We discussed 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.
In our discussion, we noted two diagnoses of his problem. Keen says that he runs into trouble because he’s trying to combine Foster’s moral views with his own opinions about how to interpret the law; as Lola put it, he’s a Hart who thinks he should be a Dworkin. (I love that.) Handy thinks that he got caught up in the cases. Keen seems closer to the mark in my opinion. What I don’t understand is why Tatting is the only one who falls on his face. Truepenny and Keen also try to square their moral beliefs about the case with their more limited views about the law. Why are they capable of making a decision when Tatting isn’t? Maybe this is a red herring and there isn’t a deep reason. But it bugs me.
Maybe Fuller just didn’t like Tatting’s approach to the law and put his thumb on the scales. As Max pointed out, his moral reasoning isn’t very compelling. Tatting thinks it would be wrong to execute the defendants because some of the people trying to rescue them died in the attempt. Max suspects Fuller stuck a bad argument in his mouth. Maybe he just didn’t like this character.
Lilly and Xiya asked what Tatting would do if he was confronted with a decision where there isn’t a prior case to refer to. I think we see the result in this case and it’s not pretty. Lola pointed out that there had to be a judge who took at stand first somewhere along the line. Xiya noted that if Foster’s opinion had commanded a majority on the court five years before this case came up Tatting would be comfortable agreeing with it. But since Tatting is part of the decision now, he can’t do that. That’s a nice way of putting the point.
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.
Lilly suggested that his understanding of the law might have room for judicial precedents as well as statutes. So the statute has a plain meaning and past court cases have added something to it about self-defense. He doesn’t explicitly mention the courts in his opinion, but maybe he doesn’t have to in this case.
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.
Katya did not like this. She thought that the point depends on how efficient the legislature is at responding to problems like this.
Max, on the other hand, thought that Keen was thinking harder about the role of the judiciary than the others. So he had some respect for Keen’s point here.
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.
I don’t seem to have written it down. In fact, I’m not even sure I asked. But when I got to this point, my inclination was to say that we were pretty evenly split on whether they are guilty or not. So I’m going to go with that.
I’ll try to remember to ask next time to make sure I’m not just making this up.