In the probable cause affidavit, the officer stated why he believed she was intoxicated, the location of the public place where she was intoxicated, and his reason for thinking she would be of danger to herself or others were she not taken into custody. Conceiving law as the act of a citizen guided by a legal norm brings the activity of citizens to the forefront of the notion of law. It allows us to connect this woman's activity with the essence of law. The insight does not exhaustively list every feature of law but captures as an essential feature of law the phenomenon of the citizen’ s acting under the guidance of a legal norm. The legal norms or rules themselves figure into the conception of law but no



more prominently than linguistic rules do when we think of the essence of language as the actual activity of people communicating with one another. Some other examples should help. Sometimes a single legal rule stands out as what guides people as they slow down for a yellow light in the intersection or as they are tempted to delay a car inspection until a time when they can better afford some essential repairs. We are interested in the phenomenon of their being guided by the rule and referring to it as law. Other times a number of rules may be involved as when citizens seek to adopt children, obtain a building permit, or represent themselves in court; in this last case, they are paying heed to their best understanding of the rules of procedure and evidence. In each case what I am referring to as law is this rule-guided conduct of the citizen, the slowing down, the adopting, the representing. Suppose I am preparing to go on a trip. I stop at the drug store for a prescription and pay with a special credit card that accesses tax-free money I have set aside for medical expenses. I am careful to pay cash for items not falling in this category; I know the after shave lotion doesn’ t qualify, am not sure about the dental floss, and use my imperfect understanding of the regulations to guide me in deciding to pay cash for the floss. I then tend to some banking, first ­endorsing some checks ‘for deposit only,’ knowing that this restricted endorsement provides me with protections that a blank endorsement, one with my signature only, does not. I check in at the airport and submit my suitcase, briefcase, and self for security inspection in accord with what I understand as my obligations created by Federal regulations. At my destination, I rent a car, waive insurance coverage, and accept responsibility for any damage given my understanding of the coverage of my own insurance policy. I buckle up and travel through one state after another, follow their speed limits, traffic signs, and officials directing traffic. Throughout this scenario we have many i­ nstances of a citizen’s acts being guided by legal rules. It is this phenomenon that I single out as an essential feature of law. As noted, the realists brought judicial activity into the equation of judging and used it to approximate a more accurate notion of what the law is. Judges are working with legal rules and guiding their decisions with their understanding of them. If you want to know what the law is, look at the activity of the judges. Pressing this way of thinking one step further, if you want to know what the law is, look at the activity of citizens.

Rethinking Punishment and Responses to Wrongdoing

If people’ s courts have drawn our attention to citizens and their conduct for thinking about adjudication and law, they likewise inform us about the third

People’ s Courts and Legal Philosophy


major category of jurisprudence—punishment. Tying the proceedings in a people’s court to a new theory of responding to wrongdoing initially rests on evidence that is primarily first-hand and anecdotal. I do find offenders seeking alternatives to the usual penalty of a monetary fine in court, alternatives like community service, defensive driving, classes on rage management and alcohol and tobacco awareness, teen court, and probationary terms with conditions directly related to the specific offense. I get expressions of interest in doing something of worth and in eschewing what otherwise amounts to a meaningless penalty of a fine; the offender, while willing to take responsibility for the offense, seeks an alternative. These communications of citizens about their interests are themselves part of the direct participation of the citizen in the affairs of a people’s court which defines the nature of the proceeding, and their import, I think, is ultimately to consider seriously veering from the traditional model of punishment of ‘do bad to offender’ to one of ‘offender to do good.’ Usually we think about offsetting the wrong, harm, or evil of the offender with penalties that, in effect, deliver something bad or unpleasant to the offender. We do this in the name of deterring the offender and other citizens from engaging in objectionable conduct in the future. We use the penalty to show people what happens to people when they engage in wrongdoing. Sometimes we use the penalty in the name of giving offenders what they deserve; we take the life of offenders who have taken the lives of other people or at least punish the worst crimes with the maximum penalty. The new model employs the scales of justice, but offsets the ‘bad’ that the ­offender has done, not by directing something else considered to be bad at  the offender, but with a requirement of the offender’s doing some good. While the model upsets traditional views about punishment, it does retain important concepts, like responsibility and desert, which extreme views—such as those of abolitionists Leo Tolstoy and Clarence Darrow—discard along with punishment itself. Support for the new model comes from how people think about taking responsibility for their own wrongdoings at a personal level. People do not think in terms of causing evil or pain for themselves in the face of trying to rectify some injury to another person. Rather, they think in forwardlooking terms of ameliorating the situation, compensating the victim, or doing something connected with the offense that is good or worthwhile. The call is for a basic shift in how we respond to crime while preserving such strong social commitments like insuring that offenders are held responsible and that society does respond in a meaningful way. Let us call this proposal ‘New Balance’ and, to elucidate it further, locate it on a spectrum of alternatives for responding to crime, some of which use



the scales of justice and some that do not—balance models and no balance models. ‘No Balance’ refers to the absence of any scale of justice in responding to crime. Vengeance is a case in point, insofar as it is said to know no limits and be a form of retaliation unauthorized by a legal system. ‘Old Balance’ legally authorizes a penalty to offset the offender’ s wrongdoing, and in doing so, introduces the scales of justice. Defining features include the scales, the legality of the response, and the response being some sort of measured harm to the offender. New Balance similarly invokes the scales in a legal fashion but requires contributions from the offender to offset the offense. When ‘No Balance’ is a response of the legal system, it might take the form of the treatment model, where crime is considered an illness and society’ s response is one of turning to the medical experts for the cure. At one extreme we have punishment that amounts to lawless vengeance and, at the other, law that has abandoned punishment as society’ s response to crime; punishment beyond the law versus law without punishment; no scales at either extreme. In between is the use of the scales to restore a balance, offsetting harm with harm on Old Balance and harm with good with New Balance. The continuum is conceptual insofar as violence or harm decreases as we move along it. It is roughly historical as Western society departed from punishment’s being the prerogative and pleasure of the sovereign to do as he wished with the wrongdoer. Reform meant legal punishment equal to or proportional to the crime or sufficient to serve as a deterrent, and these determinations employ the scales of justice. Recent movements to replace or vary old balance, like a call for a system of pure restitution or restorative justice, enter the realm of New Balance.


A focus on people’ s courts brings the citizenry to the fore. The practical problem that their participation creates for judges of these courts has a counterpart for all judges. The dilemma of how best to balance the formal and informal in peoples’ courts requires their judges to think critically about their role as judges and serves as a model for judges of other courts and citizens alike to do so. Likewise, when we orient our thinking from the perspective of a people’ s court where citizens figure large, we build their activity into a conception of law, and we offset evil with good, thereby rethinking traditional conceptions of adjudication, law, and punishment. These ideas challenge some well entrenched views about law, judging, and punishment in their rejection of the claims that laws are rules independent

People’ s Courts and Legal Philosophy


of people, judges merely apply rules to facts, and punishment is a social necessity. Let us begin this project of rethinking law, adjudication, and punishment through the lens of a people's court with an informal account of people’s courts and their nature. My discussion will draw on correspondence and conversations with judges of these courts, a polling of them, and first-hand observations of them.

Chapter 1

Spotlight on People’s Courts Some commentators have observed that people’s courts are the subject of limited study: ‘Unlike federal and felony-level magistrates, municipal judges and their courtrooms have been the subjects of very little research and are the least understood branches of the judiciary’ (Meyer and Jesilow 1997, 3). Others can offer an explanation for this limited study. They have brought out that little if anything of importance for understanding the legal system goes on in people’s courts. There is the story about Winston Churchill joining Neville Chamberland’s critics about the inadequacy of Chamberland’s background for handling the affairs of a nation; Chamberland’s background was mainly with municipal governance. Churchill is credited with saying, ‘he looked at foreign affairs through the wrong end of a municipal drainpipe.’ Observations about the way these courts pervert justice suggest we veer from them if our interest is in securing justice through the legal system. The New York Times ran a series of feature stories about people’s courts in New York beginning with William Glaberson’s ‘In Tiny Courts of n.y., Abuses of Law and Power.’ The article begins: Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge’s bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings. Nearly three-quarters of the judges are not lawyers, and many—truck drivers, sewer workers or laborers—have scant grasp of the most basic legal principles. Some never got through high school, and at least one went no further than grade school. The New York Times. September 26, 2006

Other accounts like Inferior Counts, Superior Justice counterbalance bad press like this as do recent studies, one of which brings out: As local institutions of justice, these courts provide a context in which to consider general issues of community and the role of local government in a democracy. Community should be valued in democracies because, the argument goes, it is here that full citizenship is acquired and lived. These courts constitute most people’s only direct experience with the

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004365711_003

Spotlight on People’s Courts


j­udicial branch. Thus, lessons regarding justice and the nature of citizen participation in the legal process will be learned in this context. lamber and luskin 1991, 60

My claim is that a close look at adjudication at this level is valuable for how we think about adjudication within the entire legal system. As this claim is investigated, we undermine the claim about their insignificance and help to rectify the problem of their being little understood for too long. Let us begin with creating a deeper understanding of their nature.

People’s Courts and Dilemma

There is no single court in any single system of justice that is the unique object  of study when we speak of people’s courts. I am, though, taking self-representation of a citizen for a minor legal matter and a judge’s having to accommodate it as essential elements. Earlier, we referred to this tension as a dilemma in which judges of people’s courts are juggling the competing demands of running a formal proceeding and an informal one. These courts may have jurisdiction that extends throughout a village, city, or county. They may be known as municipal courts, justice of the peace courts, police courts, or county courts. The judges may be lawyers or they may be lay judges or a mix of the two. A prosecutor may be present, as may a jury. The matter may be a civil or criminal matter. One generic description reads: Limited jurisdiction courts in which the judges need not be legally trained have long been a feature of the American judicial system. All states have limited jurisdiction courts, and more than forty allow some form of nonlawyer judge. Typically, these courts deal with misdemeanors, traffic ­offenses, or minor civil cases; more rarely they specialize in probate, juvenile, or domestic matters. (Ibid., 59) Throughout this work, I use a number of examples based on the municipal courts of Texas that have jurisdiction over fine-only offences in the state. The state does not require these judges to be members of the Texas bar, a­ nother aspect of the informality, although some cities, as is the case with the city of San Marcos, do require their municipal judges to be lawyers. The section of the Texas Code of Criminal Procedure that sets out the rules for the operation of these courts, illustrates how a statutory provision captures features of


Chapter 1

the dilemma—that some relaxing of the formal rules of procedure is called for and, by implication, for the purpose of allowing defendants to represent themselves: The purpose of this chapter is to establish procedures for processing cases that come within the criminal jurisdiction of the justice courts and municipal courts. This chapter is intended and shall be construed to achieve the following objectives: (1) to provide fair notice to a person appearing in a criminal proceeding before a justice or municipal court and a meaningful opportunity for that person to be heard; (2) to ensure appropriate dignity in court procedure without undue formalism; (3) to promote adherence to rules with sufficient flexibility to serve the ends of justice; and (4) to process cases without unnecessary expense or delay. (Texas Code of Criminal Procedure 2009–2010) The dilemma stems from people’s courts being governed by two competing conceptions. One model, call it the lawyer’s court, recognizes that these lower courts are venues primarily for the hearing of minor criminal offenses and violations of traffic laws and city ordinances and in this way differs from ­higher-level courts. But it requires judges to conduct the hearings in accord with the rules of evidence and procedure of our adversarial system as any court would. A prosecutor and an attorney for the defendant may be present, and it is the judge who administers justice swiftly and impartially as symbolized by a blindfolded Lady Justice with a sword. It locates these judges in a formal context familiar to lawyers but mysterious to lay people. In this model there is nothing essentially different about this court from any court with the exception of the severity of the offense over which it has jurisdiction. In the specific case of a Texas Municipal Court, it is technically adjudicative tribunal primarily for the hearing of class C misdemeanors and cases involving city ordinances. We are to conduct our hearings in accord with the rules of evidence and procedure of our adversarial system. Prosecutors or city attorneys and attorneys representing the defendants may well be present. On this model there is nothing essentially different about this court and any other except what is within its jurisdiction. Here it seems municipal judges are compared to Lady Justice with her swift sword on the model of the lawyer's court. The other conception is that of a people’s court which, in its pure form, sets out how people’s justice, as opposed to lawyer’s justice, should be a­ dministered.

Spotlight on People’s Courts


In a people’s court, there are few if any legal formalities, and judges get quickly to matters of justice with minimal attention being paid to procedure. In this conception, the judge is a friend of the defendant or at least leaning in that direction, there is an absence of lawyers, and there is the possibility of success without any knowledge of technical procedures and rules. Common notions of right and justice prevail. The analogue of the swift sword of the lawyer’s court is a wand with which the judge dispels injustice. It is a context where informality joins formality as a defining feature and is a mix of ideas about the justice of the peace courts in the Anglo-American tradition and the folklore, custom, and community expectations surrounding them. Judge Joseph Wapner’s television show, The People’s Court, which began in 1981, provided grist for the conception for some twenty years, along with many televised courtroom shows, such as Judge Judith Sheindlin’s Judge Judy. However staged these shows were—with their judges and citizens being paid actors—they glamorized pro se representation and made it appear do-able and desirable. They feature citizens representing themselves as much as the Justice of the Peace courts of thirteenth-century England and their modern counterparts in the United Kingdom and the United States. The dilemma arises if we recognize that contemporary people’s courts are an amalgam of both the lawyer’s court and the ideal people’s court, with each model placing a legitimate claim on the judge’s activity. There are some interesting parallels between the judge of a people’s court and Justice Louis Brandeis’s notion of the ‘people’s lawyer.’ Brandeis promoted this conception to counterbalance the growing number of corporation lawyers and to insure that representation would be provided for the have-nots in society. Judges of people’s courts are oriented toward helping people gain access but, in effect, they are helping citizens help themselves. They introduce the informality to facilitate self-representation. To the extent this informality offsets the formality which impedes a citizen’s access, the judge of a people’s court shares something else in common with the people’s lawyer—they are both working to ­offset imbalances in the legal system that leave citizens behind. I have made a point of visiting courts here and abroad for insights about how judges might strike this balance. In Dublin I watch how one judge interrupted the trial of a man charged with the assault of his neighbor; the judge asked the parties whether they couldn’t shake hands and get along with one another. His intervention led to the suggested handshake. In Endicott, New York I observe a judge going far in personalizing an arraignment in which the defendant was charged with assault by using the defendant’s name frequently as he spoke with the defendant, establishing good eye contact, and drawing the defendant into the proceeding with questions of whether the defendant


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understood, consented, or had questions. The judge said he would investigate the defendant’s claim that he acted in self-defense, that the alleged victim had provoked him by kicking in the screen on the front door of his house. In Bali, Indonesia, the judge of the Pengadlilen Nigeri Court commented on the ­dilemma with an elaborate, comical, and cryptic experiment. In effect, it demonstrated that we should keep the proceeding basically informal and use the formal rules if and when needed. In preparing for my interview, he explained how two lawyers at his side would assist by translating my question into his native tongue and his response into English. He explained all of this in English, and the entire interview unfolded in English, but the principle was clear—that we had some rules and procedures to guide us should we need them. These judges were evidently responding to the dilemma and forging ways for best balancing the conflicting demands of running a formal proceeding and an informal one. I can report my own efforts to mitigate formality and to further the ends of justice. For example, in a bail hearing for someone charged with assault, I will ask the defendant in simple terms whether he or she can promise and guarantee me that the alleged victim will be in no danger upon his or her release from custody. I do this even if I am conditioning the bond on the defendant’s keeping the peace toward the alleged defendant, or issuing an emergency protective order to this effect. The condition of the bond or the  order is sufficient to create a formal legal obligation for the accused, but the promise brings in the additional dimension of an obligation to a specific person occupying the institutional role of judge. In training films at the Texas Municipal Courts Education Center, we see a judge conducting a hearing for the issuance of an emergency protective order. Only the judge and the defendant are in attendance. The judge reads a decree with a series of orders to the defendant to stay away from the residence and place of work of the alleged victim and to avoid communicating with the alleged victim in any way. The judge is aloof and, without looking up, reads the directive in a monotone voice. The formality reaches the point of the mechanical, and I am reminded of a judge in Szeged, Hungary who operated in this way, stressing that she was a decision maker, not a social worker, and obviously coming down on the side of emphasizing formality. My practice of using the institutional role of the judge and the person occupying it to influence the conduct of a citizen offsets the formality of the proceeding, creates another opportunity for insuring that justice be done, and avoids the narrow choice between the restrictive alternative of being a decision-maker or a social worker. The dilemma arises if we take both models seriously and recognize that each places or should place a legitimate claim on a judge’s activity; to the extent that

Spotlight on People’s Courts


the models obviously can pull in very different directions and thus advise us to act in contradictory ways, it is evident that those who choose to allow each ­conception to have some influence are going to have some serious juggling to do. And this I think is what can make the role of judge of a people’s court at once unique, difficult, interesting, and challenging. This dilemma, which is palpable to judges of people’s courts, calls upon the judge to consider how best to resolve it, and, in effect, how best to c­ onceive the role of the judge. I have argued in A Case for Legal Ethics that people should take an active part in constructing and conceiving the roles they ­occupy whether they are roles as parents, citizens, or people in the workforce. I here offer m ­ unicipal judges as good examples of people participating in this ­process; each struggles with how best to balance formality and informality to provide for self-representation. While other judges may not face this particular ­dilemma, they still can take the cue from municipal judges to consider the variables for thinking about themselves as judges and constructing a cogent conception. Judges of People’s Courts Weigh In Responses to early inquiries are revealing about the range of variables that their judges saw as features of their experiences. During the late 1990s, I polled judges of people’s courts in the United States, England, and Ireland. I asked them to recount the similarities and differences in how they ran their courts compared with higher level courts, whether people’s expectations influenced them, and what the source of these expectations was. I asked about any conflicting expectations they encountered and whether any were attributable to their courts being thought of as people’s courts. In my cover letter to them, I identified myself as a municipal judge and stated, ‘I understand that your court is similar to our municipal courts in that both deal with minor misdemeanor and traffic offenses and both allow defendants to represent themselves in something like a ‘people’s court,’ or informal setting. As the study continued, it became apparent that the central conflict was one of balancing formality and informality, and, more specifically, how judges at this level could introduce sufficient informality into an otherwise formal proceeding to accommodate the citizenry’s interest in representing themselves before the court. As to what these judges saw as being distinctive about their courts, they pointed to the presence of lay judges, the absence of juries, robes, and court reporters, and the use of informal language. Some judges noted that their courts were more informal and personal and that they had direct contact with ­defendants. They also brought up that the range of remedies available to them


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was narrower and that courts at this level typically have a higher volume of cases. One judge linked the higher volume to efficiency and touted an effort to run things in a businesslike manner to maximize accessibility. That parties usually are not represented and that the atmosphere is very much one of defendants telling their stories and judges listening struck some judges as distinguishing features of their courts while other judges brought up how they felt they performed an educational function for the citizenry about the workings of the court. One judge specified that he informed defendants that intent usually was not at issue in his court along with points of information he thought defendants usually wanted to know like when their fines would be due. Some judges saw themselves being selected for service for their common sense and others for their representing some constituency in a diverse community like members of some race, religion, or sex. Other characteristics that surfaced are that these courts are accessible to the people, the courts are local and close to the citizens as well as inexpensive for them, the citizens represent themselves with no significant disadvantage, judges meet the needs of the people and thus further the ends of democracy, there is less emphasis on the law and more on fairness. With regard to lay judges, several variations surfaced. In England and Wales courts are set up with a clerk who is legally competent or experienced. This clerk advises usually a group of three lay magistrates who are not competent in the law but who participate in basic and refresher training programs. ­Other arrangements include courts with only lay magistrates and courts with only magistrates who are members of the bar. Texas has a system where lay judges or lawyer-judges can run the municipal courts. Although the state does not require its municipal judges to be lawyers, many are. One reason is that some municipalities require that their judges be members of the bar. Another factor is that, when the community elects its judges, members of the citizenry are drawn to candidates with a professional background in the law. Some of the judges took issue with the notion that there was anything ­essentially different with their courts compared with higher courts in their system. One brought out that, while he may run his court in a more personal, less intimidating fashion, he made the proceeding no less formal. One judge agreed, claiming that there is little difference in formality but brought out that there were fewer officials, presumably indicating that this feature may create an impression that proceedings are less formal when in fact they are not. Another judge claimed that the notion of ‘running a court’ was foreign and that considerations of consistency of treatment were the guiding norm at all levels of adjudication. This response was echoed in one that denied any differences, bringing out that the same procedures for adjudication at any level are set out

Spotlight on People’s Courts


by statute. Finally, one judge simply stated that he runs his court the same as any other. One judge observed that some people cast people’s courts in a negative light when compared to higher courts: Generally ‘the people’s court’ and the District Court are perceived as being the first court attendance for an offender. This leads to the thought that these courts are perhaps ‘inferior’ to the more major courts. Those who serve the District Court would refute that idea most strenuously. Another judge who responded similarly said, ‘I consider the identification as a ‘people’s court’ of no handicap at all. I know we can do the judicial job most formally … most positively … with compassion and reason identifying with the people we serve.’ If some judges were concerned with their courts’ being cast in a negative light by their association with people’s courts, one judge thought the connection to be of no consequence. According to that judge, ‘In theory, I presume it is possible to conclude that the magistrates’ court is a people’s court in as much as “the people” sit as judge. However, … the magistrates’ court is nothing more in real terms than a properly constituted judicial court where lay people take the role of judge and jury.’ Finally, two respondents thought that it was likely that ways in which their courts differed from other courts and the sort of conflicts they experienced were attributable to their courts’ being thought of as people’s courts. In support for this observation, they brought up again such desirable features of their courts as their ability to get to issues of fairness and to keep the proceeding informal. One of them said: I think defendants in a municipal court do not think of themselves as having violated a criminal law—where there is a moral issue to deal with (malum in se). Since these crimes are primarily regulatory (malum prohibitum) in nature, they may feel as though there’s more room to consider fairness issues that are not legal issues—or even elemental fact issues. As judges compared their courts with other courts, we find observations ranging from there being no significant similarities to one that all courts are run in the same way. Most of the judges reported use of very similar or identical rules of procedure and evidence, and a number of them pointed to similarities both in determining sentences as well as the types of sentences imposed. Some judges reported that they adhered to procedural rules more strictly when


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council represented defendants while others observed that any perception by citizens of informality in the court proceedings and a relaxing of the rules is only apparent. The fact that these lower level courts frequently are not located in traditional courthouse buildings was offered as a possible explanation for this false impression of informality and a relaxation of the rules. As confirmation for this observation about location, I offer this experience. I secured the address of a people’s court in Leuven, Belgium during my week as visiting scholar at the Catholic University of the Louvain. I went to the address and found a most imposing government building, a classic courthouse structure, in search of the Vredegerecht or people’s court. To the right of the entrance of this building was the entrance to this court, two huge closed doors of enormous height, something like the mysterious and hallowed doors one imagines belong to the courthouse in Kafka’s The Trial. On the door was a modest sign indicating that the court had moved with information about the new location. It was the second floor of the McDonald’s building that irresistibly connected the informality of getting a Big Mac for lunch on the first floor with whatever might be occurring of a judicial nature on the second however formal it actually was. One judge brought out how people could represent themselves at any level of criminal adjudication in Scotland, so he located self-representation, which usually is seen as a distinguishing feature of a people’s court, as something his court had in common with other courts. Judges pointed to other ­commonalities including an overall respect for law, justice, and due process and an interest in maintaining decorum, courtesy, formality, efficiency, and solemnity. Some judges focused on similarities of function like setting bail and conducting pre-trial hearings while others highlighted similarities in the physical setup of the court like the presence of a metal detector, bailiff, computers, and a robed judge. In inquiring about the citizenry’s expectations of judges of people’s courts, I asked whether people’s expectations influenced the judge’s conduct. The spectrum of short replies ranged from ‘no,’ ‘not particularly,’ and ‘somewhat’ to ‘yes’ and ‘sure.’ More detailed communications illustrate how some of the respondents dealt with specific ­expectations influencing them. Comments of this sort included: ‘Yes and Magistrates are sensitive to public opinion and aware of the representations made by pressure groups.’ ‘Not very much by the general public because they do not usually understand court procedure or know all the circumstances of individual cases.’

Spotlight on People’s Courts


‘Not greatly. I attempt to run the court more like a higher court, but again balanced by a personal touch.’ ‘Magistrates Courts are partly funded by the service they offer the public. This has considerable influence outside courtrooms but little influence in court.’ ‘Indirectly. Magistrates must decide cases as the law dictates. However they must also be cognizant of local community feeling and that feeling may be relevant in some cases.’ ‘Not particularly. I think people expect you to be rational, keep open minded, and be fair.’ ‘No; that is, I don’t modify my behavior because of any perceived expectation.’ ‘Only to the extent that it is serious, formal, and important of every citizen.’ To continue the dialogue, I weighed in about the source of a citizenry’s expectations and offered custom, statute, folklore, and ignorance. Some judges went along with all four as sources and either qualified the endorsement or added an additional source. In one judge’s estimation, defendants expect a fair trial and just sentence, victims expect reparation or punishment commensurate with their injury, the public expects protection via deterrent sentencing, and the forces of law and order expect a sentence worthy of their effort in bringing the defendant to trial. According to another judge, to understand the source of these expectations, we need to add to the list above a hyperactive media bent on sensationalizing and doing so with inadequate evidence. One judge added that we need to add the influence of movies, television shows like Night Court, and soap operas. The judge who offered this insight recounted how citizens expect the same fine for the same type of offense and do not understand that the judge considers a number of factors in assessing a fine like work histories and correction reports. Another judge added voter input, tv, movies, and mass media as contributing to contemporary expectations. This judge focused on his City Council and said it expected a professional court, one that cost little, impressed all, upset no voters, and produced great income with little expense. Another ingredient added to the mix of sources was ‘personal psychology.’ This judge speculated that unconscious tendencies influence people when they deal with authority figures. As he sized things up, some defendants expect the judge to be gullible, prosecutors expect the judge to be prosecutorial, and appeals courts expect the judge to be omniscient. Another judge who agreed with the suggestion of custom, folklore, statute, and ignorance being sources of people’s ­expectations


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singled ignorance out as the most important of the four, specifying that it was ignorance of the many factors in each case. This judge saw the police wanting jail for everyone, defense attorneys wanting everyone going free, and the ­people generally being ‘pretty understanding.’ One other judge who went along with the four sources added people’s personal exposure to other ­lower courts that were lax in applying the rules of procedure and evidence and hence an e­ xpectation on their part that this judge’s court would be comparably informal. A few judges turned to single sources for expectations people have of them. These sources included custom, centuries of tradition, the people, ignorance, and the quality of service in the public sector. For one judge custom accounted for the town’s expecting ‘what I’ve given them’ along possibly with the town’s not knowing any better. The centuries of tradition were connected with the expectation of Scottish judges acting in a ‘judicious, dignified, and totally ­impartial manner.’ The people was identified as the source of the expectation that justice be done, and ignorance, as the source of the expectation that the court would do investigative work to assist citizens with the preparation of their cases. Finally, expectations concerning the quality of service in the court and consideration for all court users were grounded in the quality of service generally found in the public sector. My correspondence went on to query whether any of the expectations ­conflict and, if so, what the judges did to deal with the conflict. For some ­judges, there was no conflict with one judge emphasizing that he experienced none over his seventeen years of judging. One judge reported being puzzled by the question and another declared it inapplicable. The rest of the judges identified conflicts and addressed how they handled the conflicting expectations. Two judges explicitly invoked a balancing metaphor, with one claiming simply to balance the various interests of the different parties and the other claiming to maintain evenness and balance in dealing with expectations of the public, attorneys, and the court staff that invariably conflict. The power of explanation seemed primarily to be operative in the approaches of several judges in dealing with conflicting expectations. In one case, the ease with which explanations could be offered was located within the general context of a people’s court where relaxed standards and informality prevailed. Explanation seemed foundational for one judge’s approach of letting both sides think they won as much as it seemed foundational for ­another judge who strived to communicate the ‘shades of gray’ in a particular case. This latter judge spoke about the conflicts and how he dealt with them as follows:

Spotlight on People’s Courts


The prosecutor expects a cold analysis of guilt or innocence with focus on whether a law was broken. The defendant expects a compassionate protector of individual rights against the intruding state. If these positions represent black and white, I deal with the conflict by seeing as many shades of gray as I can conjure. I try to uphold the law while communicating its spirit to the unhappy parties. I try to communicate the fairness of the shade of gray I think determines the case. One judge located a conflict within the community of judges in their approaches to matters like theft by poor or deprived individuals. This judge suggested that communication among the judges allowed their underlying beliefs and attitudes to surface and paved the way for the judges keeping them in their proper perspective. Another judge strove to communicate broadly through speeches, newspaper articles, and seminars to handle competing expectations of court clerks, attorneys, jurors, witnesses, local agencies, and the police. He stressed the importance of addressing the media even on controversial matters along with acknowledging mistakes and a speedy correction of them. Releasing statements to the press and other media was one judge’s means of addressing a citizenry whose expectations about fines clashed with legal ­restrictions on sentencing; this judge saw a better informed public as the key to handling the problem. Two judges identified a tension between expectations for swift justice versus those for delay. One judge saw witnesses and victims wanting speed and lawyers wanting delay. Another connected delays with an increase in legal advice available along with an increase in the observance of procedures subsequent to arrest. One judge told of opposing views about the scope of the court’s duty to raise revenue for the city. The conflict subsided when an investigation revealed that factors outside the court’s control restricted the amount of revenue a court could generate, like a state percentage cap on the amount a city’s overall revenue could come from traffic fines; eventually, all parties recognized that any duty of a court to produce income is secondary to that of administering justice. In another community, the media criticized a judge for emphasizing his a­ dministrative duty of overseeing the overall operation of the court over his judicial one of hearing and deciding cases. In this situation, the judge ­acknowledged a responsibility to inform the public, by way of press releases and public speaking engagements, about the scope of a judge’s duties when he is not sitting at the bench. A few judges told how some citizens who represent themselves expected that virtually all courtroom procedures would go by the wayside in a people’s


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court. One judge saw them as being guided by some notion of ‘street justice’ in which they could informally converse with the judge before adhering to a most basic procedural requirement of first entering a plea. This judge resolved the conflict by explaining these basic procedures at the outset of each proceeding. Another judge surmised that citizens thought of him as a ‘stonewall judge’ when he rejected their attempts to try their cases unilaterally, as if there was nothing that could be said on the other side. His response too was to take time to go over basic court procedures with them, specifically those of the adversarial process. One further variation involved citizens who thought that some inequity, like a police officer’s rudeness, should figure into the judge’s decision even when the citizen has admitted to committing the offense. The judge who brought this example up acknowledged that an opening statement about basic court procedures would not head off a misunderstanding of this sort and indicated that he handled matters like this as they came up, here explaining more about his judicial role and referred the citizen to the proper person to register a complaint about the conduct of the police officer. tv and (Mother) England were most often cited as the origin of the concept of a people’s court, with England in the lead. Some respondents traced the origin specifically to the justices of the peace, to the baillies of Scotland of the twelfth century, who ‘were appointed in burghs and dispensed lay justice as it is to this day,’ and to the feudal lords who served a function analogous to judges as they addressed people’s grievances. In detailing the origin in justices of the peace, one respondent brought out that these ‘old Justice of the Peace ­hearings … sometimes took place in kitchens, basements, most any place; the informality was pronounced compared to higher courts.’ One judge looked to television and the jp courts for the origins: ‘Most citizens appearing in our small claims court have seen People’s Court on television and expect ours to operate the same way, including satisfying their claim immediately upon conclusion of the trial. The idea of People’s Courts is linked to consumer actions, justice of the peace courts, courts of equity, and who knows how far back into antiquity.’ Another judge located the origin of a people’s court in ‘the Saxon concept of Guardians of the Peace who, in the early fourteenth century, became Justices of the Peace.’ As for the origin in Scotland mentioned above, the judge went on to say: Justices in Scotland were set up by James vi in 1587 and came into operation in 1707, at the union of the Scottish and English parliaments. In 1975, with the reform of local government burgh courts were abolished and district courts formed. jps in the United Kingdom are appointed by the

Spotlight on People’s Courts


Crown and are not legally qualified but must attend training sessions at least six times per annum to sit in court. This account of how judges of people's courts perceive their origin concludes this section that also addressed the judge's views about what is distinctive about people's courts, the expectations of the citizenry, and conflicting expectations. Visit to People’s Courts: Case Study in China Something worth adding to these reports of visits to people’s courts and conversations and correspondence with their judges, is an account of a visit to China, which I had the opportunity to make, shortly after it announced in February 1999, that it was opening its courts to the public, allowing its citizens and foreign visitors to witness proceedings long closed to the public. The experience shed special light on self-representation as a distinctive feature of our people’s courts; it requires judges to balance formality and informality in the court proceedings, which is the source of the dilemma these judges face. While China has people’s courts, they are of a different ilk insofar as self-representation is largely absent. The study showed how the whole question of how best to strike the balance while providing for self-representation is relative to an adversary adversarial system of justice in the Anglo-American tradition and how, in systems where there is no counterpart to the distinct sides in the Anglo-American tradition, the question has no meaning. The judicial reform act of 1999 came during a year when it, and some other events like it, signaled a China bent on political and market reform, while at the same time, other events served to reinforce China’s image as an oppressive Communist regime. Nineteen ninety-nine was a year of anniversaries for China: it marked the fiftieth year since the founding of the People’s Republic of China and the tenth since the massacre in Tienneman Square when, on June 4, 1989, Chinese troops opened fire on students protesting Beijing’s political abuses. As I headed for China on June 4, 1999, I learned that China was temporarily blocking the transmission of cnn to its citizens, presumably to ward off any provocation that documentaries and feature stories about the tragedy in Tienneman Square might cause among its citizens. Still, Beijing’s block of cnn did not prevent cnn reporters from interviewing Chinese students gathered in the Square on that tenth anniversary. Viewers outside China heard these students, who gathered freely in the Square, dissociating themselves from the goals of the protesters of 1989 and asserting personal goals of achieving economic success in China’s new market economy.


