"Is the Law Consistent?" Why? Radio episode with guest Andrew P. Torrez
3:00PM Sep 2, 2021
Jack Russell Weinstein
Andrew P. Torrez
DISCLAIMER: This transcript has been autogenerated and may contain errors, do not cite without verifying accuracy. To do so, click on the first word of the section you wish to cite and listen to the audio while reading the text. If you find errors, please email us at email@example.com. Please include the episode name and time stamp where the error is found. Thank you.
The original episode can be found here: https://wp.me/p8pYQY-iPf
Hi, I'm jack Russell Weinstein host of why philosophical discussions about everyday life. Excuse me for stalling just a little bit before the episode starts, but we need your help. We need your donations. for 12 years why radio has brought you compelling, long form explorations of the most timely philosophical topics, from black identity and the limitations of police power to the foundations of science and evolution to an exploration of art and music to the joys of cooking and telling jokes. This show has given you access to some of the world's most compelling minds, always in a non adversarial manner, while everyone else is shouting, obfuscating and spitting the truth, we ask why in detail, and in a good human and accessible way. And our entire archive all 13 seasons is available online for free. Unfortunately, we're teetering more than we expected. With the economic slowdown and so many people hurting from the virus, our donations have slowed to a trickle. We're genuinely worried about paying our bills and continuing on. We know that many of you have struggles of your own. And if you can't contribute, we want you to keep enjoying why radio as you always have, maybe you could rate us write a review on iTunes or get your friends to subscribe. But for those of you in the position to do so, will you please donate? Will you make up the difference for those who can't? All of us and all of our listeners will appreciate your gift visit why Radio show.org that's why Radio show.org and click donate in the upper right hand corner. Because we're a division of the University of North Dakota your donation is entirely tax deductible, and you know that your money is going where it's supposed to information about our budget, and information about our needs are both on the web page. That's why Radio show.org and click donate in the upper right hand corner. Thanks in advance and enjoy this month's episode.
Why philosophical discussions about everyday life is produced by the Institute for philosophy and public life, a division of the University of North Dakota's College of Arts and Sciences. Visit us online at why Radio show.org
Hi, I'm jack Russell Weinstein host of why philosophical discussions about everyday life. On today's episode we'll be asking whether the law is consistent with P Andrew Torres. A few months after I turned 18 I sued my colleges county for the right to vote. At the time, New York was one of only two states that didn't let students vote in their college communities. I was living in the dorms I had moved out of my family home and I was being disenfranchised by circumstance. I became one of two named plaintiffs in a class action suit. did I win? Well, that depends on how you look at it. The court ruled that students as a whole should fill out questionnaires detailing their workplace and salaries and savings accounts, among other things, but they granted me specifically permission to register. In the end, I was the only student in the dorms who cast a ballot. It was a weird outcome. An economic test was clearly unconstitutional. Yet that's what the students had to endure. At the same time, granting me alone the right to vote felt more like politics than legal judgment. They were just trying to appease the troublemaker. So I would go away It all seemed so arbitrary. Now a different person would tell this story as a lead into law school and becoming a civil rights attorney. But not me. Philosophy beckoned instead, and I've enjoyed a career exploring the idea of justice rather than the justice system. But that experience all those years has stayed with me. Law still feels more like a game for the indoctrinated than a moral imperative for every citizen. I can't get over the suspicion that whatever the constitution might claim, there are different laws for different people. legal theory has two terms for this distinction does your A or in Latin to yeray. and de facto does your a refers to something that is true by law. The root Gerais is found in the words juror or jurisprudence for example, de facto refers to something that is true in reality, something that's a fact of life. segregation in the United States doesn't exist. desirae It's illegal at every level, as former Vice President Mike Pence might remind us, but it's certainly exists de facto. If you're in doubt, just compare how many black people live in North Dakota, how many are in Mississippi, we are a segregated country. There are many reasons for this racial separation starts with migration patterns, but it's ultimately about zoning laws, styles of policing and educational standards and expectations. cities and states differ radically on anti discrimination policies and their enforcement. legislatures are more or less willing to see and respond to the marginalized. Yes, social pressure plays a huge role in advertising who is welcoming to community and who isn't. But legislation makes exclusion and exploitation permissible. If the laws are corrupt, the community will be too. Here's the thing, as irrational and unjustifiable as racism is, it's not arbitrary. It's structural. Our system was designed for bigotry. Me being the one student getting to vote in my college community was clearly a one time pragmatic compromise made by a local board of elections, the suppression of black voters housing discrimination, and lack of equal access to, well, everything in the US that can be mapped out and predicted. My situation was a very different brand of inconsistency than