Taylor Clapp
12/13/12
PL 417
Dr. DiSanto
My Personal Manifesto of Law
Before I took this class I had a few notions about what law was and what position
I thought the Law held. The first notion that I had was that I looked at law platonically.
When I say that I mean that I almost equated law to one of Plato’s forms. I thought, and
still kind of think, of law as beyond our plane of existence and that the perfect form of
law existed somewhere else and all we as a society could do was to take this
manifestation of the form of law and fit it to our imperfect lives. When we started
discussing the various theories of law, it was natural for me then to agree with the natural
theory of law. I agreed with what Bix says when he cites Aquinas and says, “Aquinas
indentified four different kinds of law: the eternal law, the natural law, the divine law,
and human (positive law)” (Bix 225). I think this is a rather succinct summary of the
different types of law that exist within the entirety of cosmos. I also agree with natural
law theory in that it connects law to morality.
In this vein, I disagree with that part legal positivism. I think that law needs to be
connected with morality as a whole, with an extension towards our morality. We define
morality as the distinction between that which is right (good) and that which is wrong
(bad). There are things that are universally wrong and go against the natural order of the
cosmos, such as murder. One might look at the animal kingdom and see animals killing
animals but that serves a higher purpose and can be proclaimed as good or right. Murder
is the act of arbitrarily taking of another life. That is wrong and goes against the natural
order and our morality. Thus, there should be a law against murder. Even though we are
inherently flawed as a species and therefore our morality is inherently flawed, there are
some acts that we all deem to be wrong.
But I do think that an aspect of legal positivism is absolutely correct that what
counts as law in any particular society is a matter of social fact or convention. The best
example that I can use is when the founding fathers created the Constitution. As elected
representatives of a society, they came together and created the laws that define our
nation. By their consensus, the laws they created and that we still hold to today. Another
contemporary example of legal positivism is the recent decision by the Colorado and
Washington amendments for the legalization of marijuana.
As we moved through the class, I still held on to the position that the law was
untouchable, and not malleable. When we moved to legal realism, feminist jurisprudence,
Marxist theory of law, and the sociology of law, these views of the law was challenged
and have changed how I view the law. When I looked at legal realism, it really made me
consider how the law was interpreted. I find it hard to believe that the law can be served
in so many ways. I myself I am recipient of legal realism. When I was 17, I was in an
accident and totaled two cars, received a $500 ticket, some massive violation on my
license, and a court summons. I appeared in court, plead guilty, and received a points and
fee reduction. Had the judge been feeling differently, or had held to the law, the outcome
would have been much different. I know this is a minor example but this seems to happen
frequently today. I think a great example of legal realism in the cinema was Joe Pesci
versus the judge in My Cousin Vinny. The judge acted as the sole interpreter of the law
without consideration to Pesci and the people he was defending.
I initially dismissed feminist jurisprudence as a bunch of bra burners complaining
but once we really discussed it, along with the Marxist theory of law and the sociology of
law, my views changed. I think there really is merit to each of these viewpoints, how the
law favors those who are dominant. In our society, the law does tend to favor white men
who are in power but when it comes to people who are celebrities, women receive just as
much special treatment as male celebrities do. Look at Bernie Madoff. He embezzled
billions of dollars and he is living comfortably in prison. Look at all of the celebs that
break laws all of the time, like Martha Stewart, and don’t face the same consequences
that we do. Martha Stewart was caught insider training and received a joke of a sentence
at basically any prison she wanted. Lindsay Lohan has all kinds of convictions from drug
possession, to DUI’s, to petty theft and nothing has been done to serve her real justice. If
this had happened to any other woman, they would be in jail. This really bothers me. I
believe that the law should be equal and fair. I think that social status should not be the
deciding factor when it comes to the law. A celebrity or person who is in power should
not get a lesser punishment than someone who is a minority or not of celebrity status.
There are positive aspects of legal realism and the aforementioned theories about law, but
they also showcase the nasty underbelly of the function of the law and those who carry
them out.
This leads into my views of punishment and what the purpose of punishment
should be. First off, I wonder what our society thinks of the effectiveness of punishment,
probably pretty low considering how crowded our prisons are. When we talked about the
four ends of punishment, I think the one that should be used the least or not even
considered is retribution. I do think there should be a sense of justice when someone
perpetrates of serious crime, especially to the victim of a crime. But retribution carries
with is a negatively subjective connotation. Unfortunately it seems like this is the most
popular end of punishment used in the United States. I think that the two main ends of
punishment to be used in the United States should be deterrence and reform. I think that
deterrence should be the first end of punishment because then there would not be so
many people who are repeat offenders. This goes along with the notion of reform. Our
society sets up felons and ex-convicts for failure and second convictions by not giving
them the proper opportunities to re-enter society. If an end of punishment was reform,
then overall crime should be diminished. However, I do speak somewhat wishfully when
it comes to this and I do realize that not everybody who goes through the prison system
can be rehabilitated and that no matter what people will still commit crimes. And because
of that I think the main end of punishment should be deterrence, to keep others from
committing the same crime.
Because of all of these different viewpoints about the law and the ends of the law,
my views of law have changed. I do still hold on to parts of the natural law theory and
legal positivism, but the legal realist part of law has caused me to be more pragmatic
about how the law is applied rather than being idealistic. I do think that there is an
overarching law and we take that that and apply it to our lives. And because we are an
inherently flawed society, how we practice and apply the law will be flawed. This is
unfortunate but is the nature of our condition.