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I stepped into a Beijing with signs everywhere of its readying itself for the celebration on October 1 of the People’s Republic’s anniversary. Workers were busy repairing potted roads and crumbling sidewalks. They were brightening faded temples and monuments with fresh paint of red and gold. The days to come would show that Beijing’s look of the old alongside the new, which reflected some of the events of the year, is a primary feature of China’s judiciary, itself a blend of old ways and new practices.

Trial in Beijing: June 10, 1999

The trial I attended was in the mid-level people’s court of the Haidian District, in Beijing. On trial for theft on June 10, 1999, at 2 p.m., was Xiaodong Yang, a thirty-year-old male. Twice before, he had been arrested for theft, convicted, and sentenced to a term in a labor camp. The current allegations as set forth by the prosecutor of the Haidian District were that Yang had burglarized five houses and stolen about $3129 rmb ($377 usd) in violation of Section 264 of China’s penal code. The presiding judge began questioning the defendant, who was not permitted to refuse to testify under Chinese law. There was no swearing in of Yang. He responded to the judge’s questions and at one point, offered his own account of the events in question. The prosecutor presented the state’s case by reading documents to the court, putting a lot of questions to the defendant, and placing into evidence a photograph of the stolen goods, including a black electronic pager, cash, and a battery charger. She brought out how the defendant was caught with the items, which had been reported stolen, in his possession. Under the pretense of being a salesman, Yang apparently gained initial entry into a number of homes in a neighborhood and made ­observations of their contents. Later, when the residents were not at home, he returned, entered, and took some items. The police found the items later reported as missing or stolen in Yang’s apartment. Yang admits to stealing the items. The prosecution presented no witnesses other than the accused. The defense counsel remained silent throughout the trial. He raised no objections, put no questions to his client, and made no inspection of the photographs ­presented into evidence by the prosecution. Only at the end of the hour-long proceeding did the defense counsel speak, for about two minutes, on the defendant’s behalf. The defendant was convicted and sentenced to serve five years in prison and to pay a fine equivalent to $3,000 usd.

Spotlight on People’s Courts


Interpreting the Court Visit

The same professors who helped my colleague-translator and me get in to witness the trial also assisted us with understanding it. Gan Gong Ren, Director of the Department of Law at Central University of Finance and Economics, brought out that China had been implementing an adversarial judicial system since 1996, that it was still in transition, and that, while judges were still actively involved in questioning the accused as of that time, it would be accurate to say that China was moving in the direction of an adversarial judicial system in which judges would be mostly passive. This account fit well with what we had observed at the trial. There were sides, as the adversarial model requires— the defense and the prosecution—yet the defense was all but invisible and the presiding judge was quite active in the questioning of Yang. If the trial I witnessed was a good instance of a judiciary in transition, it was no example of what I was studying—how judges adjust formal proceedings to allow citizens to represent themselves. After all, Yang did not represent himself and he did have an attorney representing him. A proceeding of this sort was not at all what I had traveled to China to see. Gan explained that although self-representation is common in simple civil matters such as divorce, China makes council available in criminal matters for citizens who cannot afford one. He tells of China’s requirement that all licensed attorneys take three pro bono cases a year. When pressed about citizens representing themselves for minor offenses and about the nature of courts that hear these matters, he explained that these matters are considered administrative rather than legal, and citizens settle them directly with the police. The next day, I witnessed an encounter between the authorities and a ­citizen concerning one of these ‘administrative matters.’ This one concerned ­compliance with the health and sanitation code. As I ate lunch in a small cafe—tofu in spicy sauce and slurp noodles from soup bowls—I heard the owner haggling with the authorities. They wanted to see the restaurant owner’s certificate for doing business. Upon the owner’s failure to produce the document, one of the two officers issued a citation. The restaurant owner had the option of paying the fine within a day, producing evidence of compliance, or getting a new license. In a way, this method of handling minor offenses and violations is the functional equivalent of practices in the United States. Most us citizens simply pay the fine on a citation, whether it is for running a red light or for a dog running loose. It may go unnoticed, when they simply pay a fine, whether they are paying a police department, as in China, or a court, as in the u.s. But the


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d­ ifference is quite apparent when us citizens want to pursue some course of action other than paying the fine within the designated time period; they go directly to a court. They may be seeking an extension for paying the fine or a payment plan; they may be interested in taking a drivers safety course to keep a conviction off their record; they may be interested in doing community service in lieu of paying a fine; they might want to tell the judge something to justify a reduction of the fine; they may be seeking a probationary period that will culminate in dismissal of the ticket; or they may want a trial. Usually, when they come before the court for any of these purposes, they represent themselves. It is in this context that the question arises about how judges can best balance formality and informality in the court proceeding to accommodate these citizens representing themselves. But treat these matters as administrative and not legal matters for a court as China does and the question simply does not arise.

Visit to Chinese Courts as Part of Larger Project

The variable I was studying in 1999 is the relative freedom or liberties of the citizens. What if the judge is dealing with citizens who have more liberties than they are aware of? In Alaska, part of the Native American ethic is one of owning up to one’s misdeeds, and some of these citizens do not know of their right to remain silent and the requirement that the state must prove its case against them. What if the judge is dealing with citizens whose liberties are curtailed This question is where a study of Chinese courts entered the project. China was candid about its position on the then current necessity of restricting individual liberties in the name of order, progress, and transition. So China initially appeared to be an ideal setting for the investigation. However, because of China’s distinction between administrative and legal matters, the investigation could never get off the ground. Again, the minor offenses for which Americans represent themselves in court are considered to be administrative matters in China. As such, Chinese citizens do not go to a court to handle these matters, and thus, they are never in the position to represent themselves before a court. As well, Chinese judges do not have to worry about adjusting proceedings to accommodate citizens representing themselves for these matters. Thus, tree primary factors work together to undermine the significance of asking how Chinese judges pave the way for citizens to represent themselves for minor offenses. For one thing, the courts do not hear these minor cases and leave them to the police to handle; there is no counterpart to our municipal

Spotlight on People’s Courts


courts. Second, when defendants do come before Chinese courts on criminal charges, they have counsel. Chinese courts may be called people’s courts, but they are not people’s courts as we think of them with citizens mostly representing themselves for minor matters. And third, the Chinese system, although in transition to an adversarial system, still bears the indelible marks of a system of justice deeply rooted in China’s heritage, an inquisitorial system, in which it makes no sense to speak of representing oneself, since there are no sides in this system comparable to how we conceive sides in an adversarial system. Two Systems of Justice The traditional Chinese approach to adjudication, known as an ‘inquisitorial’ or ‘interrogative’ system of justice, is usually contrasted with the adversarial approach. The presentation of two complete opposing sides, each engaged in partisan advocacy, characterizes the adversarial system with the judge as the neutral, mostly passive decision-maker. The truth is thought of as emerging through the clash of adversaries and the competition of two opposing ways of looking at the case. The adversarial model of the Anglo-American tradition developed in sixteenth-century England as a way of keeping a check on tyranny. This history joins people’s freedom from abuses of absolute government with their rights in an adversarial system to offer evidence on their own behalf and to have the assistance of counsel. It represents respect for the individual as a primary value as much as discovery of the truth. An inquisitorial system, still in place in countries with a civil law tradition like France and Germany, assigns the role of active inquirer and investigator to the judge. Absent are two complete, partisan sides for looking at the case as in an adversarial system. Sometimes the primary difference between the adversarial and the interrogative approaches is struck in terms of the adversarial system’s primary commitment to the individual, and respecting the individual by granting a right to present his or her side, as opposed to the interrogative system’s primary commitment to the truth and finding out if the accused ­really  committed the offense. Also, sometimes, since the adversarial system originated in an attempt to contain governmental monopoly on freedom, its primary contender, the interrogative system, is associated with restrictive and powerful governments. Again, strong remnants of the interrogative approach in China are part of the reason there is a greatly diminished sense to asking how judges facilitate people representing themselves or presenting their side of a case when there are virtually no ‘sides’ to begin with. Accounts of ancient Chinese cases are replete with clever, inquiring magistrates renowned for their abilities to assess evidence, deduce, and generally be resourceful, and these cases serve as charming and simple examples of how


Chapter 1

a system functions when the judge serves as active inquirer to determine the truth. ‘The Evidence in the Belly’ is a typical account: When Fu Yan was the Magistrate of the District of Shanyin, he came across a case of two farmers fighting over the ownership of a chicken. Fu asked each man what he used as chickenfeed. One said millet while the other said red beans. When the chicken’s belly was opened, millet was found. The man who said he fed the chicken with red beans was punished. Fu’s fame as a shrewd judge spread throughout the district and no one dared to be a thief. kiu 1991

In another case, a man collided with a seller of cakes, causing them to fall and crumble. For compensation, the man offers to pay for fifty cakes. The vendor rejected the offer, claiming that the crumbs were those of 300 cakes. The magistrate resolved the controversy by sending for one whole cake and determining its weight as a reference point for ascertaining the actual number that crumbled. Another report tells of a woman charged with stealing melons. She claimed that she took one for her son but the owner of the field claimed she took thirty. The magistrate ordered the owner to show how many melons he could hold with one hand with a child in his other hand. The number turned out to be five, thus showing the owner of the field was lying. Once we deepen our understanding of how judges function in an ­inquisitorial  or interrogative system, we see how closely tied the notion of self-representation is to the framework of an adversarial approach to justice. Where the defendant’s case is one of two sides to a case and where the defendant can represent him or herself or have an attorney, it makes sense to ask what assistance the court may offer defendants who choose to represent themselves. But when this presentation of two sides is absent or shadowy, the issue as to what adjustments the judge makes to facilitate self-representation becomes moot. This case study in China underscores the extent to which the dilemma ­municipal judges face is tied to the Anglo-American adversarial tradition and the difference helps to shed light on the nature of the Chinese judiciary itself. From this lesson I learned how there is a deeper sense in which my project about self-representation by citizens with restricted liberties carries with it a Western way of thinking and in which the inquiry, as initially conceived, becomes insignificant in a society which thinks differently about freedom. In some ways this study represents well how truth can emerge from a clash of

Spotlight on People’s Courts


opposing positions. In the meeting of American and Chinese judicial ways, it became apparent that problems and questions about self-representation and liberty, which are meaningful in one system, have no clear counterpart in another. Part of the explanation hinged on the current state of China’s judiciary, a judiciary moving to an adversarial model yet adhering strongly to its roots in an inquisitorial process. However much this phenomenon was a factor in keeping me from observing any self-representation, it nonetheless was something worth observing for its own sake. The Chinese judiciary is a unique amalgam of adversarial and inquisitorial systems. The overall takeaway of this study is the importance of the adversarial system in conceiving people’s courts and the dilemma. Looked at in one way, the dilemma of judge of a people’s court hinges on there being conflicting expectations, which this judge must balance. As we say, there is a cluster of them that include various informalities like jargon-free discourse, a focus on justice over legal formalities, the absence of lawyers, people representing themselves, and the physical setting with judges sometimes garbed in street clothing. ­Another set involves formalities that the judge should adhere to however much the judge may be relaxing them—rules of procedure, evidence, and substantive law. We can state this dilemma in terms of the judge’s having to observe conflicting commands to run a formal proceeding and to run an informal one. We can see that an overriding purpose of these commands is to introduce sufficient informality to allow for meaningful self-representation. And this self-representation is part of an adversarial system of adjudication that involves two sides and the ancient rule of justice of audi alteram partem—listen to the other side, which is foundational for adjudication in an adversarial system. We resume a discussion of what is incumbent on judges of people’s courts as we explore its implications for judges of higher courts in the legal order, but first we consider the legal order and law itself with an eye to highlighting the citizen’s experience with legal norms.

Chapter 2

Law Traditional conceptions of law are deficient for focusing on a rule as the main defining feature of law and ignoring citizens or citizens’ acts. I will examine how best to include the citizen in an understanding of law and offer as an essential feature the conduct of citizens guided by legal rules. A number of phrases in common use capture or approximate well the phenomenon of the norm-guided activity in question. These include ‘abiding by the law,’ ‘obeying the law,’ ‘following the law,’ ‘doing what is right,’ ‘acting within the law,’ and ‘planning within the law.’ This convergence of norm and act is distinct from various features other commentators have identified as essential to law. Some are concerned with the source of the norm, with claims ranging from God to desire and reason. Others focus on what we are trying to achieve with a legal system, with the agencies necessary for one to exist, like agencies for making and enforcing the law, and how we characterize the mental state of the citizenry, whether they act from active acceptance or a habit of obedience. None of these approaches embraces the phenomenon we are urging as essential. Consider some of the major theses about the nature of law and how the activity of citizens figures in, if at all. If law is a prophecy of what some court will do, it excludes the citizen’s activity in favor of a judge’s acts. If law is an ordinance of reason promulgated by those who must care for the community, it addresses the nature, purpose, and origin of law excluding the citizen’s activity as much as law conceived as an order backed by a threat does. Law as an instrument for securing social interests likewise is devoid of this conduct, as satisfaction of interests becomes of paramount importance. Most views on law’s essence focus on law as an object, usually some sort of norm, whether a statute, a rule in a judicial opinion, or some rule deeply rooted in custom. The alternatives bloat normativity to the point that the activity of citizens is squeezed out of the concept as irrelevant, set aside as a matter of lesser importance, or incorporated in so diffuse a fashion as to make this activity almost undetectable. One way of depicting this phenomenon is to think of an electronic map of the world. As citizens are acting in this norm-guided way, the map glows green. The intensity of the green is a function of how clearly the citizens understand or perceive the norm(s) involved together with the extent that the act conforms to the understanding. This map allows us to target individual citizens and get a read on those variables that apply to them. It allows us to gauge only

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those moments when the citizens have an opportunity to comply with the norm(s) so that we would not be misled by there being no illumination when people are sleeping. Consider Texas’s driving while intoxicated statute: (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. (d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor. (Texas Penal Code-PENAL § 49.04. Driving While Intoxicated, 2009) We can say this statute is the law. Still there is the phenomenon of citizens following it. Consider the citizen who has a general sense of this rule that one should not drink and drive and conforms to it. Consider another citizen who has a more refined sense of the rule in that this citizen realizes that only when a certain per-cent of alcohol is in one’s blood is one obligated to refrain from driving, and this citizen so guides his or her activity. Consider too, citizens who can quote the Driving While Intoxicated (dwi) statute, who are aware of the range of punishments for being convicted of dwi, and who draw on that knowledge to guide their activity with these rules. Think of citizens who are guided by varying combinations of these norms concerning dwi. Consider lawyers arguing dwi cases drawing on their understanding of the statute and its applicability to their cases. Consider judges deciding cases guided by their perception of the norm. It is this rule guided conduct of these citizens that I factor out as an essential part of the nature of law. We can think of language as consisting of many rules. We can also recognize that there is more to language than the rules themselves; there are people using them to communicate. Consider all of the rules of a language—rules of phonetics, syntax, and semantics. The phenomenon of language is something more than these sets of rules; its essence is the activity of communicating guided by these rules or these rules in action or these rules put to use. It seems


Chapter 2

we endorse such a view when we refer to languages no longer being spoken as ‘dead’ languages. Legal ethicist Anthony Kronman makes a similar comparison between the rules of legal ethics and a language: The way in which lawyers acquire a sense of professional responsibility resembles the process by which we learn to speak any natural language. … Every language has its rules of grammar. … But fluency can never be achieved by studying these rules alone. … It requires the speaker to be at home in the habits of the language … and a lawyer’s sense of professional responsibility can no more be reduced to a knowledge of the rules of legal ethics than command of English can be reduced to a knowledge of the rules of English grammar. (2000, 30) In Kronman’s view, the analogue to developing fluency in a language is developing a sense of professional responsibility. In each case the rules involved must be understood in context, in the culture of which they are a part. Note that this similarity involves the attainment of a level of proficiency with a body of rules. It identifies neither language nor law as the activity itself, and, for this reason is at most a variation of an attempt to highlight law and language as an activity. The analogy with language is useful further in bringing out that people participate in language and law in a variety of ways and levels all of which we can speak of in a uniform way. Consider children learning to talk, students using the language as they study it, teachers evaluating what these students do, people engaged in discourse about quotidian concerns, authors—poets, novelists, and journalists—writing manuscripts, people reviewing the work of these authors, people arguing, chatting, contracting, purchasing, sentencing, and borrowing. We might think of some of them as novices, some experts but of all of them as engaged in the activity of language. The point is that language and culture, communicating and engaging in various activities of the culture, are dynamically interconnected, and an important way of thinking of the essence of language as being activity is by conceiving it as this cultural phenomenon. So, if we are to explore further how this analogy with language is fruitful for thinking about law, we will consider how law, conceived as the rule-guided acts of citizens, is connected with culture. Montesquieu is the most prominent figure in legal philosophy that explored the relation between law and culture, asserting that there is an essential connection and, moreover, there should be if we expect a good fit between the



laws and the conduct of the citizens. ‘Better is it to say that the government most ­conformable to nature is that which best agrees with the humor and disposition of the people in whose favor it is established’ (Montesquieu 2002, 6). Each nation governs its people in accord with reason which itself is Law. But their legal systems differ when the question narrows to what is reasonable for a specific people. Governments may take steps to insure safe food for their citizens, but a society of vegetarians would have no need for rules about how animals are slaughtered and distributed as food. According to Montesquieu, ‘law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. They should be adapted in such a manner to the people for whom they are framed’ (6). Montesquieu does not define law as activity. Still, in highlighting law’s interconnectedness with a particular culture, together with the insight that citizens are more likely to follow the laws when they accord with the practices of their culture, we see how he emphasizes what the citizens are doing, how they are acting. Put differently, the life of the law is citizens guiding their activity with it, and this is what law as act seeks to feature, again, not as the sole defining feature, but a highly significant feature of law. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the ­natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners and customs. … These relations I shall examine, since all these together constitute what I call the Spirit of the Laws. (Ibid., 6–7) In this manner, we can think about law comprehending a broad range of people acting in many ways and capacities—children following rules about crossing at crosswalks, people respecting property boundaries, sheltering money from taxes, extending equal rights to other people, legislating, judging, executing, imprisoning, drafting wills, taking caution with alcohol consumption when driving, and conducting a search under a warrant. All of these people become key players in our conception of law as we see each of these citizen’s acts as guided by legal norms. This approach is also akin to the cultural study of law, a field that Paul W. Kahn recently defined and is developing. It, like law as act, finds theories that


Chapter 2

highlight the normative to be deficient, and it brings citizens’ experience front and center. Says Kahn, ‘we must approach law’s rule from the perspective of the subject who finds herself already within the practice, rather than from the perspective of the rules operating on a collection of individuals … that it appears to us as the experience of a unitary actor of which each citizen is a part’ (1999, 45). This approach also accords with law as act insofar as both claim to add a perspective to how we think about law with no claim of its being the uniquely defining feature. Kahn tells us, ‘a cultural study of law … is a necessary supplement to our current practice of legal studies. The critical turn is a turn away from the professional school and back to the disciplines of philosophy, psychology, anthropology, and history’ (ibid., 40). Soon, we will survey the scope of utterances in a legal order that can figure into the normative guidance it offers the citizen, but suffice it to say at this point that the scope is broad and the utterances are not always formulated in such clearly normative forms as commands, directives, and rules. A constitution may make a metaphysical claim about the structure of reality in the form of a statement of fact; as a hypothetical example, we might find a claim alleging, ‘the Great Spirit is the source of the laws of this nation which direct us to do as he wills and to disobey at our peril.’ Note how such a statement in the declarative mode is as normatively impactful for a citizen’s perception of what he or she ought to do as some specific directive in the imperative mode like a restriction on taking for oneself the property of another person. Note as well how the metaphysical claim can join with a specific directive to provide the normative guidance upon which the citizen acts. As we explore the large number of utterances that comprise a legal order and how they can jointly configure the normative force that guides a citizen, we can see further how this approach to understanding law is akin to Kahn’s cultural study of law. While we employ the language of the normguided conduct of the citizen to define law, Kahn speaks in terms of citizens having a constellation of beliefs that they express in their actions to convey his insight that law is ‘something we do.’ Says Kahn: To live under the rule of law is to maintain a set of beliefs about the self and community, time and space, authority and representation. It is to understand the actions of others and the possible actions of the self as expressions of these beliefs. Without these beliefs, the rule of law appears as just another form of coercive governmental authority. This is the way law appears to the alien … Law is something done to him rather than something we do. (Ibid., 36)



Citizens as Leaders

This emphasis on law as rule-guided activity allows us to conceive citizens as leaders from a number of perspectives. From an internal perspective, citizens who are aware of the reality of imitative activity and role modeling can, in fact, see themselves as leaders insofar as they are leading by example. That there is a connection between that activity and another person’s acting likewise, however hard to gauge, would, of course, be an important factor in determining if, in fact, that citizen is leading. John W. Gardner, prominent scholar of leadership studies, depicts leadership as a phenomenon in which the roles of leader and follower are fluid, one in which a follower may step into the role of leader and back to that of follower depending on circumstances and capabilities. He suggests that the conception invites everyone to be a leader and for any leader to think of followers as future leaders (1993). James MacGregor Burns, c­ onsidered by some to be ‘the father of leadership studies’ (Washington Library-­Leadership Institute 2015), helps with this inquiry about leaders and followers. We learn that traditional thinking about them assigns rigid and static roles to them with the leader essentially being the active party and the follower, the passive. Burns presents a fluid model that depicts the leader-­ follower relation as a system in which people shift from leader to follower. Leaders initiate change. ‘The key distinctive role of leadership at the outset is that leaders take the initiative. They address their creative insights to potential followers, seize their attention, and spark further interaction. The first act is … a creative act’ (Burns 2003). As the process unfolds, leaders and followers alike are empowered to identify their wants, address conflicts about them, and step into the roles of one ­another, and the citizenry progresses. ‘The clues to the mystery of leadership lie in a potent equation: embattled values grounded in real wants, invigorated by conflict, empower leaders and activated followers to fashion deep and comprehensive change in the lives of people’ (ibid.). Note that this account of stepping in and out of leadership may well be descriptive of some human interactions, but, for it to guide citizens and societies, it has to become an ideal of which they are aware and be promoted if it to obtain in any full-blown way. The same can be said about how I depicted citizens as leaders; in a word, they should think of themselves in this way. So, from an internal perspective, one may or may not be thinking about oneself as a leader when one is following the law, and, from the internal perspective of other people, that conduct may or may not serve to influence them. Considering the interaction from the perspective of an external observer, that observer may find convincing evidence that a situation of leading by example has obtained. Still, to the extent we believe the dynamic to be desirable, we can


Chapter 2

e­ ncourage people to be mindful of the role they can play for it to unfold. Asked to provide examples students offered a number involving people following traffic laws. Consider how people acting in these ways can model activity for others to adopt: stopping fully at a stop sign even when no vehicles are in sight; using the far left lane of a highway for passing only, signaling before entering it, and signaling again when leaving it; yielding to pedestrians; stopping at an intersection before the light changes to red. They also offered examples such as walking a dog on a leash in parks, persons explaining to friends that they have not been drinking at a social event because they are the designated driver, or that, since they are driving that night, will not drink anything alcoholic. Other instances they mentioned include objecting to violators, advocating compliance, calling violators out, and complying; dismissing as unacceptable discriminatory talk and actions, modeling respect for laws prohibiting various types of discrimination, and criticizing officials who do not fulfill their duties to uphold them. These examples overlap Sartre’s depiction of the man who acts responsibly. As he freely chooses an act, he chooses for all of humanity. The man who chooses to marry accepts it as a viable choice for everyone. He holds himself out in effect as a model for anyone to imitate, and to the extent he influences the conduct of other people, we can see him as leading by example. Here too we ­confront difficulty with determining whether the interaction has occurred in this way. We have limited evidence of internal perspectives of the agents as well as what an external observer might infer from the interaction. According to Sartre: When we say that a man chooses himself, not only do we mean that each of us must choose himself, but also that in choosing himself, he is choosing for all men. In fact, in creating the man each of us wills ourselves to be, there is not a single one of our actions that does not at the same time create an image of man as we think it ought to be. ((1946) 2007, 24) Sartre brings this claim around to a man choosing marriage: if I decide to marry and have children—granted such a marriage proceeds solely from my own circumstances, my passion, or my desire—I am nonetheless committing not only myself, but all of humanity, to the practice of monogamy. I am therefore responsible for myself and for everyone else, and I am fashioning a certain image of man as I choose him to be. (Ibid.) To restate within the Sartrean framework our discussion of citizens as leaders, we can say that citizens choose to see their norm-guided conduct as law and



to conceive themselves as leading by example as they act. Guiding their choice is the value they see in their choices and the extended value for all of humanity so choosing. For it to be a factual matter that citizens are leaders, there is the precondition that citizens have chosen to see themselves in this way, have acted accordingly, and have influenced other people to act similarly. Further, we presume that this way of seeing citizens as leaders is an explicit part of the social discourse that evaluates and modifies as necessary the viability of this conception. If we can approach the phenomenon of citizens as leaders through an existentialist lens, we can likewise make use of a pragmatic one. We postpone a detailed discussion of this pragmatic approach until the chapter on judging, where we detail how judges should be constructing viable conceptions of themselves in a social context where the citizens have a claim on the conceptions they choose. Here we can posit the claim in its more general form, as I stated it in A Case for Legal Ethics, that for the various roles that people occupy, they should be developing critically reflective conceptions of these roles and following rules entailed by or consistent with them: Actually, three major attitudes with regard to occupying some particular role or status can be distinguished. Only the third is consistent with the theory of human nature we developed and with how we are calling upon professionals, or people in any role, to act. The first attitude, call it the ‘unreflective attitude,’ is exemplified where, because of the situation one finds oneself in, one accepts the status thereby conferred simpliciter. For example, the man or the woman, because of the situation he or she is in of having biologically reproduced, takes this situation as a sufficient characterization of himself or herself in the role of a father or a ­mother. Compare this with the next attitude—call it the ‘partially reflective ­attitude’—where an attempt is made to understand what is entailed by this status-the expectations, obligations, and associations it carries with it. Here, the individual will attempt to acquire knowledge about the role, perhaps through recollection of experiences with his or her own parents, through inquiry and exchanges of information, thereby gaining an understanding of the role to guide future actions. The literature on what a profession is generally panders to this attitude in that each contributor presents his or her analysis as definitive for a full understanding of what a profession is. The final attitude, the ‘critical attitude,’ goes further than the second in that the collected wisdom of, say, fatherhood is not simply turned to, assimilated, and used as a guide for the direction of one’s activity within this role. Rather, what one employing the critical attitude does


Chapter 2

is ­familiarize oneself with the information available and, upon reflection, construct in an ongoing process what one considers being the best conception to guide one’s actions. This advice might be seen as nothing more than a spin-off of the familiar dictum concerning the poverty of the unreflective existence, but, more to the point here, an unwillingness to embrace the critical attitude seems symptomatic of a willingness to cast off one’s ability to self-govern and to ignore our nature as constructors of rule-referring conceptions of our nature and our roles. (1993, 68–9) Bringing this discussion around to citizens conceiving themselves as leaders, we would urge them to adopt a critical attitude and engage in an ongoing construction of this leadership role to guide them as they occupy it. Scope of Norms So part of the citizen’s conception of oneself is that one’s conduct is part of what law is insofar as law is the rule guided conduct of the citizen. In what follows we consider what might figure into that guidance. We will use ‘utterances’ of a legal order as the generic term for those entities of the legal order that can contribute to this normative guidance whether they are norms or rules themselves, values, purposes, and definitions. We consider how any of them can carry normative weight for the decision maker or the citizen as doer. Each one can color, make a claim on, or weigh on the doer’s acting, and we will generically refer to the constellation of their normative force as constituting the guidance by some norm or norms. We already reviewed how a statement in declarative form can offer normative advice, and, as we review the range of utterances in a legal order, we consider how they can likewise contribute to the normative advice that the citizen follows. The matter is something like Ronald Dworkin’s notion of the various factors of the legal system that can weigh on a judge’s decision, but, in our case, the action itself is that of the citizen’s rather than the judge’s, and we recognize a broader range of utterances that can influence the citizen’s decision and action compared with Dworkin’s inventory of legal rules, moral rules, principles, which are stated as norms, and policies, which are utterances, like reducing the number of highway deaths, that have no clear normative form. Let us now commence with a survey of the sorts of utterances we find in a legal order and return to the matter of their normative weight and the plausibility of casting them in this way. We begin with a category of ‘basic values,’ which signifies that there are utterances in the legal order that identify basic values and that utterances of this sort can be constitutive of the norm(s) that guide(s) a citizen. As we list subsequent categories, we expect the reader to



interpret them in this fashion. Some of the utterances involve the quotation of substantial passages. The purpose is to reveal the actual magnitude of some of the utterances as well as to provide the reader with an opportunity to consider, while reading their complete formulation, their place in the legal order for offering normative guidance for the citizenry. Basic Values Preambles to constitutions typically set out these values, sometimes referring to them simply as ‘values’ but getting across their fundamental nature by mentioning that the state is ‘founded on them,’ as is the case with South Africa’s constitution: The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. (Republic of South Africa Constitution 1996) Unlike the familiar recitation of human rights that we find in the preambles of liberal democracies like South Africa, the preamble of China’s constitution exalts the state itself, which we infer to be the basic value or the most important thing of value. The two approaches represent the basic divide between social organizations that serve to protect and promote the interests of the individuals and those where individuality all but vanishes, as the citizen exists to serve the state as a bodily part serves an organism: This Constitution affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the state in legal form; it is the fundamental law of the state and has supreme legal authority. Constitution of the People’s Republic of China 1982

The constitution proceeds to offer articles with details about these structural commitments to the authority of the people’s dictatorship and to common ownership of all property; consider the first and fifth articles:


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Article 1: The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of China. Sabotage of the socialist system by any organization or individual is prohibited. Article 6: The basis of the socialist economic system of the People’s Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people. The system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of ‘from each according to his ability, to each according to his work.’ Constitution of the People’s Republic of China 1982

Metaphysical and Epistemological Claims about Beliefs and Values Metaphysics, the study of the structure or basic features of reality, and epistemology, the study of how and what we know, are relevant for a legal order insofar as it sets out specific commitments about the nature of reality and our knowledge of it. Consider, for example, the familiar passage from the Declaration of Independence: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty and the pursuit of Happiness’. A metaphysical claim is made about the existence of a Creator who gave us a set of rights, and an epistemological claim about our having knowledge of certain truths through their self-evidence. To the extent these claims are tied to a particular religion or value system, they create an overall vision for citizens of their place in the world and the legal order. Consider how Iran’s constitution joins statements about beliefs and values with claims about the structure of reality and people’s knowledge of it: Article 2: The Islamic Republic is a system based on belief in: (1) the One God (as stated in the phrase ‘there is no god except Allah’), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands; (2) Divine revelation and its fundamental role in setting forth the laws; (3) the return to God in the Hereafter, and the constructive role of this belief in the course of man’s ascent towards God; (4) the justice of God in creation and legislation; (5) continuous leadership (imamah) and perpetual guidance, and its fundamental role in ensuring the uninterrupted process of the revolution of Islam;



(6) the exalted dignity and value of man, and his freedom coupled with responsibility before God; in which equity, justice, independence (political, economic, social, or cultural), and national solidarity are secured by recourse to: (a) continuous ijtihad of the fuqaha’ possessing necessary qualifications, exercised on the basis of the Qur’an and the Sunnah of the Ma’sumun, upon all of whom be peace; (b) sciences and arts and the most advanced results of human experience, together with the effort to advance them further; (c) negation of all forms of oppression, both the infliction of and the submission to it, and of dominance, both its imposition and its acceptance. (Constitution of the Islamic Republic of Iran 1979) Natural Laws Philosophers of law fundamentally disagree about the existence and status of natural laws that, basically, are moral principles discernible by human reason. The United States Declaration of Independence identifies some of them in its familiar second paragraph that reads, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ Natural law theorists recognize their binding force in a legal order, with the cornerstone of their philosophy being summed up by the adage that an unjust law is no law at all. Legal positivists, on the other hand, insist on a separation of law and morality and will not acknowledge that natural laws are part of the legal order. Citizens may not use the terminology of philosophers, but they recognize the issue and guide their conduct in accord with their take on the matter whether they are members of the general citizenry, the judiciary, or some other public office. Here are some examples of natural laws: Do good and avoid evil. ST, 1–2.94

A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved. … And consequently it is a precept, or general rule of reason: that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. The first branch


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of which rule containeth the first and fundamental law of nature, which is: to seek peace and follow it. The second, the sum of the right of nature, which is: by all means we can to defend ourselves. hobbes 1651/2015

The state of nature has a law of nature to govern it, which obliges everyone; and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. locke 1689/1823, 107

Human life is fundamentally and inherently valuable … and the intentional taking of human life by private persons is always wrong. gorsuch 2006, 157

Statements that Forbid Acts or Omission A common way of thinking about a legal order is that it is replete with statements that restrict certain observable, overt actions; shopliftings, assaults, running red lights, stranglings, and acts causing damage to property come to mind as examples. It serves as no disruption to this intuition to recognize that some restrictions involve what people do not do or omissions like child neglect, failure to maintain auto insurance, and withholding information during an investigation. In these situations there is usually a legal duty to perform an act that the offender has not done. Intuitions tug in opposite directions when it comes to determining whether acts of omission are as bad as acts of omission. As one commentator brings out, ‘is withholding the truth as bad as lying. Is failing to help the poor as bad as stealing? Is letting someone die as bad as killing? In most cases the answer would seem to be no.’ This observation is consistent with the laws of most states that allow passive euthanasia and forbid active euthanasia. Yet, presented with a famous case in the philosophical literature, it seems that our intuitions lead us to think that no clear distinction can be drawn between killing and letting someone die. In his famous article, ‘Active and Passive Euthanasia,’ James Rachels offers two cases that serve to undermine any prevailing intuition about omissions being less bad than omissions. In the first, Smith stands to gain a large inheritance if anything should happen to his six-year old cousin. One evening while the child is taking his bath, Smith sneaks into the bathroom and drowns the child, and then arranges things so that it will look like an accident.