the one experienced by black Americans on a daily basis. We're familiar with a certain kind of legal variability in the US, we know that drug and gun laws differ from state to state as new marijuana laws, tax regulations, and so much more. We're used to the willy nilly local legislation, that is the product of regional compromise, in particular, just self interest. We're also used to the idea that precedents, once overturned can be reversed yet again. It's what fuels the back and forth of the abortion debate. First it was legal than it wasn't now it is soon, maybe it won't be and then eventually, it probably we will be again, we'll take all this for granted. The philosophical question before us, though, is whether this inconsistency upon inconsistency is just an idiosyncratic feature of American democratic federalism, or whether it's inherent in all jurisprudence. We are asking not whether the laws are consistent, but whether law is itself. Can there be a comprehensive, stable and responsive legal system? That doesn't contradict itself? If the answer is yes, why do we have so much trouble achieving it? If the answer is no, that consistency is inherently impossible? How can obeying the law ever be a moral requirement? Today's guest is a civil litigator and a well regarded podcaster he's taken to teaching 10s of 1000s of people the legal ins and outs of public policy decisions, good naturedly, explaining the strategies and loopholes that can be exploited for good or for ill. There are few public intellectuals more qualified to help us find the harmony between legal wrangling and electoral politics. As such, our conversation will continually pull us towards the practical. However, as we explore these ideas together, the philosophy wants to remind us all that no legal system can be defended. If the theory of justice it rests upon is incoherent. Legal inconsistency is unenforceable, it leads to both anarchy and authoritarianism. The last four years have certainly shown us that. And now our guest P. Andrew Torres is a founding partner at the Law Offices of P Andrew Torres LLC, which focuses on business law. He's the host of the popular podcast opening arguments, through which he explores the legal background of our contemporary political controversies and is just released the first episode of a new podcast clean up on aisle 45, which reports on the current Department of Justice's attempt to rollback actions made by the Trump administration. Andrew, thanks so much for joining us on why. Oh, jack,
thanks so much for having me. And thank you for the kind introduction.
If you'd like to participate, share your favorite moments from the show and tag us on Twitter, Instagram and Facebook. Our handle is why radio show you can always email us at ask why umd.edu and listen to our previous episodes for free at why Radio show.org. So, Andrew, I'm having a funny experience that a lot of my listeners probably have. Your voice is so familiar to me. from listening to you so much. I'm so excited. So so your regular listeners will understand why I start with this. I have to ask, how are you doing today, Andrew? Fantastic. JACK, how are you? I asked that because you have a nickname. I don't know if you gave it to yourself or not. But you have a nickname optimist prime, no matter what the whatever you're facing on the show whatever overwhelming issue you have to explain, you are super positive all the time. How is that possible as a lawyer to be to have that point of view? I mean, as a philosopher, I'm miserable constantly.
Well, you know, there, there are a couple of things that that sort of come into play here. And I mean, the first is I started opening arguments, the first podcast in August of 2016. And really, the goal was to kind of have an online law school, right. And we had these segments that were set aside. One of my all time favorites that we haven't done it in, you know, four years. It was a segment called Are you a cop right? And it was based on the the well known trope of if you were talking to an undercover police officer, and you ask them, Hey, are you a cop, they have to tell you, which is not remotely true. It's not at all the law. And and this was played to great comedic effect in Breaking Bad. We used a little clip in the intro. But the idea was to look at some of those legal tropes that, you know, everybody knows it's x, but in reality, it's, it's the opposite of x. And, and we had these kind of grandiose, educative ideas. And then the show rather quickly took a turn for the political for a lot of the reasons that you described sort of in your introduction, right, we we elected, again, I want to be clear, this is my viewpoint and not yours, but we elected a criminally insane game show host as President. And, and very quickly, we moved into a territory where I realized that it made no sense to have a show that was designed to teach the public what an injunction is, without pointing out, hey, there were just three entered against the president this morning. Right. And so everything got kind of contextualized, in the era of Trump, and, and, and, again, I'm not shy about my politics. But But even for those who I think, did not want to, you know, consider themselves more centrist or, or even, right, leaning Republicans. There was a sense of all encompassing dread, right, the idea that Donald Trump sort of sucked all the air out of the room and discussions about everything. And so all of that is a long winded way of saying that, I get it, and I and I wanted my show to, to remain, you know, upbeat, and not a funeral death march. And so I kind of took it upon myself to, to look and to and to see the good that's out there. And and look, I have dedicated my adult life to understanding and explaining the United States legal system, our system of justice. And so, you know, in a sense, I'm kind of locked in, right, like I'm, I'm priced in on believing that that's a real thing. Otherwise, right, I have a degree in Bologna. So it's kind of important to me that, that that be a real thing.
