Postivism as Mindless Obedience to Rules by Wittgenstein

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									Today‟s Lecture:

Positivism 2

Number:

12

Lecture Organization: • Class Announcements • Review • Rules Rule? • United States v. Neal

• Normative Implications of Judging as Reading
• Issues Regarding Legal Language

• Positivism‟s Solutions for the Problems of Language Indeterminacy
Time

Class Announcements

paper deadline -- Today. Hand in at end of class Exam grades -- Examine the handout; can retake it. notes -- Today; lectures 1-8. Hand written. Hand in at end of class 4-digit code

Class Announcements

Time

Reading -- Originalism: 1. Van Geel. Chaper 4: Originalism and Non-Originalism 2. Scalia: vii-xiii; 14-47, 115-149; 3. Wilson II: The Fallacy of Originalism. (Only Chapter 2!)

Questions?

Review

Positivism „s basic idea -- all forms of natural law were flawed -- law is only the “cold, naked words” -- law needn’t be moral, just or even truthful -- it is a command from government, that’s it

Review

Implication for judging -- judging is nothing but reading (doing some else’s bidding) -- judges are not sages, elders, “Hercules,” the learned or even the wise; they are more like bureaucrats or librarians. Find the right book and look at it – that is all that judging entails.

Review

Implication for society Social morality -- in positivistic culture, social morality becomes a sort of rule following Proliferation of legality -- positivistic culture tends to have a lot of positive law -- endless volumes of statutes, regulations, and precedents

On the Proliferation of Positive law:

Executive Branch

Legislature

Courts

Administrative

Agencies
executive orders precedent Four entities thatstatutes birth some form of legality (positive law) rules New Terminology: “Statutification” “hyperlexis”

My favorite: LEGALISM

Review

How it came about historically -- we mentioned that positivism as a regime ideology came about naturally as American state building occurred

Early American History

Modern American History

Predominately agrarian society

Industrial, post-industrial Vigorous administrative state Legislatures and bureaucracies write the rules

No real administrative state
Courts play a larger role in rule creation

Regime that rationalizes the Court’s ability to INVENT solutions Classical Orthodoxy

Regime that rationalizes the Court’s role as an ADMINISTRATOR of rules (doing some else’s bidding)

Hence, Positivism

Review

Time

Riggs v. Palmer -- two judging views in the case

Positivistic View
-- people can murder their kin as a method of inheritance so long as the will statute doesn’t forbid it (the judge is only to read) “Natural Law” View

-- the legislative rule was incomplete; the judge therefore has to intervene by consulting some other sort of authority not explicitly sanctioned by the positive law.

Rules Rule?
sports culture -- examine the following

Fumble?

NFL Rule
NFL Rule 3, Section 21, Article 2

Note 2: When a Team A player is holding the ball to pass it forward, any intentional forward movement of his arm starts a forward pass, even if the player loses possession of the ball as he is attempting to tuck it back toward his body. Also, if the player has tucked the ball into his body and then loses possession, it is a fumble. Note 3: If the player loses possession of the ball while attempting to recock his arm, it is a fumble.
Question:
Time

Is this similar to the question of whether Frodo was really “speeding?”

Question: Was it a “fumble?”

Neal v. United States
Facts: -- Neal is caught selling LSD

Question:

What are the facts of this case?

Neal v. United States
issue: Background

-- The Federal Sentencing Guidelines (explain)
-- punishment is formulaic (like doing your taxes) -- calculate the points, look at the grid (no discretion)

Neal v. United States
issue:
w/in a 1000 Background feet of a school
Feeble victim

+2

Underage victim +2 -- The Federal Sentencing Guidelines (explain)

-- punishment is formulaic (like doing your taxes) -- calculate the points, look at the grid (no discretion)
Using a beeper Victim is an immediate family member Victim is a police officer +2 +2 +2 Pregnant victim +2

+2

Physically restraining a victim
Leader of the pack

+2
+2 - 4

Neal v. United States
issue: The Grid

-- The grid sentences you; not the judge (take a look)

Neal v. United States
issue: the weight of the drugs

-- one of the factors that determines your base level is the weight of the drugs (“Fungible” – compare to theft)

Question:

What is the central issue or problem in this case?

Neal v. United States
issue: the weight of the drugs

-- LSD doesn’t have any weight.
-- so, the guidelines says to use the drug’s container as the weight • in this case Neal had 4.58 grams of LSD

• once you add the container, it makes it 109.51 grams Question:
• having 109.51 grams of LSD = 10 years in jail time How much jail should Neal receive, • having 4.58 grams = 70-87 months in prison (6 yrs in and why? jail)

Neal v. United States
The original ruling -- Neal is sentenced to 10 years -- His sentence does not violate the Constitution Irrationality in Sentencing? 1. the weight of the carrying medium varies considerably. 2. creating irrational disparity

many times, possessing $1,000.00 worth of LSD gets punishment similar to having $120,000 worth of heroine!