In the second, Jones also stands to gain if anything should happen to his sixyear old cousin. Like Smith, Jones sneaks in planning to drown the child in his bath. However, just as he enters the bathroom Jones sees the child slip and hit his head, and fall face down in the water. Jones is delighted; he stands by, ready to push the child’s head back under if it is necessary but it is not necessary. With only a little thrashing about, the child drowns all by himself, ‘accidentally,’ as Jones watches and does nothing. Inferring from these cases that no morally relevant distinction exists between killing and allowing someone to die, he establishes one of several reasons putting active euthanasia on a par with passive euthanasia in the legal system. So matters of considerable, practical importance can hinge on how we ultimately think about the wrongness of omissions and commissions. A complicating factor is how we classify some restriction. In 2000, Mayor Gil Bernardi of Le Lavandou, France, proclaimed, ‘it is forbidden without a cemetery plot to die within the city limit’ (Henley 2000). With this city ordinance, the mayor was responding to a need for a new cemetery because of a backlog of burials due to lack of space. His effort to expand was denied by a court sympathetic to the objections of environmentalists. In any case, is this ordinance about an omission of not buying a plot, the commission of dying, or some amalgam? The lack of clarity underscores the complexity of this category of utterances about omissions and commissions. Substantive and Procedural Rules and Hybrids The norm in law is to distinguish between substantive and procedural rules. The utterances we discussed in the previous section about acts of omission and commission that are forbidden all involve violations of substantive rules, as are, to identify other examples, offenses against the person, offenses against property, and inchoate offenses. In the field of criminal law, one would find these rules in a penal code that details such matters as the elements of these offences, affirmative defenses, and punishment upon conviction. Matters of procedure, like the proper handling of evidence, the order of the presentation of evidence at trial, and how to appeal a ruling or judgment, are contained in a separate code, which, in criminal matters would be a code of criminal procedure. Still, we find utterances that join the two and others where it is questionable how to classify the utterance. In the Code of Hammurabi, we find a detailed statement of an offense involving ownership, consequences for failure to comply, along with the procedures the judge should follow in trying the matter:


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If anyone lose an article, and find it in the possession of another: if the person in whose possession the thing is found say ‘A merchant sold it to me, I paid for it before witnesses,’ and if the owner of the thing say, ‘I will bring witnesses who know my property,’ then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony—both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant. (Article 9) The ‘parol evidence rule’ has every appearance of being a procedural rule governing the admissibility of evidence. According to the Legal Information Institute: The parol evidence rule governs the extent to which parties to a case may introduce into court, evidence of a prior or contemporaneous agreement in order to modify, explain, or supplement the contract at issue. The rule excludes the admission of parol evidence. This means that when the parties to a contract have made and signed a completely integrated written contract, evidence of antecedent negotiations (called ‘parol evidence’) will not be admissible for the purpose of varying or contradicting what is written into the contract. Still, it is controversial how to classify the rule—whether it is a substantive rule of contract law, nothing more than a substantive rule of contract law, or both an evidentiary rule and a substantive rule: • ‘The parol evidence rule is a rule of substantive law.’ Lewis v. Adams, 979 S.W.2d 831, 836 (Tex. App. Houston [14th Dist.] 1998) • ‘The parol evidence rule is a rule of substantive contract law, not evidence.’ Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958) • ‘The rule is not merely an evidentiary one, but rather a fundamental rule of substantive law.’ Florida Bar v. Frederick, 756 So. 2d 79, 85 n. 2 (2000) This position one takes on the issue can influence the outcome of a case. At a trial about the rights of the contracting parties, one party proceeds to introduce evidence about oral conversations prior to executing the written contract.



These conversations serve to increase the claim for damages for that party. The opposing party raises no objection at the time and only later argues that these conversations should be ignored on the basis of the parol evidence rule. If the judge sees it as a rule of evidence, the judge can rule that the conversations remain admissible, as there was no objection to their introduction at the time, and the plaintiff can collect a higher award. If its status as a substantive rule prevails, the evidence is excluded whenever it is objected to. One commentator, Paul R. Jackiewicz, as he sums the matter up, brings out how, in treating the parol evidence rule as an evidentiary rule, an individual can be deprived of a substantive right. Jackiewicz says: The modern trend of the courts along with the almost total absence of any of the historical reasons for the substantive application of the rule has minimized the distinction between substance and procedure so far as the parol evidence rule is concerned. Nevertheless, this distinction should be made in light of the procedural consequences which may result in its absence. The failure of the courts to make this distinction is not commensurate with the policy that seeks to protect the substantive rights of an individual. The waiver of the right to have incompetent parol evidence excluded is especially dependent upon this distinction. Such questions will remain unsolved if the courts persist in failing to distinguish the rule from the exceptions to it, and in treating the rule as a mere rule of evidence. (1955, 661) Utterances with Emotive Meaning Some philosophers, such as A.J. Ayer (1936), have argued that some statements, although they appear to be statements with factual significance, serve merely to express our feelings about or attitude toward a matter. ‘Stealing is wrong,’ for example, appears to be a statement like ‘the book is on the table,’ but it is not. While we can experiment to determine whether ‘the book is on the table’ is true or false, we cannot do so with ‘stealing is wrong.’ Moral judgments, in this view, have no factual meaning. Ayer describes them as having emotive meaning only, as they serve to convey our approval or disapproval in an attempt to sway other people to feel likewise. In a dissenting opinion, us Supreme Court Justice Antonin Scalia attributes emotive meaning to the main rule endorsed by the Court’s majority in an attempt to discredit the rule and the Court’s action: The central thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or presumably to avoid


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d­ isadvantage) it must have recourse to a more general and hence more difficult level of political decision-making than others. The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation. romer v. evans, 517 u.s. 620 (1996), 639

Rules Stated as Poetry or in Verse Law Professor Sidney Delong observes the poetic nature of some legal rules: It has long been noted that legal language is fond of pairs of words or terms. It is a mistake to conclude that these doublets endure only by virtue of their vestigial reminder of the Norman Conquest and its legacy of law French. The paired terms are powerfully rhythmic in the hands of a master. Nowhere is the comfortable symmetry of the lawyer’s doublet more pronounced than in the following definition from Section 101 of the Bankruptcy Code: ‘transfer’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.’ For ease of scansion, permit me to display this poem in the more traditional format of the shaped poem: ‘transfer’ means every mode direct or indirect, absolute or conditional, voluntary or involuntary of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption; The rhythm of this verse is hypnotic. I always find myself davening back and forth as I repeat this wonderful passage, and I’m not even Jewish. As the verse progresses, the doublets grow longer and more complex. This progress has the effect of training the reader’s eye and ear to encompass more and more variety. (2008, 142) The idea of poetry serving to fix the law in the minds of the citizens is an ancient one and closely connected with cultures that depended on an oral transmission of knowledge, tradition, and law. One commentator reflects on the connection and its contemporary relevance for a society that unwittingly all but dismisses it:



Given a culture that seeks to drive a wedge between law and literature, we should not expect legal poems to declare themselves as such. This is not, however, the same thing as saying such poems do not exist. The most famous poem in law is the Miranda warning. More people can recite this quatrain than can recite the Gettysburg address, much less a quatrain from most poets who were intentionally writing quatrains, like the quite catchy Alexander Pope. The broad dissemination of the warning in our culture through television and film has not just given it force, but affected its Constitutional stature. In the 2000 case, United States v. Dickerson, Chief Justice Rehnquist held that the warning had acquired a Constitutional dimension because it had become part of our ‘national culture.’ This was not Congress as a co-equal interpreter of the Constitution—indeed, Congress in Dickerson was trying to get rid of the warning. It was Hollywood: I appreciate … [this] call to celebrate law and poetry. But a celebration of law and poetry that (so far) buys into the relatively ornamental status of poetry in law feels like something less than a full one. The Greeks embodied law-like mores in poetry to ensure their broad dissemination in an oral culture. If we are committed to having laws that ‘We, the People’ can understand, we might do worse than to reinstate that practice. yoshino 2008

Statements of What is Permissible, of What a Person or Entity May Do Two related utterances about permissibility are ‘everything which is not forbidden is allowed’ and ‘nulla poena sine lege’ (no penalty without law). The first, considered an unwritten principle of England’s constitution, is a rule of common law whose formulation one finds in case law. Sir Robert Megarry vc stated, in Malone v. Commissioner for the Metropolitan Police (No. 2) of the Chancery Division, ‘England, it may be said, is not a country where all is forbidden except what is expressly permitted: it is a country where all is permitted except what is expressly forbidden’ (1979, 357). In a dissenting opinion, Justice Scalia brings up and references the status of the second principle. The Court today approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed. It thus violates a principle encapsulated in the maxim nulla poena sine lege, which ‘dates from the ancient Greeks’ and has been described as one of the most ‘widely held valuejudgment[s] in the entire history of human thought’ (Hall 2005, 59). Today’s opinion produces, moreover, a curious constitution that only a judge could love (Rogers v. Tennessee 532 u.s. 451 (2001)).


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The second is narrower in that it restricts the legal order from punishing someone unless that person has violated a law; to the extent punishment is connected with criminal law, the statement might be restated as ‘everything which is not forbidden by the criminal law is allowed, and what is allowed admits of no punishment.’ With reference to the first principle, we see that, once we are outside the confines of the criminal law and its connection with punishment, the scope of the forbidden and the allowed is broadened and in need of qualification as we move from one area of law to another. While we may recognize a moral obligation to keep our promises, we see no legal wrongdoing when someone beaches a contract, which amounts to breaking a promise. The law recognizes a right to go through with the terms of the contract as well as a right to breach and pay damages. So breaches are not forbidden, they are allowed, and there is no issue of punishment in the private law governing contracts. Further, a breach may not justify an award of any damages, and in this circumstance, there is not even an analogue to a punishment. The rule for awarding damages in contract law is to put the plaintiff in as good a position as he would have been had the contract not been breached by the defendant. Suppose A agrees to buy supplies for a fence and pay B $1000 to install it by the end of the month. A buys the supplies, B never shows up that month, and A returns the supplies for a full refund. A sues B for breach but receives no monetary award according to the rule for recovery (Megarry 1979, 357). Notice how these considerations of what citizens may do have a counterpart in what countries, states, or their agents may do. This passage from Argentina’s constitution is a case in point: Section 6. The Federal Government may intervene in the territory of the provinces in order to guarantee the republican form of government or to repel foreign invasions; and at the request of their constituted authorities, it may intervene to support or reestablish them, should they have been deposed by sedition or invasion from another province. Argentine Republic Constitution, 1994

Here is an example from Texas: Art. 43.09. FINE DISCHARGED. (b) In its discretion, the court may order that for each day’s confinement served by a defendant under this article, the defendant receive credit ­toward payment of the pecuniary fine and credit toward payment



of costs adjudged against the defendant. Additionally, the court may ­order that the defendant receive credit under this article for each day’s confinement served by the defendant as punishment for the offense. (c) In its discretion, the court may order that a defendant serving concurrent, but not consecutive, sentences for two or more misdemeanors may, for each day served, receive credit toward the satisfaction of costs and fines imposed for each separate offense. (d) Notwithstanding any other provision of this article, in its discretion, the court or the sheriff of the county may grant an additional two days credit for each day served to any inmate participating in an approved work program under this article or a rehabilitation, restitution, or education program. Texas Code of Criminal Procedure, Chapter 43. Execution of Judgment.

And this example from Utah: 53-3-210.5. Learner Permit. Beginning on August 1, 2006, the division, upon receiving an application for a learner permit, may issue a learner permit effective for one year to an applicant who is at least 15 years of age. Utah Code 2016

Guarantees Utterances that establish guarantees are of two primary sorts. One is the model of a person or entity taking responsibility for the obligation of another person or entity—a debtor, for example—who is in default of an obligation. We find guarantees of this sort in private transactions where the guarantee’s default triggers the guarantor’s responsibility to make good on the obligation. We also find states issuing guarantees to their citizens usually insuring they will receive and continue to receive certain benefits or have certain rights respected. In these cases, no prior default is required to ascribe a responsibility to the guarantor to provide for the citizen. Consider a passage from Argentina’s Constitution Section 37. This Constitution guarantees the full exercise of political rights, in accordance with the principle of popular sovereignty and with the laws derived therefrom. Suffrage shall be universal, equal, secret and compulsory. Actual equality of opportunities for men and women to elective and political party positions shall be guaranteed by means of positive actions in the regulation of political parties and in the electoral system. Argentine Republic Constitution 1994


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Also consider a passage from Pakistan’s constitution: Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust. … This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan… . Wherein shall be guaranteed fundamental rights ­including equality of status, of opportunity and before law, ­social, economic and political justice, and freedom of thought, expression, ­belief, faith, worship and association, subject to law and public morality. The Constitution of the Islamic Republic of Pakistan

Stipulative Definitions For general use, definitions capturing how native speakers use words are sufficient for their communicating with one another. A ‘minor,’ for example, is a child or young person, sometimes in connection with being too young to drink, drive, vote, consent to sexual relations, or be held responsible for his or her acts. As statements in the legal order introduce precision that is absent from, and simply not part of, the ordinary meaning, it ‘stipulates’ how we will use the term for certain purposes. Although its core meaning matches the common meaning, it introduces additional elements that require us to speak in terms of a minor relative to the law governing the age of consent or a minor for purposes of consumption of alcohol. The penal code of India, defines rape, as far as its legal order is concerned, or stipulates what it is, in this way: Rape §375. A man is said to commit ‘rape’ if he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: Firstly. Against her will.



Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent. Indian Penal Code

Performative Utterances Performative utterances are also known as verbal acts, where, in large measure, the way one performs some act is by saying something in the proper context. Thus, the act of the judge who unites two people in marriage is saying something like ‘I hereby pronounce you a legally married couple.’ Utterances of this sort are part of the legal order; consider: NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by Section 320301 of title 54, United States Code, hereby proclaim the objects identified above that are situated upon lands and interests in lands owned or controlled by the Federal Government to be the Katahdin Woods and Waters National Monument (monument) and, for the purpose of protecting those objects, reserve as a part thereof all lands and interests in lands owned or controlled by the Federal Government within the boundaries described on the accompanying map entitled, ‘Katahdin Woods and Waters National Monument,’ which is attached to and forms a part of this proclamation. The reserved Federal lands and interests in lands encompass approximately 87,500 acres. The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected. ‘Presidential Proclamation—Establishment of the Katahdin Woods and Waters National Monument,’ Office of the White House Press Secretary, August 24, 2016


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Criteria Criteria are standards for ordered decision making regarding such matters as eligibility, distribution, status, and compliance. By reference to them, we determine whether someone qualifies for Medicaid, how much someone’s social security benefits are, whether someone is a minor, and whether someone is meeting the terms of a protective order or a probationary period. United States jurisprudence allows courts to take up only legal questions and not political ones. In Baker v. Carr, the us Supreme Court offered this criterion for identifying a political question: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. baker v. carr, 369 u.s. 186 (1962), 217

Guidelines In arguing against prominent theories of law, like Austin’s command theory and Holmes’s prediction theory, H.L.A. Hart emphasizes how law assists citizens with planning their lives—something which other views leave unmentioned; says Hart, ‘the principle functions of law as a means of social control are not to be seen in private litigation or prosecutions …. It is to be seen in the diverse ways in which the law is used to control, to guide, and to plan life out of court’ (1961, 39). Consider how the criminal law allows people to plan their lives without the interference of government. In a dictatorship absent the rule of law, unpredictability is the norm insofar as a citizen might be taken into custody without notice and for no apparent wrongdoing—for some personal vendetta of an official or some political activity on the part of the citizen that someone in power finds objectionable. In societies like that, the government may make decisions about one’s line of work, where one’s career will unfold, when one might be ­relocated, and whom one can marry. Try as one may to build a life



of one’s choosing, the whims and plans of other people can be determinative, and, perhaps worse, citizens never know when these factors might come into play in reshaping their lives. In a liberal society where the rule of law prevails, living on the right side of the law provides the predictability one needs to go forward with formulating realistic life plans and living a life relatively free from governmental interference. So the criminal laws serve as guidelines for what conduct one should not undertake for living a life of one’s choosing even if their primary purpose might be something like preserving the peace and dignity of the community. Other rules serve as guidelines for securing specific outcomes in one’s life like distributing one’s assets, incorporating a business, contracting for the construction of a home, transferring title upon the sale of property, adopting a child, getting a divorce, and issuing advance directives for medical care. For making a will in China one need only handwrite it oneself, sign and date it although there are other ways to make a valid will: Chapter iii Testamentary Succession and Legacy. Article 16. A citizen may, by means of a will made in accordance with the provisions of this Law, dispose of the property he owns and may appoint a testamentary executor for the purpose. A citizen may, by making a will, designate one or more of the statutory successors to inherit his personal property. A citizen may, by making a will, donate his personal property to the state or a collective, or bequeath it to persons other than the statutory successors. Article 17. A notarial will is one made by a testator through a notary agency. A testator-written will is one made in the testator’s own handwriting and signed by him, specifying the date of its making. A will written on behalf of the testator shall be witnessed by two or more witnesses, of whom one writes the will, dates it and signs it along with the other witness or witnesses and with the testator. A will made in the form of a sound-recording shall be witnessed by two or more witnesses. A testator may, in an emergency situation, make a noncupative will, which shall be witnessed by two or more witnesses. When the situation is over and if the testator is able to make a will in writing or in the form of a sound-recording, the noncupative will he has made shall be invalidated. Law of Succession of the People’s Republic of China 1985


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Warnings and Predictions Some statements in the legal order consist of warnings with advice about what to do given some peril that is predicted to occur. The two go hand-in-hand insofar as a prediction that some undesirable event will occur justifies a warning to take steps to avoid its consequences. Sometimes, their source is a government official, who makes a determination about the likelihood of the harm and the actions recommended or required in the warning. Thus, a mayor may warn citizens to seek secure shelter in the wake of a prediction of a tornado touching down in the city’s center, or, due to a rapidly approaching category 4 hurricane, to evacuate and warn them that remaining is at their peril, as they will be unable to contact no emergency responders. Sometimes a rule requires that a warning be issued based on a predicted outcome; consider San Francisco’s ordinance of 2015, which involved a warning about consuming sugar and bad health: San Francisco lawmakers unanimously voted on Tuesday to put warning labels on all advertisements for sugary beverages in the City by the Bay. This first-in-the-nation law is set to go into effect this summer, which means billboards or taxi-cab ads for Coke or Gatorade will soon bear this message: WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco. steinmetz 2015

In this formulation, the prediction and the warning are merged; neither word is mentioned, but implied is the prediction that, if you consume this product, you are increasing your chances of certain conditions befalling you, along with the warning that you ought not consume it. Consider how language of prediction and warning figures into advice to travelers. In the following travel advisory and subsequent reformulations, the us Department of State strongly warns citizens to avoid traveling to Syria, predicts the harm that is likely to befall them if they do so, and further warns of the basic inability of the us to intervene in their behalf should they fall in harm’s way. The statement itself reiterates the illegality of assisting enemy combatants like isis and warns travelers of the harsh penalties for doing so. Warnings like these are so severe and the prediction of ill consequences so dire for failing to pay heed all but amount to meeting the defining feature of a law as an order backed by a threat. The advisory begins: The Department of State continues to warn us citizens against all travel to Syria and strongly recommends that us citizens remaining in Syria ­depart



immediately. The security situation remains dangerous and unpredictable. Violent conflict between government and armed a­ nti-government groups continues throughout the country. There is a serious risk for kidnappings, bombings, murder, and terrorism. us Travel Warning, October 11, 2016

The following advisory replaced the one from October 2016: No part of Syria is safe from violence. Kidnappings, the use of chemical warfare, shelling, and aerial bombardment have significantly raised the risk of death or serious injury. The destruction of infrastructure, housing, medical facilities, schools, and power and water utilities has also increased hardships inside the country. Terrorist and other violent extremist groups including isis and ­al-Qa’ida’s Syrian Affiliateal-Nusrah Front (also known as Jabhat al-Nusrah, Jabhat Fatah al-Sham, and other aliases), operate in Syria. Tactics for these groups include the use of suicide bombers, kidnapping, small and heavy arms, and improvised explosive devices. They have targeted major city centers, road checkpoints, border crossings, government buildings, shopping areas, and open spaces, including in Damascus, Aleppo, Hamah, Dara, Homs, Idlib, and Dayr al-Zawr provinces. These groups have murdered and kidnapped us citizens, both for ransom and political purposes. us citizens have disappeared within Syria. Public places, such as road checkpoints, border crossings, government buildings, shopping areas, and open spaces, have been targeted. Because of the security situation in Syria, the us government’s ability to help us citizens kidnapped or taken hostage is very limited. Although a ceasefire was announced in December 2016, fighting persists in Syria. Moreover, the ceasefire does not include isis or al-Nusrah Front, which have not renounced the use of violence. The ceasefire does not make the security situation in Syria any less dangerous for us citizens. The advisory continues: The us government particularly warns private us citizens against traveling to Syria to engage in armed conflict. us citizens who undertake such activity face extreme personal risks, including kidnapping, injury, or death. The us government does not support this activity, and our ability to provide consular assistance to individuals who are injured or kidnapped, or to the families of individuals who die in the conflict, is extremely limited. Individuals who demonstrate an interest in groups


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­opposing isis, including on social media, could open themselves to being targeted by isis itself if those individuals travel to Syria. Fighting on behalf of or providing other forms of support to designated terrorist organizations, including isis and al-Nusrah Front, can constitute the provision of material support for terrorism, which is a crime under us law that can result in penalties including prison time and large fines. Syria Travel Warning, us Department of State, 2017

Interpretations Common law is a source for rules for how to interpret statutes. A prominent one is the Plain Meaning Rule: Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral. Duport Steel v Sirs (1980)

Another is the Golden Rule for Interpretation The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther. grey v pearson (1857) HL Cas 61

Although further rules for interpretation have come from judges in their opinions, others have state statutes as their source. Says one commentator: our law has gradually developed a vast body of authority pertaining to statutory interpretation. Some of the rules in this law are very ancient, others rather recent. Most of this authority is applicable to statutes in any field; some of it only to one field, such as criminal law or constitutional law. Nearly all of it is entirely judge made, although a few rules of interpretation appear in the general statutes of most states. johnstone 1954, 1

Kansas is a state in point; a few of their rules include:



Sec. 24. k.s.a. 2016 Supp. 77–201 is hereby amended to read as follows: ­77–201. In the construction of the statutes of this state the following rules shall be observed, unless the construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute: First. The repeal of a statute does not revive a statute previously repealed, nor does the repeal affect any right which accrued, any duty imposed, any penalty incurred or any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of the prior provisions and not as a new enactment. Second. Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings. Third. Words importing the singular number only may be extended to several persons or things, and words importing the plural number only may be applied to one person or thing. Words importing the masculine gender only may be extended to females. Fourth. Words giving a joint authority to three or more public officers or other persons shall be construed as giving that authority to a majority of them, unless it is otherwise expressed in the act giving the authority. 2017 Session Laws of Kansas

‘Shall’ Statements ‘Shall’ typically means ‘must’ in legal utterances when a course of conduct is prescribed, and typically its use underscores that the conduct is not optional as the use of ‘may’ would. Consider this use in a directive about the interpretation of contracts from the Bulgarian Obligations and Contracts Act: Art. 20. The actual common will of the parties shall be sought in interpreting contracts. The individual provisions shall be interpreted in their interrelation and each one of them shall be interpreted in the meaning ensuing from the contract as a whole, taking into account the objective of the contract, usage and good faith. Another use is in phrases like ‘he who shall.’ Here, ‘shall’ adds nothing to the logical structure of the sentence and is simply an alternative to stating the claim


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in the standard present tense. Thus, The Penal Code of The Philippines (1900) where the statute reads, ‘he who shall purposely castrate another shall be punished with the penalty of reclusion temporal (fixed term sentence) to reclusion perpetua (life sentence)’ says nothing more than ‘he who purposely castrates.’ Policies and Principles Dworkin is well known for his observation that primary components of a legal system are legal rules, principles and policies. Rules can dictate specific decisions, so that, if a state’s rule is that a valid will must have three witnesses, and the will in question has only two, then it is not a valid will. Principles are moral rules, like ‘no man shall profit from his own wrongdoing.’ While they make a legitimate claim on the judge’s thinking, they do not dictate a specific outcome. Likewise, policies can incline a judge one way or another but do not themselves lead to a specific decision; policies set out primary social goals or commitments like reducing the number of highway deaths. South Africa is infamous for its policy on the treatment of aids at the end of the twentieth century and into the next. The President, Thabo Mbeki, and his Minister of Health, Dr. Manto Tshabalala-Msimang, rejected the wisdom of the scientific community that hiv caused aids and that the primary line of treatment is antiretroviral drugs, which attack the hiv virus. She promoted the use of traditional African treatments and specifically prescribed beet juice as a remedy. Their policy is contained in a number of statements made by each party over a period of years during which South Africans with aids were counseled against the use of antiretroviral drugs. These statements include a statement by Health Minister Manto Tshabalala-Msimang in defense of her department’s approach: Shall I repeat garlic, shall I talk about beetroot, shall I talk about lemon … these delay the development of hiv to Aids-defining conditions, and that’s the truth [?] quoted in le roux 2006

These are the truths I will continue to tell the people of South Africa. … No churning of figures after figures will deter me and my department from telling the truth to the people of the country. … We are honoured as South Africans to have led the way in this regard through our comprehensive plan for management, care and treatment of hiv/Aids. (Ibid.) You can’t say the response to a healthy human body is drugs. Your first response is proper feeding. The minister of health repeats this thing



e­ very day and what do they do, they mock her. It’s like she’s some crazy person of the moon! Doctors know extremely well that you need proper ­nutrition; you need clean water; you need these health conditions. That’s the broad spectrum of a response you can say to the people in the hospital and that’s what the government will do. mbeki 2004

Statements Comprising a Story Some commentators depict Native American stories as components of the legal order: ‘Law comes from values and beliefs, but it can also be derived from stories or symbols that are tied to the beliefs of the people. … Stories are a crucial component of traditional law and teach important concepts’ (Garrow and Deer 2004, 10). We are familiar with Aquinas’s positing of the simple, foundational command of all of natural law—’Do good and avoid evil.’ Consider how the Iroquois story, ‘The Two Brothers,’ captures that insight and enriches it, and how the story, which stands for Aquinas’s norm, is plausibly a component of a legal order as much as Aquinas’s norm is. In the tale, Sky-Woman falls to earth and bears a daughter. The West Wind marries the daughter who becomes pregnant with twins. One could hear their voices from the womb, one voice being ‘loving and gentle’ and the other, ‘angry and quarrelsome.’ Their mother dies after the evil twin (a.k.a., ‘the Evil Mind’) ‘tore his way through his mother’s side.’ ‘The Good Mind’ heeds his grandmother’s advice to create good things for humanity. Then the Good Mind touched the Earth and from it grew the tall elm tree, which gives its bark for the lodges of the people. ‘But the Evil Mind struck the earth and the bushes with briars and thorns sprang up.’ The brothers continued to create the rest of the earth in this manner: So it was that in the two brothers all that was good and all that was evil came to this world and the long contest between the Good and Evil Minds began. And even today, this world we walk in is made of both good and evil things. But if we choose the Good Mind’s path, remembering right is greater than wrong, we will find our reward at journey’s end. bruchac 1985, 22

Generalizations and Presumptions Eighteenth-century philosopher and jurist Jeremy Bentham draws our attention to a British law, which makes the possession of a wrecked ship illegal when its name or identity has been obfuscated, and the same goes for its contents. A generalization and presumption are both present as they are in informal logic


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when we wrongly presume something to be the case due to a defective generalization. It may be the case that, generally, people who have property so described in their possession have undertaken to acquire that which does not rightfully belong to them. But the law, which relies on the generalization, takes it to be the case for any situation. As such, the generalization follows or is (part of) the law itself. Frederick Schauer and Richard Zeckhauser, in their analysis of this sort of law, first comment on this scenario and then on Bentham’s take on it: As an example, Bentham noted the crime of possessing shipwrecked property (including the ship itself) with altered markings. In 17th-century England, Bentham tells us, it was an offense to be found in possession of shipwrecked property whose identifying marks had been painted over or otherwise obliterated. The law was not based on the belief that it was intrinsically wrong to own shipwrecked property with altered markings; after all, a lawful acquirer might simply wish to remove the traces of a previous owner. But although innocent explanations were possible, the offense was based on the fact that in most cases the identifying marks would have been removed for less benign reasons, typically to disguise property that had been stolen from its rightful owner. So although there might be shipwrecked property with innocently obliterated markings, such a high percentage of altered markings were illicit, said Bentham, that all property with altered markings could be presumed to have been stolen. Making possession of such property an offense thus efficiently punished those who had obtained property illegally and deterred those who would seek to steal shipwrecked property. (2007, 69–70) As Schauer and Zeckhauser proceed to argue for their for view, they clarify that laws of this sort need have no such negative gloss placed on them and, in so doing, broaden our understanding of laws that include a generalization: We argue here that the common aversion to what we call evidentiary regulation or regulation by generalization is misguided. Although many commentators and regulators find it repugnant to hold people legally ­responsible on the basis of probabilistically reliable but n ­ on-universal indicators of regulable conduct, we argue that this repugnance is a ­product of undue skepticism about probabilistic inference coupled with unwarranted faith in the reliability of eyewitness and other forms of sensory observation. Moreover, even the most seemingly direct forms of



regulation—the typical speed limit, for example—rely on probabilistic ­inferences about the relation between the regulated activity and a primary social harm, so it should not cause alarm when probabilities provide the basis for targeting the behavior of individual agents. (Ibid.) Undefined Concepts or Primitive Notions Law, like mathematics and logic, has its undefined concepts, which, in mathematics and logic, are known as primitive notions. Their meaning is intuitive and foundational for developing further claims within the field as are the notions of point, line, and plane in geometry. In law, examples of prominent and frequently used concepts that remain undefined are ‘the reasonably prudent man’ and ‘good faith.’ Tort law generally holds people to a standard of what the reasonably prudent man or person would do, and the extent of their negligence is a function of their deviation from this test: ALDERSON, B. I am of opinion that there was no evidence to be left to the jury. The case turns upon the question, whether the facts proved show that the defendants were guilty of negligence. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. A reasonable man would act with reference to the average ­circumstances of the temperature in ordinary years. The defendants had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence, because their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident, for which the defendants cannot be held liable. Blyth v. Birmingham Waterworks Co. 1856, 156 Eng. Rep. 1047

Regarding good faith as an example of an undefined notion, note how the following Minnesota statute discusses it in terms of what acts or omissions are evidence that party participation is not in good faith:


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583.27 Good Faith Required Subdivision 1. Obligation of good faith. (a) The parties must engage in mediation in good faith. Not participating in good faith includes: (1) a failure on a regular or continuing basis to attend and participate in mediation sessions without cause; (2) failure to provide full information regarding the financial obligations of the parties and other creditors including the obligation of a creditor to provide information under Section 583.26, subdivision 5, paragraph (d); (3) failure of the creditor to designate a representative to participate in the mediation with authority to make binding commitments within one business day to fully settle, compromise, or otherwise mediate the matter; (4) lack of a written statement of debt restructuring alternatives and a statement of reasons why alternatives are unacceptable to one of the parties; (5) failure of a creditor to release funds from the sale of farm products to the debtor for necessary living and farm operating expenses; or (6) other similar behavior which evidences lack of good faith by the party. A failure to agree to reduce, restructure, refinance, or forgive debt does not, in itself, evidence lack of good faith by the creditor. Minnesota Statutes, 2016

Summary: Utterances in a Legal Order and Their Normative Weight While this inquiry into the utterances we find in a legal order does not exhaustively enumerate them, it does identify a way of thinking about the legal order and its constituents that reveals a decidedly larger population than any other account of the legal order. While the extent and diversity of this population of utterances may appear to undermine a philosophical quest to find something systematic or unifying about our object of study, they are part of a uniform view about the nature of law as the rule-guided activity of citizens. If we can reasonably consider these utterances to be part of the legal order, we can turn to considering further the reasonableness of their having normative significance for citizens. Among the pragmatists, C.I. Lewis stands out for his careful analysis of the interconnectedness of statements of fact and directives for doing. I draw attention to him not as an appeal to authority but for his view about facts and norms that is part of a viable network of ideas for thinking about our experience and ultimately for it conferring legitimacy on its components. In A Case for Legal Ethics, I turned to C.I. Lewis in developing a claim about human nature—that we are rule-guided, and, relevant to our purposes here, elucidating how there is interchangeability of what we perceive as fact and what we perceive as what we ought to do:


63 [C.I.] Lewis (1962) develops a general, pragmatic thesis concerning the interrelatedness of knowledge and action with his view of statements of objective fact. For the human mind, we find that any objective claim, like ‘The stove is hot,’ materially implies an infinite number of supporting tests, like ‘If you touch the stove, you will be burned,’ and parallel pieces of advice for the direction of action, like ‘If you don’t want to be burned, don’t touch the stove.’ In Lewis’s view, the apprehension of objective facts is simultaneously the apprehension of imperatives for conduct, with each being different modes for expressing the same slice of experience. In effect, structuring our experience in terms of rules for future conduct is as natural for us as structuring our experience in terms of objective facts. (1993, 56)

Whether Lewis has indeed established an interchangeability of facts and imperatives, he has at least made a case for their interrelatedness in the pragmatic tradition that adheres to a dynamic interconnectedness between knowledge and action. We gain knowledge through action, interacting and experimenting with the environment, and this knowledge provides for better, future interaction with the environment; knowledge, as pragmatist John Dewey would say, is instrumental insofar it serves such a purpose. We learn about a stove’s being hot and the consequences of touching it through interacting with it, and we use this knowledge as a normative guide for not touching a hot stove in the future. This interrelatedness extends to the utterances of a legal system and normative advice for conduct. We can think of warnings and predictions, for example, as claims about events whose probability of occurring are lower than factual claims and accordingly consider their normative claim on our activity as weaker. Guidelines for achieving X, by their nature are hypothetical imperatives of the form, if you want to achieve X, do Y. Performative utterances, to the extent that they confer a status, are linked to norms associated with that status. Thus, ‘I now pronounce you a married couple’ confers the status of a married person, which is connected with the hypothetical imperative, ‘if you don’t want to be charged with polygamy, don’t marry an additional person.’ Utterances that are guarantees and statements of what is permissible serve practically to minimize or eliminate some obligations. If your purchase is guaranteed against loss, theft, or damage, you are freed from the rule that normally places the burden on the purchaser to secure insurance to protect it. If it is permissible for you to answer a question on an employment application in the negative when, in fact, the answer is yes, you are freed from the rule that normally attaches a penalty to a lie; for example, one may answer a question,


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‘Have you ever been convicted of a crime?’ in the negative even though one was convicted of a crime, if the record was expunged. An utterance ­affirming as a basic value the health of the citizenry suggests the implementation of a system to provide health care. A policy of reducing the number of highway deaths directs undertakings reasonably calculated to do so, like lowering the speed limit on the highways.

