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Published online by Cambridge University Press: 25 September 2015
Judges are seldom content merely to annul the particular solution before them; they do not, indeed, they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as ‘arbitrary,’ ‘artificial,’ ‘normal,’ ‘reasonable,’ ‘inherent,’ ‘fundamental,’ or ‘essential,’ whose office usually, though quite innocently, is to disguise what they are doing and impute it to a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.
1. Hand, L., The Bill of Rights 70 (1958)CrossRefGoogle Scholar.
2. There are, of course, notable exceptions. Generally, however, legal philosophers, like many other western intellectuals since the Enlightenment, tend to view religion as superstition, and faith as a poor substitute for reason and logic. It could be speculated that their perceptions have been shaped by familiarity with cases in which proponents of religion have appeared as enemies of human well-being—in opposition, for instance, to the teaching of evolution or of literature, and to blood transfusion or other apparently beneficial forms of medical intervention. Analysis of legal theorists' perceptions of religion and the basis for those perceptions is an interesting subject for further research.
3. See, e.g., Hickman v. Taylor, 329 U.S. 495, 497 (1947); Foster v. Reiss, 112 A.2d 553, 561 (N.J. 1955); Chalupiak v. Stahlman, 81 A.2d 577, 582 (Pa. 1951).
4. Bron v. Weintraub, 199 A. 2d 625, 628 (N.J. 1964). Judge Weintraub reviews earlier case law discussions of the meaning of public policy. Id. at 628-29.
5. “(T)he national interest contemplates … flexibility in management of defense resources.” Curran v. Laird, 420 F. 2d 122, 129 (D.C. Cir., 1969).
6. See Fuller, L., The Morality of Law 92 (rev. ed., 1969)Google Scholar. What “necessity” usually means is that some value or goal (such as national interest, or individual survival) is accorded higher priority than any other normative considerations.
7. “(A)ny unnecessary isolation only … invites the danger that neutrality seeks to avoid.” Greer v. Spock, 424 U.S. 828, 870 (1976) (Brennan, J., dissenting).
8. Holmes, , The History of Agency, 5 Harv. L. Rev. 14–15 (1891)Google Scholar; Fuller, L., The Morality of Law 64 (rev. ed., 1964)Google Scholar.
9. Carlson v. Hamilton, 332 P. 2d 989, 991 (Utah 1958).
10. Woodward v. Clark, 72 S.E.2d 433, 437 (N.C. 1952).
11. Judges and commentators do sometimes provide clear explications of the normative factors in their reasoning, but such explications are more exceptional than commonplace, and even then rarely expose the operative underlying beliefs and values. For example, a dissenting judge explains why he would allow death benefits to the estate of an employee who collapsed of a heart attack which began, so he told the doctor whose testimony was the only available evidence on the point, following strenuous exertion on the the job. “(T)his law is wrong because under it survivors of a man who works alone could have a perfect case, and yet recovery be denied because there were no witnesses. For all practical purposes under such circumstances, the man who works alone is denied death benefits and the employer is wasting his money on premium payments therefore … The writer would hold this evidence admissible as part of the res gestae and an exception to the hearsay rule.” Travelers Ins. Co. v. Smith, 448 S.W.2d 541, 545 (Tex. Civ. App. 1969) (Preslar, J. dissenting). See also Justice Cardozo's explanation of the “deeper grounds of policy” which he analyzed as reasons for not overturning the old common law rule “that an undisclosed principal might not be held liable upon a contract which had been executed under seal.” Cardozo, B., Paradoxes of Legal Science 68–71 (1928)Google Scholar.
12. See, e.g., Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); Weintraub, R., Commentary on the Conflict of Laws 48 (2d ed. 1980)Google Scholar.
13. Foster v. Reiss, 112 A. 2d 553, 557 (N.J. 1955).
14. Carlson v. Hamilton, 332 P. 2d 989, 990-91 (Utah 1958).
15. Bron v. Weintraub, 199 A. 2d 625, 630 (1964).
16. Thomistic natural law theory is alive and well in the work of scholars such as Anthony Battaglia, John Finnis, and Michael Perry.
17. Dworkin, , ‘Natural’ Law Revisited, 34 U. Fla. L. Rev. 165 (1982)Google Scholar [Hereinafter cited as Dworkin, “Natural” Law].
18. Voting rights, on the other hand, which are guaranteed by the fifteenth, nineteenth and twenty-fourth amendments, seem to have been conceived primarily as deriving from citizenship. In each case, reference is only to the rights of citizens of the United States. In contrast, note the inclusive references to “any person” in the due process and equal protection clauses of the fourteenth amendment, and the somewhat indeterminate, yet potentially inclusive reference to the rights of “the people” in the first, second, fourth, and ninth amendments, and the equally broad language of the fifth, seventh, and eighth amendments.
