We talked about Handy’s opinion. Then we took a vote and discussed the chief problems with the two most favored opinions: Foster’s and Keen’s.
Handy sees the role of the judge as continuous with that of other government officials. They are all primarily concerned with the question “what is the correct way to exercise government power?” Compared to that, the question “what is the law?” is less important for Handy.
It is hard not to like Handy’s emphasis on common sense. After all, every other judge has been tying himself in pretzels in order to reconcile his legal philosophy with what he believes is the correct answer. Handy just gets straight to it.
At the same time, we were less impressed with his reliance on public opinion. Lazaros noted that he would be in trouble if the polls were unclear. And Aaron said that the legislature is the more natural body for responding to the public will.
I would like to add two things that, in my opinion, he did not address. First, what if the public wants an unjust result, like convicting an innocent but unpopular person? Second, it is not clear to me that judges would retain their role in government if they reasoned in the way that Handy recommends. One thing we want from judges is impartiality. Would we be as willing to treat their decisions as the final word on legal questions if we believed they were acting like any other politician?
James was not so impressed with Handy’s reliance on common sense. Whose common sense? Common sense sounds great, but it is not clear that it gives the same kind of predictability to the law that a written record does. And if the decisions of judges are unpredictable, how can ordinary people know what they’re supposed to do? How can it be fair to punish them for their actions if they did not know what the rules were?
Kenny had a nice way of summing up the problem. If law is just common sense, then we don’t need statutes. And if it is just statutes, then we don’t need judges. We want judges to be in the middle somewhere but we have difficulty saying exactly where it should be.
When we turned to Foster and Keen, we said quite a lot. I wanted to record two points for posterity because they were new to me.
First, Benji argued that the Foster’s state of nature argument is not as appealing as it seems. He thinks it’s attractive because it gets the result we want in this particular case: if there are no laws in the cave, then the spelunceans can’t be guilty of violating the law. (I should add that there are different understandings of what Foster’s law of nature involves.) But, Benji added, if you imagined all of the other things they could have done to Whetmore, this position would not be so appealing.
Second, Sally tackled Foster’s argument about the purpose of the statute involving deterrence. She pointed out that there could be people who cannot be deterred, such as those with terminal illnesses. But the law against murder still applies to them. So no terminal hit men!
It was an excellent discussion all around. Well done!