Similar Approaches: Focusing on Something’s Essence as Activity Rather than as Entity This approach of conceiving law as activity is akin to Tolstoy’s treatment of art in that both talk about what we usually think of as an object as activity, and there are other comparable analyses. Although there is nothing in that fact alone that speaks to the worth of the analysis, to the extent we find these reassessments to be valuable for gaining insight into some ‘entity,’ it serves to dispel any initial perception of such an analysis being wildly implausible and pave the way for being receptive to and, to some extent, convinced of conceiving law as activity. In considering Tolstoy’s analysis, we first note that he makes the perceiver’s experience not just an element of art but a necessary component. Further, art, for Tolstoy, is an activity essentially involving a communication of feeling whereby an artist first has a feeling and then, by way of the creation, transmits the feeling to the perceiver: To evoke in oneself a feeling one has experienced, and, having evoked it in oneself, then, by means of movements, lines, colors, sounds, or forms expressed in words, so to transmit that feeling that others may experience the same feeling—this is the activity of art. (1898/1904, Chap. 5) Tolstoy captures the same thought in the sentence that follows, this time even more directly equating art with activity: ‘Art is a human activity consisting in this, that one man consciously, by means of certain external signs, hands on to others feelings he has lived through, and that other people are infected by these feelings and also experience them’ (ibid.). An analysis of this sort is quite different from other studies of art; while they may gauge the effect of art on the perceiver, whether it conveys knowledge or stimulates certain feelings, they raise these issues independently of the question of what art is and capture nothing of its essence as an activity. Dewey’s work, both with regard to his general approach to philosophical issues and to his specific studies, is another case in point about conceiving an entity as activity. Dewey was committed to realigning human institutions with human experience and conduct. Sometimes he diagnosed the problem as our



having separated the actual and the ideal. He wanted us to understand generally that ethics, religion, politics, knowledge, and art spring from attempts to address genuine human needs. Thinking about values, for example, as ideals to embrace independent of human striving, is faulty thinking. Rather, we should think about values as ideals we affirm, which guide us in attaining satisfying experiences. Dewey’s pragmatic conception of knowledge is an especially good example of thinking of what we commonly conceive as an entity in terms of activity. Dewey is critical of the conception of knowledge that depicts knowledge as an accurate correspondence between the subject and object and opts for capturing the dynamic nature of the phenomenon by speaking of knowing: For the static, cross-sectional, non-temporal relation of subject and object, the pragmatic hypothesis substitutes apprehension of a thing in terms of the results in other things it is tending to effect. … Knowing is the act, stimulated by this foresight, of securing and averting consequences. (1917, 5:61) Dewey seemed close to extending this thinking about knowledge as an activity to understanding law in terms of activity. He did invite us to see judges as experimenters as they participated in the creation of law. Says Dewey, ‘general legal rules and principles are working hypotheses, needing to be constantly tested by the way in which they work out in application to concrete situations’ (1924, 26). He connects judicial activity with law, but falls short of making any claim that law itself is activity of some sort, whether it be judicial activity as some of the American legal realists did or as the activity of any citizen as we are exploring here. Still it is worth noting specifically the features his view of knowledge share with our conception of law. First, the focus is on the individual engaged in an activity and not on some independently existing, objective entity separate from this acting individual. Second, both views put the individual in a position where his or her agency can make a difference in experience as it forms, transforms, and reforms it. Another attempt to depict as activity what we usually think of as an object is George Herbert Mead’s analysis of the object itself. According to Mead, our sensations are products of our movements and we conjure up images of our responses, so it makes sense, for Mead, to define the physical object in terms of conduct. Says Mead: Insofar as our physical conduct involves movements toward or away from distant objects and their being handled when we come in contact


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with them, we perceive all things in terms of distance sensation—color, sound, odor—which stand for hard or soft, big or little, objects of varying forms which actual conduct will reveal. … Percepts—physical objects— are compounds of the experience of immediate stimulation and the imagery of the response to which this stimulation will lead. The object can properly be stated in terms of conduct. (1912, 401) This example, like the previous ones, may assist with establishing the plausibility of conceiving law as activity insofar as they familiarize us with translating entities into activities.

Law as Act and Other Views of What Law Is

As mentioned, this view of law as activity is not an exhaustive depiction of law. It is compatible with other views of law. For example, the view that the purpose of law is to identify and secure social interests can co-exist with it as well as with a view about law’s nature as a command to act or refrain from acting in certain ways. In what follows, I examine some major accounts of law to show further how the citizen’s conduct is lacking or included in a marginal way, to explore their compatibility with law as acts, and to consider whether the inclusion of law as acts might strengthen them. To the extent law as act can be added as an auxiliary hypothesis, it gains support; in William James’s pragmatic method for evaluating and selecting among competing theories, important considerations include their consistency with other theories and it explanatory power. Aquinas’s Theory In Summa Theologica, Aquinas offers an overarching conception of law that comprehends laws made by God and people alike. According to Aquinas, ‘law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community’ (st I-II.90). Law is essentially a rule which is the product of reason, whether God’s or that of a human being. The various modes that Aquinas distinguishes—eternal, divine, natural, and positive—all share these common features although their specific functions differ. The laws God establishes to govern the entire universe are called eternal, given the nature of his reasoning, ‘and since the divine reason’s conception of things is not subject to time, but is eternal … this kind of law must be called eternal’ (st I-II.91). Human beings are brought into the picture in Aquinas’s notion of natural law that ‘is nothing else than the rational creature’s participation in the eternal



law’ (ibid.). Human reasoning mingles with divine reasoning and in so doing grasps what good and bad is. ‘The light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light’ (ibid.). As Aquinas depicts how these moral principles guide people as they establish ordinances for the human community with more specific guidance for doing good and avoiding evil, he offers a prominent contribution to the tradition of natural law theory, which underscores the interconnectedness of law and morality. Aquinas continues: From the precepts of natural law … the human reason needs to proceed to the more particular determinations of certain matters. These particular determinations, devised by human reason, are called human laws, provided that the other essential conditions of law be observed, as was stated above. (Ibid.) So, Aquinas identifies the source of law as reason; its maker, the ruler of the community; its nature, a rule or ordinance; and its purpose, the good of the community. Law is an entity separate from citizens following it, and that a­ ctivity does not figure into Aquinas’s conception. Still the rule-guided acts of citizens are important for a view like Aquinas’s, since securing the good of the community depends not simply on the ordinances of reason designed to produce this good but also on the citizens acting in accord with them. In this sense, law as act can serve reasonably to complement Aquinas’s approach. Austin and Hart John Austin and his intellectual successor, H.L.A. Hart, are modern proponents of legal positivism, which stands for the separation of law and morality or of legal rules from moral rules. Both thinkers conceive laws essentially as commands, and, to the extent they do make some reference to citizens, we consider their analyses of law as command with an eye to its relation to law as act. Law understood as a command entails the following elements—that one person desires another to act in a certain fashion, that the non-compliant agent will incur some evil, and that there is a communication of the desire. Says Austin: Every law or rule is … a command. … the ideas or notions comprehended by the term command are the following. 1. A wish or desire conceived by a rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and to be incurred by the latter in case the latter


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comply not with the wish. 3. An expression or intimation of the wish by words or other signs. (1954, 13–7) The only sign of conduct in this conception is the act of expressing the desire. Otherwise, law is fully defined without reference to any actual doing or forbearing by any citizen. There is a hint of the citizen’s activity in Austin’s formulation of law understood as a legal system or as he calls it, ‘a society political and independent,’ where the laws of the system are commands, which govern those who are in the habit of obedience to an independent sovereign. Austin points to two distinguishing features of this conception: The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons must not be habitually obedient to a determinate person or body. (Ibid., 195) Although habitual action is introduced, the act is one of obeying a person— the sovereign—and not the command or rule of the sovereign. Hart revises Austin’s conception of a legal system in a number of ways including the introduction of another type of activity, general acceptance. Laws may well be commands as Austin thought, but, in Hart’s view, we need to distinguish two types: the primary and secondary rules of obligation. The primary rules include such restrictions as those on stealing and killing designed to promote peace and order as opposed to the secondary rules which address such procedural concerns as making, changing, and interpreting laws. The citizenry may well be described as more or less passively accepting the law by obeying the primary rules of obligation, but, to capture fully the essence of a legal system, we must add the active acceptance by the officials (Hart’s counterpart to Austin’s ‘sovereign’) of the secondary rules of obligation. Hart sums this view up saying: There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. (1961, 113)



In another passage, Hart underscores how he is building on Austin’s view to depict more accurately the complex nature of the legal order, the types of rules within it, and the activity of its average citizens and officials. Says Hart: It is the strength of the doctrine which insists that habitual obedience to orders backed by threats is the foundation of a legal system that it forces us to think in realistic terms of the relatively passive aspect of the complex phenomenon which we call the existence of a legal system. The weakness of the doctrine is that it obscures or distorts the other relatively active aspect, which is seen primarily, though not exclusively, in the lawmaking, law-identifying, and law-applying operations of the officials or experts of the system. (Ibid., 60) Attention does appear to be paid to citizens in Austin and Hart’s accounts, but the attention is to their mental states—habit or acceptance—and the connection of these mental states to norms. Whether any citizen under the guidance of these norms ever performs any act seems of no significance for these major theories of law. As such, both of these thinkers in the legal positivist tradition exclude the activity of the citizens from their conceptions of law, and their views too are both compatible with law as acts and could be enriched by joining it with their views. Functionalist Approaches: Plato and Pound Major functionalist accounts of law from Plato to Roscoe Pound are similarly silent about the rule-guided activity of citizens. These studies look to the purpose and function of law to understand its nature. In The Laws, Plato sees the function of law to be one of creating virtuous citizens who are ‘courageous in the face of pains and of pleasures alike’ (634b). The law will develop in them both the divine virtues of good judgment, self control, justice, and courage as well as how to bring the human ones of health, beauty, strength, and wealth into their lives in a balanced way (632b-d). If law serves to create virtuous citizens for Plato, it serves to secure social interests for the twentieth century American jurisprudent, Roscoe Pound. Pound makes it clear that identifying the end of the law is the task of legal philosophy. In his view, there has been a shift in thinking about the function of law where once we thought of it as one of restraining the wills of i­ ndividuals. The shift is to a view of law’s function as one of securing social interests. It seems apparent that he recognizes the citizen’s conduct as significant for understanding a prior conception of law’s function where the law appears as an external power


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forcing individuals to comply. The shift is to a view of law’s function as one of securing social interests. These social interests include such basic interests as the general security, the security of social institutions, general morals, conservation of social resources, general progress, and the individual life. Says Pound: Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust these overlapping and often conflicting claims and demands … so as to give effect to the greatest total of interests or to the interests that weigh most in our civilization, with the least sacrifice to the whole scheme of interests as a whole. (1943, 39) Pound does make reference to citizens and their conduct in his account of law’s serving to restrain individuals and forcing them to comply. His current take on law’s end, however, makes no more informed reference to citizens and their conduct than does Plato’s articulation of the end of law. As with other views of law with no or limited mention of the activity of citizens, these functionalist views of law, in the absence of any clear incompatibility with the view of law as act, appear to profit from a merger with it.

Overall Significance of Including the Citizen’s Rule-Guided Activity in a Conception of Law This rule-guided activity is an essential component of law, since, for one thing, other conceptions of law either assume its validity or are strengthened with its adoption. Without it, there is no accounting for the activity of judges as they act to decide cases guided by their understanding of the relevant legal norms; for legal process from the onset of litigation to the final appeal as parties to the litigation act with the guidance of legal norms; and for a system of responding to crime in ways that conform with legal norms for sentencing. The analysis that omits or gives short shrift to citizens’ experience seem always to be d­ eficient insofar as it has us conceive law independent of its complex connections with human experience; that sort of analysis rests on the false ­assumption that, because we conceive some entities as being separable from human conduct, entities like paintings, legal codes, or books of sacred teachings and ceremonies, we may thereby understand the phenomena to which they are connected with little or no reference to human experience.

The Thesis Distinguished from Other Conceptions of Law as Activity Various contributions of the American legal realists are among the views closest to the position advanced here in that many of them depict law as activity



but restrict the claim to judicial activity or define it such that judicial activity is of paramount importance. Jerome Frank, for example, concludes, ‘law, then, as to any given situation is either (a) actual law; i.e., a specific past decision as to that situation, or (b) probable law; i.e., a guess as to a specific future decision’ (1949/1963, 51). Oliver Wendell Holmes adopts what Frank sees as probable law as his view of law itself, saying, ‘the prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the law’ (1987). So, the notion of laws being a type of activity, in these cases, judicial activity, is not new to jurisprudence. Compared with the view of law as act though, which comprehends the rule-guided acts of judges as well as those of citizens, these views that identify law with judicial activity, are far more restricted. Richard Posner endorses the notion that ‘law is an activity rather than a concept or group of concepts’ (1993, 456). As his discussion unfolds, we find he, too, is working with a concept not nearly as broad as the view urged here and hardly distinguishable from a realist’s conception. The activity we find in Posner’s definition is nothing more than judicial activity, and he makes this explicit as he adopts a variation of Holmes’s view. Says Posner, ‘Holmes was on the right track in proposing the prediction theory of law which is an activity theory; his critics have been too quick to dismiss it’ (ibid.). Posner’s notion of law as activity is but one feature of eight—the fifth—that he packs into his overall conception of law: First, there is no such thing as ‘legal reasoning.’ … Second … the ­justification (akin to scientific verification) of legal decisions—the demonstration that a decision is correct—often is impossible. … Third, a closely related point is that difficult legal cases can rarely be decided objectively. … Fourth, large changes in law often come about as a result of a non­rational process akin to conversion… Fifth, law is an activity rather than a concept or a group of concepts. … Sixth, there is no longer a useful sense in which law is interpretive. … The essence of interpretive decision making is considering the consequences of alternative decisions. … Seventh, there are no overarching concepts of justice that our legal system can seize upon to give direction to the enterprise. … And eighth, law is functional. … Hence, in areas where the social function is the efficient allocation of resources, law appropriately takes its cue from economics. (Ibid., 459–60) Aside from the fifth, none of these other features bear essentially on broadening the notion of activity beyond that of the judiciary and each underscores that the activity in question is that of judges. Enlightenment philosopher Giambatista Vico depicts law as human reasoning and as such is a variant of the notion of law as activity. He defines natural


Chapter 2

law in the final historical stage of jurisprudence as ‘the human law dictated by fully developed human reason’ (1725/1988, 338). In this stage, called ‘human jurisprudence,’ one ‘looks to the facts themselves and benignly bends the rule of law to all the requirements of the equity of the causes’ (343–4). The outcome of reasoning about the applicability of a positive norm in a specific situation is natural law, and to the extent that the outcome is an application reached through the activity of reasoning, natural law is the culmination of this activity. This merging or blurring of natural and human or positive law is, according to some commentators, part of his project of eschewing the dualism of natural and positive law and of the ideal and the historical. Vico in effect establishes their convertibility (‘complete convertibility of the certum and verum of the law’) (Caponigri, 1968, 50). Comparing Vico’s analysis of law with law as act, his human law seems to be a counterpart of our norm; his talk of reasoning about human law’s application, a counterpart of a norm’s guiding our conduct; and his identifying the conclusion of the activity of reasoning as natural law, as a counterpart to the rule-guided conduct of the citizen or law. Although there are plausible analogues between law as act and Vico’s conceptualization of natural law, there are important ways in which the analogy breaks down. The activity of reasoning about which he speaks is the activity of jurists and beyond the scope of the activity of each citizen. So Vico’s view, much like that of the legal realists that brought activity into a conception of law with judicial activity, lacks the generality of law as act which comprehends the activity of the entire citizenry as part of the phenomenon of law. Edgar Bodenheimer specifically joins the normative nature of law with ­activity—application of the norms—showing one and the same legal system or law to have a factual as well as a normative side. He speaks of the ‘individualized acts of application and enforcement,’ and offers illustrations of these individualized acts; each one is an act of an official of the legal system. Says Bodenheimer, ‘the apprehension and arrest of an offender by a policeman, the issuance of an injunction against an unlawful labor practice, the levying of execution into a debtor’s property by a sheriff are factual occurrences in the world of empirical reality’ (1967, 190–1). To this extent, his thesis is more restricted than law as act, which includes the application of any citizen. At one point, he does mention the observance of norms by private persons as well as governmental officials, but classifies them as ‘a prerequisite for the rule of law in society’ (191) and not as law itself. Law as Act: A Recap If we look to people’s courts for insights about conceiving law, we expect the citizen to figure large just as the notion of a people's court places the ­citizen



front and center. Casting law as the act(s) of a citizen guided by (a) legal norm(s)—law as act—meets this objective and ­illuminates an aspect of law that is absent in other accounts of what is essential to understanding it. As part of the case for establishing the cogency of this view, we recognized how it encourages citizens to see themselves as leaders, and we looked at projects that purported to analyze what usually is thought as an entity as activity, whether it is art, knowledge or objects. In establishing the plausibility of this insight, we considered how it could inform views of law that make no mention of this activity of the citizens. In this chapter, we have considered how a wide range of utterances in a legal order can offer direct or indirect normative advice to the citizens and recognized that a complex constellation of them may factor into a citizen being guiding by them. We saw how this way of including citizens in a conception of law differs from other projects that similarly define law in terms of activity insofar as the relevant activity of those views is usually that of judges and other privileged decision-makers. We now inquire further about how people’s courts direct us to rethink basic aspects of the legal order as we turn from law to adjudication.

Chapter 3


From Judges of People’s Courts to Judges in Any Court

The takeaway from our discussion of people’s courts is that their judges must come to grips with their charge to conduct a formal proceeding and to conduct an informal one, or, put differently, to introduce sufficient informality in an otherwise formal one to allow for self-representation. They have to conceptualize how they can function with one foot in a rigidly rule-guided world and the other in a world where those rules are adjusted, modified, or suspended. To the extent that this tension is a defining feature of people’s courts and their judges, it forces the issue of how best to strike this balance. These judges step into a role that requires them to deliberate about what their role as judge is and to participate in the construction of the role as they seek to harmonize these conflicting demands. The claim of this chapter is that all judges should participate in this project of constructing optimal conceptions of their role as judge given the variables that can and do impact it. As this investigation progresses, we will see that being neutral and being a decision maker figure large in discussing essential features for conceiving a judge’s role. We consider how the major rules governing judicial conduct largely amount to a command to be neutral and how discussions about the judge as decision maker focus on the domain of a judge’s discretion. We see how thinking about the scope of this neutrality can range from de facto neutrality to the appearance of neutrality and, about the scope of discretion, from none to the power to create law. These variables are components of the neutral decision maker in an adversary system of justice, which depicts partisan advocates representing the two sides of a case as presenting two alternatives, based on evidence and argument, for the judge to consider in deciding the outcome. Much like these variables are meaningful within an adversary system of justice, we find a related variable—judicial independence—tied to a democracy. Aharon Barak, the President of the Supreme Court of Israel, makes this point in his ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002). In developing this point, Barak launches an inquiry that is very much in the spirit of the undertaking in this chapter as he raises the question about a judge’s role and sees the answer as an emerging one that engages individual judges and the citizenry. He begins, ‘I am not a philosopher. I am not a political scientist. I am a judge—a judge in the highest court of my country’s legal

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system. So I ask myself a question that many supreme court judges—and, in fact, all judges on all courts in modern democracies—ask themselves: what is my role as a judge?’ (ibid., 19). He continues: Judicial lawmaking that bridges the gap between law and society must be consistent not only with society’s basic values, but also with society’s fundamental perception of the role of the judiciary. The power of a judge to bridge the gap between law and society in a society that, like Montesquieu, sees the judge merely as the mouthpiece of the legislature is different from the judge’s power in a society that views comprehensive judicial lawmaking as legitimate. Society’s perception of the judicial role, however, is fluid. Judicial activity is not only influenced by it; it also influences that perception. (33) If Justice Barak’s insights serve to elucidate the role-creating approach we assign to judges and citizens in this chapter, we further specify this approach by attending to its foundation in views of human nature, ethics, and society that I developed in A Case for Legal Ethics. I here offer some passages from that work that should serve to acquaint the reader with these views and clarify their specific application to constructing a judge’s role: This simple notion, that I obtain from others, by observing their activity, ideas about the sort of person I wish to be or about qualities to imitate, and that they similarly obtain such things from me, is closely related to our theory of human nature. We saw how people are to develop, in an ongoing, reflective process, conceptions of themselves as humans and as persons in varying roles and environments. When we attend to the ways we influence each other’s behavior, we are able both to identify an important source for our conceptions of ourselves and to place some important restrictions on the sort of persons we might choose to become. Our actions occur in a social context and have social significance. So we allow ourselves to become the sort of persons we are and act as we do only to the extent we are willing for others to use us as models; the extent to which we deviate from this restriction is one ground on which other people may fairly criticize us for being that sort of person or for acting in that fashion. Further, as other people can cite reasons why we are serving as bad role models, they can fairly criticize us on another ground, for the social reality is a shared reality, and all people have a legitimate concern for how each person’s conduct affects the behavior of other people. As we develop our conceptions of our roles


Chapter 3

and environments, we implicitly endorse these as good conceptions, for they are the products of choices we made about how best to build these conceptions. Our warranty of their value for general social use reflects their meeting the test of our best judgment, which is important, but not determinative for their evaluation given that other people may use them. Now, our criterion for evaluating conduct is a criterion similar to the Golden Rule and to the Kantian standard in that the touch­stone of correctness of action is the individual’s willingness to allow others to act similarly. But our ability here to cast our criterion in terms of role modeling and imitative behavior and to locate it in a social context enables us to avoid, in large measure, some of the difficulties typically associated with those other experiments with consistency criteria; for example, a common criticism is that it seems fanatics can justify their outrageous activity and evade criticism from others if they are willing, in a consistent fashion, to allow others to act likewise. These other criteria seem insufficiently to create a social context within which we can begin to explore the difficulties with the fanatic’s activity. For these other criteria seem to create an unreal or artificial circumstance of the agent’s willingness to be in a world where all others are acting likewise, or where such activity is being directed at the agent by others, regardless of any possibility or likelihood of this occurring. Our criterion immediately locates the agent in a social context where the dynamics of role modeling and imitative behavior establish the real possibility of this activity influencing the conduct of others. While this introduction of a social context is no absolute check on what activity one might will to become universal, it does ensure that the agent think in more concrete and realistic ways about the contemplated conduct. Also, as we brought out above, even if people are willing for others to use them as models, they are not immune from further evaluation by others in their social reality. The same advice that limits our constructions of our nature, roles, and environments indicates the scope of these constructions. Looked at ­negatively, the advice restricts us from adopting constructions which we believe make us bad role models. Looked at positively, the advice, by requiring us to think of ourselves as role models for others, in effect requires us to be concerned with improving our social reality. Our constructed conceptions, as products of our fully reflective attitudes, represent our judgments on how best to conceive of our nature, roles, and environments. As we endorse others imitating us as we use these conceptions to guide us, we envision a better world. Once we start ­thinking



about ­responsible human agency in this fashion—where individuals show a concern for how their conduct will be influencing the conduct of others and take that influence as a relevant factor in deciding how to act ­themselves—it seems we are already very much in the domain of moral education, for a primary motivation for developing any such theory would be this concern for the moral development of others, and we would expect any such theory to provide an account of how this can be done-how the educator’s actions can help to bring about the desired actions of the person being educated. In effect our universal ethic implicitly endorses a position on moral education in its use of the phenomenon of role modeling. Our concern with others imitating us and our acceptance of the reality of modeling address the issues of what we are trying to convey to others as well as how we will convey it. (Luizzi 1993, 141–3)... In summary, I have taken seriously the project of establishing the ­viability of the hypothesis of role modeling. For this hypothesis is an important component of our ethic that requires us to be willing for others to use us as a role model. I have eschewed facile moves like invoking how obvious role modeling is to urge its acceptance. Such moves obscure the nature of the phenomenon and do nothing to assist the reader for whom the phenomenon is not obvious. As we turned to general experience, philosophy, and psychology for support for the hypothesis, we not only found reasons to endorse the hypothesis but also became better acquainted with the nature of role modeling. Let us take a final look at what the view amounts to. The claim is that we are to take an active role in assessing and constructing who we are. Our doing so ranges from the most general condition, circumstance, or role we find ourselves in, our being human, to the more specific circumstance of being a member of a particular occu­pation, of having a certain status within a family, of our being a citizen, an adherent of some religion, and so on. Our construction of our roles and of who we are includes our environments at least insofar as it includes how we conceive of ourselves in our environments, so we can speak of our roles broadly as encompassing our environments. Further, there is nothing that precludes us from breaking from the traditional categories that cast us in certain roles which we are to think critically about; our thinking may go more deeply to the question of whether there is some circumstance of our lives that as yet has gone undefined, let alone been critically assessed and constructed by us.