One of the discussions that really struck me during our time together as a class
was the discussion about our duty to the law and whether or not we have a duty to the
law. I think we do have a distinct moral duty to obey the law. I will cite legal positivism
in this case because the law has been constructed due to social fact. When we enter into
society, we enter a social contract that obligates us to obey the law to uphold the society.
I agree with M.B.E. Smith’s prima facie duties that we have: fidelity, gratitude,
beneficence, and non-maleficence.
Now does that mean we surrender our autonomy within the society? Not at all.
We can still exercise out autonomy in the way we conduct ourselves, but by placing
ourselves within societal bounds, we are obligated to follow the laws put in place. Again,
there is the case where we can asks ourselves when does out duty to the law end. Our
duty to the law ends when a law is decided by the people of the society to be unjust and
they decide to rebel against it and change the law. Historically, I think of the colonists
rebelling against the taxation laws put in place by the British monarchy and the Civil
Rights movement against the Jim Crow laws of the south. That is when our duty to the
law ends. When it violates or infringes upon our civil liberties that were established when
we were created, our endowed right to life, liberty, and the pursuit of happiness. There
needs to a balance that is created within our duty to the law. We have a moral obligation
to obey the law, but we also have a moral obligation to check the laws that are unjust.
However, we cannot succumb to the whim of political correctness when we decide if a
law is just or not. Political correctness is subjective to the people who create it rather than
the Jim Crow laws which were universally oppressive.
I want to use this axiom and apply it as much as I can, without any formal training
or education, and apply it to the real world, starting with the Constitution. My dad has a
joke that he and his fellow lawyers share amongst themselves and it comes from this
YouTube video called “So You Want To Go To Law School”. In it a guy says “There are
three lawyers who practice Constitutional law and they all graduated from Harvard in the
1970’s”. Now since I did not go to Harvard in the 1970’s this may be futile, but
nonetheless I will press on. Like my views on law, I originally view the Constitution to
be interpreted word for word as intended by the framers. This is a very rigid view and can
be narrow, and at times it works for certain cases, but is detrimental when debating and
interpreting the highest document in the land in it’s entirety. With an ever-changing
social and political landscape, the Constitution should be interpreted as such to some
degree, which is why there are several constitutional modalities. I do think the original
intent of the framers should be kept in mind, but there are certain things within the
Constitution that should be interpreted as the times change.
When looking at the first amendment, for example, there are some cases that were
brought before the Supreme Court that needed to be interpreted by the Supreme Court.
The first is one that was brought dealt with the state banning the sale of violent video
games to people under the age of 18 in California. The Supreme Court decided that the
ban was unconstitutional with Justice Scalia writing for the majority opinion. I know I
have talked about this particular example before but I want to use it as the court correctly
interpreting the Constitution and adapting it to modern society while sticking to what the
framers intended. Scalia cites several historical examples of literature and cinema that
have not been banned, while also citing the harm principle as reasons why the state ban
was unconstitutional.
An example in which the court needs to draw distinction is the case where the
Westboro Baptist Church was brought into the case. The church had been protesting
funerals of dead soldiers and brought their case to the court citing an infringement of
their first amendment right to assemble and protest. The court ruled in favor of the church
with John Roberts writing the majority opinion, citing that the church was not directly
harming anybody, and while their speech was vile, we cannot take away their right to
protest due to the original intention of the framers. I see Chief Justice Robert’s point but I
think the court needed to use some rationale. This church is deliberately making their
language vague and anyone with a modicum of common sense can understand this. The
court needs to draw a line and I understand the Chief Justice’s fears, that once we start
limiting speech it becomes a slippery slope. But I think that this falls under the exemption
rules that the Supreme Court established for speech that is not protected under the first
amendment, particularly slander and libel. I fail to understand why the court did not see
this. What I think is even more disturbing in this case was that there was only one
dissenter.
Now I look to the future. What does that hold for me? Specifically when it comes
to law, I have a changed perspective. I want to take that changed perspective to law
school. I think that this has really grounded my views of law and perhaps made me a little
more cynical than I already am. If anything the debates in this class have made me really
want to pursue law. I want to discover more about legal theories and how they can be
applied in a contemporary setting. I want to see what the future of legal realism is. I want
to learn more about the practical side of the law. This class has opened my eyes up to the
aspects of law that would have otherwise been closed. I want to continue to see how my
perspectives on law and legal theory continue to change as I mature like a good barrel of
scotch.
To conclude, I have talked about all of things that are important to me when it
comes to all things legal. I talked about my initial legal views and natural law theory. I
talked about legal positivism and my issues with its apparent dismissal with morality. I
talked about how legal socialism, legal realism, feminist jurisprudence, and Marxist
theory of law have changed my views of the law and enlightened me to the nastier
aspects of the law. I showed my obedience to the law by defending it. I then took to the
Supreme Court with no training at all and probably made a fool of myself.
I think when I look at the perfect example of what it means to be an excellent trial
lawyer; I look at Joe Pesci’s character and feel it is the perfect way for me to end this
personal manifesto. You know why? Joe Pesci took legal realism and shoved it in the
face of that judge. Pesci showed what it is to be a lawyer and work in the bounds of a
courtroom that is totally against you.
Martin Luther King Jr. says, “Law and order exist for the purpose of establishing
justice and when they fail in this purpose they become dangerously structured dams that
block the flow of social progress”. If I had to put what my personal manifesto is in one
sentence, that is what I would say.