IS THEORY WORK?

Gavel Gamut

By Jim Redwine

Elizabeth Barrett Browning wrote of, … “passion put to use in [her] old griefs”. I surmise she meant regrets and the gnashing of teeth are counterproductive but knowledge from life’s tough lessons can help assuage the pain and avoid repeating it. That’s the way I see Legal Theory.

It may be mentally taxing, however, if properly applied to everyday legal problems, sound theory can provide a foundation for analyzing perplexing situations. Often cases in court or questions brought to one’s attorney do not fall smoothly into pre-packaged solutions. And, if judges and lawyers force a pro-forma termination to unique facts, the parties must carry on without achieving complete resolution. This can lead to even greater conflicts between and among the contestants in the future. It certainly results in dissatisfaction with the legal system, which may lead to lack of support for one’s government or even to another inane television series about law.

So, what is Legal Theory and how can it be put to use? It is the reduction of law and government to elements and it is the realization the molecular structure of those elements changes as events change. For example, an elementary understanding of theft for hominoids three million years ago in Africa is not adequate to address how water can be rationed in California today.

On the other hand, legal scholars in the Olduvai Valley attempting to legislate permissible taking of mastodons and state and federal regulators in Sonoma Valley regulating water rights can achieve better, i.e. fairer and more reasonable sanctions, if they look first to general principles that have been developed based on experience.

One of the basic differences in Legal Theory and scientific theory is law is prescriptive and science is description. That is, law is often: if x happens then y is the penalty, whereas with science actions, reactions, etc., are observed and described. With law there are consequences and with science there are results. See Jerome Hall, “Law and Legal Method”, from Living Law of Democratic Society, p. 30.

As Professor Hall writes, “…[O]ne of the oldest insights of jurisprudence (Legal Theory) is that rules of law have the form of normative propositions”. What he means by this is law and its constant companion, ethics, are analyzed in terms of “ought”. If a cave man or an avocado farmer steals from his neighbor, then certain things should happen. The wrongdoer “ought” to do something “good” or “ought not” to do something “bad” and the legal system, whether in caves or courts “ought” to reward or sanction the caveman or the farmer.

Well, I warned you last week our discussion of Legal Theory would not draw the attention of the “Nattering Nabobs of Negativism” in the national media, or even, perhaps, both of you who have read to this point. However, I submit that even though Gavel Gamut may not compete with the Code of Hammurabi, Justinian, St. Thomas Aquinas or even Jerome Hall, there is value in Legal Theory.

Now, whether I can prove that proposition to you or whether you simply think it’s not worth the candle, may be another matter. Next week the topic will be putting Legal Theory to use by juxtaposing its two great concepts, Natural Law versus Positive Law.

The age-old dilemma for legal philosophers, attorneys and judges comes down to an examination of where Law comes from. Is it pre-existing, a creation of the gods, or are the gods a creation of mankind including “god-given” moral codes?

Another way of approaching the general dichotomy of Natural Law (eternal and unchanging) versus Positive Law (made by humans based on experience) is to ask the question: If one steals a neighbor’s goat (or water) is there a sanction based on some ethereal edict or does the sanction (law) arise from experience?

For example, if x steals from y and society does not help y, then y may attack x and make society weaker and more dangerous. Is this knowledge a gift from the gods (Natural Law) or knowledge gained from experience (Positive Law)?

Another more likely question you are probably asking is, “Do you believe they pay law professors to teach this stuff?”