Legal Realism In the Wild

Ken over at Popehat poses an interesting philosophical question:

If a tree falls in the forest, does it make sound? If a right goes unrecognized and defied by the people charged with enforcing it, is it a right at all?

The answer may seem obvious, but it falls into what’s traditionally been a blind spot in legal philosophy.

A major enterprise of the philosophy of law is not only defining what a “law” is, but also identifying when, if ever, said laws shouldn’t be followed. To that end, there are two large camps among legal philosophers (along with numerous fringe theories that I’m just going to assume don’t exist for the length of this post).

Natural law theorists are that laws (or at least just laws) exist outside of human efforts at generating them. Therefore, human laws that conflict with natural law are invalid can be ignored. By contrast, legal positivists argue that what makes a law valid and just is the way its produced, thus making it completely a creature of human endeavor.

Both positions have serious issues. Natural law theory all but invites people to ignore laws they don’t like on the ground that it conflicts “natural law” (probably God’s law, but not necessarily). That’s fine and dandy if it’s not abiding by the Fugitive Slave Act, much less so if a modern Abraham decides he needs to engage in child sacrifice. But the legal positivist argument loses sight of broader notions of justice in favor of procedure. After all, lots of laws in Nazi Germany were properly proposed and enacted, but they were still vulgar and (at a gut level) invalid. Neither theory completely survives interaction with the real world.

So what happens in real life when, as Ken asks, a right is defied by the people responsible for protecting it? Something like this.

A woman in Georgia complained on Facebook that her ex-husband wouldn’t help out by making a drug store run when she and kid (the ex’s kid, too) had the flu. In other words, she called him a jerk (a friend chimed in that he was a “POS”). However, the ex just happens to be an officer in the local sheriff’s department. Thus, in a lawsuit she:

contends that her husband, a friend in the Sheriff’s Department, and a county “magistrate” put her in jail for her Facebook comment. According to her, Captain King filed a police report with his friend, Washington County Sheriff’s Investigator Trey Burgamy. Washington County magistrate Ralph O. Todd — who is not a lawyer, and who ran unopposed last year — issued a warrant requiring Anne King and Susan Hines (who had responded on Facebook by suggesting Captain King is a “POS”) to appear at a hearing. After a hearing at which Captain King was the only witness, Magistrate Todd caused a warrant to issue charging Anne King with criminal defamation: “SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF THE PEACE, SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTLY AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVIDING A BREACH OF THE PEACE. Anne King also contends that Magistrate Todd threatened to “ban her from Facebook.”

The magistrate also falsely informed her that although she could call the ex a piece of shit to his face, she couldn’t post it on Facebook. Just to make it perfectly clear, the statute she was accused of violating was always a violation of the First Amendment, was recognized as such by the Georgia Supreme Court in 1982 and removed from the books by the legislature in 2015. In other words, neither the cop nor the magistrate had any legal authority to do what they did and the woman had a clear First Amendment right to say what she wanted (a few days later a “real judge,” as Ken puts it, dismissed the charge).

How does either natural law theory or legal positivism deal with this woman’s experience? Not well, which is why there’s a third way, one which I’ve subscribed to for a long time – legal realism.

Legal realism says, in essence, that law is whatever those with the power to make it and (more importantly) enforce it say it is. Higher notions of what law should be or what makes a “just” law don’t make any difference. If The Man says you’re going to jail, you’re going to jail.

My go to hypothetical for this used to be if the president signed a “Legal Philosopher Protection Act” that made a particular philosopher (John Rawls, Ron Dworkin – insert your favorite here!) off limits from academic criticism. Professor says, “that clearly violates the First Amendment” and duly proceeds to slag off on Rawls or whoever. Student reports Professor, who is hauled out of the classroom by a pair of US Marshalls. At some point things get sorted out, but not before an arrest, some period of custody/incarceration, and an awfully lot of bruised feelings.

Yet, that’s essentially what happened to the woman in Georgia – arrested for violating a law struck down during the Reagan administration for conduct that anyone with a working knowledge of the First Amendment knows cannot be a crime. And yet, there was an arrest. There was custody. And there are certainly hurt feelings.

There’s a meme that floats around about science:


Law kind of works the same way. We can argue esoterically about the nature of law, what it really is, and whether any particular law is just. But at the end of the day, when the cops arrive at your door to slap the cuffs on, they’re not interested in any of that. What they say goes, at least for long enough to make things miserable. Any theory that doesn’t recognize that has serious issues.


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