Neal v. United Question: States
If all that judges do is find and read legal sentences – if all they are is a sort of glorified Question: Question: Question: The original ruling librarian -- why do they have their own branch Should judges follow of government? Why the judgetherethe criminal not just have more somea Should should be be) law‟s Is (or law SOLEY for than -- Neal is sentenced to mailed to you by the Department of years sentence 10 reader – sort of caretaker for the guarantee thatsake? make legality Corrections violateAnd Constitution IRS does rule? the if minimal this “cheat” even (Like the -- His sentence does not or something.so, does sense? it with taxes)? or fortify it? law as an ideal Irrationality in Sentencing? 1. the weight of the carrying medium varies considerably. 2. creating irrational disparity

many times, possessing $1,000.00 worth of LSD gets punishment similar to having $120,000 worth of heroine!

Neal v. United States
The rest of the story the Guidelines were amended! -- for about 8 years, what I just described to you was the law. In 1995, they changed it: • the carrier weight is billed at a flat 0.4 milligrams per dose • dose multiplied by 0.4 to get the weight; typical dose contains .05 milligrams

Neal v. United States
The rest of the story But the amended guidelines conflict with a statute! -- There is a statute on the books that says the following “the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance” blotter paper Increases the weight of the drug -- The statute says you have to count blotter paper in the weight

On the Proliferation of Positive law:

Executive Branch

Legislature

Courts Question:

What does the Court do with this case? What does it rule?? Administrative

Agencies
executive orders statutes The weight should include blotter paper. rules No it shouldn‟t; that‟s stupid. precedent

Stupid is as stupid does.

Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable "approach" to calculating LSD quantities. We, however, do not have the same latitude to forsake prior interpretations of a statute.

Translation: the commission can think and reason, we are not allowed. We are just the readers of the words of the lawgiver.

True, there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other narcotics traffickers. (Although the number of doses petitioner sold seems high, the quantities of other narcotics a defendant would have to sell to receive a comparable sentence under the statute yield far more doses.) Even so, Congress, not this Court, has the responsibility for revising its statutes. Were we to alter our statutory interpretations from case to case, Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise or unfair. We hold that 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance. The judgment of the Court of Appeals is affirmed.

True, there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other narcotics traffickers. (Although the number of doses petitioner sold seems high, the quantities of other narcotics a defendant would have to sell to receive a comparable sentence under the statute yield far more doses.) Translation: Even so, Congress, not this Court, has the responsibility for revising its statutes. Were we to alter our statutory interpretations 1. We admit the result is stupid. from case to case, Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise 2. or unfair. If we correct stupidity, the Congress will We hold that 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed 3. We’re concerned about that, so Neal must LSD, even though the Sentencing Guidelines require a different stay in jail method of calculating the weight of an LSD mixture or substance. The judgment of the Court of Appeals is affirmed.

both stay dumb and become lazy.

True, there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other narcotics traffickers. (Although the number of doses petitioner sold seems high, the quantities of other narcotics a defendant would have to sell to receive a comparable sentence under the statute yield far more doses.) Translation: Even so, Congress, not this Court, has the responsibility for revising its statutes. Were we to alter our statutory interpretations 1. We admit the result is stupid. from case to case, Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise 2. or unfair. If we correct stupidity, the Congress will We hold that 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed 3. We’re concerned about that, so Neal must LSD, even though the Sentencing Guidelines require a different stay in jail method of calculating the weight of an LSD mixture or substance. The judgment of the Court of Appeals is affirmed.

both stay dumb and become lazy.

Neal v. United States
Other facts about the Guidelines Crack v. Powder Cocaine -- 92.6 % of those arrested for crack cocaine are African American. -- 70.3 % of those arrested for powdered cocaine are white. -- Crack is treated much more severely.

Neal v. United States
Other facts about the Guidelines Crack v. Powder Cocaine

Time

-- The average crack cocaine sentence is 120 months, and is greater than:* • the average sentence for robbery (103 months) • the average sentence for arson (76 months); • the average sentence for sexual abuse (64 months) • the average sentence for manslaughter (31-months)
Source: United States Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics.

Normative Implications of Judging as Reading
Important questions -- we have seen positivism’s advertisement for what judging consists of in the modern era -- judging as reading …

The old advertisement for judging • Gods will? • Sacred Traditions, Customs?

• Reason/Nature
• Logic? • Science?

The new advertisement for judging • Gods will? • Sacred Traditions, Customs?

• Reason/Nature
• Logic? • Science? Law = words Judging = reading

Remember this?

“law”

The New Humpty

Question: Question: Question: Is there a problem with a judge Did any read and follow Does of the justices that can onlyHumpty use inideology this result Neal use ideology? directions? Does when he in a judges?? tradeoff or cost of some kind?

I can read and follow directions

Several views about this Viewpoint #1: The opportunity cost or “tradeoff”

-- Positivism’s model for judging, if true, would eliminate bias or ideology or discretion.

-- In doing so, however, there is a tradeoff:

Things gained No Bias Appearance of objectivity

Things lost: No Innovation No Intelligence No purpose

No discretion

Several views about this Viewpoint #1: The opportunity cost or “tradeoff”

-- Positivism’s model for judging, if true, would eliminate bias or ideology or discretion.