Chapter 3

The advice for conduct that we obtain from these principled conceptions can be looked at as comprising interacting constellations since, evidently, we are citizens as we are humans, and we are workers as we are citizens; we belong to families as we work in various settings, and we live in societies as we work in these various settings. I am always mindful of the range of roles I have constructed and continue to assess; I am one person striving to act as a whole person, which inevitably means recognizing that, when conflicts arise in what my roles advise, I must evaluate and decide how best to act. While some roles and their related rules may generally seem more important than others and may generally take precedence over others, these more significant roles need not always prevail. This is a far more sophisticated model for thinking about our­selves as human agents than any we have heretofore drawn on; it is a model that helps us realize that the juggling of our commitments regarding how we see ourselves and of the clusters of rules that go along with each of the roles we occupy is a very complex matter; our diverging roles and obligations call for ongoing reassessment, for deliberation over conflicts, and for decisions about how to resolve conflict, whether to revise a conception of a role, or to let the dictates of one give way to those of another. In a way, we are like judges when they must decide which of the opposing parties prevails when each party invokes a principle important to the entire legal system. But our task as human agents is, in some important sense, more difficult than a judge’s. Not only is it incumbent on us to resolve conflict, but we must recognize the problem to begin with. We have the responsibility for developing the conceptions and rules that may give rise to difficulties. We must bring the rules and resolutions of their conflicts to bear on our own activity. Further, as we govern our experience, we have the opportunity to see the impact of decisions on others, to receive criticism or praise from them, and to see the extent to which our constructed roles have contributed to desirable and undesirable modes of conduct among others; and we have opportunities immediately to reassess our decisions and actions for the future. We are mindful that our views of ourselves and our environments are both the result of modeling and the subject matter for modeling. As such, we can say that part of the project of morally educating people is to ensure that there are good models to imitate. We bear primary ­responsibility for educating ourselves collectively and individually. Each person is a p ­ otential model for another, so we ought always to consider whether we are willing for others to imitate our chosen actions. This line of thinking places individuals in the position of being concerned with .



their own moral education and with that of others, for it acknowledges that we learn from each other as we create our roles and environments. (156–8)

Variables for Conceiving a Judge’s Role

In what follows we consider the variables that can figure into a critically reflective conception of one’s role as a judge. To begin we look at a typical code of judicial conduct, the model Code of Judicial Conduct of The American Bar Association. The Supreme or highest court of each state promulgates some form of it. Its rules have the status of law for the judges of the state. In addition, various statutes empower and restrict judges in ways ranging from the sort of cases over which they have jurisdiction and the range of penalties and remedies they can hand down to the circumstances under which they can hold someone in contempt or otherwise act on their own motion. The Code of Judicial Conduct exclusively focuses on how judges should be acting, and, given its legally binding nature on judges, it is a good starting point for thinking about what judges should be doing. From here, we can consider competing conceptions for how judges should think of their work and how the dilemma provides an impetus for such an inquiry. The advice of the Code is contained in its first seven canons including: CANON 1: A judge should uphold the integrity and independence of the judiciary. CANON 2: A judge should avoid impropriety and the appearance of impropriety in all his activities. CANON 3: A judge should perform the duties of office impartially and diligently. CANON 4: A judge may engage in activities to improve the law, the legal system, and the administration of justice. CANON 5: A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties. CANON 6: A judge should regularly file reports of compensation received for quasi-judicial and extra-judicial activities. CANON 7: A judge should refrain from political activity inappropriate to the judiciary. aba Model Code of Judicial Conduct 2010

If we attend to the concept of a judge itself, we can see how these pieces of advice all are tied to it. Notice that what one is and what one does is described


Chapter 3

by the same word, which itself suggests how this conduct is closely tied to the conception. When one judges, one adjudicates and that suggests immediately that some controversy is before the judge. The only type of evaluation of the controversy that either side could possibly find acceptable as a fair evaluation would be one where, quite obviously, the evaluator is, in fact, neutral, and, to the extent neither side can read the mind of the evaluator, it is one where, from all outward signs, the evaluator appears to be neutral. In effect, the chief directive for judges, in an attempt to preserve the fairness of a decision that the parties to the controversy would want and expect is, ‘be neutral and appear to be neutral.’ Once we look at the primary obligation in this fashion, it becomes clear that the specific pieces of advice in the canons are but refinements of this chief dictate. They can be divided into positive and negative duties as they encourage judges to achieve neutrality. Some of the positive or affirmative duties are expressed in canons one and three where judges are told to maintain the integrity and independence of the judiciary and to act impartially and diligently. Most of the canons, namely two, four, six, and seven, set out the sorts of thing they should avoid to insure that they neither seem to become dislodged from a position of neutrality nor actually become so; judges are thus asked to avoid inappropriate political activity, impropriety and the appearance of impropriety, compromising financial transactions or extra-judicial activities generally. Canon four is the only one that seems to defy this classification in that it is stated in language that conveys what is permissible rather than what is obligatory as with the other canons; it is permissible, we find, to engage in activities to improve the judiciary and the legal system. Even this can be cast in terms of the dictate to be neutral. In effect it suggests that these activities for improvement generally should not be construed as falling within the scope of activities that may impinge upon neutrality. Looked at in this way, whenever judges have some question about the propriety of their conduct, they can, as a general guide ask whether the conduct in question interferes with their role as the neutral adjudicator or with the general advice for conduct tied to that role of being neutral and appearing to be so. In general we should not initiate conversations about the merits of litigation before us. Nothing, however keeps us from conferring with other judges or with the parties in an effort to settle matters so long as there is notice to and consent by the parties. Examples of specific restrictions emanating from the basic canons include saying nothing about pending or upcoming causes that might suggest one’s position on a cause, expressing no bias or prejudice based on race, sex, religion, or national origin and holding attorneys in the courts to this restriction (Canon 3), raising no funds for organizations, and refraining



from business dealings that might interfere with the impartial performance of one’s duties (Canon 5). Longstanding guidelines governing people running for judicial office forbade commenting on how one might rule on particular, upcoming causes, making promises about how one will perform one’s duties, and endorsing other candidates (Canon 7). The us Supreme Court has required some revisions to allow candidates to exercise their first amendment rights and speak out on issues that might come before them (Republican Party of Minnesota v. White). A prominent and longstanding notion of judging shows the judge to be applying the law to the facts of a case in a logical and impartial fashion. Challenges to this conception by the American Legal Realists in the early twentieth century not only created alternative ways of thinking about the role of a judge but opened the door to adjudication becoming a distinct field of inquiry in jurisprudence. Looking at such early works in legal philosophy as Plato’s The Laws, one finds little mention of what judges do or should be doing. When courts and adjudication are discussed at all, it is in the context of the makeup of the tribunal and its jurisdiction. The traditional view, which Blackstone articulated in his Commentaries on the Laws of England, goes by a number of aliases, including legal fundamentalism, formalism, deductivism, the phonographic theory of law, mechanical jurisprudence, and slot machine jurisprudence. The judge’s role in determining the outcome is as limited as a gambler’s; the gambler inserts a coin, pulls the lever of the slot machine, and gets an outcome. In this view the law is fixed and judges merely apply it to the facts with no discretion to exercise in the outcome of any case. In Book I of his Commentary on the Laws of England, Blackstone says, about the law of the land, ‘what that law is, every subject knows, or may know if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament’ (1787, 142). He elaborates on his view about how judges have no discretion in Book iii, where he says: The judgment, though pronounced or awarded by judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact … Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge but on the settled and invariable principles of justice. (396) In his 1892 treatise, The Study of Cases, Eugene Wambaugh discussed how the rules of case law similarly dictate specific decisions with this sort of syllogistic reasoning:


Chapter 3

§9 At least four Propositions involved in every Case Accordingly, the reported case may be conceived as containing the following propositions: (1) When the circumstances surrounding the parties are thus and thus, the rights of the parties are thus and thus; (2)  In this particular case such circumstances do surround the parties; (3) In this particular case the other circumstances are not material; and (4) In this particular case the rights of the parties are as indicated in the first proposition. (1894, 16) American Legal Realists were not at all fond of this conception of the judge and of what judges should be doing. Founders of this movement, which began in the 1920’s, included Roscoe Pound, Benjamin N. Cardozo, Oliver Wendell Holmes Jr., Jerome Frank, and Karl Llewellyn. In the ‘The Constitution as an Institution,’ Karl Llewellyn commented, ‘the theory that rules decide cases may for a century have fooled not only library-ridden recluses but judges’ (1934, 7). The Realists were interested in bringing out that factors other than logic, such as intuition and custom, are or should be influencing judicial judgments. In more extreme versions of realism, the personalities, emotions and desires of judges figure into the judicial judgment. I have heard some of these Realists’ teachings dubbed the ‘gastro-intestinal theory of jurisprudence,’ the idea being that the more we know about the judge’s mental and physical constitution in this case—what the judge may have eaten before trial and whether it agreed with him or her—the more we know about or can predict why he or she ruled or will rule in a certain way. In The Nature of the Judicial Process, Cardozo cautioned against an ­over-reliance on logic in judicial decision-making: ‘The misuse of logic or ­philosophy begins when its methods and ends are treated as supreme and final’ (1921, 46). Other factors that may weigh on our judgment include custom, considerations of justice, morals, and social welfare. These become important because legal rules, far from being final truths, are more like working hypotheses and each new case presents for us a judicial experiment; for we are to ask not just what outcome the rule logically dictates but also to determine the path or direction along which the principle is to develop. Cardozo himself refers to the development of legal rules by judges as involving a process of retesting and reformulating but relies on a passage by Monroe Smith to introduce the analogy between the work of a scientist working with hypotheses and the work of a judge. Says Smith:



The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment, and if the accepted rule that seems applicable yields a result that is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined. Quoted in cardozo 1921, 23

Cardozo also likens judges to engineers who must figure out how to build a good bridge to pass from point to point. Philosophically, Cardozo is a pragmatist insofar as he looks to the practical consequences of an entity to evaluate its worth, here the legal rule, rather than contemplating its essential nature. Through judicial activity guided by factors other than logic, judges contribute to the growth of law and sometimes make law. Cardozo tells us that judges first must extract the principle from precedent that is relevant to the case at hand. This act is a task in itself, since what prior cases stand for may be unclear. ‘There is the constant need, as every law student knows, to separate the accidental and non-essential from the essential and inherent’ (ibid., 30). Once this is done, the judge turns to setting the path of the law. The ‘method of philosophy’ is to employ the rule of ­analogy that in effect calls upon us to treat like cases the same. Cardozo says that he lists this method first not because of the pre-eminence of logic but because there is a presumption in favor of its ability to bring unity and rationality to the legal order. The method of philosophy may lead, however, to a juncture where the judge is compelled to decide in which direction to proceed. Cardozo uses an example of a testator whose beneficiary kills him. Laws of the state show the will to be perfectly valid, yet their application would yield a wicked injustice. At this juncture the judge can avoid the injustice by going down the path of equity and abiding by the principle that no man shall profit by his own wrongdoing. Cardozo describes this judicial activity sometimes as the judge making law, sometimes as building a bridge, sometimes as filling in the gaps, sometimes as brewing an amalgam: The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to


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describe the process, which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to explain: he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft. Such an excuse may cover with a semblance of respectability an otherwise ignominious retreat. It will hardly serve to still the pricks of curiosity and conscience. In moments of introspection, when there is no longer a necessity of putting off with a show of wisdom the uninitiated interlocutor, the troublesome problem will recur, and press for a solution. What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life. There, before us, is the brew. Not a judge on the bench but has had a hand in the making. The elements have not come together by chance. Some principle, however unavowed and inarticulate and subconscious, has regulated the infusion. It may not have been the same principle for all judges at any time, nor the same principle for any judge at all times. But a choice there has been, not a submission to the decree of Fate; and the considerations and motives determining the choice, even if often obscure, do not utterly resist analysis. (Ibid., 9–11) In these situations where the method of philosophy falls short of showing the judge the decision for the particular case, other methods are at the judge’s disposal and include the methods of history, tradition, and sociology. We could never understand the law of real property without seeing its actual historical development through the decisions of judges. The complexities of this law were never the product of a single lawgiver at some point announcing them in toto. The method of tradition shows how custom may weigh on the judge in deciding a case. The method, which includes the most variables, is the method of sociology that makes relevant utility, morals, and justice.



In ‘Some Realism about Realism,’ Llewellyn (1931) identifies some common features of Realist thinkers, which we have already illustrated with Cardozo, and which can figure into judges forming conceptions of themselves. The common features Llewellyn points to are a mistrust of logic, the judicial creation of law, and law in flux. For the Realists, the emerging nature of law goes hand in hand with judicial activity. These themes can also be found in Holmes. Like Cardozo, Holmes acknowledges the prominent role that logic plays in adjudication and likewise considers other forces at work. In ‘The Path of the Law,’ Holmes makes his famous statement, ‘the life of the law is not logic but experience’ and works out his view that law, from the perspective of citizens and lawyers, is ‘a prophecy of what courts will do in fact’ (1897, 461). He continues: Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. (Ibid.) In so stating, Holmes rejects the notion of the law’s being fixed and unchanging. Holmes invites us to look at the law from the perspective of the bad man, someone who wants to know what consequences he might suffer should he undertake some course of action. He wants a prediction of what will happen. The prediction, Holmes tells us, is made from case law, statutes, and treatises. Holmes urges that morality be kept out of these resources while observing that morality and law have certain vital connections. As Holmes veers from natural law theory’s lofty demand that human law conform to principles of doing good, he wryly elevates the bad person to the status of the touchstone for understanding law’s essence: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. (Ibid.)


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Holmes is in accord with Cardozo about judges setting out the law’s path for the future and points to social advantage as being the force that guides the judge. Holmes’s view of the law, which connects it so closely with judicial activity, provides little direct advice for judges about how to conceive themselves although the implication is clear—that judges should restrict themselves to the legal materials citizens and lawyers draw on. When he directly advises us what judges should do, he speaks of their considering social advantage for forging the path of the law and allowing for its growth. He brings out that this factor often figures into a decision but sometimes at only a subconscious level. He calls on judges to overcome this state of mind and, out of duty, insure that social advantage guide their conduct. If lawyers and citizens look at law from the perspective of the bad man, the good judge should be insuring that law contributes to a good society. Dewey aligns his analysis of judicial reasoning with Holmes’s as he rejects mechanical jurisprudence and offers his own take on the process. Referring to the logic of the syllogism upon which mechanical jurisprudence rests, Dewey says: To this logic the strictures of Justice Holmes apply in full force. For it purports to be a logic of rigid demonstration, not of search and discovery. It claims to be a logic of fixed forms, rather than of methods of reaching intelligent decisions in concrete situations, or of methods employed in adjusting disputed issues in behalf of the public and enduring interest. (1924, 21) Dewey continues: As a matter of fact, men do not begin thinking with premises. They begin with some complicated and confused case, apparently admitting of ­alternative modes of treatment and solution. Premises only gradually emerge from analysis of the total situation. The problem is not to draw a conclusion from given premises; that can best be done by a piece of inanimate machinery by fingering a key­board. The problem is to find statements, of general principle and of particular fact, which are worthy to serve as premises. As matter of actual fact, we generally begin with some vague anticipation of a conclusion (or at least of alternative conclusions), and then we look around for principles and data which will substantiate it or which will enable us to choose intelligently between rival conclusions. No lawyer ever thought out the case of a client in terms of the syllogism. He begins with a conclusion which he intends to reach, f­ avorable



to his client of course, and then analyzes the facts of the situation to find material out of which to construct a favorable statement of facts, to form a minor premise. At the same time he goes over recorded cases to find rules of law employed in cases which can be presented as similar, rules which will substantiate a certain way of looking at and interpreting the facts. And as his acquaintance with rules of law judged applicable widens, he probably alters perspective and emphasis in selection of the facts which are to form his evidential data. And as he learns more of the facts of the case he may modify his selection of rules of law upon which he bases his case. (23) … The facts involved in this discussion are commonplace and they are not offered as presenting anything original or novel. What we are ­concerned with is their bearing upon the logic of judicial decisions. For the ­implications are more revolutionary than they might at first seem to be. They indicate either that logic must be abandoned or that it must be a logic relative to consequences rather than to antecedents, a logic of ­prediction of probabilities rather than one of deduction of ­certainties. For the purposes of a logic of inquiry into probable consequences, ­general principles can only be tools justified by the work they do. They are means of intellectual survey, analysis, and insight into the factors of the ­situation to be dealt with. Like other tools they must be modified when they are applied to new conditions and new results have to be achieved. Here is where the great practical evil of the doctrine of immutable and ­necessary antecedent rules comes in. It sanctifies the old; adherence to it in ­practice constantly widens the gap between current social conditions and the principles used by the courts. The effect is to breed irritation, disrespect for law, together with virtual alliance between the judiciary and entrenched interests that correspond most ­nearly to the conditions  under which the rules of law were previously laid down. (26) If Dewey offers a logic of search and discovery, Joseph C. Hutcheson Jr. introduces the judge’s hunch into the mix of factors bearing on a judge’s decision and which we can see as another factor with which judges may build their conceptions. Hutcheson weaves this discussion with a rejection of the deductive model and with the emerging nature of law. About the mechanical model, Hutcheson says: I had been trained to regard the law as a system of rules and precedents, of categories and concepts, and the judge had been spoken of as an


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a­ dministrator, austere, remote, his intellect a cold logic engine, who, in that rarified atmosphere in which he lived coldly ·and logically determined the relation of the facts of a particular case to some of these ­established precedents. (1929, 274) As Hutcheson introduces ‘hunching’ in judicial decision making, he does so in the broader context of its being an activity undertaken by scientists, mathematicians, and detectives alike: And not only do I set down boldly that I, ‘even as your other worships do,’ invoke and employ hunches in decisions, but I do affirm, and will presently show, that it is that tiptoe faculty of the mind which can feel and follow a hunch which makes not only the best gamblers, the best detectives, the best lawyers, the best judges, the materials of whose trades are the most chancy because most human, and the results of whose activities are for the same cause the most subject to uncertainty and the best attained by approximation, but it is that same faculty which has guided and will continue to guide the great scientists of the world, and even those august dealers in certitude, the mathematicians themselves, to their most difficult solutions, which have opened and will continue to open hidden doors; which have widened and will ever widen man’s horizon. (279) Whether we call it intuition or intuitive insight, this hunching brings judges to conclusions that they can later justify. The practice accounts for the law changing and growing. To the extent realist thinking like this freed judges from seeing themselves as bound to apply law in a mechanical fashion, this thinking paved the way for judges seeing themselves as having varying degrees of judicial discretion and as having law-making powers. As such, all of the efforts of their Code to insure their impartiality and neutrality seem much needed if they are to harness these urgings that may prompt them to act otherwise. Much contemporary reasoning in legal theory has been a reaction to the varying degrees of latitude realist positions afforded judges in exercising ­discretion and in allowing them to deviate from the dictates of logic. In Taking Rights Seriously (1978), Dworkin allows, as did Cardozo, for a number of factors influencing a judge’s decision, but nonetheless argues for a single correct answer in any case. I have described Dworkin as seeing judges as legal prisms of sorts. To carry out this metaphor, rays of legal rules, precedents, general policies, principles, which may express general moral commitments like ‘no man may profit from his own wrongdoing,’ and theories justifying the entire legal system travel through judges; and they all converge, point to, and illuminate



the rights of the parties or the right answer of the case. And these rights, even if based on a legal rule articulated for the first time, can be seen as pre-existing rights, since the judge has not gone beyond what can be viewed as the law. So, on a view like this, even though many factors may legitimately weigh on a judge’s decision, judges must not think of themselves as creating new rights for others or as having discretion to set law aside and do as they wish or want. To get his point across, Dworkin offers an analogy involving authors of a ‘chain novel’: Imagine, then, that a group of novelists is engaged for a particular project. They draw lots to determine the order of play. The lowest number writes the opening chapter of a novel, which he then sends to the next number who is given the following assignment. He must add a chapter to that novel, which he must write so as to make the novel being constructed the best novel it can be. When he completes his chapter, he then sends the two chapters to the next novelist, who has the same assignment, and so forth. Now every novelist but the first has the responsibility of interpreting what has gone before in the sense of interpretation I described for a naturalist judge. (1982, 192) In this way Dworkin veers from a mechanistic model of adjudication while maintaining some important constraints on a judge's discretion.

Balancing Interests and Other Judicial Activities that Enter the Mix

As I followed this literature from the outset of my career, I noted that it glossed over aspects of adjudication that spoke quite directly to the issue of how we think about judges in their role as decision makers. The mechanical model seemed to dominate people’s thinking about the correct way for judges to act and led them to complain about judges being improperly activist for not adhering to a rigid application of law to fact. One aspect of adjudication that defies this model is the balancing of interests by judges, and I include below sections from my study of this practice. It, along with other judicial activities, like determining bond and indigency or making decisions within the court’s powers of equity, require an informed judgment based on a number of relevant factors and cannot be determined or explained with a mechanistic model of decision making. Here is a passage from my ‘Balancing of Interests in Courts’ (1980), which adds to our general inquiry into variables for how judges conceive themselves:


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Although, as we shall see, one can isolate no single judicial decision procedure as the referent of the term, ‘balancing of interests,’ one can, by way of introduction, identify some of the distinguishing features of the method. Litigation in the American adversary system entails a combat between conflicting parties and this is often conceptualized as, more specifically, a struggle between the conflicting interests of the parties. Usually, the controversy is settled when the judge deter­mines how the applicable rules of law apply to the instant controversy, but, at times, the judge looks not primarily to rules of law but to the interests of the parties. He then determines, among other things, which litigant has the weightier interests1 and finds in favor of that party, thereby balancing the interests of the adversaries at law… . Some jurists have viewed the balancing of interests as a practice that is part of, and indeed required by, a more general theory of what law is and what its goals are. According to one commentator, ‘the balancing metaphor emerged as a corollary to the general theory that law is an instrument for managing, evaluating, and resolving (or at least terminating) conflicts of interests’ [(Bodenheimer 1974, 116)]. Among those advocating such a theory were Phillip Heck, Pound, Cardozo, Rudolf von Ihering, and François Geny. According to Heck and his followers, the laws themselves are merely guides provided by the legislature for the judge in settling a conflict of interest. In a sense, then, some sort of balancing may be seen to occur on both the part of the legislator and the judge. The legislator, in drafting the laws, or guides, for balancing interests, makes an initial determination of what interests are to be recognized and which are to prevail. The judge may be seen as balancing the conflicting interests of a particular case, by reference to the guides provided by the legislature. Further, it appears that the judge is not in all cases simply applying law to fact or applying mechanically the general guides for resolving conflicting interests to the particular conflict. (374) Cardozo, like Heck, stressed that our laws represent attempts to reconcile conflicting interests and that the need to balance is omnipresent: ‘One is surprised at every turn to find that the same need is present, lurking beneath the surface. … We assign a different value to the movement of the fire engine or the ambulance. Constant and inevitable, even when half concealed, is the relation between the legality of the act and its value to society. We are balancing and compromising and adjusting every moment that we judge’ [(1928, 72)]. Further, Cardozo, holds, as does Heck, that our legal system is not without gaps, but adds that balancing, in part, will contribute to bringing about that state of affairs where the system



has no lacuna: ‘What is certain is that the gaps in the system will be filled, and filled with ever-growing consciousness of the implications of the process, by a balancing of social interests, an estimate of social values, a reading of the social mind’ [(ibid., 77)] (375). We find a subset of balancing methods where the guide to the court’s bal­ancing takes the form of an antecedent commitment of the court’s to look for a particular type of interest, which if present, will tip the scales, or weigh heavily in favor of, the party with that interest. In Roth v. United States (354 u.s. 476 (1957), the appellant had been convicted of violating federal and California statutes making criminally punishable the mailing (by federal statute) and the production of (by California statute) obscene material; the Supreme Court affirmed. In his dissent, Justice John Marshall Harlan indicated that the result of balancing would have been otherwise had the Court been looking for a constitutional direct, and substantive interest on the part of the federal government: ‘And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those interests are state or federal. Since, under our constitutional scheme, the two are not necessarily equivalent, the balancing process must often produce different results. Whether a particular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has, under its Constitution, a direct substantive interest.’ (Id. at 504) Harlan then describes the federal government’s interest as merely ‘attenuated’ (Id. at 506) and accordingly does not think that the scales can tip in its favor in this case concerning free expression (378). In Caldwell v. United States (434 F.2d 1081 (9th Cir. 1970), the court was balancing the public’s interest in being informed by newsmen, and ­appellant’s interest in not losing his news sources so that he is able to inform the public, against the grand jury’s interest in securing t­ estimony from appellant reporter. We here find that the government’s interest, or need, as the court refers to it, must be compelling before the reporter can be required to appear before the grand jury: ‘In light of these ­considerations we hold that where it has been shown that the public’s first amendment right to be informed would be jeopardized by requiring a journalist to submit to secret Grand Jury interrogation, the government must respond by demonstrating a compelling need for the witness’ presence before judicial process can issue to require attendance.’ [(ibid., 1087)]. It should be emphasized that the court is not simply stating a test of compelling


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need but is doing so in the context of a balancing of interests: ‘[T]he case presents vital questions of public policy: questions as to how competing public interests shall be balanced.’ [(ibid., 1083)] (378–9) … Although the court in Connealy [v. Walsh, 412 F. Supp. 146 (w.d. Mo. 1976)] indicated that the use of such tests involves a method distinct from balancing, the following discussion indicates that such tests can be viewed as part of a balancing of interests process. In Local 858, American Federation of Teachers v. School District No. I, County of Denver, Colorado (314 F.Supp.1069, D. Colo. 1970), the court clearly claims to be balancing the interests of a nonrepresentative teacher’s union, which sought the use of school facilities, against the school’s interest to permit only the union that won the representative election to enjoy certain school facilities; the court invokes a test of significant interference as it balances the interests of the parties: ‘The delicate task of applying the constitutional balancing test to measure the substantiality of the reasons argued in support of restriction of the First Amendment freedom of association is made easier in a case such as this, where the interests asserted are numerous, a policy as vital as public education is the goal, and negligible impairment is proved. We find that the plaintiffs have not proved significant interference with their freedom of association’ [(ibid., 1077)]. Thus we see that regardless of how weighty the plaintiffs interests may be, the scales will not tip in their favor unless the additional test of their being significantly interfered with is met (382). In the now famous case of Pickering v. Board of Education [(391 u.s. 563 (1968)], the us Supreme Court laid down a rule to guide the balancing when courts have before them a case in which the state has attempted to curtail the first amendment freedoms of an employee in the interest of preserving the quality of the services the state is offering through the employee: ‘The problem in any case is to arrive at a balance between the  ­interests of the teacher, as a citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees’ [(ibid., 568)]. With such a test, the Court restricts the balancing to conflicting interests of a particular nature. Note that it is not simply a citizen’s first amendment interest in free speech that is being considered but, more specifically, the interest of the teacher, as a citizen, to comment, and it is with regard to matters of public concern. In a similar fashion, the interests of the state that are considered are specifically restricted, thus tying the hands of future judges as to what interests they consider relevant to weigh in similar cases (382–3) . …



A few balancing methods are described with no explicit mention of there being any antecedent restraints on how the interests will be weighted, which are more important, or which are to be considered more important by reference to some rule or test. The court in Farr v. Pitchers (522 F.2d 512 (5th Cir. 1974), for example, suggests that conflicts be resolved simply by a balancing done in the light of the surrounding facts, drawing on Branzburg[ v. Hayes, 408 u.s. 665 (1972)] as authority: ‘The application of the Branzburg holding to non-grand jury cases seems to require that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in the light of the surrounding facts and a balance struck to determine where lies the paramount interest’ [(ibid., 468)]. While the court in Farr is ultimately interested in identifying the ‘paramount’ interest, it should be stressed that that determination is made as a result of balancing in the light of the surrounding facts; the Court, here, is thus proceeding quite differently from those courts mentioned earlier, where the search for some specialized interest, whether it be substantial or compelling, was part of the balancing itself. It would seem that the upshot of the advice in Farr is to allow for maximum flexibility on the part of the Court in assessing the situation in which the conflict occurs and allowing the peculiarities of the situation, whatever they may be, to guide the balancing. The assumption of course is that one cannot adequately consider or weigh competing interests in isolation, that the weight that the interests will carry on the scales of justice is a function of the context in which they arise. … Lundstedt is a jurisprudent who, like the Court in American Communications Association [v. Douds, 339 u.s.382 (1950)], spoke of factors other than interests as being involved in the actual weighing, and like the Court in American Communications, can be seen as providing a model in which no explicit type of interest or test will control the balancing process. [In Legal Thinking Revised (1956, 51–2),] Lundstedt speaks of ­balancing ­interests, reasons for interests and circumstances of the parties as variables in the process. ‘This weighing of interests-or more properly, this balancing against each other of the reasons for the interests of each of the parties-is characteristic for all shades of jurisprudence and not only for the jurisprudence of interests. … On both sides of the scales are placed certain circumstances, according to whether they are regarded as advantageous to the interests of one or the other parties.’ (382–5) Perhaps the most plush ontology of variables that might be placed on the scales for the balancing of interests comes from Cardozo’s advice to the judge: ‘He must balance all his ingredients, his philosophy, his logic,


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his analogies, his history, his custom, his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales’ (Cardozo 1921, 162). Jurist Edgar Bodenheimer (1974, 121) points out that this process is part and parcel of the judge’s weighing of conflicting interests for Cardozo (1980, 374–85). We have turned to this study of courts balancing interests to develop the case against mechanical jurisprudence and pave the way for one that calls on judges to recognize the factors that can contribute to how they see themselves as decision makers and to make choices about whether and to what extent their evaluation of them will figure into how they conceive themselves and how they make decisions. Not only does the practice of interest balancing show a deficiency in the explanatory power of mechanical jurisprudence but it is ­itself a variable for constructing a conception of judging—whether and to what ­extent judges see themselves as interest balancers. Looked at from the perspective of the citizenry that has a claim on the role of a judge, the issue is one of whether and to what extent judges should see themselves as interest balancers.

Professional Dispositions

British philosopher Bernard A.O. Williams offered the literature on professional ethics some insights about professional dispositions as components of how we conceive professional roles. While we recognize that people tend to be squeamish at the sight of blood, we understand that the demands of the operating room require of aspiring surgeons a disposition to exercise their skills unimpeded by the presence of blood. We likewise recognize that would-be trial lawyers should be disposed to serve as confident and zealous advocates of their clients’ interests whereas people generally may be quite tentative about representing clients with questionable causes. Williams considers the extent to which these professional dispositions should vary from the average person’s, and opts for a mid-way position in which professionals maintain some sense of the tension between their roles and those of common people. Says Williams: Professional education tends to take it as self-evident that it should aim to suppress qualms. There is indeed not much to be said for a system that simply makes the people who come out of it more uneasy, more unhappy,



and less effective than they would otherwise be; moreover, since they are not in fact going to tolerate too intense a form of that condition, a system of education that tries to encourage it runs the risk, to that extent, of being rejected. Nevertheless, I think that it is worth considering the possible merits of encouraging qualms to some extent, rather than devoting all efforts to making them go away. (1983, 266) We can make little or much of Williams’s contribution, with the case for its being a small one resting on his failure to demonstrate its utility across the professions. What qualms enter the lives of pharmacists, journalists, educators, engineers, and accountants? What dispositions do they need to develop to do their work that vary from the dispositions of the general populace? We can, on the other hand, consider dispositions to comprehend the many variables we associate with each profession. In the case of judges, we can speak of judicial neutrality in terms of the judge being disposed to neutrality and so on with other features associated with judges; we would speak of judicial independence in terms of the judge being disposed to independence. Looked at in this way, Williams’s discussion has a broader significance and opens avenues for further inquiry into the variables we have considered to this point. We can ask, using neutrality and independence as examples, how much these dispositions should vary from those of the common person. Should the judge’s disposition to neutrality be so strong as to make the judge impervious to the pulls of conscience that might make the average person committed to neutrality think twice when a decision involves one’s own child? Should judges feel some semblance of the qualms of the common person? Should judges always feel like they are abandoning their humanity as a strong disposition to neutrality always puts them at variance with how they rest of society would respond? To the extent we state each variable for conceiving a judge’s role in terms of a disposition and recognize that disposition can manifest itself in varying degrees of strength, we can appreciate how Williams’s analysis multiplies the variables for conceiving the judge’s role and allows for more precision in constructing an optimal conception of the role. Thinking in these terms, I would add to the elements we have considered for building a conception of a judge the attributes or dispositions of courage and vigilance, as they seem foundational for a judge’s functioning in a role made from varying degrees of neutrality, independence, and discretion in d­ ecision-making. Much of this discussion about the judge’s identity as a ­decision maker captures nothing of those parts of the role, which, in my experience are ­especially challenging and problematic and over which I struggle, and I introduce them as viable contenders for how we think about the role


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of judge. I add ­vigilance because of assaults that can undermine and subvert these hallmarks of the office; and courage, because of the persistence of their assaults, the temptation to overlook them, and the importance of subduing them. Prosecutors, judges, police or peace officers, citizens, and judicial educators have called on me and expected me to rule or act in ways that undermine or displace judicial authority. Examples include expectations to sign off on defective probable cause affidavits, to approve a search warrant by telephone, to set no bond on a bondable offence, to set surety bonds when there is no flight risk, to set the bond based on the recommendation of another judge in an arrest warrant, to issue emergency protective orders, to cease from taking certain actions or exercising certain powers of the office, to dismiss a ticket because the police officer was rude, and to rule in favor of the police at a trial. Confidence drives the acts necessary to restore normalcy to the judiciary, especially when the challenges are part of a network of practices considered routine among other players that affiliate with the judiciary. I offer these observations as an autobiographical account of what I came to see as deficient about the over-emphasis of the literature about what does and should occur in the judicial judgment. They are roughly part of a phenomenological account of what it is like, in my experience, to occupy the role of a judge. It is noteworthy, but not surprising, to find that other judges have come to a similar conclusion about the importance of these dispositions. Consider the remarks of the Right Honourable Beverley McLachlin of Canada: Why is it that we have achieved judicial independence when others have a hard time even understanding it? I would like, in the time that remains, to suggest three answers to this question. The first is historical—our good fortune as in heritors of the British system of justice, the cradle of judicial independence. The second is our constitution. The third is the vigilance of lawyers and judges in preserving and promoting judicial ­independence. Constitutions alone cannot ensure judicial independence. In too many countries, reality belies high-sounding constitutional guarantees of impartial, independent justice. Yet constitutions can serve to protect and enhance existing notions of judicial independence. They give judges the means to protect it. Henry iv’s Chief Justice and Lord [Edward] Coke had no option but to stand alone for judicial independence. Modern judges are more fortunate. They have constitutions to stand on. This brings us to the third, and final, reason why we are privileged to possess judicial independence—the vigilance of the legal profession and of judges. Judicial independence, as its history attests, has not been won by fiat or by accident. It has been won by the vigilance and courage of



lawyers and judges over the centuries. And it is by that same vigilance and courage that it is sustained. Supreme Court of Canada 2001

Summing Up

Let us take stock in the variables that we have discussed for constructing a viable conception of a judge’s role. We located the project within the pragmatist’s enterprise of a rejection of fixed and given rules, concepts, and phenomena and of embracing experimental and developmental approaches in working with these entities. The judge’s code of conduct offered neutral decision making that commentators supplemented with independence, varying degrees of discretion, courage, vigilance, and conscience. Judges and citizens alike do and should engage in dialogue about whether or to what extent these factors figure into a viable conception of a judge. To the extent that the thinking of judges and citizens about judges is confined to narrow and unreflective models for judging, it can profit from the example that judges of people’s courts set, to think critically about their role. If people’s courts have contributed insights about law and judging that are valuable for our thinking about the entire legal order, they likewise offer some wisdom about responding to crime to which we now turn.

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Introduction: Time for a Change? A New Balance?

Punishing the guilty seems to make so much sense to so many people for so many reasons that suggestions to veer from the approach probably appear as radical, idealistic, or illogical. Giving offenders their due—making sure they get what they did to someone else—or making sure that the action objected to is not again undertaken either by the this particular offender or any other are among the primary elements underlying the motive to punish. It seems just and right that people who commit greater evils suffer more in the lower rungs of Dante’s inferno. Just as God or the gods have addressed evil with evil, we do so with offenders in society. Almost everyone has had firsthand experience with the punishment of erring children whether it is as a child or parent, and the model seems readily transferable to society and its erring citizens. It seems natural and logical to strike out at those who themselves first harmed another person. Doing so is our instinctual response to these offenses and their perpetrators, and reason seems to provide an approach that fits this response as it calls upon us to balance the scales of justice, an approach that seems both self-evident and axiomatic. Kant, the influential philosopher of the Enlightenment, refers to the ‘law of retribution’ as our guide for doling punishment out yet offers no independent reasons for following it. Still a host of countervailing considerations undermines this way of thinking. People have abandoned conceptions of deities that show them as angry and vindictive in the face of human shortcomings and replaced them with ideas of loving, forgiving figures. In so doing the analogy that justifies people punishing offenders breaks down. People know of explicit advice to ‘resist not evil’ being offered alongside calls for adopting a forgiving attitude both of which have obvious implications, plausible for some people, for how we should treat offenders. William James acknowledges the potential of such an approach: The potentialities of development in human souls are unfathomable. So many who seemed irretrievably hardened have in point of fact been softened, converted, regenerated, in ways that amazed the subjects even more than they surprised the spectators, that we can never be sure in advance of any man that his salvation by the way of love is hopeless. We

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have no right to speak of human crocodiles and boa-constrictors as of fixedly incurable beings. (1902/1911, 357) Punishing people is a way of relating to them that remains acceptable primarily with only two groups, children and criminal offenders. We now renounce once condoned behaviors of husbands punishing wives and slave-owners punishing their slaves. We find no indications of people attempting to expand the domain of groups subject to punishment except in societies we think oppressive like some Islamic regimes of the Middle East punishing citizens for listening to music, dancing, or promoting Christianity. We find it has no place in how we relate to almost everyone else in society. We do not speak literally of punishing friends, lovers, co-workers, relatives, and students even if we do not like something they’ve done and even if we do respond in some way. Moreover, penalties for offenses increasingly include a component directed at reforming the offender, many times something educational, like a course on alcohol or tobacco awareness or one on anger management, and often a community service component. People’s courts are actively engaged in responding to offenses with alternatives like these, and, as change may be on the horizon, it is worth looking at the details of this approach to specify its nature and its scope of application. Here, I introduce the model of ‘offender to do good’ to replace the prevailing approach of ‘doing bad to the offender.’ In this model, the basic ­orientation is one of offsetting the evil produced by the offender with the ­offender doing good, or producing goods or services for the community. At stake is a rethinking of how we balance the traditional scales of justice. The primary shift, of course, lies in how we offset the initial harm done by the offender.

