Wednesday, June 10, 2009
Understand the Law
"You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. ... If you want to know the law and nothing else. you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience", 10 Harvard Law Review 457, 459 (1897), Holmes, Oliver. "Take the fundamental question, What constitutes the law?", 460. "But if we take the view of our friend the bad man we find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law", 460-1. "But what does it mean to be a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences [DC] by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and being taxed a certain sum for doing a certain thing?", 461.
This is law's essence. Not fancy. Not elevated. Just describing the circumstances when the state's sheriff at gunpoint, will take a man to prison or seize his property. Richard Posner, 7th Circuit Court of Appeals judge, called this the finest law review article ever written. I agree. Why cite it now? Because Holmes told us 112 years ago how to deal say, with Somali pirates, i.e., subject them to DC. Like? Since the Somalis have virtually no money we may only imprison or kill them. If we find other DCs we might subject the Somalis to them. We might inform the Somalis of the ten plagues of Egypt and say, "If you kill any of the 200 hostages you hold, we will defoliate your land, and give you bacon and grilled cheese sandwiches to eat. You may eat them or starve". But 99% of Somalis are Moslems. Precisely, a DC. Eventually if we impose sufficient DC on them, piracy ends. Isn't law simple? We have superior weapons, we make the law. At least with respect to Somalis. That's it. We impose DC until, if need be, all 9.6 million Somalis are dead. So? Barbaric! Such is the law. Since law students find it in books they are not forced to consider what underpins it: violence and threats to use violence.