19. 5 U.S. (1 Cranch) 137, 177 (1803).
20. Tapscott v. Cobbs, 52 Va. (11 Gratt.) 172, 177-78 (1854). Judge Daniel went on to vindicate the ousted plaintiff, declaring that he would accept that rule which seems “best calculated to attain the ends of Justice.” Id. at 179.
21. Langdell, C., Selection of Cases on the Law of Contracts, viii (2d ed. 1879)Google Scholar. To be sure, we have here more of an evolutionary than static view of nature. Langdell compared law libraries to the laboratories, museums and botanical gardens used by natural scientists in their research. Though Holmes scornfully characterized Langdell as a “legal theologian,” Holmes himself related “Law” mystically, if vaguely, to universal law. See Noonan, J. Jr., Persons and Masks of the Law 71–72 (1976)Google Scholar.
22. 41 U.S. (16 Pet.) 1, 9 (1842).
23. 304 U.S. 64 (1938).
24. See generally Ayre, A.J., Language, Truth and Logic (rev. ed. 1946)Google Scholar. Such claims still linger on in the halls of academe, obscuring normative analysis while serving conveniently to legitimate much pointless, if not morally questionable, experimentation and research.
25. Holmes, O.W. Jr., The Path of the Law (1897), in Collected Papers 181 (1920)Google Scholar.
26. “An instrumentalist judge will see himself or herself as an officer of government charged with contributing to the good of society according to his or her conception of what that is.” Dworkin, “Natural” Law, supra note 17, at 181.
27. Hutcheson, , The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 Cornell L.Q. 274 (1929)Google Scholar. The “hunch” theory can be defended if the judge's intuitive resolution can be shown to correlate with an accurate appraisal of relevant facts, law, and policy considerations. In that case, however, it is not merely a matter of his subjective feelings, or subsequent rationalizations. In order to fulfill his teaching role, account to the parties at hand, and afford a fair basis for any further judicial review, such a judge should proceed to articulate the factors and reasoning that sustain his conclusion.
28. “The only explanation for the Court's decision is that it subjectively values the interests of employers to pension plan (sic) more highly than it does the legitmate expectation interests of employees.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 262 n.8 (1978) (Brennan, J., dissenting); “(The majority's holding) can be explained only by an indefensible hostility to the claims or the merits.” Warth v. Seldin, 422 U.S. 490, 521 (1975) (Brennan, J., dissenting).
29. See supra note 1 and accompanying text.
30. Cohen v. California, 403 U.S. 15, 26-27 (1971) (emphasis added). In dissent, Justice Blackmun argued that “Cohen's absurd and immature antic … was mainly conduct and little speech,” and therefore unworthy of first amendment protection. Id. at 28 (Blackman, J., dissenting). Arguably, mere expression of emotion is conduct, more than speech, even when words are employed. Judges, like many other intellectuals in our time, however, generally seem to be under the impression that normative discourse consists only of sentiment, feelings, or emotion; so long as they labor under this illusion, they are unlikely to attempt seriously to distinguish between the two types of expression. At present, anything labeled “expression” is likely to be categorized as “speech.” See also F.C.C. v. Pacifica Foundation, 438 U.S. 726, 763 (1978) (Brennan, J., dissenting); and Young v. American Mini Theatres, 427 U.S. 50, 84-89 (1976) (Stewart, J., dissenting).
31. F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
32. For a fairly scathing critique of the subjective theory of value, see Lewis, C.S., The Abolition of Man 13–35 (1947)Google Scholar. See generally, Gustafson, , Christian Ethics and Social Policy, in Faith and Ethics, The Theology of H. Richard Niebuhr 129–30 (Ramsey, P. ed. 1965)Google Scholar.
33. The term is mis-named because the dissonance in question typically has to do with conflicting values or goals, not merely conflicting pieces of knowledge.
34. See generally, Austin, J., The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence (1954)Google Scholar (originally published in various editions in the mid-nineteenth century). Positivists generally seem unaware that morality might also have to do with considering the impact of judicial decisions on the rights and well-being of the persons affected; or else they say that such matters should be left to the legislature. This characterization of modern legal positivism does not apply, of course, to H.L.A. Hart, who recognizes that morality influences law, and that moral standards may be (and are) used to criticize law. See Hart's comprehensive critique of Austin's position: Hart, H.L.A., The Concept of Law 1–76 (1961)Google Scholar. Hart specifies certain minimum contents that law and morality should embrace, (id. at 189-95). On the other hand, law students are generally encouraged to look for the “majority rule” in such places as hornbooks, the U.C.C., and A.L.I. restatements, as well as in less respectable outlines, and to believe that bar examiners will be looking for the rules.