Yeah, it's that story's interesting, because as you know, but our listeners don't, when I first reached out to you, to invite you to be on the show, I said that I wanted the topic to be, can you teach the law to ordinary people? And then, as I thought about it, and as I framed the discussion, I actually changed it to the current question, which is, is law consistent? And so even the process of me thinking about interviewing you started pedagogical started as teaching, and then came somewhere else? Do you think that it's possible to teach the law decontextualized mean, is, is the law school education? Can it be abstract, or does it have to be practical no matter what? Well,
those are two fantastic questions that are they're kind of layered one on top of the other. The first, let me see, let me tackle the second one first, and that is the law school education process is inherently contextualized. And I suspect we're going to talk about it in the in the context of what I call the the ordinary model of jurisprudence, but basically the way in which law students learn about being lawyers is through what you might consider linguistic immersion, right? Your first year in law school, you read hundreds and i'm not i'm not kidding about that. hundreds of cases, right. Your textbooks are called case books by and large, right. And so the process of figuring out what the law is, comes from sort of reading and mimicking what those who interpret the law say it is, and most textbooks are arranged, sort of chronologically, and also thematically but chronologically within thematically, and so you wind up with this incredibly weird experience as a as a first year. On your first day of Law School of being thrown into these classes, and having to read 18th century cases, or sometimes earlier, English common law cases with all of the old timey English and it's, and it's, it seems kind of bananas. At first, at least it did to me, I had no legal background before I went to law school. But, but over time, I think the idea is that you learn the vocabulary through osmosis, right? And so you begin to understand what the law is by reading what the law has done. So I've always kind of taken that approach in talking about the law to other to other people. And that is that it it does you very little good to drill down on a principle and not begin applying that principle to to the world around you.
In philosophy and literature, there's a problem called, or an area called hermeneutics, which which started off as a biblical interpretation, but ultimately, is the question of whether we can really understand texts. And that leads to the problem of other minds and philosophy, which is whether we can understand other people's perspective. Is this kind of immersion in law, limited in the same way? Is it really possible to understand the intention behind a law or even the meaning behind the ball? I mean, I guess another way of asking this is, is there really such a thing as a plain language interpretation of any law? Or does everything require this interpretive jump? That I don't know, a non specific, nonspecific, non certain? flexible in some in some way?
Yeah, you've got another like three or four great questions, kind of all.
You got to get used to enter, followed by 12.
But let's, let's parse that out a little bit. I think your question raises sort of several subfields, that I think all of which are kind of worth talking about. And the first are what we might term rule of law questions. And what I will tell you is that the developments in academia, in literature in philosophy, necessarily spill over into legal analysis, right. And so just as, as we have had, the the influence of deconstruction, and what you might, loosely term, you know, postmodern philosophy, and I realized I'm sticking my toe into shark infested waters, but by saying that, but but the the notion that, that texts are not objective, and that texts can be a reflection and implementation of the power of those who, right and to those who read and those who process them, that has found its way into the law. Right. And and, and found its way into the law and into law schools, in in kind of multiple waves, right. And so, one of the first challenges to the notion that there is such a thing as the rule of law was the the concept of legal realism, right, that says, Yeah, there is such a thing as a law. But let's be honest, that is what we call the law is the result of political processes, and whoever's on top gets to say what the law is, and don't kid yourself into thinking that there is any kind of, you know, metaphysical reality behind that, that, that the law ought to mean something else. But But, as you pointed out, back in the the monologue, in your introduction, that there's something unsatisfying about the legal realist conclusion, right, that there's something if if law becomes entirely transactional, if there's no point in obeying it, other than if I disobey, I will get caught. That seems to run counter to what what many, including myself, sort of seem to feel about the overall structure of of what the law is, and I can, I can, I think we will sort of drill down on on some examples of that. Put the put that aside, and let me answer the other half of the question, which is, is there such a thing as a plain meaning of a law? I, I, I would answer that, both yes and no. Right. And and the way in which I would start off with with the no part is, there is I think, no law no provision of the Constitution. Nothing I can think of. That literally means what it says. Right? And let me give you an example two examples. One completely been all right, the speed limit is 55 miles an hour. Nobody on earth thinks that that means when you go 56, everybody who goes 56 or greater will receive a ticket. Right? And in fact, you know, you could talk to your friends. And if they get a speeding ticket for going 56 and a 55, they will complain along and laugh about having received such a ticket and will likely challenge it in court and will likely have it thrown out right? If you don't have to go 55 if you're transporting your pregnant wife to the hospital, right, like so. So you shall drive 55 does not mean you shall drive 55 and and and now let's go high minded. Congress shall make no law abridging the freedom of speech does not mean Congress shall make no law abridging the freedom of speech right from the very beginning, we've had laws against sedition, we've had laws Against Defamation, we've had laws against incitement to riot, right. And the way in which you get around that is by saying, Well, those things don't count as speech. So therefore, we're not really restricting for it. But you know, I mean, come on, what it means is, I can think of nothing, where I mean, even down to the speed limit example where the law is just what it appears to be and is self executing on top of it.
