Bohnam's Case and the Great Conundrum by Wittgenstein

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									Today‟s Lecture:

Common Law Method; Bonham‟s Case and The Great Conundrum; Intro to Philosophy of Law

Number:

4

Lecture Organization:
• Class Announcements • Brief Review and Summary

PART-1 Courts and Common Law • One more Example
PART-2 Bonham and the Great Conundrum

• Bonham‟s Case • The Basis of Legality • Important Terms and Ideas • Introduction to philosophic concepts

Introduction to Philosophy of Law & Cognition
Time

Class Announcements

Reading
Scalia: 3-9;

Van Geel: Chapter 7: Strategies for Justification Homework Question:
1. nothing

Time

Questions?

Review

Legislatures

Courts

statutes

decisions

Legislatures

Courts

statutes

decisions

Non-Justific -- doesn’t have to be fair or moral or correct or good to be “law”

-- just has to be promulgated through the political process

Legislatures

Courts

statutes

decisions

Justific!

-- something makes it right or justified.
-- The decision is a kind of logic or reasoning

-- That’s why it is in the form of a “decision” (Note: doesn’t mean its moral)

Legislatures

Courts

statutes

decisions
Regime Ideology is Metaphysical

“The Elders” Gandalf Council of Elrond

Legislatures

Courts

statutes

decisions
What is said to the be the basis of the decision?

sacred custom/tradition “autonomous” reasoning

Legislatures

Courts

statutes

decisions
Modern-day Example: Is there a duty to tip?

Tipping at a restaurant
Tipping at a bar Tipping at Star Bucks Tipping at a buffet Tipping at Sub Way Tipping at Giant Eagle Tipping your professors

Mention Casuistry

Part I: Finish up Common Law

Hypothetical Illustration of Common Law Orthodoxy
Battery -- Case #1: someone beats someone up: The Elder’s resolution: “The right to swing one’s fist ends

where the other’s nose begins”
Basic Idea:
maxim or platitude extracted from a preferred cultural tradition by the Great Elders – the keepers of the sacred practices.

Hypothetical Illustration of Common Law Orthodoxy
Battery -- Case #2: someone beats someone up who was trying to beat him up:
The Elder’s resolution: “He who protects his body is without

wrong.”
Self defense

Hypothetical Illustration of Common Law Orthodoxy
Battery -- Case #3: someone beat s up a trespasser his own property:
The Elder’s resolution: “He who owns reality can eject

trespassers with force after warning.”
Right to expel trespassers

Hypothetical Illustration of Common Law Orthodoxy
Advertisement for the Orthodoxy -- Sacred cultural tradition as known and KEPT by the Elders (Gandalf). (The Council of Elrond) Caution: Advertisement only An “Ideology” of jurisprudence?
-- The claim is that ALL kinds of disputes could be resolved this way.

-- The resolution was “correct” and the collected decisions themselves constituted a kind of “knowledge”

Hypothetical Illustration of Common Law Orthodoxy
Let‟s try some examples of the craft • Seinfeld Parking Incident

• John Madden – what’s a fumble • Tom Brady’s “fumble” in 2001 playoffs

Bonham„s Case

Facts • Dr. Bonham wants to be a physician • To do that, he has to go to the Royal Academy of Physicians (“medical school”)
• “leeches,” “blood letting” (today, “alternative healing?”)

• To be given a license for this, youQuestion: admitted to had to be Question: the college – something that not all people had the right or WhatwasQuestion: of the What are the facts like in medicine opportunity to do case? (Distinct class What happens next? those days? • Bonham bypasses the college and starts doing it himself participation) • The college can act as the police and can arrest you and punish you. (The academy polices violators).

Bonham„s Case

Holding
Lord Coke --

Maxim: “No man can be his own judge.”

And it appears in our books, that in many cases, the common law • The college cannot prosecute this matter will controul acts of parliament, and sometimes adjudge them to be utterly void: for when anand common reason are one” “The common law act of parliament is against common right and reason, or repugnant, or impossible to be performed, the (a priori controul it, and adjudge such common law will reason dictated the answer)act to be void; and, therefore, in 8 E. Lord Coke: Quote from 3. 30 a. b.”

