All Cases Make Bad Law

(Half-formed thoughts, subject to revision. More than usual, I mean.)

Two anecdotes:

As a  young man, worked briefly in the insurance industry, for a while as a personal lines (auto, home, that sort of thing) underwriting analyst. The particular company I worked for had a marketing strategy by which they would approach certain groups – the California Teacher’s Union being the biggest – and offer them some special deals if they’d agree that we were their official insurance company and let us market directly to their members that way. A very interesting business model, and how I came to have a small bit of personal contact with the uppity-ups in the Teacher’s Union. One part of the typical deal was an appeals board that included some actual union members, that people insured could make appeals to if they didn’t like how the insurance company treated them. (1)

One task we with the Underwriting Analyst job title would do is look over the more crazy, out there claims and issues, including stuff that had been appealed to these boards. One time, we were discussing a case where a dreaded Young Male Driver was appealing non-renewal (when the insurance company says ‘no thanks’ to another year of coverage). Over the previous year or so, he had multiple moving violations to the point where his licence was near being revoked, and had made a couple of claims (those things do go together). He was shocked and claimed it was totally unfair of us to not renew his policy – that his driving record was no worse than anybody else he knew. For all I know, he was completely sincere.

Now, an underwriting analyst has access to much accumulated insurance wisdom. Using this wisdom, I know I am a fairly typical driver: in 40 years of driving, I’ve had 2 at fault accidents (both in the first year of driving, when I was a dreaded Young Male Driver myself) and 1 moving violation. That averages out to 0.05 accidents and 0.025 tickets per year. Having more than one ticket in a year is very unusual, and raises a lot of red flags, because getting tickets and costing the insurance company a lot money do go together. This kid was a phenomenal outlier and probably a menace. But he was sure he was typical, and no amount of information could convince him otherwise.

Second anecdote:

Almost the last time I listened to NPR was years ago, a Terry Gross interview of some legal scholar. They were addressing the issue of how real life changes faster than laws can get written, so that judges are faced with cases laws never anticipated and for which there are not any really valid precedents. Their conclusion: of course judges must make the law! With a strongly implied ‘how could anybody seem so stupid as to imagine otherwise?’

Instead of discussing the need for balance – the need for the written law to be respected and weighed against the occasional need to rule on a situation that lies outside the written law – we just chuck the written law! What could be simpler?

A common thread in the above is how a a thing, a ‘this’ in Aristotle’s way of talking, presents itself for consideration. In insurance, a thing might be a claim; in law, it might be a case. As a claims adjuster or a judge, the units of interest to you arrive to your awareness prepackaged, as it were, by rules and laws, assumptions and theories – as facts, as things made, in a traditional configuration. Yet what’s missing, what is critical to making wise decisions, is the knowledge of the wide cultural and moral context within which the claim or case is made.

Such a moral and cultural context is not strictly objective, in the sense that it’s not something to be learned merely by looking at how things are at some time and place. It includes, at least in the West, recognition of imperfectly realized ideals. Without this cultural context taken in the widest possible sense, a sense that includes Jewish reverence for the law of God, Greek logic, and Christendom’s ancient sense of salvation history, not just hard cases, but all cases make bad law.

This is where case law gets tricky. If we look to precedent, what we are doing should not be just sussing out how other judges judged and seeing if their judgement applies to the facts in this case. We should also try to to understand that constellation of moral and cultural beliefs that made that judgement seem just to that judge.

Image result for oliver wendell holmes supreme court
Righteous mustache, I must admit. 

I’m not a lawyer, and have felt only the slightest attraction to that profession(2). But I love philosophy. I’ve read just enough (very little) of Oliver Wendell Holmes Jr to be dangerous.  OWH Jr assures us that law is, in its essence, philosophy (3). Well, then! Here we go.

If I understand justice to be essentially something eternal and unchanging, along the lines of a Platonic form, more or less, I will look at case law as perhaps revealing something true about justice. At least potentially, all those decisions will reflect all the judges’ best cogitations on the same truth. Like science, it would be acknowledged up front that all such attempt are provisional, that something that comes along later might require reexamination of assumptions. But the basic shape of the process is also like science – it assumes the existence of an objective reality to which our best efforts are an approximation. Over time, we should hope that the approximation gets better. In the meantime, we get useful gadgets and useful rulings.

Hegel, whose influence, fell and dread, was strong on OWH Jr, teaches that the methods of science is not suitable for true philosophers. By this, he does not mean the (real and true) limitation of modern science to things that can be measured. Rather, he refers to the logical processes that underlie not only science but all prior philosophy. Science works by ‘propositional logic’, moving step by careful step from premises stated and restated to be as clear as possible, using logic as beloved by Aristotle and Thomas to reach valid conclusions. Hegel dismissed such efforts as something engaged in by the little people – not by true philosophers like himself.

