Speluncean explorers 2

Notes for February 27

Main points

Keen and Handy were our subjects this time.


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. You can be the judge of whether that’s a meaningful distinction: Handy thought it was silly.

We spent a fair amount of time discussing 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. Some meanings of the term support upholding the conviction, some do not. Which one is relevant for interpreting the statute?

Tatting would say you can’t tell from the dictionary alone. You need to turn to past court cases and legal education. 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.

We also had some discussion of Keen’s idea that the Courts should not allow loose interpretations of bad laws. If the Courts in the past had noted that there is no self-defense exception, that would have forced the legislature to revise the statute.

Joseph had some doubts about this: can legislatures really anticipate everything that might come up? (Callum had similar doubts about counting on the legislature to act, if memory serves.) Emma (I think) brought up the defendants in the dock. If everyone knows the law that condemns them to death is ridiculous, isn’t it abominably cold to sustain the sentence in order to goad the legislature to write better laws?


Handy thinks the question “what is the law?” is less important than the others do. 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. 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.

What do we want the law to be?

We want the law to be stable and public. So we want the law to be something judges are bound by: they interpret the law, they don’t make it. But we also want the law to be flexible and just. And so we want judges to be wise rather than rigidly applying statutes to cases without regard to common sense. One thing this case illustrates is how those two aspirations for the law can come apart from one another.

One thing struck me when our discussion was allowed to develop naturally, without my directing it to any particular point in the reading. When this was so, the discussion revolved entirely around the morality of the case. Specifically legal arguments or arguments about the proper role of judges didn’t arise naturally.

I think this was something Fuller would have found pleasing. A noteworthy feature of his article is that the moral judgments are fairly stable: all five judges agree that they should not be punished. It’s the legal judgments that are all over the map. Not only do they disagree about what the law requires, they disagree about where to find the law in the first place.

Anyway, we were fairly sure about what we want the law to be in this case. Fourteen of us wanted to overturn the sentence, three wanted to sustain it, and one was unsure. When I asked which opinion comes closest to your own views I got these results: fourteen said Foster, one said Truepenny, one Keen, and one Handy. So the people have spoken: it’s a rout for Foster.

I wonder if that’s because you found Foster’s legal opinions most compelling or because, like Handy, you thought he got the right result in a way that sounds enough like a legal opinion to pass muster.

Key concepts

  1. Keen’s arguments against looking for the purpose of a law.
  2. Why Keen thinks the law lies in the plain meaning of a statute.
  3. The problem with plain meaning.
  4. How Handy thinks of courts and the law.
  5. Problems with Handy’s invocations of common sense.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted February 27, 2013.
Philosophy of Law