• Courts have judicial review? Was this case correctly How does the case • Parliament cannot violate fundamental justificatory law decided? come out? (fundamental natural law?) Caveat: No English Revolution yet

Questions: Question:

Hypothetical Illustration of Common Law Orthodoxy
Another Coke case Jury Function -- today, juries decide the facts, not the law (compare: Socrates -- jury was not so confined) -- How did this modern role come about? Lord Coke’s Maxim (pronounced “cook”): “Where reason stops, the law itself also stops.” Suggestion: Judges are the ones who do the reasoning;
Time

The Basis of Legality
--Bonham’s case raises an interesting question:
• What is the ultimate basis for legality?

• if we theorize statutory law to be non-justificatory, and theorize some other kind of law be justificatory, what happens when the two conflict?
-- thing about the things people have theorized to be “above or beyond” statutory law …

St. Thomas Aquinas God? A tyrannical law … is not a law, absolutely speaking, but rather a perversion of law ..

The Statute

“that which is not just seems to be no law at all”
13th century

Church (Pope)?
God? Henry VIII says no

The Statute

Church (Pope)?
God?

Congregation?
Puritan New England tried that

The Statute

Question:

Sacred Tradition?

If a statute violates a sacred tradition, should it be stricken from legality?

The Statute

Question:

Correct Reasoning?

Can this EVER be right?

The Statute

Question:

Science?

What about this one?

The Statute

The People? Example: Thomas Jefferson and Jay’s Treaty

The Statute

Polls/Surveys? Question:
Question:

The People?

Is this right? Imagine of Populism What would be the lawif statutes could be were so? free speech if this declared void for reasons of polls or surveys? Is this good?

The Statute

Question: Question: Question: Question: Question: required Let‟s measuring this, is say the law IsIn would be the law of there anything wrong What Utility Mike Tysonhavewelfare but to to jail, Would we thisgoentered everyone‟s idea? with speech? free most of us would be World War I? Separated considered equal? Maybe happier England? box? him somefromseeingNumber?is people‟s happiness Greatest Good for the Greatestbe ignored? Should the law valuable? actually more

The Statute

Question:

The Social Contract?

For Gryffindore points, If a What about this one? who statute violated the polity‟s do you think invented this social contract, would that be one? a good reason to declare it null?

The Statute

Important Terms and Ideas

Some terminology -- I need to acquaint you with a way of talking. Pay attention to the way I use these words.

Positivism
-- only the formally enacted rules. (including court precedents) -- only what the legal text says. -- e.g., your syllabus

Important Terms and Ideas

Some terminology

“Natural Law”
-- is a sloppy or poetic way of saying “extra-textual authority”
-- something that justifies BEYOND or OUTSIDE of the formally articulated rules -- everything that I listed in those red boxes is an example of appealing to “natural law” (extra-textual authority)

-- e.g., your syllabus

Semantic Point: Positivism v. Normativism

Important Terms and Ideas

On the separation of law from politics -- early thinkers tried to separate “law” from “politics” -- “law” in a grandiose sense of talking is something that should be above politics, something pure and self-evidently correct -- often times, you would hear the expression “law of nature,” sacred tradition, “right reason.” -- In medieval times, this urge was facilitated with appeals to “God’s law.”
-- now that the enlightenment is coming around, the idea of perfection in law is changing.

Notion! … Law and Politics are Separate?

The statutory power

The justificatory power

Politics
War

divorce

“Law”

Taxes
Police State Order

contract property
equity

Introduction to Philosophical Concepts
1. Epistemology
2. Jurisprudence 3. Justification

4. Paradigm 5. A priori (a) foundational (starting point) (b) certainty (something undisputable) 6. Metaphysics
-- something outside of the reach of physics or science Time realm that can be wielded in the real world, nonetheless

Introduction to Philosophical Concepts
6. Metaphysics
-- something outside of the reach of physics or science realm that can be wielded in the real world, nonetheless -- example: magic -- example: Aragorn (one true king)

-- example: Gandalf (wise wizard)


								
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