We are going to discuss Tatting, Keen, and Handy.
I think that Tatting is meant to illustrate the problems with what Hart called “formalism,” the idea that the role of a judge is to apply rules to cases (Hart 1958, 608). Tatting is looking for a formula or very specific statute that would enable him to decide the case (Fuller 1949, 631). When he cannot find such a thing, he runs into trouble.
Tatting looks to court cases and law schools to tell him what the law is. He’s a legal professional through and through.
Despite all his hard work, Tatting cannot reach a decision. Why? That is the major question about him and his approach to the law.
Keen’s positive view is that when a statute has a plain meaning, that is what judges ought to use. (As with Truepenny, we don’t know what he would do with a case in the penumbra of a law.)
One thing we will want to talk about is whether the statute has a plain meaning. The word “willfully” bears a lot of weight. I put some definitions on the sakai site. Do they all support a guilty verdict?
The self-defense exception is awkward for Keen. It cannot be extracted from the plain meaning of the statute but the courts have clearly recognized the exception for years and Keen accepts it. All he says is that it cannot be extended in the way that Foster wants: self-defense and necessity are two different things, after all.
In the end, Keen is willing to say that the Court should take even bad laws literally on the grounds that doing so would force the legislature to revisit and improve them.
Handy thinks judges should use common sense and popular opinion; he treats them as amounting to the same thing. Governing wisely is more important than legal reasoning for him.
My own opinion is that he should have jettisoned the part about popular opinion. What would he do if the population wanted to execute a clearly innocent person? I hope he would say no. If so, following common sense is not the same thing as following popular opinion. If he would side with popular opinion anyway, then so much the worse for Judge Handy’s opinions.
Handy’s colleagues have already made the case that judges should stick to their institutional roles. In their view, governing wisely is a job for the government as a whole, judges are only one part of the government with a specific task to play, and they should stick to their task.
Handy tells us that they know this is not actually the way it is going to work. If justice is to be done, they are going to have to do it. Is anything else at stake her more important than that?
One last remark. Almost everyone in this society believes that it would be wrong to execute the explorers. Certainly everyone on the court believes this. But no one on the court agrees about the law. One common objection to mixing law and morality is that the law should be predictable and interjecting morality makes it unpredictable. The opposite seems to be true in this case. I think that is important for Handy’s thinking.