35. See Kelsen, H., Pure Theory of Law (1967)Google Scholar.
36. On such theory, the sovereign would be either the ratifiers of the Constitution or, more broadly, the people of the United States who have affirmed these rules at least passively, by declining to repeal them, or, if constitutional rights are thought to pre-exist the Constitutional Convention of nearly 200 years ago, Nature, if not Nature's God.
37. Courts sometimes defer for reasons other than reverence for legislative or administrative authority. They may consider the issue before them not yet ripe, or the case at hand insufficiently clear-cut to serve as a basis for overturning the statute or rule in question; the matter may be too complex or controversial (and thus labeled a political question); or a majority of the judges may concur ideologically with the rule or the result of its application in the case they are considering.
38. See Fuller, L., The Morality of Law 51-62, 79–81 (rev. ed. 1969)Google Scholar.
39. See generally, Cardozo, B., The Nature of the Judicial Process (1921)Google Scholar.
40. See generally, Noonan, supra note 21, at 65-151. Noonan describes various questionable influences that may in fact have shaped Justice Holmes' and Judge Cardozo's approaches in certain major cases.
41. Reputable jurisprudes seldom espouse this theory in print. Yet lawyers and occasionally law professors frequently assert that decisions depend on what the judge had for lunch. Jerome Frank's scepticism sometimes approximated this view. See generally, Frank, J., Law and the Modern Mind (1949)Google Scholar; Frank, J., Courts on Trial (1966)Google Scholar.
42. Lon Fuller criticized the view that legal realists were concerned only to describe judicial behaviour. Fuller, L., The Law in Quest of Itself 51–65 (1940)Google Scholar.
43. See supra note 12 and accompanying text.
44. See generally, Berger, P., The Sacred Canopy (1969)Google Scholar; Baumer, F., Modern European Thought (1977)Google Scholar; and Morden, , An Essay on the Connections Between Law and Religion, 2 J. L. & Religion 7, 8–11 (1984)Google Scholar.
45. Application of President and Directors of Georgetown College, Inc., 331 F.2d 1010 (D.C. Cir. 1964).
46. Id. at 1014 (Miller, J., dissenting).
47. On the theory of social location as basis for both knowledge and values, see generally, Berger, P., An Invitation to Sociology (1963)Google Scholar.
48. Traditionally, American judges may be disqualified only when their personal monetary interests are at stake, or when immediate family members are before the court.
49. Pennslyvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Writing on agency theory, Holmes denied that employers should be liable for the acts of employees other than those expressly authorized: “(C)ommon sense is opposed to making one man pay for another man's wrong.…” The History of Agency, 5 Harv. L. Rev. 1, 14 (1891)Google Scholar. On Holmes' conservatism, see generally, Holmes, Oliver Wendell Jr.—What Manner of Liberal? 89–125 (Burton, D. ed. 1979)Google Scholar. Yet Holmes dissented in Lochner v. New York, 198 U.S. 45, 74 (1905), and in many other decisions adverse to union activities and legislative efforts to improve working conditions. See generally, The Dissenting Opinions of Mr. Justice Holmes 6–24 (Lief, A. ed. 1929)Google Scholar, and Mr.Frankfurter, F., Justice Holmes and and the Supreme Court 45–73 (1961)Google Scholar.
50. Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928); Erie R.R. v. Tompkins, 304 U.S. 64 (1938). On the values and other considerations operative in Judge Cardozo's decision to deny Mrs. Palsgraf relief, see Noonan, supra note 21, at 111-51.
