Category: History of Law

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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh

I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.

Ulema.pngWhere Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.

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Obstructionism, Roman-Style

Cato the Younger made his name by tirelessly advertising his high personal morals. His public career as a senator and tribune of the Roman republic was distinguished by a use of obstructionist tactics whose mixture of pig-headed stubbornness and improvisation may sound humorously familiar to modern Congress-watchers. Here are some highlights, based on Adrian Goldsworthy’s fantastic biography of Julius Caesar, Cato’s principal political enemy.

Cato was a filibusterer par excellence. The rules of debate in the Roman senate forbade cutting off a speaker. When asked his opinion on an issue he opposed, Cato gave it, and gave it, and gave it, talking all day, without notes, until the Senate would adjourn with the issue unresolved. Most notably, in 59 BC, Cato so infuriated Caesar by trying to run out the clock on a land-reform bill that Caesar simply ordered him jailed. It was a (short-lived) political triumph for Cato: one senator walked out, saying he’d rather join Cato in prison than remain with Caesar, and Cato was rapidly released.

In 62 BC, while serving as tribune, Cato used his veto powers to block another bill being proposed by Quintus Metellus Nepos with Caesar’s support. As Goldsworthy describes it:

Nepos ordered a clerk to read the bill aloud. Cato used his veto to forbid this, and when Nepos himself took up the document and started to read, he snatched it from his hands. Knowing the text by heart, [Nepos] then began to recite it, until [Cato’s ally] Thermius slapped his hand over his mouth to stop him.

A riot ensued, again embarrassing Cato’s political enemies. But not everything he did to embarrass Caesar worked out so well. During a critical debate over how to punish the Catiline conspirators, a note was brought in and handed to Caesar. Cato, who was speaking, proclaimed that it must be a secret communication from those conspirators still at large. When Cato demanded that the note be read aloud, Caesar instead passed it to Cato. It turned out to be a love letter from Cato’s half-sister.

You can keep your blood-drenched fictionalizations; good legislative floor fights are timeless.

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Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

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Preaching to the Court House and Judging in the Temple

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts.The full version of my research is now up on SSRN for those interested. Here is the abstract:

A number of American religious denominations – Quakers, Baptists, Mormons, and others – have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century’s end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession’s claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons’ rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the “public law” side of this story, showing how the federal government’s effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Dowload it while its hot!

2

Book Review: Harold Schechter’s The Devil’s Gentleman

devils-gentleman.gifHarold Schechter, The Devil’s Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century

Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil’s Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and “unmanly” way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of “Yellow Journalism” was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and “they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task.” The pharmaceutical supply company “couldn’t afford to loan [its clerks with the requisite training] out for an indefinite period of time.” Enter the media:

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Scenes from a Lawyer’s Life

The Arts Section in today’s New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera’s stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife’s grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian’s and the biographer’s art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene’s grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan’s being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it’s entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of “undesirables,” and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I’m just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: “They tell me that I’m a Communist. . .It so happens that I’m a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow’s advice, refuse to take Moscow’s dictation. There are other differences, such as our belief that the worker’s solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow’s theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units.” (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer’s behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: “The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party.” Nathan met with Bojer in the Wayne County jail, where Bojer, “a very affable and highly cultured young man,” advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an “East bound deportation party” on December 29, 1932.

As to Nathan’s political views, here’s an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation “drives” and “spectacular raids” then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

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Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

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Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Privacy’s Other Path: Recovering the Law of Confidentiality

confidential4a.bmp

Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

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Very Cool

It is a measure of how geeky I am, that I think that this is one of the coolest websites I have seen for quite a while: The Yearbooks, online and searchable.

There is now no excuse for failure to include citations to 13th century case law in your next article or brief.