Speluncean Explorers II: Keen and Hardy Notes for February 23

Main points

Keen and Handy were our subjects this time. We asked the same questions about their opinions that we asked about the other three.


Keen thinks the law is found in the plain meaning of the written law. His opinion is a more sophisticated version of the philosophy of law articulated by Truepenny. The main difference between them is that Keen is more strict about the role of the judiciary. He thinks that Truepenny’s request for clemency from the Chief Executive was out of line. Of course, he said essentially the same thing himself, but he was at pains to insist that he was speaking only as a private citizen and not as a judge.

We discussed two large questions about Keen’s position.

First, does it make sense to insist on such a strict separation between considerations of justice and the law?

I tried to make the case for having judges take obvious injustice into account, even if it means that their decisions will go outside statutes and other stricly legal sources. (They’re going to have to do so anyway, I might have added).

Ryan gave a very powerful case for thinking that they should stick to the law as much as possible and resist the temptation to allow their ideas about right and wrong to intrude. It makes sense for the system to have a mechanism for correcting injustice but, in this case, it does: executive clemency.

The second large question concerns Keen’s view that the law is found the plain meaning of statutes and nothing else. The point of showing how the OED defines “willfully” was to inject doubt about whether there is a single plain meaning. The most natural place to turn is past court cases, as Tatting does. It’s an interesting question why they are specially relevant to what the law is, above the other possible sources for information about what the word “willfully” might mean in this context.


Handy thinks the question “what is the law?” is less important than others. The questions “what is the just thing to do?” and “what is the right way to settle a particular case?” are far more important, in his opinion.

Handy thinks judges should draw on common sense and popular opinion in order to answer these questions.

Ben said he doubted that Handy was displaying as much common sense as he seemed to. He hasn’t thought through the implications of deciding this way, Ben said. We were too short on time to consider what those implications might be, but I think Ben was on an interesting path in pursuing them.

Tim objected to the use of polling data. I said that those two methods could be separated from one another. There are many cases where popular opinion does not favor common sense, after all. Of course, that would be to adopt a different view of the role of the law and judiciary in the government than Handy has.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted February 23, 2009.
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