I want to give two examples. The second is going to be, I think, a little more rich, to pursue. But the first is, I was briefly in my youth, engaged to marry a German woman who I met in Austria and came back to the country and we were going on our first long drive in America. And she was driving and she was driving 55 miles an hour. She's driving like 54, she's a German, right? She follows rules. And, and I said to her, you got to drive faster than that. It was a long drive. And I was incredibly frustrated. You got to drive faster than that. And she said, Well, how fast Am I supposed to go? I said, go as fast as everyone else is going. And she looked at me incredibly frustrated. And she said, Well, how did they know how fast? And I think that's precisely what you're talking about? A few years back, longtime listeners will know, I had some stuff on gun rights that went viral. And and I was arguing for gun control in a certain way. And I ended up on Fox News Radio. And Alan combs asked me something about this. And I said in passing, gun owners are not a protected class, right. And of course, the right wing blogosphere went crazy. But there was, and this is, this is what I'm getting at. There was this distinction between when I was talking about a protected class, I was talking about a very specific set of terminology outlined by the Supreme Court where there are, I believe, seven protected classes, you know, race, veteran status, you know, things like that, right? I don't want to go through a whole list. But they heard gun owners aren't protected. Is that is that just inherent in the process that that the practitioners Understand? phrases, in terms to be very technical with very specific meanings? and non lawyers are going to have their own interpretation of it? Or is it more subtle than that, and even the practitioners are going to disagree as to what terminology means and how to use it.
Yeah, I love both of those examples. And I can think of I, I would say, both aspects are correct. Right. So number one, one of the things that I think is really, really incumbent upon lawyers and I spoke at a virtual conference in the summer, that was the plain language conference, and it was dedicated to what you might imagine, right, that is helping those of us within the legal profession begin to reform our approach so that we are speaking to people in plain language. There were a number of predicate justifications for it, but but for me, what I thought was sort of the hold the presses moment was the the case involving a young African American criminal defendant. We all know if you've watched, you know, any, you know, law and order any criminal crime procedural you know, your Miranda rights, right. You must be advised when you are arrested, that you have the right to remain silent and that you have the right to an attorney and that if you cannot afford an attorney, one will be appointed for you. And and this person was was read their Miranda rights and replied like, I didn't do it. And if you're gonna ask me about the crime, then you better bring me a lawyer dog. And the through multiple, multiple appeals. The the courts decided that requesting a quote, lawyer dog and of quote was not the same as requesting a lawyer. And that's a preposterous result. Right. Like what what that has to do is that has to do with a bunch of lawyers pretending that they don't know how people talk. Right? The the intent was obvious to manifest the desire to exercise your right to remain silent, and to have counsel present. They, you know, kind of laughed it off and they'll Yeah, we're not doing that. proceeded to ask him questions. He cracked and incriminated himself. And it seemed to everybody that this is an open and shut case of when you look to what the defendant wanted to do, they wanted to exercise their rights. And language shouldn't get in the way of that. Right. So, first part of the question, do lawyers communicate in ways that are a busca? Tory that are not helpful to communicating with the public? Yes. And it's the project of opening arguments. It's one of my big goals in life is to help convince lawyers, you don't have to talk that way. But then the second aspect, I think, is also true. And that is, lawyers intentionally confuse each other particularly in the political process, because words can have multiple meanings. And the clearest example of that used, you know, to to chilling effect was the the Trump administration's litigation over and I mean, litigation in the small l in the press, right, fighting about the characterization of the Muller report, leading to the singularly dishonest memorandum that was that was put out by Attorney General bill Barr, before the Muller report was released to the public. That said, there's no collusion between the Trump administration or the Trump campaign and Russia. And you could say that because collusion is not a thing that a lawyer was required to investigate, right? What what was Muller's focus was? Is there good evidence that the Trump administration and the Trump campaign conspired with Russia? And the answer to that was, Yes, right. not overwhelming evidence, but very, very good evidence. And they and they walk through all of that in the in the first chapter, there was that, by the way, overwhelming evidence that Donald Trump himself engaged in multiple in 11, separate acts of obstruction of justice, of covering up all of those efforts to conspire with Russia. But over half the American public, as of the last polling, has sort of bought into the spin that says, volume, one of the Muller report exonerated the president, because it found no collusion. And none of that is true, right. And none of that accurately describes that document. So yeah, we have, we have a long way to go communicating by in between lawyers and communicating between lawyers on the public,