True philosophers use speculative reason, a phrase redefined away from its traditional meaning by Hegel to mean insights gained by whatever it is that Hegel does to get insights.

The most fundamental of all realities to Hegel are not immutable truths, but Progress. The Spirit reveals and comes to know itself through an endless series of revelations. Reason that relies on logic as an immutable foundation is thus never going to get it right – people wedded to logic, to the notion that true things need to make sense on some level, will reject the latest revelation on the grounds that it is irrational – that it is self-contradictory. To Hegel, this is both of the nature of revelation – it wouldn’t be a revelation if it made sense – and the reason to reject *logic*, at least in philosophic discourse.

Human beings struggle to come to grips with these revelations, struggle to shed the previous rigid thinking we’d settled into after we’d incorporated the last revelation into our consciousness. Those who cannot incorporate the new revelation – those unable to suspend the contradiction within a dialectic synthesis – are left behind, are on the wrong side of history, or, worse yet, are trying to turn the clock back.

Hegel has never been accused of being clear.

We see a meeting of soul-mates. This is not a coincidence. Hegel was a conventional Lutheran. For 300 years, Lutherans and Calvinists and Protestants in general had asserted the rational superiority of their beliefs to Catholicism. Yet both Calvin and Luther famously denigrated reason – ‘that whore’, as Luther called it. I suppose that’s one of those contradictions subsumed in a synthesis, a contradiction in creative tension.

If you define ‘rational’ as ‘falling under the purview of the methods of Aristotle and Thomas’ the teachings of Calvin and Luther will lose that argument (4). That’s why Philosophy since 1630 or so has been exclusively devoted to dismissing or ignoring Aristotle and Thomas. Just as Holmes’ inherited convictions from his Harvard crowd about how the good and holy Puritans Unitarians secularist progressives should be in charge survived his rejection of the God upon the understanding of Whom such claims of superiority were initially based, the efforts to find some other way – any other way! – to think about reality than using Aristotelian logic survived the Academy’s rejection of all things theological. The lust for power survives any particular justification for it.

To be continued.

  1. Aside: you’ll sometimes hear an insurance company tout its 97% customer satisfaction rate with its claims services. Duh. About 97% of the time, the claim is obvious and any half-way respectable insurance company will promptly pay it – reasonable people are pretty satisfied with that. The other 3% includes the very rare hard case,  where it’s not clear at all that the insurance company should pay, a few fraud cases, but mostly, I’d guess about 3% of the population simply does not want to be satisfied no matter what. I suspect we all know people like that, and thus suspect anything over a 97% satisfaction rate doesn’t include a representative sample of humanity.
  2. Taking my father’s oft-stated belief that education was for getting a better job, I couldn’t see law as anything but a job that claimed to be a vocation that has no justification outside of working for justice. In other words, a lawyer making money is a sell-out by definition. Of course, a couple of my college roommates became a judge and a worker’s rights lawyer, which kinda works…
  3. And, in the course of assuring us of this, dismisses the vast bulk of lawyers as just journeymen of a craft, with no real understanding. This goes back, I would think, to his bedrock Harvard/Boston/essentially Puritan roots, institutions founded on the belief that people like him – the smart, good people – should be in charge of the less smart, less good people. Even losing his faith in God didn’t damage his faith in his own Brahmin class’s meritocracy and fitness to rule.
  4. The Catholic Encyclopedia, whose side in this dispute should be obvious,  says of Robert Bellarmine: “In 1576 …the lectures thus delivered grew into the work “De Controversiis” which, amidst so much else of excellence, forms the chief title to his greatness. This monumental work was the earliest attempt to systematize the various controversies of the time, and made an immense impression throughout Europe, the blow it dealt to Protestantism being so acutely felt in Germany and England that special chairs were founded in order to provide replies to it.” Thus began Catholic attempts to make sense of the mish-mash of Protestant claims and arguments. That there are so many conflicting claims and arguments has always testified against them – Does human will count for anything? Does a plowboy need any help understanding Scripture? Do we need baptism or not? Once, or more than once? What, if anything, does the Eucharist represent? And on and on and on. It is obvious that, if these claims represent superior rationality, that rationality cannot be based on the belief that the Truth is One. Thus, Aristotle and Thomas must be rejected.
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Author: Joseph Moore

Enough with the smarty-pants Dante quote. Just some opinionated blogger dude.

One thought on “All Cases Make Bad Law”

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