Weekly Topic 10/30/09

Realism's concern with the social effects of legal decisions is an interesting topic. There are many laws that are inconsistent with social reality. For example, the drinking age of 21 years old is a law that is widely ignored. It is inevitable that underage kids will drink alcohol. The judicial dockets are flooded with unnecessary cases regarding underage drinking. I would argue that if America were a truly free country, I could do whatever I want to my own body. I feel that drinking should be a personal choice, not a right earned at the age of 21. Similarly, I feel that drug laws concerning marijuana are inconsistent with social reality. Marijuana is widely used, yet propaganda and politics still continue to wage the war on marijuana. By keeping marijuana illegal, the black market thrives with artificially high marijuana prices. This money ultimately goes to gangs, drug dealers, cartels, and terrorists. If legalized, this revenue could be going to the government. It is estimated that the legalization and regulation of marijuana could bring the state of California 1 billion dollars annually. Also, prisons and courts are flooded with those convicted of marijuana offenses. Prison overpopulation is becoming a huge problem in the United States. They cannot build jails fast enough to keep up with the ever increasing amount of inmates. If marijuana were legalized, the courts as well as the prisons would not be so over-burdened. Additionally, medical marijuana users (yes, skeptics, there are health benefits to marijuana) would not be wrongly persecuted for their medicine. I will concede that legalization may have both positive and negative social implications. However, I do feel that the law should be adjusted to correct for these social realities. The current laws enforce unnecessary sanctions upon individuals for behavior that is considered normative. To not adjust legislation to social reality creates disparity between normative behavior and legally accepted behavior. If normative behavior remains punishable by law individual liberties are limited. There are both positive and negative implications of the realist position that law should be evaluated not only by social advantage but by social implication as well. One danger would be that legislation may evolve to benefit specific individuals and lead to a state where certain groups would be afforded more or less rights than other groups. One benefit would be that laws would not remain unevaluated by the social effects they produce. This would lead to laws that are more or less justified in their actual effects in terms of the behavior in question.

Twitter Anarchist has his Day in Court

A few weeks ago we discussed the plight of the twitter anarchist, a man who during "September’s G-20 gathering of world leaders in Pittsburgh, Pennsylvania" was "arrested on September 24 at a motel room for allegedly listening to a police scanner and relaying information on Twitter to help protesters avoid heavily-armed cops" according to Wired.

At that time we discussed whether the Twitter Anarchist was simply performing a morally necessary task of publicizing legal rules to help others avoid finding themselves in violation of laws that didn't exist a short time before. In that case, the Twitter Anarchist might defend himself on either traditional or modern natural law grounds that the law requires promulgation to be legitimate. The Wired article on the case brings up another point, claiming that "a closer look at the court documents leaves the unmistakable impression that Elliott Madison is yet another casualty of the government’s nasty, post-9/11 habit of considering political dissidents to be threats to national security."

This seems to be an argument based on realist claims that legal officials make decisions about rules not on either moral grounds or logical deductions from statute, but in light of a half-conscious understanding of social need. Consequently, the Twitter Anarchist's lawyer, Martin Stolar, has argued that "the warrant’s vagueness and lack of specificity encouraged the agents to use their own discretion and their own views of the political universe to seize, or not to seize, items which they thought were evidence of a violation of the federal anti-riot statute" thus violating his client's constitutional rights and constituting a social harm that judges should weigh against their own views of social need in evaluating the case.

Realists might find this case interesting for many reasons:

1. There is the question of the social effects produced by vague or indeterminate statutes and whether legal officials should take those effects into account when adjudicating or enforcing such statutes.
2. There is the question of whether the social effects of even plainly worded, unambiguous statutes should be considered by judges and other legal officials since they are based at least partially on some official's determination of social need.
   
3. Finally, and this is more of a theoretical question, there is the question of how considerations of social interests are similar to or differ from moral considerations and why one might prefer one to the other.
   

Weekly Topic: The Reality of Legal Rules

One of realism's main preoccupations is with the social effects of legal rules and decisions. Oliver Wendell Holmes offers this example:

Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts to which our courts are kept busy to-day are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really the question of how far it is desirable that the public should insure the saftey of those whose work it uses.

This example raises several questions:

1. What difficulties does Holmes's example pose for natural law and positivist approaches to legal interpretation?
2. What are some examples where the law is inconsistent with social reality?
3. Why should the law be adjusted to address these realities? How could this adjustment be accomplished?
   
4. What dangers and what benefits would result from adopting the realist position that law is not only based upon questions of social advantage, but should be evaluated according to the social effects it produces?