Veering from the Traditional Model: Cost

We do not here propose to offer an elaborate cost-benefit analysis comparing the traditional approach to punishment with New Balance. We do observe that a clear theme in the current climate of opinion is that incarceration, a dominant way in which traditional punishment is meted out, is very expensive, and, in many cases, is not serving us well. High costs associated with i­mprisoning people have led some states not only to look for alternatives but also to veer from earlier efforts to provide harsher punishments. Part of a twenty-year trend that began in the 1980s to punish people more severely involved ­sentences with no possibility of parole and mandatory minimum sentences. During this time


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the prison population quadrupled and the business of imprisoning people cost states $30 billion annually. During the surge in prison populations at the end of the twentieth century, we see people questioning the wisdom of the approach. In California a survey showed the population did not support the shift in priorities with funding to build and maintain prisons rising above those for higher education. In 1980–81, 9.2 percent of California’s General Fund was allocated to higher education and 2.3 percent to corrections. By 1996–97 the amount to corrections rose to 9.6 percent and the amount to higher education dropped to 8.7 percent. By that time the cost per year to incarcerate one prisoner was $21,375.10, and the prison population was comprised primarily of non-violent offenders. The California Correctional Peace Officers Association surveyed eight hundred registered voters. A report by the Justice Policy Institute of California claimed that the ‘overwhelming majority’ of these citizens placed a low priority on the construction of new prisons compared with building new schools (Connolly, McDermid, Schiralchi, and Macalloir 1996). The war on drugs of the 1980s, with its stricter laws, resulted in an 80 percent rise in prison populations within a ten-year period. The financial burden of this detention was an incentive for some states, including California, New York, and Arizona, to embrace a model of medical treatment. California’s plan to shift 35,000 prisoners per year into treatment programs is supposed to have saved the state $500 million over a five-year period. Studies have shown states can save seven dollars for every dollar they spend when they turn from punishment to treatment. In 2016, figures for California showed that prison costs had increased during the past four years, from $49,000 to $64,000 per capita, although the data do not represent any basic change in the citizens’ resolve to save money by incarcerating fewer people and relying on drug and anti-recidivism programs. During those four years, the prison population did decrease by 30,000. In 2014, voters strongly endorsed Proposition 47, which provided for reducing felony drug possession and some other charges to misdemeanor offenses to lower prison costs. It also directed savings to go to communities to support treatment anti-recidivism programs. It turns out that the overall increase in costs were attributable to factors ranging from increasing costs to stay abreast of maintaining minimal medical standards to allegedly wrongful uses of ‘savings’ that were intended for alternative programs. (Editorial Board, ‘California’s Prison Spending is out of Control,’ Los Angeles Times, January 14, 2016). The new millennium showed that a number of states were easing their get-tough-on-crime approaches and turned to alternatives; West Virginia for example, in its effort to downsize its burgeoning number of inmates, began



funding its counties to develop such alternatives to incarceration as electronic monitoring and probation centers. Moving forward to recent expressions of this commitment to rethink the financial commitment to incarceration, we find in the later years of the Obama administration the shortening or commuting of what now seemed like excessive and counter-productive sentences of such non-violent offenders as small-time drug possessors and pushers. (­Rhodan 2016) Alternative Sentencing Efforts to press the traditional model of punishment further to respond to crime persist, with juveniles being tried and punished as adults, the stepped up use of the death penalty in Texas, and renewed efforts to get tough on crime with long prison terms. Consider the recent call by the Trump administration as reported in The New York Times: Attorney General Jeff Sessions has ordered federal prosecutors to pursue the toughest possible charges and sentences against crime suspects, … reversing Obama administration efforts to ease penalties for some nonviolent drug violations … Mr. Sessions returned to the guidance of ­President George W. Bush’s administration by calling for more uniform punishments—including mandatory minimum sentences—and in­ structing prosecutors to pursue the harshest possible charges. … But Mr. Sessions’s memo also highlighted the gulf between his views on sentencing and a growing bipartisan push for an overhaul of the criminal justice system. A major reform bill gained steam in Congress last year. … Numerous states have also enacted overhauls to their criminal justice systems in recent years. rebecca r. ruiz, ‘Attorney General Orders Tougher Sentences, Rolling Back Obama Policy,’ The New York Times, May 12, 2017

Recent Alternative Sentencing in Spirit of New Balance As the debate continues, we can at least observe that cost alone is not the only defining feature of a new climate of opinion. We see the development of and experimentation with a host of alternatives to ‘doing bad to the offender’—­ alternatives that respond to offenders in ways that deviate from the usual infliction of some form of harm for minor and more serious offenses. A good starting point is with the practices used by people’s courts. Alternative sentencing may seem most appropriate for offenses at this level, as people now associate variants like driving safety courses and community service as fair substitutes for fines. This intuition or insight can serve as an important ­foundation for


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inclining people to accept comparable alternatives for more s­ erious offenses however much there is an inclination to contain their use. Judge Ed Spillane, of the College Station Municipal Court in Texas, sums up saying: Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again—and keeping someone out of jail is a good way to ensure that happens. In these cases, it should be possible for defendants to resolve their cases without losing their liberty. All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior. ‘Why I Refuse to Send People to Jail for Failure to Pay Fines,’ The Washington Post, April 8, 2016

Sentencing Alternatives for Judges of People’s Courts Consider, for example, legislation and judicial practices in Texas Municipal and Justice Courts to illustrate sentencing alternatives for minor offenses. ­Texas’s Code of Criminal Procedure (2009) authorizes judges of these courts to sentence offenders as follows: Article 45.051 Suspension of Sentence and Deferral of Final Disposition (a) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the justice may defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. (b) During the deferral period, the justice may require the defendant to: (1) post a bond in the amount of the fine assessed to secure payment of the fine; (2) pay restitution to the victim of the offense in an amount not to exceed the fine assessed; (3) submit to professional counseling; (4) submit to diagnostic testing for alcohol or controlled substance or drug (5) submit to a psychological assessment;



(6) participate in an alcohol or drug abuse treatment or education program; (7) pay the costs of any diagnostic testing, psychological assessment, or participation in a treatment or education program either directly or through the court as court costs; and (8) comply with any other reasonable condition. (c) At the conclusion of the deferral period, if the defendant presents satisfactory evidence that he has complied with the requirements imposed, the justice shall dismiss the complaint. The titles of related articles that follow identify a range of related alternatives; each is consistent with New Balance, as none of them are traditional penalties and each is reasonably construed as requiring or positioning the offender to do good. These include Article 45.052, Dismissal of Misdemeanor Charge on Completion of Teen Court Program; Article 45.053, Dismissal of Misdemeanor Charge on Commitment of Chemically Dependent Person; and Article 45.049, Community Service in Satisfaction of Fine or Costs. This alternative does require a finding by the court that the defendant is indigent: ‘A justice or judge may require a defendant who fails to pay a previously assessed fine or costs, or who is determined by the court to have insufficient resources or income to pay a fine or costs, to discharge all or part of the fine or costs by performing community service’ (Article 45.521). Participants perform such services for the city or non-profit and government agencies throughout the state. The statute requires that the work be done either for ‘a governmental entity or a nonprofit organization that provides services to the general public that enhance social welfare or the general well-being of the community’ (ibid.). The alternative of community service can be vital for keeping people out of jail for fine-only offenses, as they may end up jailed for failing to comply with a court’s order to pay a fine. Spillane presents an example of such circumstances: Melissa J. showed up in my court last year with four kids in tow. Her children quietly watched from a nearby table while I spoke with her. The charges against her—driving with an invalid license, driving without insurance, not wearing a seat belt, failure to use a child safety seat properly and four failures to appear—were nothing unusual for municipal court. Nor were her fines of several thousand dollars. But for Melissa, who had a low-paying job and a husband in prison, and who looked like she hadn’t slept in days, that number might as well have been several million … As a municipal judge in College Station, Tex., I see 10 to 12 defendants each


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day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer. (2016) Recognizing that some judges don’t hold indigency hearings as constitutionally required and thus, make no use of the alternative of community service, Spilane calls upon judges to follow his use of community service: Once a defendant proves indigency, we can also be much more creative in our sentencing than ‘fine or jail’ (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving). Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help. (Ibid.) Spillane further points to the good that can come from setting these offenders on a course of working to benefit the community: Judges can also sentence defendants to anger-management training classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this. One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997. He was so moved by the ­experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home. Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station. (Ibid.) It is noteworthy that a sentence of community service for fine-only offenses is not exclusively for use in cases of indigency. In a deferral period, for example, a judge can require community service along with other conditions, like a fee for the administration of the deferral or some other requirement related to the offender’s doing good or to positioning the offender to do good. For example, a typical deferral for Minor in Possession of Alcohol includes an administrative fee, the completion of twelve hours of alcohol-related community service and of an alcohol awareness class prior to the dismissal of the charge.



The city of San Angelo, Texas, has created a distinctive variant of community service alternatives for paying a fine known as The Alternate Program (tap). The defining feature of the program is the extent of the control and supervision that the court exercises over all aspects of the work done to satisfy the fine. In many municipal courts throughout Texas, the court places the burden on the citizens to select where they will work to satisfy their fines. Further, the citizens are responsible for contacting the agency, making arrangements for doing the work, getting to the workplace, complying with the agency’s method for recording their hours, obtaining a statement from the agency certifying the number of hours worked, and presenting the statement to the court. With San Angelo’s set-up, citizens are freed from most of these requirements. The city decides where the citizens will work, transports them to the site, supervises them during the work, and keeps track of their hours whether they are working in a city cemetery picking up litter or cleaning the city coliseum after a rodeo. Men and women comprise separate work groups, and there is a special one for juveniles who work in a community garden owned by the city. For their work, the adults get credit toward satisfying their fines, and the city is able to decrease its payroll with the work done by people in this community service work program, as they city would otherwise have to hire people to do this work. The city donates the produce that the juveniles had planted, grown, and harvested to needy people through organizations like the city’s soup kitchen, the Salvation Army, or halfway houses. Another distinctive feature of San Angelo’s tap program is that citizens need not formally establish their indigency with the court. They do apply to participate in the program, and, although their finances are an important ­factor in whether the court accepts them, other matters can figure into the equation. There are exceptions to the usual requirement that the court find the offender indigent prior to awarding community service, which appear to support the practice of the San Angelo Municipal Court. One circumstance is when citizens have already failed to meet their responsibilities, which would be the case when a warrant for their arrest is in the offing. Another is when the court determines that paying a fine would be a hardship given their resources or income. In a seminar sponsored by The Texas Municipal Court Education Center, Marian Moseley advised judges about these exceptions of The Code of Criminal Procedure (ccp) and commented on them: Community Service to Satisfy Fine or Costs 1. c.c.p Art. 45.049(a) allows that if a defendant ‘fails to pay a previously assessed fine or costs,’ a judge MAY require a defendant to


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discharge all or part of the fine or costs by performing c­ ommunity service. A judge using this article does not make a finding of ­indigency—only that a defendant has not paid the assessed fine and costs. This determination should be documented within an order requiring community service to discharge a fine or costs. The case can be scheduled to a later date for a defendant to show the court proof that community service was completed. c.c.p Art. 45.049(a) also allows that if a defendant is determined by the judge to have ‘insufficient resources or income to pay fine or costs,’ a judge MAY require a defendant to discharge all or part of the fine or costs by performing community service. This determination should be documented within an order requiring community service to discharge the fine or costs. The word ‘indigent’ is not used in this article, although the words ‘insufficient income or resources to pay’ evoke thoughts of indigency. In either situation, if proof of completion of community service is later provided, the case should be closed with the fine and costs satisfied due to community service performed. (2014–2015)

In my own court, I frequently hear citizens expressing an interest in doing community service because it is more meaningful to them than paying a fine and sometimes that meaningfulness hinges on their own contrition and an interest in overcoming it. I recall a student charged with ‘Exhibition of Acceleration’ asking to receive credit for scrubbing the tire marks from the road where he had burned some rubber and reporting that, for him, paying the fine would be like water off a duck’s back; i.e., he was far from poor. Other states, such as California, provide further ways in which courts may use community service as an alternative: Notwithstanding any other provision of law, any person convicted of an infraction may, upon a showing that payment of the total fine would pose a hardship on the defendant or his or her family, be sentenced to perform community service in lieu of the total fine that would otherwise be imposed. The defendant shall perform community service at the hourly rate applicable to community service work performed by criminal defendants. For purposes of this section, the term ‘total fine’ means the base fine and all assessments, penalties, and additional moneys to be paid by the defendant. For purposes of this section, the hourly rate applicable to community service work by criminal defendants shall be determined



by dividing the total fine by the number of hours of community service ordered by the court to be performed in lieu of the total fine. California Penal Code, PEN Sec. 1209.5

Returning to our discussion of San Angelo’s tap program, the court does work in cooperation with the city’s Police Department to put citizens on notice of their outstanding fines with the explicit purpose of giving citizens a chance to make arrangements with the court to avoid arrest and spending some time in jail, however short the stay. The Department explains how the two entities cooperate prior to a ‘warrant roundup’: A list of more than 8,000 defendants with outstanding Municipal Court warrants will be published in Sunday’s San Angelo Standard-Times. Those defendants are encouraged to contact the Municipal Court as soon as possible to avoid being targeted during a subsequent warrant roundup. … The Class C misdemeanor warrants cover traffic violations; criminal offenses such as issuance of a bad check, theft, criminal mischief and assault, and City code citations for garbage, weeds, junk and unsanitary conditions. The warrants also include charges of failure to appear for a court date, to pay a fine or to comply with a court order, and contempt of court. San Angelo Police Department 2014

In addition to advising citizens to contact the court to avoid arrest on a warrant, the Department references the alternative of community service, ‘the court will consider extenuating circumstances, and arrangements may be made at the court. … Fines may be paid off through participation in the court’s community work plan’ (ibid.). The Concho Valley Community Supervision and Corrections Department is located in San Angelo and provides sentencing alternatives for offenders who have committed higher-level offences that can carry jail time and that are not the fine-only offenses with which Municipal Court deals. This Department serves seven counties and strives to rehabilitate offenders who are sentenced to community supervision instead of jail time. The Department reports: The programs, services and tools of community supervision … include: urinalysis testing, community service restitution, court residential treatment centers, day reporting centers, domestic violence programs, education programs, electronic monitoring, employment programs, intensive


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supervision probation, intermediate sanction facilities, local boot camps, pretrial services, residential services, restitution centers, sex offender treatment, specialized caseloads, substance abuse treatment, substance abuse treatment facilities, surveillance supervision and victims services. Concho Valley Community Supervision and Corrections Department 2017.

Native American Response to Crime and Restorative Justice

In an effort to document that efforts and movements are underway that s­ uggest a veering from traditional responses to punishment and movement toward New Balance, let us consider an approach of growing popularity—­ restorative justice. It aims to respond to crime so as to include dialogue among all parties involved, including offenders, victims, and the community, with an eye to reaching a fair and comprehensive outcome for the parties. The process provides victims and members of the community an opportunity to impress upon offenders the harmful consequences of their actions and creates avenues for offenders to compensate their victims. Restorative justice provides an alternative to any approach to responding to offenders with deprivations, restrictions, or other forms of harm and unpleasant experiences. Restorative justice has roots in indigenous practices throughout the world, and some of its proponents in the United States depict it, in part, as a revival of a Native American approach to justice. A closer look at the practices of Native Americans is useful for a deeper understanding of their connection with contemporary experiments with restorative justice; these recent undertakings in turn serve to bolster the observation that there is interest in and movement toward projects akin to New Balance. Native American approaches are tied to a network of values concerned with showing respect for the individual. A wrongdoer shows respect for oneself and other people as one is truthful with them and lets them know fully about one’s deed. This openness is supported by values of respecting individual autonomy and being non-confrontational. The primary and practical consequence of telling the tribe about one’s misdeed is the restoration of peace and order in the community. Different from the Anglo-American approach of the community’s confronting and punishing wrongdoers largely by restricting their individual autonomy, indigenous approaches emphasize verbal interaction between offender and community; an elder or other members of the tribe, sometimes in a peacekeeping circle, responds to the offender’s account with advice relevant to the offender’s rethinking the misconduct and altering it in the future.



The advice may be in the form of a parable, legend, or tale that the tribe relies on generally to educate its people about its ways and values, and other matters for discussion include the ways in which people have been harmed and the importance of apologies in communal life. In ‘Indigenous Justice Systems and Tribal Society,’ Ada Pecos Melton, former Director of the American Indian and Alaskan Native Desk at the Office of Justice Programs, us Department of Justice, brings out: In many tribes, information, beliefs, and customs are handed down orally or by example from one generation to another. For example, in the Minto Tribal Court of Alaska the resolution process involves a segment dedicated to ‘traditional counseling’ by the facilitator or presiding judge. There is a general practice of ‘advising giving’ in the traditional courts of the Pueblos and the ‘talking to’ in the Navajo peacemaking system. This segment is traditionally set aside for the spokespersons or tribal officials to speak of community values, mores, and the consequences of misbehavior or misconduct. Often these are conveyed in parables or creation narratives and beliefs. Advice is given about harboring vengeful feelings, and everyone is encouraged to renew relationships. (1995, 126) Some of the wisdoms representative of these indigenous, cultural commitments are: • Don’t be afraid to cry. It will free your mind of sorrowful thoughts.—Hopi • Day and night cannot dwell together.—Duwamish • It is better to have less thunder in the mouth and more lightning in the hand.—Apache • They are not dead who live in the hearts they leave behind.—Tuscarora • All plants are our brothers and sisters. They talk to us and if we listen, we can hear them.—Arapaho • Tell me and I’ll forget. Show me, and I may not remember. Involve me, and I’ll understand.—Tribe Unknown. • Before eating, always take time to thank the food.—Arapaho • When we show our respect for other living things, they respond with respect for us.—Arapaho • If we wonder often, the gift of knowledge will come.—Arapaho • Most of us do not look as handsome to others as we do to ourselves.—Assiniboine • Those that lie down with dogs, get up with fleas.—Blackfoot • In age, talk; in childhood, tears.—Hopi


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• We always return to our first loves.—Tribe Unknown • What is life? It is the flash of a firefly in the night. It is the breath of a buffalo in the wintertime. It is the little shadow which runs across the grass and loses itself in the sunset.—Blackfoot • When you were born, you cried and the world rejoiced. Live your life so that when you die, the world cries and you rejoice.—Cherokee • Those who have one foot in the canoe, and one foot in the boat, are going to fall into the river.—Tuscarora • Poverty is a noose that strangles humility and breeds disrespect for God and man.—Sioux • We will be known forever by the tracks we leave.—Dakota • Do not judge your neighbor until you walk two moons in his moccasins.—Cheyenne • Force, no matter how concealed, begets resistance.—Lakota • Our first teacher is our own heart.—Cheyenne • Everyone who is successful must have dreamed of something.—Maricopa • All who have died are equal.—Comanche • Remember that your children are not your own, but are lent to you by the Creator.—Mohawk • One rain does not make a crop.—Creole • Man’s law changes with his understanding of man. Only the laws of the spirit remain always the same.—Crow • What the people believe is true.—Anishinabe • You already possess everything necessary to become great.—Crow • There is no death, only a change of worlds.—Duwamish • Life is not separate from death. It only looks that way.—Blackfoot • It is less of a problem to be poor, than to be dishonest.—Anishinabe • One finger cannot lift a pebble.—Hopi • All dreams spin out from the same web.—Hopi • He who would do great things should not attempt them all alone.—Seneca • Even a small mouse has anger.—Tribe Unknown • If a man is as wise as a serpent, he can afford to be as harmless as a dove.—Cheyenne • Treat the earth well; your parents did not give it to you, it was loaned to you by your children. • We do not inherit the Earth from our Ancestors; we borrow it from our Children.—Tribe Unknown • The rainbow is a sign from Him who is in all things.—Hopi • Walk lightly in the spring; Mother Earth is pregnant.—Kiowa



• When a man moves away from nature his heart becomes hard.—Lakota • Many have fallen with the bottle in their hand. –Lakota (Legends of America 2003) These insights, overall, set out advice for people’s building cooperative, ­harmonious and respectful relationships among themselves, nature, and the spiritual world; advice for developing an awareness of life’s hardships and the sorts of obstacles that people and events can present to them; and advice that encourages reflection, modesty, equanimity, self awareness, and communication. Some of them have specific advice for wrongdoings related to or involving deceit, theft, rage, violence, damage to life or property, and alcohol. Also noteworthy are the general admonitions to pay heed to the selection of friends and affiliates and to the consequences of one’s acts. If these adages have relevance for responding to wrongdoing, the same can be said for indigenous tales and legends. Consider a story about Coyote’s skills of lying, cheating, and stealing and how people are tempted to learn them. They all learn about the futility of doing so:

Coyote Shows How He Can Lie Coyote came around to a group of camps. The men were sitting around. They knew that Coyote was always telling lies. They called to him. They said, ‘Codi, you are the biggest liar we ever saw.’ ‘How do you know I lie?’ ‘Oh, you always make trouble in the tribe and then you lie about it. Why don’t you teach us your power to lie so we can lie successfully too?’ ‘What I learned is from my enemy. And I paid a big price for it.’ ‘How much did you pay for it?’ ‘One good horse. And it had to have a rope on too.’ ‘Is that all?’ ‘Yes. In those days one man had a lot of horses. He brought out a white horse.’ ‘Yes,’ said Coyote, ‘this is a pretty horse. This is the kind I mean. It is one like this I paid for my power.’ Then he said, ‘Let me try it. If this horse doesn’t buck I’ll tell you, I’ll explain to you all about the power to lie.’ So they pushed him up on top of the horse. He got up. Coyote had never ridden a horse before. He stuck his claws into the horse’s back. The horse started to buck. ‘Oh, this horse wants a blanket on; that’s what’s the matter.’ They put a blanket on the horse. Coyote had sharp claws. He stuck his claws right through the blanket, and the horse jumped again. ‘Oh, he wants something over his back; he wants a good saddle on.’ So they got a good saddle and helped Coyote put it on the horse. Coyote mounted again.


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Coyote put his head up to the sky. He made believe he was listening to something. Then he said, ‘That voice, my power, wants a whip too.’ They gave him one. He said, ‘I’m going around now and try this horse to see if it still bucks. I’ll come back and tell you all about it.’ He rode a little way. Then he shouted back, ‘This is the way I lie! I cheat people and get them to give me good horses, blankets, saddles, and many other things!’ Then he rode away. The people couldn’t do anything about it. So Coyote went back. He was riding this fine horse. He told his wife, ‘See, I have this good horse from my enemy, from the plains country.’ He got off the horse. He didn’t know how to take care of it, however. He let the reins go, and the horse started off. It ran back to its owner. opler 1938/2012, 316–7

Deborah Burlinski, a magistrate in Dillingham, Alaska, contributed to my study of indigenous justice by allowing me to shadow her as she interacted with Alaska’s Native Americans and discussing with me some of the distinctive features of their ways of administering justice. She travels to remote communities in the Alaskan bush to perform such judicial functions as conducting a hearing for a defendant to change a plea in her court in Dillingham and sometimes meeting with a Tribal Council or Tribal Court for its recommendation on a matter pending in her court. Interaction between Tribal and State entities takes a variety of forms. In some of the Native American communities, the Tribal Council exercises a judicial function and takes jurisdiction of juvenile offenses and misdemeanors in the community. In some communities, the Tribal Councils have established Tribal Courts to perform these functions. Other communities take no interest in adjudicating these matters and leave them for the state to handle. Conversely, the state basically leaves matters to the communities when the Tribal Councils and Tribal Courts wish to deal with them. Berlinski confirmed that a primary and longstanding objective of the Tribal Councils is the maintenance of harmony in the community. Disruption of it by a member of the community calls for its restoration, and the primary objective is not to punish the offender. The goal is to offer the advice, council, or services deemed necessary to get the offender functioning as a peaceful member of the community. To make these determinations, the Tribal Councils will organize a peacekeeping circle consisting of relatives and friends of the victim(s) and the offender as well as the offender and victim(s). Judge Berlinski pointed to a variant that the State of Alaska experimented with in Togiak, where the Tribal Council recommended to the State what course of action should be taken with the State’s basically deferring to the Council. This practice never took root, and



Togiak is moving toward the establishment of a Tribal Court that would have concurrent jurisdiction with the State over minor offenses. Let us turn to mapping features of Native American justice to restorative justice and to how the times in which restorative justice is on the rise suggest an openness to alternatives like New Balance. Many of the practices and values of contemporary restorative movements align with Native American approaches. People connected with wrongdoing assemble, discuss it, strive to address conflict, eschew punitive resolutions, and remain committed to restoring and maintaining peaceful relations in the community. The overarching spiritual world-view of Native Americans may be the primary feature of their approach with no counterpart in contemporary experiments. Consider how a reporter depicts a restorative response to crime in New York; even though there are vestiges of a Native American ceremony, they represent no commitment to a Native American metaphysics: First they break bread together, join hands and say a short prayer. Then the peacemakers pass a talking stick around a healing circle so each of the participants can share updates on the criminal cases and community disputes they are trying to resolve. … The participants are all peacemakers trained in the ancient tribal art of conflict resolution, used in Native communities for millennia. But this is not a reservation, and none of the people present are tribal elders or even Native Americans. … They are community leaders from the multiethnic neighborhood of Red Hook in Brooklyn. The bread they share is pizza; the prayer they say is nondenominational, and sometimes they forget to stay silent when they are not holding the talking stick. Yet even though these community peacemakers were not born into the practice, they are part of a new movement to take it where it hasn’t been before: the contemporary court system. walshe 2014

The point about how the spiritual dimension is absent in this project in New York appears again in the context of why some critics think the project won’t work: When a case is referred to peacemakers, a circle is formed that includes the victim and the offender, any family or community members who have been affected by the crime or dispute and some tribal elders. Bread is broken, prayers are said, and then the issue is talked out until a resolution is reached. Despite concerns that such a culturally specific and spiritual practice would not work in a multicultural urban environment with no


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particular spiritual tradition, peacemaking is flourishing at the Red Hood Community Court, and plans for expansion are already underway. (Ibid.) Among the most prominent advocates of restorative justice is Howard Zehr. In an open invitation to the public to attend an event recognizing Zehr at his home university, Eastern Mennonite University, in 2015, emu’s president Loren Swartzendruber spoke of Zehr’s ‘worldwide influence on restorative justice.’ The invitation noted, along with numerous quotations by prominent people in the field about Zehr’s standing: His contributions to the field date to the late 1970s, when he was a practitioner in the foundational stage of the restorative justice movement. He has led hundreds of events internationally that focus on restorative justice, victim-offender conferencing, judicial reform and other criminal justice issues. hagi and lofton 2015

Zehr’s frequent references to the modern movement’s connection with indigenous approaches serve to perpetuate recognition of its roots. In Changing Lenses, Zehr says: Two peoples have made very specific and profound contributions to practices in the field—the First Nations people of Canada and the u.s., and the Maori of New Zealand. … [I]n many ways, restorative justice represents a validation of values and practices that were characteristic of many indigenous groups. (2012, 268–9) By 2016, thirty-five states had passed legislation that looked favorably on restorative justice with some statutes encouraging the use of a restorative alternative and others implementing one. (Beitsch 2016) In The Little Book of Restorative Justice, Zehr states that his approach ‘is ultimately concerned about the restoration and reintegration of both victims and offenders, in addition to the well-being of the whole community. Restorative justice is about balancing concerns for all parties’ (2002, 32). Foundational for the approach, Zehr tells us is respect: ‘If I had to put restorative justice into one word, I would choose respect: respect for all. … Respect reminds us of our interconnectedness but also of our differences. Respect insists that we balance concern for all parties’ (36). Throughout his work, Zehr pits restorative justice against its main rival, retributive justice, which primarily aims at balancing the scales of justice with



delivering pain to the offender. As he pursues their similarities and differences, he builds his case for the superiority of restorative justice. Both restorative and retributive theories acknowledge a basic moral intuition that a balance has been thrown off by a wrongdoing. … Retributive theory believes that pain will vindicate, but in practice that is often counterproductive for both victim and offender. Restorative justice theory, on the other hand, argues that what truly vindicates is acknowledgment of victims’ harms and needs, combined with an active effort to encourage offenders to take responsibility, make right the wrongs, and address the causes of their behavior. (Ibid., 59) One proponent of restorative justice, Deanna VanBuren, reviews its potential as an alternative to incarceration and acknowledges the impediments to implementing it. As an architect and designer, she offers support by designing spaces needed for restorative projects to unfold. California Judge Stephen V. Manley, VanBuren tells us: calls for the use of evidence based alternatives to deal with the massive load now being placed on local jails. As we look for these alternatives we can see that restorative justice programs have been backed by evidence of lower recidivism rates, victim satisfaction, higher rate of plan completions and radically lower costs for implementation. Despite the positive research and statistics restorative programs are struggling to grow due to a lack of public education and funding... Therefore we find a successful and sustainable alternative to our prison industrial complex that is currently unable to manifest on a larger scale. … While we as architects cannot entirely solve the social problems that restorative justice addresses … we can begin to deploy our influence and imaginations to conceive of new forms and devices to support its potential. … through the thoughtful design of current and future restorative justice spaces, we can increase the capacity of this paradigm to heal our communities. (2002)

Electronic Monitoring, Therapeutic Jurisprudence, and Changing Lives through Literature

Another recent alternative to offenders serving time in jail is the electronic surveillance of them. As we consider it further, we get a picture of the extent to which it signals a departure from doing bad to the offender. This monitoring


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entails the participant’s wearing an ankle bracelet or anklet. A monitoring receiver is connected to the participant’s home telephone. The anklet sends a radio frequency signal to the receiver that is connected to a monitoring computer of the host. If the participant goes beyond some accepted range from home or the detention base, usually 150–200 feet, the signal is broken, and a computer sends a report of the violation to the participant’s probation officer. Further, participants are telephoned and asked to connect a verification device to their anklets to demonstrate their presence at home. Another type of electronic surveillance involves no anklet but provides for a computer randomly calling the participants at home and checking their voices against a voice template stored in the computer. Some researchers depict electronic monitoring simply as a variation of an established practice of detaining someone at home—house arrest—with the surveillance amounting to a high-tech version of house arrest. The detention serves the purpose of imprisoning offenders, costs far less, and comparably acknowledges public outrage over and intolerance of crime. If we ultimately see monitoring merely as a more efficient method for detaining offenders, and that detention represents the evil that the offender deserves, then, quite obviously, the new practice is no evidence of a departure from traditional responses to crime. Other commentators emphasize that there are factors other than detention that characterize the practice. Offenders are able to work in the community, pay taxes, and make restitution to their victims, all of which serves to weave them back into the fabric of the community. Factors like these show monitoring to be more humane, cheaper, and less corrupting than incarceration. Further it is not overly intrusive and does not entail a total control of the offender as prison does. It allows the offender to avoid the stigma of prison as it preserves the integrity of the offender’s family unit and paves the way for the offender’s adjusting to life in the community. It may contribute to the participants changing their behavior, like getting in the habit of staying home at night. Some of the offenders perform community service at home or participate in an educational activity. Taking these matters into account, we can sensibly assert that the surveillance is assisting to positioning these offenders to do good, and the practice may well be indicative of a shift to New Balance. We can point to several other developments in responding to crime as part of the momentum for transitioning to New Balance. Therapeutic jurisprudence is a broad approach for reorienting not just our response to crime but to how we think about the whole legal order. [It] is a perspective that regards the law as a social force that produces b­ ehaviors and consequences … and wants us to see whether the



law can be made or applied in a more therapeutic way. … Therapeutic ­jurisprudence simply suggests that we think about these issues and see if they can be factored into our law-making, lawyering, or judging. wexler 1999

As this approach has unfolded, it has touched legal education, interdisciplinary projects, and mental health law (Wexler 2008, 17, 21–6). In a report of 2006, the Law and Justice Foundation offers some specific instances of how therapeutic jurisprudence recommends responding to crime. Problem-solving courts are influenced by therapeutic jurisprudence, which is ‘the study of the role of the law as a therapeutic agent.’ Therapeutic jurisprudence examines the role of the law as a therapeutic agent in relation to legal rules, legal processes and the role of the legal profession. In relation to the court process, therapeutic jurisprudence focuses on the role of the court in improving the wellbeing of parties to its processes. More specifically, in the criminal jurisdiction, therapeutic jurisprudence involves the consideration of ‘rehabilitation as a factor in sentencing.’ Hence, the aim of these courts is to address the ‘underlying cause’ of the offending behavior, by fashioning sentences that involve linking offenders to various services, such as drug treatment or mental health services. Other features of problem-solving courts include collaboration with social services, assessment of offenders’ needs by caseworkers, a less adversarial courtroom and increased interaction between judges and offenders. karras, mccarron, gray, and ardasinski 2006, 157

Changing Lives through Literature (cltl), founded by Robert Waxler and Judge Robert Kane, is an innovative project for probationers. This program, which requires probationers to read and discuss great books, originated in Massachusetts in 1991 and has been adopted in ten locations throughout the country. The group leader in Brazoria County, Texas reports that his course, whose participants are primarily felons with drug and alcohol convictions, transmits a sense of life’s important issues and, it gives the probationers a voice and confidence new to their experience. An assessment of the original project in Massachusetts showed participants to have a significantly lower rate of recidivism (18 percent) than those who did not participate (45 percent). Waxler writes: cltl is based on the idea that literature has the power to transform. Although it sounds simple—essentially a book club or reading group that


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meets over a period of weeks and is attended by an instructor, probation officers, a judge, and students—cltl allows us to make connections with the characters or ideas in a text and to rethink our own behavior. The phrase changing lives may sound grandiose. But this program can be the first step toward permanent change or an additional step on the path to a new way of being part of the world. cltl contends that through literature we can more deeply understand ourselves and our human condition. troustine and waxler 2005, 5

Foucault’s Challenge

To the extent that we have been considering the history of punishment with an eye to detecting a recent change in direction toward New Balance, a competing history that points in another direction is important to consider and evaluate. Foucault’s history is a case in point, as it culminates with a claim that there are powerful forces at work that, in effect, serve to perpetuate an orientation of doing bad to the offender. Foucault writes chronicling the development of the prison system, which he describes variously as unique, odd, cruel, shocking, and a system that invades both body and soul thus reaching beyond earlier punishments directed at the body alone. This history demonstrates how pervasive doing bad to the offender has been and continues to be. It is a history that omits the trends we have pointed to, the alternatives to old balance, and the possibility for us to break from a seemingly deterministic pattern. The prison system may have been instituted in the name of deterring, rehabilitating, or reforming the offender, but it has always in fact been a doing of bad to the offender. Foucault identifies three stages of punishment in his work, Discipline and Punish: The Birth of the Prison, which he describes as a ‘history of the present’ (1975/1995, 31). The right to punish was originally the right of a sovereign to get vengeance. Reformers of the eighteenth century ushered in punishments aimed at deterring offenders. Along with this shift in justifying punishment is a shift in focus on the certainty of punishment for would-be offenders. One model punished in a fashion highly visible to the public; e.g., a chain gang, so the message moved from the mark on the body or the a visible harm inflicted on the body, to a sign, a representation to society of what happens to people who commit crimes. Another model, that of confinement in a penitentiary, moved punishment from the public’s eye and introduced a way of life that focused on the individual who had become a new object of knowledge (24).