or so we have to take a break. And normally, after the break, I will tell another little story, but I actually want to get right into a question that I will ask you, in anticipation of the break. All right. And it's as follows. If the the the person in question you gave this example of, you know, I want to see a lawyer dog, if the people are going to interpret that as not asking for a lawyer. What motivation does that person have to ever obey the law in the first place? So the the philosophical question I'm going to ask is, what does it mean to obey the rule of law? So while you're pondering that you're listening to Andrew Torres, P and tutorage, as a matter of fact, and jack Russell Weinstein on why philosophical discussions about everyday life We'll be back right after this.
The Institute for philosophy and public life bridges the gap between academic philosophy and the general public. Its mission is to cultivate discussion between philosophy professionals, and others who have an interest in the subject regardless of experience or credentials. visit us on the web at philosophy and public life.org The Institute for philosophy and public life, because there is no ivory tower.
And we're back with why philosophical discussions with everyday life. I'm your host, jack Russell Weinstein, we're talking with Andrew Torres, host of opening arguments podcast, among the many other things about the consistency of the law. And when we left, I posed a question philosophically was, Why are we obligated to obey the law. But the more specific example was, I can't think of the word but my brain stopped working a, a person was arrested for a crime, asked for a lawyer in colloquial language, specifically, I'm going to need a lawyer dog, or better talk to a lawyer dog. And the courts ruled that that didn't count as asking for a lawyer. If the system is so designed to just ignore this person's voice. Why should they respect the system?
Yeah, and that is, I think, the fundamental question that animates this discussion, right. So when we talk about the rule of law, I think the rule of law is probably second only to the word freedom in terms of principles that regardless of whether, you know, you identify left, right or center, what political party how active you are, right, if you ask people, do you love freedom? Right? The answer's yes. And on both sides of a political discussion, right, take take the gun control, lobbying that you did, as an example, right? proponents on both sides will say, I am pro freedom, right? Because the concept of freedom, while being so animated, is also capable of being interpreted in such broad ways that, and I think correctly, so sometimes, restraints on other people acting are considered to promote the freedom of the larger group. And sometimes, restraints on other people acting are considered to restrict the freedom of that group to act, right. So it's, it's a super broad, nebulous concept, the rule of law is the same thing, right? So when you ask, why should I obey the law? The answer is, if you live in a society with the rule of law, that guarantees you some basic level of procedural fairness that we're going to kind of drill down on. And so long as you're in that society, and so long as you have those basic procedures guaranteed to you, even if you don't like the outcome, you can assent to the conditions in advance, right? And so think about like, playing baseball, right? Everybody lines up to play baseball, everybody's at a different skill level. But the rule is three strikes, and you're out, right? Yeah, you swing and you miss three times in a row, and it doesn't matter. You're the best player on the team, the worst player on the team, you've got to sit down it is it is fundamentally procedurally fair. And even when no greater thing is at stake, right? If you've ever watched a school yard full of elementary school, kids playing baseball, and the small and I was always the youngest and smallest kid in class, so this example was me. And the smallest kid gets up and strikes out, and they've struck out every single time and the gym teacher sort of humanely wants to intervene and is like, go ahead, throw into another one. And, and everybody gets mad, right? Not just not just all the members of his his team, the members of the other team, but but me up there, right? I'm like, No, no, I don't get a fourth swing. I I just suck. It's on me. Right. And and I'm gonna be
a lawyer instead.