-- In doing so, however, there is a tradeoff:

Good Thought
The Will Bad Thought

Several views about this Viewpoint #2: Positivism Lies

-- Positivism doesn’t eliminate ideology, it just hides it -- The reason is that the judges who want to let legality rule do so because the interest clientele that they favor tend to dominate those institutions: (e.g., realists liked legislatures because they liked progressivism and FDR-type politics)

Conservatives like rules because it locks out certain constituencies – gays, African Americans, women (to some extent), etc.
-- In this sense, rules serve the same function ideologically that tradition did during the classical/agrarian period. -- it is much easier to believe in “neutral judging” when rules already support your viewpoint

Several views about this Viewpoint #2: Positivism Lies

-- Positivism doesn’t eliminate ideology, it just hides it -- The reason is that the judges who want to let legality rule do so because the interest clientele that they favor tend to dominate those institutions: Question: (e.g., realists liked legislatures because they liked progressivism and FDR-type politics) do you make of What Conservatives like rules because it this argument? locks out certain constituencies – gays, African Americans, women (to some extent), etc. -- In this sense, rules serve the same function ideologically that tradition did during the classical/agrarian period. -- it is much easier to believe in “neutral judging” when rules already support your viewpoint

Several views about this Viewpoint #3: Positivism commits a fallacy

-- In making the case for judging as reading, positivism commits a fallacy

-- It is called “The fallacy of repair:”
-- If the rule is fundamentally wrong, illogical or nonsensical, it makes no sense to argue that only the legislature can fix it. Why? Because the same labor it takes to fix the rule can be undertaken to fix a bad judicial decision if the Court happens to get it wrong. It’s the same labor either way!

Several views about this Viewpoint #3: Positivism commits a fallacy
Legislature either has no labor to perform whatsoever or has to fix a rule (the Court’s rule)

Option 1 Fix a bad rule

Option 2
Don‟t fix a bad rule

Legislature has to fix a bad rule

(Notice that this only works so long as we all agree the rule is problematic. E.g., Riggs and Neal?)

Basic Idea

Purpose, Context

Rule

Then it is derogates the Judge, because If the rule the duty of from its purpose or he/she because of neglect, changed context is judge, to reformulate it, so that it is intelligent and purposeful again circumstances, etc. …
Time

Issues Regarding Legal Language

Important Point Positivism is trying to tell us to just follow the words of law. Just read. Don’t think. but consider this …

The new advertisement for judging • Gods will? • Sacred Traditions, Customs?

• Reason/Nature
• Logic? • Science? Law = words Judging = reading

The New Humpty

Question: Question: Question: Question: How Question: to is this going What is cruel and Are campaign What foraconstitutional reasonable work is does the 9th What punishment?” unusual donations “speech?” search words? and seizure? Amendment provide to you?

I can read and follow directions

Time

Positivism‟s Solutions for the Problem of Language Determinacy
Language rigidity -- positivism has a central problem -- The problem is that legal words are sometimes not clear at all. This is especially true of Constitutional words. -- Philosophers use the word “rigidity” to refer to how clear words are • a word that is especially clear (only one referent) is said to be a “rigid designator” (Saul Kripke) • most words do not rigidly designate (only some scientific words or jargon does, along with names). Let’s have a look …

The language continuum
“indeterminate” Vague. Uncertain. Flowery. You may need “vibes” to get it. “Rigid” Fixed, certain referent

Poetry

Statutes

Computer programming languages

Mathematical notation
Bible Constitutions
Question:
Where do you think statutes go?

Certain scientific words (“water is H2O)

Proper names

The language continuum
“indeterminate” Vague. Uncertain. Flowery. You may need “vibes” to get it. “Rigid” Fixed, certain referent

Poetry

Statutes

Computer programming languages

The Point:

Mathematical notation

Bible Certain scientific Legal words will have varying degree of words (“water is H2O) indeterminacy. Constitutions

Proper names Question: The Constitution will have its poetic moments; statutes think Where do you tend to be more clear (although not always). statutes go?

Positivism‟s Solutions for the Problem of Language Determinacy
3 basic approaches -- positivism believes that indeterminacy can be overcome by deploying one of three solutions -- for our purposes, each of the solutions is its own “school.” -- I will introduce each of them now, l but will only explain them one at a time. It might take another lecture to finish this up

Positivism‟s Solutions for the Problem of Language Determinacy
3 basic approaches Originalism “Hard Positivism”

-- school number 1 (explained today) Neo-originalism -- this is a new variant of originalism that emerged only within the last 15 years or so. Justice Scalia is said to be its key legal champion. (More on that later)

Positivism‟s Solutions for the Problem of Language Determinacy
3 basic approaches Analytic Positivism -- school number 2 (explained today or next time) (probably should be called “neoformalism,” but it is not

Positivism‟s Solutions for the Problem of Language Determinacy
3 basic approaches Inductive or Kantian Positivism -- school number 3 (explained next time) (is only quasi-positivistic. This school begins to leave positivism. It’s sort of a mixture of two different approaches.) [explained later]


								
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