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September 22, 2017
"Legal vs. Factual Normative Questions & the True Scope of Ring"
The title of this post is the title of this new paper authored by Emad Atiq available via SSRN. Here is the abstract:
When is a normative question a question of law rather than a question of fact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court’s seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.
This Article clarifies a principle implicit in the settled classifications. I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent. Convention-dependent normative questions, or those that turn essentially on facts about conventions (roughly, what we do around here) are reasonably classified as questions of law. By contrast, convention-independent normative questions, which turn primarily on fundamental moral norms, are properly classified as questions of fact. This principle, echoed in recent holdings, clarifies law/fact classifications in such diverse areas as torts, contracts, First Amendment law and criminal procedure.
The principle also promises to resolve a looming constitutional controversy. In Ring v Arizona, the Supreme Court held that all factual findings that increase a capital defendant’s sentence must be decided by the jury under the 6th Amendment. Two recent denials of cert. suggest that members of the Court wish to revisit, in light of Ring, the constitutionality of judges deciding whether a criminal defendant deserves the death penalty. Applying the principle to Ring, I argue that the question of death-deservingness is a convention-independent normative question, and for that reason should be deemed a factual question for the jury.
September 22, 2017 at 12:23 PM | Permalink
Mark Bennett of "Defending People" fame has a new SCOTUS appeal that touches on this issue.
"Convention-dependent normative questions, or those that turn essentially on facts about conventions (roughly, what we do around here) are reasonably classified as questions of law. By contrast, convention-independent normative questions, which turn primarily on fundamental moral norms, are properly classified as questions of fact."
All this does is redescribe the fact/law distinction as a convention-based morality/fundamental moral norm distinction. I don't see how that clarifies the matter because it moots the question: what is the difference between a fundamental moral norm and a convention-based norm? I don't see how one can draw a coherent line between them. Presumably a convention based-norm is one that society is serious about and a fundamental norm is one that society is super-serious about. How informative (sarcasm).
Posted by: Daniel | Sep 22, 2017 1:15:27 PM
Thanks for the response. The paper provides a fairly detailed account of what accounts for the difference between fundamental (convention-independent) moral norms and convention-dependent norms. The former hold in virtue of facts about the nature of certain harms (absorbing pain, severe emotional trauma) and concern what persons deserve simply because they are persons. The latter hold in virtue of facts about what we do around here. Nowhere is it suggested that the account turns on which norms society is "serious about."
Posted by: Emad H Atiq | Sep 24, 2017 12:45:23 PM
I don't know how to separate the knower from the known, that's my problem. I don't think there is any distinction between what a person experiences (pain, trauma) and what a person deserves simply because they are person. I might accept in some highly abstract way that these two ideas are conceptually distinct but phenomenologically they are interactive and interdependent. Which is just another way of saying that I don't accept that there is such a thing as universal human rights anymore than I think there is such a living creature as a convention-independent norm. Throwing a bunch of ad-hoc examples together only illustrates where a individual author draws an idiosyncratic imaginary line, it doesn't demonstrate that the line is not imaginary.
Posted by: Daniel | Sep 24, 2017 1:25:39 PM
Well, both sides--those who think the line is imaginary or in some ways dependant on us, and those who think the line is objective--need to argue for their position. I take objectivity for granted in the paper, just as you're taking relativism for granted in your comment. In my other work, I defend my assumptions.
But, as it turns out, even if you think the line between basic rights and norms that are just a matter what we do around here is itself 'convention-dependant,' you still get an informative account of the distinction between law and fact, assuming the rest of my argument holds. Suppose the norms we conceive of as implicating basic rights are just ones we've put on a special list. It's still the case that a key part of our practice is distinguishing norms on that special list (e.g. torture is wrong) from norms that we settle just by looking at what other people happen to be doing (e.g. the market price is a reasonable implied price). And, so, if you think this stuff about rights and non-rights is all just culturally-specific and idiosyncratic line-drawing, it's still useful (it seems to me) to know that it is *this* part of our cultural practice that explains how judges distinguish between legal and factual normative questions. Of course, I am assuming that the rest of the argument in the paper stands. But I'm just trying to motivate a skeptic about moral objectivity, such as yourself, to read the paper! :)
Posted by: Emad H Atiq | Sep 24, 2017 3:12:30 PM
"And, so, if you think this stuff about rights and non-rights is all just culturally-specific and idiosyncratic line-drawing, it's still useful (it seems to me) to know that it is *this* part of our cultural practice that explains how judges distinguish between legal and factual normative questions."
I think you are right. It may be that the way you have redescribed the court's intellectual behavior is a more accurate representation of what the court thinks it is doing and in doing so such redescription might be a benefit ("useful") to lawyers who need to frame their arguments in certain ways or use certain vocabularies in order to strengthen their legal persuasiveness. Assuming you are correct, my gripe would be with what the court thinks it is doing--that appears to me nothing more than playing philosophical musical chairs. In other words, just because your article brings greater coherence to the public's understanding of the court's intellectual behavior or to the court's understanding of its own legal conceptualizations doesn't mean that I or anyone else needs to think that the court's intellectual behavior brings greater coherence to the law itself as a manifestation of social practice.
BTW, I did skim the article and FWIW I do think that jury's should decide questions of death and not judges. I tend to think that way, though, not for any intellectual reason but pure sentimentality towards the jury system that was instilled in me as part of high school civics class. As a psychologist I think the idea that groups of people produce better decisions than individuals is laughable.
Posted by: Daniel | Sep 24, 2017 7:39:30 PM