Offenders were subjected to constant surveillance, regimen, and inspection during a life of labor and held accountable to a system of rules whose violation ushered in a host of additional punishments with prison functionaries stepping into a judicial roles to determine them (131–2). This later innovation prevailed and effectively separated the administration of punishment from the authority of the court to the people in charge of the prison: wardens, educators, doctors, psychiatrists, and social theorists. Foucault highlights the activities at Mettray, a facility for children, which he thinks shows the extreme to which body and soul were controlled and how complete docility was created. An indicator of the docility that resulted was the lack of response to the conditions at Mettray when revolts were frequent in other ­institutions. Foucault’s third main insight, the first being the shift; the second, how the prison system created its own system of rules whose violations ushered in a host of additional grounds to punish, is how the prison model spread to all sorts of social organizations including schools, hospitals, and the military. Foucault refers to the territory of this expansion as the ‘carceral archipelago.’ The ways of the prison reach into other institutions of society as the islands of an archipelago extend in a linear fashion from a large island. Further, the influence is not just one-directional. Although the carceral archipelago uses the prison as the root of the metaphor with the prison being the main island, the small islands are not mere satellites of the root but take part in shaping the main island; the interconnectedness is dynamic. In 1975, following the publication of Discipline and Punish, Foucault granted an interview with Roger-Pol Droit of Le Monde; The New York Times ran a translation that same year. In the interview, Faucault made this point: Prison means a rigorous regulation of space, because the guard can and must see everything. It is also the rigid regulation of the use of time hour by hour. Finally, it involves regulation of the slightest bodily movements or change of position. Prison is not unique. It is positioned within the disciplined society, the society of generalized surveillance in which we live. ‘What is so astonishing,’ Foucault asks, ‘about the fact that our prisons resemble our factories, schools, military bases, and hospitals-all of which in turn resemble prisons? roger-pol droit, ‘Michel Foucault, on the Role of Prisons,’ An interview translated by Leonard Mayhew, The New York Times, August 5, 1975

It is this claim of Foucault’s that arguably conflicts with the claim above that ­punishment and the traditional orientation of doing bad to the offender is diminishing. There may be forces at work to perpetuate prisons and their ways


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but nothing insures their permanence. For one thing, Foucault’s history of punishment itself shows that there have been watersheds, so another may well be in the offing. However much Foucault wants to claim that he is writing a history of the present, it is far from an account with no judgments or evaluations. He casts the current state of affairs regarding prison and society in decidedly negative terms that is in need of reform. Unlike political and social philosophers who couple their assessment of some current undesirable situation with a vision for a better social order and a map for effecting social change, Foucault stops with the problem of the present. One way of looking at his contribution is that it awaits a supplement about how we can transition to a better response to crime. That there is a proliferation of alternatives to traditional approaches to crime in the late twentieth and early twenty-first centuries seems undeniable. It is plausible to note this phenomenon as a trend and leave it as signifying an interest in more flexibility in responding to crime. Still, to the extent we are able to give shape to these efforts and unify them, we can better understand and evaluate this overarching approach with an eye to its providing more explicit guidance in effecting it. Let us turn to further details about the model of New Balance to consider if indeed it might offer this unification.

Derivation of the Model of New Balance

The defining features of New Balance come from a number of theories, objectives, and practices associated with punishment. New Balance adopts the scales of justice, it connects responding to crime with what the guilty deserve, it aims to deter crime, and it broadens the use of sentences like those requiring community service or attendance in an educational program. The philosophical foundation for this sort of project is American pragmatism that invites ­creative, experimental solutions to problems and has us favor theories that on balance have more practical consequences than their rivals. In A Case for Legal Ethics (1993), I argued for our being active in forging viable conceptions of the roles we occupy and in constructing aspects of our social reality or environments. Here we bring that thinking to bear on the institution of punishment or, more generally, how we respond to crime. In so doing, we sometimes juxtapose elements from theories usually considered as offering mutually exclusive responses to crime like the utilitarian-deterrence theory and the retributive theory. Our doing so with deterrence and desert is a case in point. Much to this model’s credit is the way it has us treat offenders—most notably not as passive recipients of pain or discomfort we send their way.



New Balance has us respond to crime so as to require the offender to take an active role as the doer of good or as a participant in activities that position the offender to do good. This model in effect says as much about how we respond to crime as it does how about how we think about offenders, society, and ourselves. In our response to crime, we are not producers of the harms or deprivations typical of traditional approaches to punishment, and we are immune from the criticism that we are beings who are gratified when a primitive impulse of vengeance is acted upon. When we commit ourselves to justice, we rule out vengeance, since vengeance knows no limits; justice requires some rational relationship between the offense and the response, whether it be a penalty equal or proportional in nature to the harm that the offender caused, and traditional approaches are in accord. New Balance commits us to such a measured response, but it offers different materials for determining what offenders deserve. Traditional approaches to punishment focus narrowly on the harm done by the offender at one point in time. They objectify the offender and portray the wrongdoing as the defining feature of the offender. In so objectifying the offender, they eliminate the consideration of real or imagined interactions with the offender as a person that could impede this objectification and dehumanization. By locking into the time of the offense as what is essentially relevant and seeing the offender only as the doer of this particular wrong, traditional approaches respond to and memorialize this past with penalties that begin in the present and persist into the future. New Balance concerns us instead with the future production of good consequences to restore the balance of the scales of justice. It emphasizes not the worthlessness of one’s past or present status or acts but the future worth of the offender’s contributions for society, the offender’s victim(s), and the offender’s estimation of self. New Balance is a model that comports with some of our intuitions about our own wrongdoing and how we maintain our own conceptions of self-worth in the face of this wrongdoing. If we harm another person—we insult, we wrongly accuse, we stand someone up, we neglect someone—our initial response is not to ask how we should punish ourselves, what the right amount of evil is that we should send our way, whether we should detain ourselves at home for the next five evenings, whether we should deprive ourselves of dessert, whether we should restrict our socializing, or whether we should take some stack of dollar bills we have saved and tear them up and throw them away. Instead, we think in terms of what we can do to make up for what we have done and that something is not a report of how we intend to punish ourselves. We feel better when we are able to do that something, that good, and dislike receiving a cold shoulder instead of an acceptance of our attempt to right the wrong. We dislike the cold shoulder as a type of evil being sent our way because


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it highlights and perpetuates the wrong and diminishes our sense of worth. So when we think it so natural to send evil the way of wrongdoers, we certainly are drawing on no model of what seems to be the natural response when we ourselves are wrongdoers, a response of wanting to do good to compensate for the evil that we have caused. If we believe that punishment of the traditional sort really does deter, we credit would-be offenders with the ability to envision what life would be like were they to incur the penalty. If we think we are dealing with would-be offenders of this ilk, surely we would think them as capable of envisioning what it would be like, say, to lead a life of doing good for the society as they are of envisioning what a life in jail would be like. If so, we are looking at people who wish to do what they will with their lives and who are perceptive enough to r­ ealize how they can be delayed at a long red light as they travel down the criminal path. So, if we believe that we deter with our current system of ­punishment, it seems we can continue to do so with New Balance; any sort of deterrence seems predicated on people’s not wanting their lives interfered with. Further Development of the Model In pressing on with this pragmatic, developmental approach, we can turn to our legacy of ideas about punishment as grist for the further construction of the model. We consider how their strengths fit with New Balance and bolster it and how New Balance gains strength by veering from or overcoming problems associated with them. Along the way we consider the utilitarian-deterrence theory, retributivism, abolitionism, the treatment or humanitarian model, pure restitution, and restorative justice. Utilitarian-Deterrence Theory Utilitarians justify punishment because it promotes social utility by deterring crime. Utilitarians like Bentham are committed to producing the greatest good (conceived as pleasure) for the greatest number. Punishing offenders, which amounts to doing something bad to them or creating pain for them, has the overall good effect of keeping the offender and other members of society from committing future, similar offenses. They are deterred because they don’t want to be punished. Retributivism Utilitarianism’s main contender is retributivism that depicts punishment as society’s necessary response to wrongdoing and as giving the offender what the offender deserves. Kant, the classic retributivist, abhorred the utilitarian’s willingness to punish people as a means of holding down crime. When we treat offenders this way, we use them and fail to respect their humanity.



Kant’s ­categorical command of morality requires us to treat all people with dignity and worth. We can be true to this commitment when we give offenders the punishment they deserve. Abolitionism Another alternative comes from a Christian perspective. Both Tolstoy and Clarence Darrow underscore the importance of creating an awareness in people of how things can be otherwise—a world without punishment. Tolstoy brings out how Christian teachings, like loving one’s enemy, forgiving people, considering no one worthless, not seeking an eye for an eye, and turning one’s cheek, are inconsistent with punishment. In his last novel Resurrection, Tolstoy tells of how the main character, Nekhludoff, comes to think differently about punishment and question its validity as an institution. Nekhludoff considers that either he is mad or everyone else is and becomes convinced that his faculties are intact. He not only sees the power of Christian morality to order society effectively but also observes specific shortcomings with punishment all of which figure into his assessment of his own sanity. Punishment, he observes, has neither diminished criminal activity nor made offenders better people (1898/2004), 483), and imprisoning people simply removes them from an environment conducive to an upright life, debases them, and subjects them to physical dangers, deranged people, and cruelty (481). Darrow’s call for the abolition of punishment requires a fundamental and complex re-structuring of society. This diagnosis of our social ills, the remedy, and the new world order, draws on Christian thinking, Marxism, and his own theory of human nature, education, moral education, social organization, and the causes of crime. The title of Darrow’s Resist Not Evil alludes to the Sermon on the Mount, wherein Jesus advises not to resist evil, but to turn the other cheek when we meet it (Matthew 5:39). Darrow provides a foundation for this advice, elucidating a view of human nature that proposes people respond in kind to the treatment they themselves are subjected to. Thus, ‘to use violence and force upon the vicious and the weak must produce the evil that it gives’ (1903/2004, 165). This behavior is not unique to human beings. Darrow points to its being a constant in nature whether speaking of bees or human beings. Violent treatment elicits comparable responses. Looked at positively, the advice amounts to that of doing good, and the yin and yang of acting echoes the natural law thinking of Christian theologians. Aquinas identified the basic natural law as doing good and avoiding evil. Treatment or the Humanitarian Theory Some theorists look for alternatives to punishment like treatment and rehabilitation. Karl A. Menninger, in The Crime of Punishment (1968), urges that we


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repudiate our vengeful ways, recognize crime as an illness, replace punishment with therapy, and substitute our hostile feelings toward offenders with hopeful ones for their recovery from illness and disease. Menninger sees current social practices serving to perpetuate the ineffective use of prisons as a response to crime. People find crime fascinating and, as a vengeful lot, are gratified by current methods of punishment. Still, Menninger presses for reform of both the general population and the prison population. People should rise above their hateful feelings toward offenders and convert their number to a population in need of treatment and therapy. With elements of hope and love as part of Menninger’s treatment model, C.S. Lewis dubs it the Humanitarian Theory of Punishment. Lewis argues for the superiority of a retributive approach, and, in so doing, deepens our ­understanding of what the treatment model commits us to. He is concerned with any response to crime, which, like Menninger’s, uses a model of treatment. Lewis’s primary concern is with how such a response eliminates giving people their just deserts. If our aim is to cure the offender’s illness, we leave no more room for desert to be part of the process than in the doctor-patient relationship. Desert is the cornerstone of the retributive theory and important for showing respect to the offender. This commitment of retributivists is also the basis for rejecting the deterrence theory in its use of the offender as a means of deterring the offender and other would-be offenders, treating them as objects and not persons. Pure Restitution Randy Barnett (1977) offers a theory of pure restitution as a complete alternative to punishment. In fact, he refers to a change in this system as a paradigm shift, invoking Thomas Kuhn’s depiction of how, in science, the commitments, definitions, values, and procedures to which scientists subscribe and which comprise a paradigm, change over time. In responding to crime, we replace the old paradigm of the offender’s having a debt to society with one where the offender’s debt is to the victim. In addition, the harm that the old paradigm sends the offender’s way is replaced with compensation to the victim. Restorative Justice We discussed restorative justice in the context of recent approaches that veer from old balance as part of the case that, taken together, these alternatives signal a shift from the traditional model. We recall that Zehr’s model aimed at including all of the key people involved with crime including victims, offenders, and the community with an eye to restoring a peaceful and cohesive community. For our purposes in this section, we include restorative justice among



many basic approaches to responding to crime with special reference to its compatibility with New Balance and how elements of it may strengthen New Balance. With this approach in mind, we turn to an evaluation of each of the ones mentioned above.

Evaluation of Approaches: Utilitarian-Deterrence Theory and Retributivism

Let us look first at Kant’s retributivism more carefully. Kant’s rejection of the utilitarian approach to punishment rests on the problem he finds with utilitarianism generally. In an attempt to create the greatest good, pleasure, or ­happiness for society, the utilitarian can justify using people as means to accomplishing this end and in effect treating them as objects. Kant’s ethics requires us to treat humanity as ends in themselves, as persons, and never merely as objects for accomplishing goals. This approach shows the flaw in the utilitarian’s justifying punishment for its deterrent effect, since, in effect, the utilitarian is treating the offender as a means to an end rather than as a person. The alternative, if we are to treat an offender as a person, as Kant sees it, is to punish that person because that person committed a crime (1797/ 1999, 100). This reason for punishing someone is consistent with rejecting a utilitarian approach and striving to treat people as ends, but it, as well as other tenets of Kant’s retributivist view of punishment, is by no means a necessary ­entailment of a commitment to treat people as ends. The other tenets I ­mention include: (1) the guilty deserve punishment, (2) the punishment they deserve is the infliction of pain on them, and (3) the amount of pain they deserve should be equal to the harm they did. Kant offers reasons for this network of beliefs, but they fall short of establishing it as the only network for responding to crime and at the same time treating people as ends. If so, we have opened the door to exploring other alternatives that are consistent with the primary Kantian objective of treating people as ends together with an insistence that we punish only the guilty. Ultimately, we can see how the approach of requiring the offender to do good can be justified as a bona fide Kantian retributivist position. Kant’s reasoning for (1) above hinges largely on his notion of treating people as ends as he insists that any consideration of the utility of punishment be set aside for justifying it. People must be considered worthy of punishment because they have committed a crime, and, in so stating, Kant in effect introduces the notions of guilt and desert, or punishing only those who deserve it, commonly seen as essential elements of retributivism. Says Kant:


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Judicial punishment can never be used as a means to promote some other good for the criminal himself or for civil society, but instead in all cases it must be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of Things. His innate personality [that is, his right as a person] protects him against such treatment, even though he may indeed be condemned to lose his civil personality. (Ibid., 138) Kant also considers the magnitude of the punishment or the harm to direct at the offender. The only place we see Kant addressing the matter of how s­ ociety should respond to crime is his assertion that magistrates have a right to punish criminals which amounts to a right to cause them pain: ‘The right to punish contained in the penal law [das Strafrecht] is the right that the magistrate has to inflict pain on a subject in consequence of his having committed a crime’ (ibid., 137). He seems to assume that harm to the offender is the only social response to crime. This starting point shuts off any inquiry into three distinct issues of (1) whether society should respond to crime, (2) whether that response should be one of giving criminals what they deserve, and (3) whether what they deserve is pain being inflicted on them. So, with this starting point of a right to punish, there is no occasion to argue independently for the view that criminals deserve to have pain inflicted on them. The assertion of the right may be posited as a reason, but its assertion simply puts on the table the whole network of ideas and assumptions that Kant offers as the inevitable way of handling crime. As we turn to Kant’s reasoning for why the harm to the offender should equal the harm caused, we see Kant invoking the logic of an eye for an eye: What kind and degree of punishment does public legal justice adopt as its principle and standard? None other than the principle of equality (illustrated by the pointer on the scales of justice), that is, the principle of not treating one side more favorably than the other. Accordingly, any undeserved evil that you inflict on someone else among the people is one that you do to yourself. If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself. (Ibid., 139) Rather than offering an argument for this view, Kant offers an explanation of it. The scales of justice have tipped because of the harm done by the offender, and only by following the principle of retribution can we address it justly. Says Kant, ‘Only the Law of Retribution (ius talionis) can determine exactly the kind and degree of punishment’ (ibid.).



Now that the scales are introduced, it is apparent that securing balance may count as one reason for harming the offender. But again, it is unclear why something different in kind cannot be placed on the scales. Kant himself deals with the situation of a poor robber with no money to repay; here he sees it as acceptable to require the offender to become a slave of the state for a period and in effect relaxes his strict principle of equality. Still this sort of an alternative is not open to a murderer, and Kant couples this restriction, without argument, with another about the necessity of carrying sentences out in the following oft quoted passage: If, however, he has committed a murder, he must die. In this case there is no substitute that will satisfy the requirements of legal justice. … Even if a civil society were to dissolve itself, … the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth. (Ibid.) Since Kant offers no argument for why the balance of the scales of justice can be restored only with causing the offender pain, his cluster of ideas that constitute a retributivist approach can function just as well if we replace ‘do bad to offender’ with ‘offender to do good.’ Guilt, desert, and a balanced scale of justice are all respected as essential elements of a correct response to crime as much as respect for persons is. We can make a similar observation about the utilitarian-deterrence theory of punishment in that doing bad to the offender need not be seen as the necessary outcome of a utilitarian calculation and the alternative of the offender doing good may equally well serve utilitarian ends. First, the utilitarian justification for punishing people to deter crime rests on an intuitive sense that social utility can be advanced and we can increase the overall pleasure of society by punishing offenders, which amounts to creating pain for them; people will not want to incur such pain for themselves, so they will obey the laws and we can expect less crime and a happier society. Of course it is an empirical matter as to whether punishing people deters crime and it is not obvious what data would confirm the thesis. I don’t speed because I don’t want a speeding ticket but it is a huge leap to say I don’t steal and murder because I don’t want to face the punishment that society metes out to thieves and murderers. How would we gauge the mental state of people who are not stealing and murdering to offer evidence that the reason they are not doing so is because they want to avoid the penalty? What about people who do commit crimes? They were not deterred by punishment. Advocates of the utilitarian-deterrence theory would be quick to bring out that the claim that punishment deters (and thereby increases the


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overall pleasure for society) is a statistical generalization, and, as such, we should fully expect there to be cases where punishment does not deter and that these cannot rightly be counted as counter-evidence. On the other hand, it seems one could reasonably take the huge number of crimes regularly committed and take all of this actual data to support the claim that each criminal act is a counter-example to the thesis that punishment deters. These considerations, coupled with the points about the difficulty of securing direct data that punishment deters, are part of the case against the utilitarian justification for punishing. Other evidence offered for the claim that punishment deters comes from restrictive societies where crime is low and punishment severe. This information may well correlate the two and support the claim that punishment deters, but we have to remember that we are in the territory where utilitarianism is our guide, and that the whole idea of thinking about punishment as a deterrent was to increase the overall pleasure of society; this goal would not likely be attained with the oppression connected with the draconian punishments we would expect to insure compliance with the laws in such a society. Bentham recognizes this problem and sets out as one of the objectives for the utilitarian legislator, ‘whatever the mischief be which it is proposed to prevent, to prevent it at as cheap a rate as possible’ (1789/1948, 178). Bentham offers advice like this to keep the primary commitment of a utilitarian system of law foremost in mind—‘to augment the total happiness of the community’ (ibid., 170). But note that the advice is offered as supplemental to the principle of utility to ward off unwanted conclusions like that of the society with Draconian punishments. As he develops his discussion of how punishment fits in with this principle of utility, he reveals, much like Kant, a leap to punishment as the obvious response to crime without demonstrating how it uniquely is the most useful. He does so as he introduces further pieces of ad hoc advice. He tells the legislator to ‘exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief’ (172). We then find that Bentham introduces punishment, itself a mischief and an evil, as a means of preventing mischief: ‘But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil’ (170). It is true that Bentham allows for the possibility for utilitarianism not admitting; punishment, but this consideration is very ­narrow. Although Bentham identifies four situations where punishment out not to be inflicted, where it is ‘groundless,’ ‘inefficacious,’ ‘unprofitable,’ or ‘needless’ (314), it seems that punishment conceived as mischief and pain is considered the response to criminal mischief as the means of preventing it. In effect we



address criminal mischief by punishing unless doing so is deemed not to be worthwhile as in the four situations above. There may be an unwitting employment by Bentham of the scales of justice with pain being placed on each side of the balance as he uses evil, mischief, and pain to prevent crime. The scales are not used as the Kant used them to offset the evil of the offender by giving the offender what the offender deserved, but they are still evident in a balancing act designed to deter. That Bentham does not investigate other ways of deterring crime besides using pain suggests that the traditional notion of the scales of justice that work with pain may have a stronghold on his thinking and serves as a block to his considering alternatives to working only with pain. It may be objected that this criticism is unfair, given that Bentham explicitly embraces a theory of human nature that depicts us as creatures motivated by pleasure and pain and as wanting to pursue pleasure and avoid pain. The threat of incurring pain for engaging in certain conduct is thus a natural inducement to refrain from that conduct. Still, neither this theory of human nature nor utilitarianism requires that we intentionally threaten harm and inflict this harm in the name of preventing certain acts from being committed in society; a requirement of the offender to do good fits just as well with the principle of utility and this theory of human nature.

Evaluation of Remaining Approaches

The thinking of the abolitionists is useful for establishing the plausibility of New Balance in that both approaches seek to free people from punishment conceived as doing bad to the offender. As Darrow fills in the details of his thinking, we learn that an admonition to do good, in his view, is rooted in ­nature and human nature. He points to how common it is for people to ‘refuse aid and help someone in need’ (1903/1994, 167), a clear indication that people are naturally inclined to do good. He couples this observation with one about the power of mild manners. ‘It is a fact in all nature … .Violence and brutality produce their like in animal life, and kindness tames and subdues’ (77). Echoed here are the teachings of Jesus, Gandhi, and King. Darrow’s thinking is also in accord with these thinkers in observing the ­centrality of love in human relations and explores its implications for moral education. We should reject the approach that makes children rule abiding by instilling fear for the consequences of not obeying and, instead, encourage them to feel love for other people. The first approach is faulty insofar as it works against and precludes the correct and worthy objective of being guided by love (ibid., 79). Connected with this approach is a law of nature that demands that


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order and tolerance prevail (80). So, it appears that the way humans fit into a natural scheme where order and tolerance prevail is through just and loving relations with people. Darrow offers a Marxist analysis of law and how it serves to subdue the underclass and promote and protect the interests of the rulers. These conditions explain why there is crime, so the proper response to crime is, once these conditions are revealed, to alter them (ibid., 67–8). Laws are skewed to protect and further the interests of those who are well off and to subdue the masses. So conceived, punishment for breaking these laws is no more just than the laws themselves. More specifically, these laws preserve the status quo of poverty for many people which channels them into a life of crime. Education is the vehicle for teaching the wrongfulness of punishment and the importance generally of loving humanity and tolerating other people. Tolstoy covers many of the same topics and does so in similar ways. Tolstoy has a counterpart to Darrow’s notion that punishment is wrong and that this idea should be taught as the truth. Tolstoy talks about punishment, its necessity and inevitability as a delusion and misapprehension. He declares that governments are unjust, and he speaks of the impossibility of correcting evil with evil. When the protagonist, Nekludov, sees that he is not mad in seeing the wrongfulness of punishment, he also sees that the life force of society is love. He searches the Bible for confirmation of this idea, and, upon his re-reading of the Sermon on the Mount, sees this teaching not as some idealistic poetry but as containing simple, practical pieces of advice for there being heaven on earth, or, in effect, as the foundation for his insight about the importance of love (1898/ 2004, 577). Tolstoy and Darrow both establish that punishment is inconsistent with Christian teachings and how the issue of whether to punish people is moot in a society ordered by love and toleration. These are important conceptual points that need not be undermined by a prediction that such a society will never be established or that its establishment is unrealistic. Their point, for one thing, works against the notion that punishment is necessary, a proposition that is open to the charge of being fatalistic and dogmatic. It opens the door for exploring alternatives compatible with it. New Balance is not the bridge to the Christian’s heaven on earth, but it is a viable candidate for building a bridge for veering from a model of doing bad to the offender which is a commitment New Balance shares with the abolitionists. Evaluation of Menninger and Lewis Menninger gives a pat on the back to judges who have veered from the punitive model and engaged in practices, which, from our way of organizing responses to crime, fall within the scope of New Balance:



Various forms of treatment are even now being tried in some progressive courts and prisons throughout the country—educational, social, industrial, religious, recreational, and psychological treatments … The secret of success in all programs, however, is the replacement of the punitive attitude with a therapeutic attitude. (1968/1996, 111 ) The approaches that Menninger endorses are part of a framework whose ­essence is one of seeing crime as an illness and attempting to cure the offender. It is a type of ‘offender to do good’ insofar as it aims to position the offender to do good once treated. In this way, New Balance can comprehend the treatment model and other responses within the scope of its guiding ideal, and it can confer on them a legitimacy that they lack when considered as complete alternatives for addressing crime. Crime as a disease strains our conception of one and suggests the limitation of the treatment model, yet, when we look at it as an instance of a general movement to orient the justice system to New Balance, its plausibility increases as we think of it as an arrow in the quiver of New Balance to address wrongdoing. Part of C.S. Lewis’s critique of the humanitarian theory applies as well to the utilitarian-deterrence theory and serves to reveal their vulnerability in a showdown with the retributive approach that Lewis favors. Desert is absent in a utilitarian-deterrence theory as well as the humanitarian theory. As Lewis hones in on this matter, he brings out how this absence makes the input of the citizenry and legal experts about an appropriate punishment irrelevant. Once we place the offenders in the jurisdiction of the medical community, anyone outside of it is disqualified from having a say in the matter of their treatment. History shows, in Lewis’s view, how the citizenry has contributed to the improvement of the institution of punishment. As the citizenry thought some penalties too harsh for use, the courts abandoned them. In these cases, the citizens had standing to register their views; punishment was society’s response to the offender. Just desert kept the punishment within the realm of those people who were administering justice. Pushed further, the implications of the treatment model show it to be one that requires indefinite treatment as opposed to a finite sentence in the retributive view, something again left to the judgment of the medical professionals. These criticisms also echo Foucault’s complaint that the new deterrence method made all manner of specialists judges and moved punishment away from the courts. Another problem with the Humanitarian Theory is that its methods amount to punishment and of a higher magnitude. Not only can it deprive the offender of liberty as we remove the offender from home and community but we impose a treatment which can be against the offender’s will, a treatment which may be aimed at personality, a punishment far more


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­ rofound than any ever contemplated by a retributive theory which simply p gives offenders what they deserve. Lewis also brings out that what is deemed to be criminal in nature may ­become political, and the medical community may deliver people with unpopular beliefs for treatment along with people deemed to be mentally ill. This possibility could influence lawmakers or supply them reasons for criminalizing politically unpopular beliefs and behavior to insure treatment. Lewis explicitly acknowledges how religion has been named a neurosis and how this diagnosis could lead to the ‘treatment’ of Christians. Says Lewis: ‘We know that one school of psychology already regards religion as a neurosis. When this particular neurosis becomes inconvenient to the government, what is to hinder the government from proceeding to ‘cure’ it?’ ( 1949/1987, 152) Lewis may not be a neurotic Christian although the extremes to which he presses his critique of the Humanitarian Theory may well reveal paranoia or an unjustifiable appeal to fear. However good his point about desert is, it is unclear that the Humanitarian Theory must always abandon it. It may well be that some offenders want to rectify their wrongdoings and that the most significant treatment would be one of allowing the offender to restore the balance of the scales of justice. We know of pedophiles that cannot live with themselves and turn to self-inflicted harm to respond to their deeds as horrible wrongdoings by their own assessment (Martin 2013). Furthermore, we have ample evidence of the citizenry’s containing and restraining the conduct of the medical community whether it be in matters regarding punishment or otherwise. Sterilizing people, lobotomizing them, and castrating them by chemical and surgical means, are practices that have met with opposition by the public with the effect of restricting these practices. Nothing prevents citizens, legislators, and courts from limiting the years of treatment or from supervising the treatment or combining it with other social responses to the offense. So it is not necessarily the case that, if we move away from a retributive model, citizens are required to forego their say in how society should respond to crime nor is it the case that alternatives to the retributive approach, even extreme ones like the treatment model, necessarily leave desert behind. This discussion of C.S. Lewis and Menninger shows how some of Menninger’s points can withstand Lewis’s challenges and at the same time include Lewis’s insistence on the importance of just desert in responding to crime. I take the debate, once analyzed, as offering support for New Balance in that there is a rejection of doing harm to the offender by Menninger and an overriding interest in keeping desert in the picture in Lewis’s view. Both are features of New Balance yet neither or both amount to New Balance.



