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, following suggestions by both Jonathans, we pressed the idea that words at issue in cases like these have plain meanings that settle the case.
One Jonathan said he did not think that the explorers “willfully” killed Whetmore. The other suggested that the definitions of critical terms would always be ambiguous.
I turned to the Oxford English Dictionary and claimed to find definitions that fit the actions but did not obviously fit the statute and definitions that fit the statute but not obviously the actions.
Second, Fred asked a deceptively simple question: if Keen is right, what do judges do? If being a judge is simply a matter of finding the plain meaning of words, why is it worth making the judiciary a separate branch of government? The task doesn’t seem complicated, after all.
I take it that Fred’s question was supposed to point in the other direction. That is, since it is fairly clear that judges do more than simply repeat the definitions of words that everyone already knows, Keen’s philosophy of law and account of the role of the judiciary must be mistaken.
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. 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.