51. Promotion of commerce and of business activity generally, of course, are goals embodied in the commerce and contract clauses of the Constitution. The goals may coincide or conflict with other important policies. Ironically, the Commerce clause has been one of the most effective constitutional vehicles for legislation intended to address a wide range of societal wrongs, such as “white slave traffic,” racial segregation on common carriers and in public accomodations, and excessive working hours and low wages. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). After noting several such areas of concern addressed under the commerce clause, Justice Clark concluded, “That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid.” Id. at 257. The contract clause, long dormant, has been awakened in recent years on behalf of business interests. See, e.g., Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). The common law rule against perpetuities and various marketable title acts have aimed at facilitating transfer of land as a commodity, and courts have generally tried to implement this objective as a matter of public policy. See, e.g., Colonial Trust v. Brown, 135 A. 555, 564 (Conn., 1926). A commentator explains the rationale for the rule against perpetuities as follows: “The conflict between the individual landowner's desire for freedom to carve a fee simple into successive estates, one or more of which is contingent upon the happening of an uncertain event, and the practical necessity to assure (that) land will be alienable and not removed for unreasonabe periods from the stream of commerce, has been compromised in the judge-made rule against perpetuities. It is a rule of property and public policy….”Browder, O., Cunningham, R., and Julin, J., Basic Property Law 248 (2d. ed., 1973)Google Scholar. It remains to be seen whether the policy of treating land as a fungible commodity will be modified as it conflicts with policies based on treating land as a resource necessary for the existence of all life. Already numerous environmental decisions, based on nuisance and trespass doctrines and new statutes, have qualified property owners' once-touted right to use land for certain types of commercial activity.
52. 438 U.S. 234, 262 note 8 (1978). (Brennan, J., dissenting).
53. 442 U.S. 366, 385 (1979). (White, J., dissenting).
54. On substantive due process, see generally, Gunther, G., Constitutional Law, Cases and Materials 502–669 (10th ed. 1980)Google Scholar.
55. Skinner, B.F., Beyond Freedom and Dignity (1971)Google Scholar. Nevertheless, Skinner's book may be seen as a morally serious, if narrow and naive, statement of concern as to the very real perils of excessive individualism.
56. Dworkin, R., Taking Rights Seriously 150–222 (1978) [Hereinafter cited as Dworkin, Rights]Google Scholar.
57. Niebuhr, R., The Children of Light and The Children of Darkness (1944)Google Scholar. See also his monumental volume, Moral Man and Immoral Society (1932), and his last two remarkable studies, Man's Nature and His Communities (1965), and Niebuhr, R. & Sigmund, P., The Democratic Experience 3–87 (1969)Google Scholar. Dworkin's repeated expressions of confidence in human dignity and the right of all to equal respect fail to indicate any concern that persons or groups might use their liberty for self-enhancement at the expense of others. Like many humanists, Dworkin appears to hold an optimistic view of human nature. See, e.g., Dworkin, Rights, supra note 56, at 182, 198-99, 205, 273.
58. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
59. Id. at 485. The marital qualification quickly evaporated in subsequent contraception cases.
60. Id. at 507, 522 (Black, J., dissenting).
61. Id. at 511-13.
62. United States v. Guest, 383 U.S. 745, 757-60 (1966) (opinion by Stewart, J.).
63. Rowan v. Post Office Dept., 397 U.S. 728, 737 (1970) (opinion by Burger, C.J.).
64. Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (opinion by Brennan, J.), (emphasis in original).
65. Doe v. Bolton, 410 U.S. 179, 200 (1973) (opinion by Blackmun, J.).
66. Roe v. Wade, 410 U.S. 113, 212, 214 (1973) (Douglas, J., concurring) (emphasis in original).
67. See generally, Berger, , The Sacred Canopy (1969)Google Scholar. See generally, Bellah, R., Madsen, R., Sullivan, W., Swidler, A., & Tipton, S., Habits of the Heart 142–63, (1985)Google Scholar.
68. See, e.g., Lasch, C., The Culture of Narcissism (1979)Google Scholar.
69. Roe v. Wade, 410 U.S. 113, 164-66 (1973).
70. 425 U.S. 319 (1976).
71. American Can Co. v. Oregon Liquor Control Comm'n, 517 P.2d 691, 698 (Or. 1973) (upholding state beverage container return law which also prohibited sale of pull-top cans).
72. Dworkin, Rights, supra 56, at 85.
73. See generally, Travis, & Adams, , The Supreme Court's Shell Game: The Confusion of Jurisidiction and Substantive Rights in Section 1983 Litigation, 24 B.C. L. Rev. 635 (1983)Google Scholar; Hiers, , Section 1985(3) Employment Discrimination Litigation, 12 Cum. L. Rev. 561 (1981)Google Scholar.
74. Fuller, L., The Morality of Law 162 (rev. ed. 1969)Google Scholar.
75. Id. at 181-82.
76. Rawls, J., A Theory of Justice (1972)Google Scholar. Dworkin's description of his own and of Rawls' quest for a “deep theory” to provide a rational basis for their felt convictions as to justice, dignity and equality, neglects to identify and analyze those very convictions, which are, we suggest, humanistic and therefore religious in character. See generally, Dworkin, Rights, supra note 56.