Evaluation of Pure Restitution Barnett’s argument for making a paradigm change from the offender owing a debt to society to the offender having one to the victim rests on how sensible it seems to re-conceive the offender’s debt in this way together with a prediction that people—the victim and the community—would select the new model once actually presented as an alternative. The notion that the community and victims alike have a sense of outrage about crime is one thing but to claim that society can address it only with punishment traditionally conceived allows for no such alternative. So the community should recognize that it demands a ­response to crime, but it need not turn to punishment and harm. Pure restitution is a response that people would likely choose given its strong grounding in common sense; they would choose it in the absence of a good reason to think otherwise. But there are situations where it seems doubtful that pure restitution would prevail as a good response to crime as when an offense that didn’t cause much damage is particularly malicious. Consider, for example, offenses like attempting to kill one’s own child by poisoning over a long period of time, as we see played out in Shyamalan’s film, The Sixth Sense (1999). But assume the perpetrator is apprehended very early on when the child is not yet that ill. Do we simply require the offender to buy the child an antacid? Barnett anticipates criticisms and responds to each. For one thing, the model is insufficiently powerful to address the full range of offenses, and Barnett does acknowledge that, with pure restitution, victimless crimes would go by the wayside, as there is no victim to compensate. Many offenses like public intoxication and speeding usually have no victims, yet we think that it is important to respond to them insofar as public safety is concerned. For victims of offenses like rape, theft, and assault, it makes sense to think of an offender having a debt to a victim. As a matter of fact, Barnett’s example that is so appealing to our common sense intuitions is that of the offender who robs a person and not society. Any debt would be to the victim and not society. Granted, Barnett speaks of the elimination of victimless crimes, crimes where there is consensual activity between or among adults—activity like gambling and prostitution. But the list of offenses continues where consent is not at issue and there is not, as a necessary element of the offense, an identifiable victim to compensate. Consider crimes like dwi; who is the victim to compensate? The list of crimes of this sort goes on—evading arrest, no insurance, and possession of a controlled substance, not to mention, offenses like conspiracy, prank calls to 911, unlawfully carrying a weapon, and cruelty to animals. Also consider all crimes of attempt to commit an offense—attempted murder, burglary, and suicide. Who is the victim to compensate? There can be no victim in


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crimes of attempt. As such, pure restitution further shows itself to be limited in how it can replace the old paradigm; the response to some offences cannot be formulated intelligibly as the offender’s having a debt to an identifiable victim. New Balance can contemplate the offender’s paying a debt to the victim within the scope of offender to do good, but where there is no clear victim, New Balance can step in and respond to public intoxication and speeding, for example, with requiring the offender to take an alcohol awareness class or a driver’s safety course as fair responses. Note that with these responses, we do recognize a debt to society and thus revert to the old paradigm. Still, we respond not with doing bad to the offender but requiring the offender to do good. New Balance can similarly respond to the longer list of offenses above with an approach that is sufficiently broad to be a comprehensive substitute for traditional punishment, as pure restitution is intended to be but is too narrow an approach to always function as an alternative. We might think about pure restitution too as one of the arrows in the quiver of New Balance. Evaluation of Restorative Justice An overlap between New Balance and Restorative Justice is evident in that each are concerned with a new approach to responding to crime and rejecting the old one. One difference involves desert and responsibility. Restorative Justice requires the offender to accept responsibility for the wrongdoing but does not conceive society’s response as merely giving offenders what they deserve by balancing the scales of justice. New Balance holds the offender responsible after a determination of guilt and gives offenders what they deserve by way of some variant of offender to do good or positioning the offender to do good. Restorative justice directly invokes a model of the community fabric’s being torn and its mending being the primary aim. Steps are taken to engage the victim, offender, and community in this restoration. Zehr demands the offender to accept responsibility for the wrongdoing as a precondition of the activities of engagement with the community to begin. This requirement may well impede any extensive implementation of the program. Some people may maintain their innocence; some may not see their conduct as wrong and in need of accounting for it, as with victimless crimes. On this count New Balance seems preferable, as it holds offenders responsible, gives them what they deserve in terms of service, and side-steps any requirement of the offender’s ­accepting responsibility. On New Balance, the offender can be deemed responsible, held responsible, but the offender need not accept or take responsibility.



Evaluation of Alternative Models Many of the alternatives to punishment work collectively to broaden the social vision for responding to crime. Menninger’s medical model, Barnett’s pure restitution, and Zehr’s restorative justice are thoughtful and creative ways of addressing crime without resort to punishment traditionally conceived. Insofar as establishing New Balance requires a repudiation of the old approach, any alternative to it assists, to some extent, with establishing New Balance. Doing bad to the offender falters as credible alternatives are presented and as they are put into practice. There are, quite simply, other alternatives which appeal to competing intuitions about responding to crime which dislodge doing bad to the offender as the exclusive response. Primary strengths of New Balance include its retaining guilt, desert and responsibility, to which retributivists are deeply committed; the scales of justice that both retributivists and Utilitarians employ; and its ability to serve as an umbrella for alternatives with similar agendas no one of which has the comprehensiveness of New Balance. As they come within the jurisdiction of New Balance, they may require some revision. Barnett, for example, would have to think about non-punitive restitution as compatible with a fair desert that is not intended as a doing bad to the offender. Further, New Balance is akin to the abolitionists that demand a new awareness and a rejection of punishing by harming offenders. One way of organizing our thinking about these theories of punishment is to recognize that they represent some simple variations on the traditional scales of justice. Thinkers like Tolstoy are at one extreme where a rejection of the institution of punishment eliminates the scales for serving no purpose. Other theories use the scales with the task of balancing them beginning when some perpetrator has done some evil that has caused them to tip in one direction. Some proceed to balance the scales by directing evil at the malfeasant. The variations come in where additional reasons for punishing, or, in effect, for bringing more evil into the world, are offered and where decisions are made about how much evil to create for the offender. Retributivists create it because the criminal deserved it; Utilitarians, for the good of society. As to how much evil we inflict on the offender, we see debates over whether the evil should be equal to or proportional with the moral gravity of the act and to what extent such considerations as mercy and rehabilitation should lessen the punishment. Even theories like Menninger’s, Barnett’s, and Zehr’s can be seen as employing the scales insofar as some undesirable activity has tipped them and some response is required to offset it whether it be treatment, compensation to the victim, or restoration of the fabric of the community which the activity tore.


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This way of thinking about competing theories clarifies how there is a showdown between two major orientations—one of offsetting bad, harm, or evil with more of it, and one of offsetting it with some flip side of bad, harm, or evil. New Balance categorizes instances of the latter alternative within the scope of offender to do good or positioning the offender to do good and emerges as a view that captures the driving force of similar, more limited approaches. While New Balance makes a primary change in how we balance the scales, it accepts elements of a familiar pattern of how we respond to crime. New Balance still tries people to determine if they are guilty, it still holds the guilty responsible for their acts, it gives them what they deserve, and it seeks to deter crime. But it does not direct evil toward the guilty but instead directs them to produce good or positions them to do so.

Further Development of the Case for New Balance: Plausibility of Cognate Views

Plato’s Cognate View We draw attention in this section to Plato’s and Nietzsche’s views on punishment, which are akin to New Balance, and which bear on the overall plausibility and legitimacy of it. Neither one enjoys any special standing in the literature on punishment, yet each serves as precedent for reorienting our response to crime in a fashion similar to New Balance’s. Plato’s analysis of punishment in The Laws aligns with his view on the overall purpose of the laws—the creation of virtuous citizens. This goal entails educating citizens about how to lead a life of reason in which they maintain the correct balance of pleasures and pains in their life. Legislators, judges, educators, and citizens all keep in view the importance of this education and strive to use it to do what they can to create a self-controlled citizenry. As noted, the purpose of laws for Plato is the creation of virtuous citizens and another component of it is to prepare the citizens for peace. He rejects the Spartan ideal of preparing the citizens for war. In each system citizens should be courageous. With the Spartan ideal of war, the focus is on making the ­citizens courageous in the face of pain, but there is another dimension to courage as we affirm peace as the goal. Courageous citizens are those who are courageous in the face of pain and pleasure. This goal entails educating citizens about how to lead a life of reason that, in turn, means learning to maintain a proper balance of pleasure and pain in one’s life. Legislators, judges, educators, and citizens alike are all to keep in view the importance of this education and strive to use it to create a self-controlled citizenry.



Plato discusses at length how drinking parties can provide a controlled environment for the young to experience the pleasures of alcohol, the painful consequences of excess consumption, like saying and doing silly and reckless things causing embarrassment to oneself, not to mention becoming physically ill. Under the supervision of a sober leader, the young learn through firsthand experience the nature of the lack of self-control, how to lead a life of self-control, a courageous life, a life of reason, and a life in which one is in the right relation to pleasure and pain. Wrongdoing that the law addresses represents a failure of law and education; someone who, in effect, is out of control undertakes it. In Plato’s view, no one voluntarily acts wrongly, yet we hold wrongdoers responsible for their acts. These acts stem from an unjust soul, one that has been overpowered by emotions, like anger and fear, by pleasure or pain, or by ignorance (Laws 863). Plato assigns large discretionary powers to the judge to determine how to send pleasure and pain the way of the offender to correct the soul in disorder; he mentions elements of victim compensation and deterrence of the particular offender as being among the goals. He says: when anyone commits an act of injustice, serious or trivial, the law will combine instruction and constraint, so that in the future either the criminal will never again dare to commit such a crime voluntarily, or he will do it a great deal less often; and in addition, he will pay compensation for the damage he has done. … We may take action, or simply talk to the criminal; we may grant him pleasures, or make him suffer; we may honor him, we may disgrace him; we can fine him, or give him gifts. We may use absolutely any means to make him hate injustice and embrace true justice—or at any rate not hate it. Laws 862

In another passage, describing the work of the lawmaker, Plato tells more about restoring matters after the crime: He must use the law to exact damages for damage done, as far as he can; he must restore losses, and if someone has knocked something down, put it back upright again; in case of anything killed or wounded, he must substitute something in a sound condition. And when atonement has been made by compensation, he must try, by his laws to make the criminal and the victim, in each separate case of injury, friends instead of enemies. Laws 862


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The judge uses pleasure and pain, as the legislator and educator do, to assist citizens to get in the right relation to pleasure and pain. As such, Plato’s entire theory of punishment may be seen as a way of positioning the offender to do good or lead a virtuous life. Although Plato claims that the primary aim of punishment is to create a just soul, we do find that some people are ‘beyond cure,’ and in these cases, the overlap with New Balance ends, as the appropriate punishment is death. The lawgiver ‘will recognize that the best thing for all such people is to cease to live. By passing on, they will help others too, first: they will constitute a warning against injustice, and secondly they will leave the state free of scoundrels’ (Laws 862–3) Nietzsche’s Cognate View Nietzsche offers no detailed advice about the best way to address wrongdoing, but he does reveal how he would respond to crime great and small which has earmarks of New Balance and appears in a context of the dark and irrational history of punishment. Says Nietzsche: Like everyone who has never lived among his equals and who finds the concept of ‘retaliation’ as inaccessible as, say, the concept of ‘equal rights,’ I forbid myself all countermeasures, all protective measures, and, as is only fair, also any defense, any ‘justification,’ in cases when some small or very great folly is perpetrated against me. My kind of retaliation consists in following up the stupidity as fast as possible with some good sense: that way one may actually catch up with it. Metaphorically speaking, I send a box of confections to get rid of a painful story. One needs only to do me some wrong, I ‘repay’ it—you may be sure of that: soon I find an opportunity for expressing my gratitude to the ‘evil-doer’ (at times even for his evil deed)—or to ask him for something, which can be more obliging than giving something. (1969a, 228–9, emphasis added) Nietzsche offers his overall take on punishment using such major categories of organizing human experience as the strong, the weak, and the will to power. He sees each person as struggling to give effect to his or her will, to become powerful through this expression, and to flourish. Christian morality condemns and restrains this expression of a will to power and praises and enables those who are weak and meek, and this morality itself is a product of the downtrodden, exercising their wills to power. Punishing wrongdoers gives the weak an opportunity to occupy a position of power over the wrongdoers that Nietzsche sees as an expression of weakness. The strong and powerful in his view ultimately are above responding to these transgressions, and the ascendance to this point of



view is gradual as people and societies become more powerful. Says Nietzsche, ‘as its power increases, a community ceases to take the individual’s transgressions so seriously, because they can no longer be considered as dangerous and destructive to the whole as they were formerly … it goes without saying that mercy remains the privilege of the most powerful man’ (1969b, 72–3). Nietzsche alleges that people have confused various purposes of punishment with its origin. The purposes are many. ‘Punishment as a means of rendering harmless, of preventing further harm. Punishment as recompense to the injured party for the harm done. … Punishment as a means of inspiring fear of those who determine and execute the punishment. … Punishment as the expulsion of a degenerate element’ (ibid., 80–1). The purposes may seem practical enough, but the true origin reveals the absurdity of punishment, as does the history of its effects. According to Nietzsche, the whole notion of someone deserving punishment equivalent to the wrongdoing originates from contractual relationships between debtors and creditors where creditors were empowered to perform acts of violence against the debtor in default to impress upon their memories and others similarly situated the importance of complying. ‘And whence did this primeval, deeply rooted, perhaps by now ineradicable idea draw its power—this idea of an equivalence between injury and pain? I have already divulged it: in the contractual relationship between creditor and debtor’ (ibid., 63). In effect, it provides a warrant to perform acts of cruelty: In punishing the debtor, the creditor participates in a right of the masters: at last he, too, may experience for once the exalted sensation of being allowed to despise and mistreat someone as beneath him—or at least, if the actual power and administration of punishment has already passed to the authorities, to see him despised and mistreated. The compensation, then, consists in a warrant for and title to cruelty. (65) The sort of cruelty inflicted could never be justified in the name of serving an educational function despite claims to sanction it in that way. ‘If something is to stay in the memory it must be burned in: only that which never ceases to hurt stays in the memory—this is a main clause of the oldest (unhappily also the most enduring) psychology on earth’ (1969b, 61). Nietzsche’s recitation of these acts of cruelty, punishments like boiling the offenders in oil or trampling them with horses, serves to reveal their nature as acts of anger and revenge and ultimately the absurdity of thinking they were necessary to educate people. Consider the price of such education. ‘With the aid of such images and procedures one finally remembers five or six “I will not”s’ (62).


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Punishment is also counterproductive in that, far from making offenders feel remorse for their deeds, it hardens them and impedes them from feeling guilty. ‘Generally speaking, punishment makes men hard and cold; it concentrates; it sharpens the feeling of alienation; it strengthens the power of resistance’ (ibid., 81). In ‘The Dawn,’ Nietzsche observes, ‘a strange thing, our punishment! It does not cleanse the criminal, it is no atonement; on the contrary, it pollutes worse than the crime does’ (1969c, 190). It is the contempt we show for criminals in punishing them that impedes their development into better people: ‘One can only enhance those men whom one does not treat with contempt; moral contempt causes greater indignity and harm than any crime’ (Nietzsche, 1967, 393). Like New Balance, Nietzsche rejects the traditional approach to punishment, and he adopts an element of New Balance in his account of how he would respond to wrongdoing—asking for some good from the offender.

Testing the Bounds of New Balance

New Balance proposes that we alter our response to crime so that the emphasis is on the offender’s doing good instead of doing bad to the offender. Is such an approach at all viable for dealing with acts of extreme wickedness, terrorism, or crimes against humanity? What would New Balance advise as an adequate response to the infamous Saddam Hussein for what he did to the Iraqi citizenry, subjecting large numbers to chemical weapons, committing genocide, torturing citizens who displeased him whether it be under-performing athletes or political foes. What would New Balance recommend in responding to terrorist attacks on American soil, whether they are committed by members of the Islamic State or by White supremacists? Questions about New Balance’s applicability to extreme cases like these fall within the general inquiry of how to map in a plausible way the equivalents of offender to do good for do bad to offender. It may be quite clear that ­twenty-four hours of community service is equivalent to a $300 fine for public intoxication, but what would New Balance’s equivalent be to felony possession of a controlled substance with intent to distribute which might carry a fine of $10,000 and incarceration for twenty-five years. In considering such an undertaking, it seems fair to consider that we have debated for more than several millennia what the right amount of pain or evil to send the way of offenders is in response to theirs, and we should not expect that, even with sustained and considered reflection about the New Balance counterparts, their determination will be readily apparent. Nonetheless, let us pursue this line of reasoning for some extreme situations.



Using the traditional model, we find punishments for crimes like genocide ranging from prison terms up to life to execution. In Ethiopia in 1999, for example, officers and civilians charged with acts of genocide during a campaign of Red Terror were prosecuted under Ethiopia’s penal code. One of them received the death penalty in 1999 for ordering the torture and murder of people, and over the next few years, some 200 others received prison terms ranging from two years to life. During the Nuremburg trials (1945–1948), Nazi war criminals received sentences ranging from imprisonment to death by hanging. When a trial is conducted under the law of a nation, the death penalty is in the offing if it is permitted by that nation for the someone convicted of committing the particular offense alleged at that trial. When the jurisdiction is international through the United Nations, the death penalty is not an option. The first tribunal of this sort since World War ii was convened in 1997 to try a Bosnian Serb. The charges were war crimes and crimes against humanity, including murder and torture during the Bosnian War. One allegation detailed his ordering a prisoner to bite off the genitals of another prisoner. One commentator, Gary Bass, acknowledges the disparity between the enormity of some war crimes, like those of Milosevic, and the limited penalties that tribunals can impose. He mentions Hannah Arendt’s observation about the Nazi war crimes tried at Nuremburg: ‘For these crimes no punishment is severe enough … this guilt … oversteps and shatters any and all legal systems’ (‘A Look At … War Crimes and Punishment,’ The Washington Post, November 26, 2000). Nonetheless, he recommends that this route is preferable to the alternatives of doing nothing or employing summary executions, which President Franklin D. Roosevelt thought appropriate, but never ordered, in dealing with highranking Nazis. This perception that there is no adequate response to crimes of great enormity has strong roots in common sense. Even so, it makes sense on any model to ask what a reasonably adequate response would be. Advocates of having offenders make restitution as the proper response to crime come under the umbrella of New Balance but do consider more serious crimes like murder to be especially difficult to address. Still, these advocates stretch the model to require a lifetime of service to the family of the victim or at least compensation and a willingness to be reunited with the community. They claim it is unlikely that large numbers of offenders would not work given the monotony of doing nothing, and I would add that coupling this work with a mindset that we see the offender as doing good as an additional motivation. As Charles F. Abel and Frank H. Marsh bring out: In ‘worst case’ situations it may be necessary for offenders to labor in prison factories for their entire lives, the proceeds going to both the victim’s


Chapter 4

family and the general revenue. In the best cases, some time might be put in this way with the remainder in one of the community-based programs. (1984, 184) This line of thinking is useful, but might err on the simple side, as do other Old Balance methods, in that both think about sentencing offenders for large blocks of time without much detail. A study by David Anderson highlights projects like those in Arizona, Georgia, North Carolina, and Texas, which provide a ‘ladder of sanctions’ as an alternative to incarceration, but which could head the non-compliant offender to prison. Also known as intermediate sanctions, they include, as one moves up the ladder, supervised probation, house arrest through electronic monitoring, and work at day centers. The path for those who fall off the ladder is work release, boot camp, and prison. One variation includes a prison term at the lower rung of the ladder prior to the alternatives (1998, 142–7). This approach is classified as rehabilitative in an American tradition traceable to John Augustus and further justified for being more cost-effective than incarceration (ibid., 16, 20). The ladder represents how a variety of sentencing alternatives can be selected during the course of punishing and rehabilitating someone when incarceration seems costly and counter-productive, but the use of any of these alternatives is guided by a rehabilitative ideal. The alternatives are considered especially appropriate for non-violent offenders, and include treatment programs for some sex offenders. (19, 90). This line of thinking is very much akin to New Balance in that rehabilitation can be subsumed under the requirement of offenders to do good and more specifically of positioning offenders to do good. It does not explicitly affirm all of the elements of New Balance, and New Balance does not require rehabilitation. The applicability of these models to extreme circumstances has yet to be investigated, and there are indications that people who commit serious offenses are not candidates for a sentence alternative to prison in Anderson’s view. The challenge for New Balance is to bring into the realm of the imaginable a response to great evil that requires the perpetrator to do good; and it seems to require a great deal of imagination to plan specifically for such a sentence and to keep it meaningful for future generations that will be paying for its enforcement. A traditional life sentence suggests little about the details about the day-to-day and year-to-year nature of this life, but a New Balance alternative requires specificity. Consider this plan for sentencing a twenty-five year-old perpetrator of genocide to a lifetime of doing good rather than a lifetime of punishment:



Prison Factory Labor 5 years (compensation to families of victims); Prison Factory Labor 5 years (compensation to victims of similar offences); Combinations of monitored community service and work with similar offenders; Prison work ensuring that detention facilities are self-sufficient; Supervised work with international units such as Amnesty International; Supervised activities, which deliver care to casualties of genocide; Supervised discussions with family members of victims of genocide; Input into choice of supervised service activities; Payments into account for self-support of monitored living in old age. This plan illustrates how New Balance as theory may be translated into practice. I now ask the reader to return to the list above and consider what could be added to it or how better to sketch a life sentence on the New Balance model. I do think that it is a very difficult task but participating in it heightens one’s awareness of its nature, the New Balance approach, and the worth of New Balance. New Balance’s focus is on the offender’s doing something worthwhile, minimizing despair, providing conditions for hope, and being respectful. With Old Balance, the serving of a life sentence is mostly invisible to the public, so its effect of satisfying anyone’s rage or indignation is short-lived over the offender’s long life. One thing seems certain—with New Balance, the actions of the convicted offender occur in a much more visible and public context, and the service the offender provides can supply ongoing evidence of an ongoing social response to the offence. Even though we have discussed considerations of this sort in the context of extreme responses that extend for the duration of a life, they are equally relevant for addressing lesser offenses and will play a significant role in determining whether the scales of justice will tip on the side of New Balance when it is weighed against approaches that require doing something bad to the offender.

Conclusion In this volume, we have examined how judges of people’s courts face a dilemma: they are charged with running a formal proceeding while simultaneously running an informal one. Making adequate room for defendants to represent themselves emerged as the impetus for relaxing the formality, and we considered how different judges of people’s courts met the challenge. The dilemma is palpable for these judges, and it requires them to think critically about their judicial roles and how they can best adhere to each demand. These observations were seminal for the entire undertaking, since they made it apparent that judges at any level have something to learn from the judges at this lowest level who are actively engaged with forging their identity as judges. The whole work unfolds from this starting point, that we glean valuable insights about what judges should be doing by attending to what judges of people’s courts do. For each of three major areas of jurisprudence and the legal order itself—law, judging, and punishment—we considered how looking at them through the lens of a people’s court brought into focus fresh ways of seeing them. Recognize this project as a Copernican revolution in its own right however counterintuitive it may be, or see it as an absurd inversion of the norm, a tail wagging the dog, but it remains a vision to guide and a blueprint for building. As such, it is free from dismissal for being what it is—visionary—as much as its desirability can hardly be refuted by introducing evidence that it runs counter to deep-seated desires about what people want law, judging, and punishment to be—fixed norms mechanically applied by judges whose sentences display no less of a black-and-white nature. We have, however, created more than a vision or blueprint whose origin we trace to people’s courts. In the case of law, a conception has been developed that features the conduct of citizens, their rule-guided acts, and their role as leaders. We have explored how this perspective illuminated an aspect of law that norm-centered views conceal or overlook as well as how it took cognate views of law as activity a step further. Too, we brought this undertaking within the scope of similar projects to translate entities like art, knowledge, and objects into activity in an effort to lessen its unfamiliarity and boost its plausibility. By considering how all manner of utterances within a legal order can team up to comprise a normative force that guides citizens in their acts, we revealed a variegated and dense population of values, rules, policies, proclamations, warnings, and criteria to name a few of its number. Readers have also been offered some visual imagery for this conception of law on which they can hang their hat—an electronic map of the world that glows with varying ­intensities

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004365711_007



of green as citizens are engaging in conduct guided by a legal norm or norms. Similarly, this volume has offered images of judges building conceptions of themselves as part of a joint social undertaking of people thinking critically about the roles they occupy and constructing viable conceptions of themselves as citizens, family members, workers, parishioners, and affiliates of various clubs and organizations. In the case of judges, we accounted for variations in their self-conceptions as hinging in large measure on how they saw the scope of their discretion. This portrayal may be more complex than the images of judges it rejects, like those of judges whose function is reduced to one of pulling the lever of a slot machine, or placing the needle on the arm of a record player on the record, for an outcome, both of which show judges to have no discretion. Still, the depiction of judges as active role-definers, however abstract in comparison with an image of the judge at a slot machine, calls up the concrete experience of people striving to give meaning to their lives as they create and juggle their conceptions of themselves as agents occupying multiple roles with sometimes conflicting demands and expectations, who nonetheless must determine how to balance them in deciding how to act. To this end, note how we identified the relevant variables for judges to select from in determining how best to conceive themselves, how we underscored that their determinations are a fair subject for public scrutiny and comment, and how the dialogue between the judiciary and the public may well result in ­judges rethinking their roles. Balancing the scales of justice with a requirement of offender to do good, or to engage in some activity that positions the offender to contribute to the social good, is the way we envision New Balance and distinguish it from the ­punitive model of doing bad to the offender and the image of lady justice ­impartially administering justice in a punitive fashion with her swift sword. Here too, we created not merely an alternative vision for responding to wrongdoing but surrounded it with reasons for adopting it, including factors like its being on the right side of history insofar as there are multiple indications that we should move in this direction as well as the fact that we are moving in this direction. The high costs of a retributive justice that relies on incarceration for its penalty compel our seeking alternatives, and the wide range of sentencing alternatives now available to judges of people’s courts, like requiring attendance at a­ lcohol or tobacco awareness classes, and performing community service, speaks to a shift to requiring the offender to do good or positioning the ­offender to do good. As we presented the case for New Balance, we saw how it serves as an organizing principle for multiple attempts to create alternatives to the traditional model, like restorative justice and holistic jurisprudence,



and to underscore the distinguishing features of New Balance. Part of the case showed how New Balance overcomes deficiencies of such primary rivals as the retributive theory and the utilitaritarian-deterrence theories of punishment as well as how well it fares well when it competes with cognate views like Plato’s and Nietzsche’s. This project is imbued with the spirit of American pragmatism, which has us veer from rigid and unalterable depictions of institutions, roles, and practices, which, of concern here, have been law, judging and punishment. We encounter them in such objectionable forms in everyday conceptions as well as theoretical accounts of law, each with no future of growing and developing, Running them through the lens of a people’s court, which has us focus on citizens and their experiences, allows for viable reconstructions of them. Law, reconceived, becomes norm-guided activity of citizens; adjudication hinges on how judges construct their roles analogous to how citizens actively construct the roles they occupy and use them for guidance; and punishment shifts to responding to crime with an objective of social betterment through innovative ways of requiring offenders to serve society and positioning them to becoming better citizens.

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About the Author Vincent Luizzi is Professor of Philosophy and Director of Dialogue Development at Texas State University where he serves as Faculty Ombudsman and a Faculty Senator for Liberal Arts; he chaired the Philosophy Department for thirty-two years, 1982–2014. He is a Phi Beta Kappa graduate of the University of Rochester and holds a PhD in Philosophy from the University of Pennsylvania and a jd from Boston University School of Law. Luizzi has received Fulbright assignments in South Africa in 2008 and Bosnia in 2012 in connection with his expertise in ethics and law. In South Africa he assisted with the development of The Center for Leadership Ethics in Africa at the University of Fort Hare and continues his affiliation with it as an Adjunct Professor at the Center. A member of the State Bar of Texas, Luizzi has served as a municipal judge for the City of San Marcos and as magistrate in and for the State of Texas since 1982. Appeal to the People's Court: Rethinking Law, Judging, and Punishment is his sequel to A Case for Legal Ethics: Legal Ethics as a Source for a Universal Ethic (1993).

Index abolitionism 133 act(s) contradictory 15 law as 33, 66–7, 72 of citizens 5, 30, 32–3, 67, 73 of judges 5, 30, 51, 71 of leader 35 of omission 42 of violence 140 verbal 140 activity art as 64 entity as 64–5, 73 imitative 35 in conception of law 8 knowledge as 65 language as 32 norm guided 40 object as 65–6 of forging role 4 of people communicating 31 See also act(s) activist judges 89 adjudication adversarial system of 27 as major subject of jurisprudence 1 in China 17–29 in people’s courts 15–27 inquisitorial system of 27–8 rethinking 3, 9 adversarial system 27 advisor(ies)(y) 54 Alaskan tribal courts 109, 112 Allah Almighty 40, 50 Anglo-American tradition 13, 23, 27, 108 Aquinas’s theory of law 66–7, 124 attorney absence in people’s courts 13 audi alteram partem (listen to the other side) 29 bail hearing 14 Beijing trial 24 Beliefs about punishment 126 as part of constitution 40

as source of advice 109 claims about 40 of citizens 34 case law 47, 82–3, 86 Catholic University of the Louvain 18 Changing Lives through Literature (cltl) 117–8 China 9, 11, 23–9 China’s penal code 24 citizen(ry)(s) activity of 1 as leaders 35–8 expectations of judges 18–22, 97 in concept of law 30 participation in legal system 3–4, 10 preference for community service 7 presence in people’s courts 1, 8 self-representation 1, 15, 26 cnn Beijing 23 Code of Hammurabi 43–4 command theory of law 52 community service 99, 101, 103–7, 120, 141 Concho Valley Community Supervision and Corrections Department 107–8 confinement 48–9, 118 constitution 39–40 contract(s) 48, 140 cost-benefit analysis 99 court(rooms) of people’s courts 10, 18 crime New Balance approach to 120–2 Responses to 97, 100–37 criteria 52, 146 decision making, judicial role of logic 81–6 law defined in terms of 69–71 Declaration of Independence 40 deductive model of decision making 88 defective generalization 60 definitions, stipulative 50 dignity 39, 41, 123 dilemma of the people’s court judge 3, 97, 144

156 Divine revelation 40 do bad to offender 7, 128, 140 driving safety courses 101, 135 driving while intoxicated, tx statute 31 drug possessors and pushers 100 Dublin 13 duties of judges 79 electronic monitoring or surveillance 101, 107, 115–6, 143 Endicott, New York 13 England 13, 15–6, 22, 27, 47, 60, 81, 85 epistemolog(ical claims)(y) 40 equality 39, 49–50, 127 essence 5–6, 30–2, 64, 68, 71, 73, 86, 131 ethics, legal 3, 10, 15, 32, 62, 75, 120 ethics, professional 94 evil 7, 8, 41, 59, 67, 87, 111, 121 felon(y)ies 100, 102, 141 forbidden, everything which is not 47 functionalist accounts of law 69–70 generalization that punishment deters 128 and presumption in law 59–60 get-tough-on-crime approaches 100–1 good faith 57, 61–2 Guarantees 49, 63, 96 Guidelines 52–3, 63 Humanitarian Theory Menninger’s 123–4 C.S. Lewis’s critique 124, 133–4 hunching Hutcheson’s view 88 As practice of mathematicians and scientists 88 inquisitorial vs. interrogative system 27–9 interest(s) balancing of by courts 89–94 of the citizenry 7, 21 social 30, 69–70 of rulers 140 interpretation(s) as part of legal order 56

Index of statute 57 interviews with judges 15–23 Jail

alternatives 102–15 connection with Old Balance 8, 118 high cost 99–101 judge(s) as maker(s) of law 71, 874 claim of citizens on judicial activity 97 of people’s courts 8–15 reflective development of role 8, 74–97 traditional conception of 9 Justice of the Peace courts 11–3, 23 law as activity 70–3 Austin’s view of 67 Aquinas’s view of 66–7 cultural view of 33–4 Dewey’s view of 65 Hart’s view of 68–9 natural 53 Plato’s view of 69 Pound’s view of 70–1 Vico’s view of 71–2 traditional conceptions 30 law expressed as poetry 46–7 law of nature (lex naturalis) 53 lawmaking, judicial 71, 84 lawyer(s) absence in people’s courts 1, 10, 13, 29 developing conception of role 3 people’s lawyer 13 professional dispositions of 94 leader(s)(ship) as community peacemakers 113 at Plato’s drinking parties 137 citizen as 25–38, 73, 145 legal norms as guide for conduct 5 as part of conception of law 29, 30 legal order types of utterances in 34, 38–63, 145 as activity of citizens 30–1, 145 legal positivism 67–9 Legal Realism 82–8


Index legal system See legal order Leuven, Belgium 18 iterature and law 47 Marxist analysis of law 130 mass media 19 mechanical model of law 81, 88–9 Mettray 119 municipal court 11–6, 27, 102–5 Native American stories as components of legal order 59 natural law 41–2 New Balance as replacement for doing bad to offender 99 as umbrella for alternative sentencing practices 101 comprehends Native American and restorative approaches 108–16 derivation of 120–5 strengths 136–7 norms See legal norms nulla poena sine lege (no penalty without law) 47 offender to do good 99, 103–4, 121 parol evidence rule 44–5 peacemakers 113 people’s court, definition 11 Plain Meaning Rule 56 pragmatist(s) (ism) 120, 147 prediction theory of law 5, 71 prediction 54 primitive notions 61–2 prison See jail punishment alternatives to 101–18 evolution beyond 98–9

major approaches to 123–5 perceived necessity of 98 rehabilitative approaches 123–4 reasoning, law as 71–3 responsibility 135–6 restitution, pure 125 restorative justice 125 retributive justice 124 retributivism 124 rule-guided activity 35, 62, 69–70 ‘shall’ statements 57 South Africa’s constitution 39 statements that forbid acts 42–3 stories as components of legal order 59 substantive vs. procedural rules 43–4 televised courtroom shows 13 Texas Municipal Courts Education Center 14 Tienneman Square 24 undefined concepts 61–2 utilitarian approach to punishment 123 utterances 73, 145 value(s) as ideals that guide 65 basic 39–40, 75 in legal order 38, 59 Native American 108–9 relation to law and morality ix social 91 vengeance 88, 118, 121 Vredegerecht (people’s court, Belgium) 18 war crimes 142 war on drugs 100 warnings 54