77. Hart, H.L.A., The Concept of Law 186–89 (1961)Google Scholar.
78. Id. at 155.
79. Id. at 157.
80. Id.
81. Dworkin, Rights, supra note 56, at 100.
82. Id. at 101.
83. Dworkin, Natural Law, supra note 17, at 180.
84. Id. at 171.
85. Id.
86. Id. at 173.
87. Id.
88. Id. at 185.
89. Id. See similar affirmations in Dworkin, Rights, supra note 56, at xv, 10, 181, 182, 205, 273.
90. See generally, McDougal, M., The Application of Constitutive Prescriptions (1978)Google Scholar. Dworkin, too, proposes to “presuppose,” “assume,” or “postulate” such norms. See Dworkin, Rights, supra note 56, at 162, 176-77, 181, 272-73.
91. Id. at 37. On McDougal's theory of “postulation,” see Little, , The Lasswell-McDougal Approach, 14 Va. J. Int'l L. 387 (1974)Google Scholar. Dworkin periodically disclaims any religious or metaphysical basis for his rights theory. See, e.g., Dworkin, Rights, supra note 56, at 162, 177-78. It does not seem to occur to him that he is committed to such rights because he is religiously committed to humankind as the locus of value. Dworkin's otherwise mystifying claim that rights accrue to individuals “when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them” (Dworkin, Rights, supra note 56, at xi) makes sense only in the context of his humanistic faith. Presumably a “sufficient justification” would be one that shows that other persons would be significantly benefited. See, e.g., his rationale for “reverse discrimination” (id. at 226-28). See also Daniel Maguire's account of the origins of rights, which similarly presupposes (though likewise curiously fails to admit to or articulate) a humanistic faith: “Basic needs issue into rights when their neglect would effectively deny the human worth of the needy. Or in other words, essential needs create rights.” Maguire, D., A New American Justice 65 (1980)Google Scholar (emphasis in original). It is important to observe that those who are indifferent to the worth of the needy would be unlikely to concede the existence of such rights. Humanism is not a universally held faith in our time.
92. McDougal, M., The Application of Constitutive Prescriptions 37 (1978)Google Scholar.
93. Id. at 42.
94. See e.g., the following: “(T)he issue (is): may a municipality capable of supporting a natural population expansion limit growth simply because it does not prefer to grow at the rate which would be dictated by prevailing market demand. It is our opinion that it may not.” Construction Indust. v. City of Petaluma, 375 F. Supp. 574, 583 (N.D. Cal. 1974), rev'd 522 F. 2d 897 (9th Cir. 1975). Here the district judge evidently viewed “natural” (as against “artificially limited”) population growth through the eyes of free market ideology. What was natural—at all events, if dictated by market demand—should prevail against what the city merely happened to prefer.
95. See generally, Niebuhr, H.R., Radical Monotheism and Western Culture 100–13 (1960)Google Scholar.
96. See generally, id. at 24-37, 114-26. Paul Tillich similarly characterized faith (though with less precision) as the condition of being ultimately concerned, and noted that a variety of “gods” may function as the objects of such faith. See generally, Tillich, P., Dynamics of Faith (1958)Google Scholar. Tillich's functional definition was adopted in the Supreme Court's decision construing statutory language requiring conscientious objectors to affirm belief in a “Supreme Being.” That requirement, the Court held, would be satisfied “if a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exception.” United States v. Seeger, 380 U.S. 163, 165-66, 180, 187 (1965). See generally, Sturm, , Constitutionalism and Conscientiousness; the Dignity of Objection to Military Service, 1 J. L. & Religion 265 (1983)CrossRefGoogle Scholar.
97. Hart, H.L.A., The Concept of Law 55-56, 86–88Google Scholar.
98. See further Bultmann's conception of “radical obedience.” Bultmann, R., Jesus and the Word 72–98 (1958)Google Scholar; Hiers, R., Jesus and Ethics 83–91 (1968)Google Scholar.
99. See generally, Kelsey, G., Racism and the Christian Understanding of Man (1965)Google Scholar.
100. See H.R. Niebuhr's analysis of the “democratic dogma of equality” in Radical Monotheism and Western Culture 73–77 (1960)Google Scholar.
101. See generally, Schweitzer, A., The Philosophy of Civilization (1960)Google Scholar.
102. Donald L. Horowitz, who notes with considerable misgiving the increasing role of federal courts in making public policy decisions, questions judges' capacity to make wise choices on the grounds that they lack access to relevant social facts and have no procedures for policy review. Horowitz, D., The Courts and Social Policy (1979)Google Scholar. Yet Horowitz shows no concern as to courts' lack of training or input with respect to normative analysis. Indifference to normative considerations appears to be a characteristic patterned defect in the state of the art of social science generally.