Yeah, well, I eventually got better at baseball. But but but right, but so. So that's sort of the animating idea. And then the question is, what constitutes the rule of law? Right. And and so if you were thinking about it in the abstract, right, it's super easy to identify what's not the rule of law, right? What's not the rule of law is North Korea or the Stalinist Soviet Union, right? The idea that secret police can kick down your door in the middle of the night and haul you away, because they don't like you and there's nothing you can do about it. And the people who make the decisions aren't themselves subject to their own decisions. Right. And so, it from that I think generally lawyers like derive a couple of principles. But, you know, in the same way that no law means what it says none of the principles that I can think of that sort of underlying the rule of law are themselves absolute right. So I, I tend to think of it I wrote a law review article about this. But but I tend to think of the rule of law as, as having three implications, right. The first is that the law must be public. Right? And, and that there are several sub justifications for that. If it's public, you know, that the person trying to enforce it against you isn't making it up, you can compare it against something that's written down, it can be known in advance, right? And so therefore, I can conform my conduct, right? And I can say, Oh, hey, if I don't want to get arrested, like the law says, I've got to do X. So I'm gonna do x. Right. So that's kind of the first first principle. The second is that the law has to apply to everybody. Right? If if there are groups that are exempted from it, then that that doesn't seem fair, right, just like, you know, given the one kid four strikes, not right. And then And then the third, that that sort of wraps it all together is that violations of the law are the sole source of punishment. Right? So part of the the Stalinist example, that North Korea example That's so scary, is, is they can the law is whatever they say it is, but also, even if there is no law, they can just direct the secret police to come, you know, snatch you in the middle of the night. And and and so I think like those three things together form sort of the the minimal conditions for what we think of as having a state having a set of laws having the rule of law. But But I mean, you're probably sitting there thinking right away of exceptions to each and every one of those here in the United States right now.
I am. And and I want to ask about that in a moment. Because what I am going to ask you is how does the notion of precedent and overturning precedent change the the public and the end the anticipatory level of the law, but I actually want to go back to something you said earlier, to ask a different question, which is you talked about the procedure, and an American legal system is built on this conception of procedural justice that, you know, you get the best defense as possible, whether you're guilty or not. Right. And so you hadn't the are they these standards, depending on criminal law, or civil law, beyond a shadow of a doubt, or preponderance of evidence and things like that? Now, this is in opposition to other theories of justice, where there's justice of outcome or justice being harmony in the universe, or justice being the rule of the stronger to quote Plato. Um, when I ask, is the law consistent? Should I be asking about procedure as opposed to the content of the law? Is the procedure as opposed to the individual regulations or prohibitions? Is that where consistency should be? And I'm not suggesting that it is in reality, but would your response to is the law consistent Be it is if the procedure is the same for everybody?
So I, I love that clarifying question, because I think you hit on sort of one of my internal biases. Right. And that is that part of how we look to see whether something is fair, in the long run, is to see, is there a self correcting mechanism at play here? Right, is there is there something that enables us to think that an adverse outcome at one point in time isn't locked into the system forever? So I think you're right to expose that bias on my part, but I would I would add, one of the ways in which we determine whether a procedure is fair is then by looking at the outcomes. Right. So in other words, you know, if I think a good example of this, that that's going to dovetail with the the the the question of whether law is fixed, that you asked at the outset is the evolution of the law with respect to segregation in public schools, right. And we went within a 50 year time frame of saying that separate facilities can be inherently equal, which please be understand, you know, as I say this, one could write a philosophical treatise defending that state But Right, right, many have to within 50 years, the supreme court saying separate is inherently unequal. Right. And and the way in which you move from point A to point B is through experience is through looking at outcomes and saying like, yeah, I guess that is the case that however much I buy into the notion that you could have two things that are apart that are nevertheless, equivalent. But sure, it looks like people without positions of political power, always wind up getting the short end of the stick at a condition that obtains to the state. So it so both, you can hold both propositions, I think, simultaneously. from, from, from my perspective, the the way in which you figure things out, right, is by looking at what kind of law you're dealing with. Right? And and I probably should have made this distinction earlier, but I tend to divide laws into two sort of broad categories, right? There are principles, and there are rules. And we've we've kind of tested the limits of each of those already, in the course of this conversation, like a rule is, you shout drive 55 on the highway, right? It's specifies, as well as possible, the precise conditions of what you're supposed to do. And it seems pretty obvious as to how that should be interpreted. On the other hand, right, a principal would say something like you should drive safely on the highway. Right? And, and you could imagine how, like, instantly the pluses and minuses of both kinds of approaches to law. But But, and we can certainly talk about that. But But what I want to sort of leave you with to chew on is framing, digging into this question is virtually everything in the Constitution, virtually every major piece of legislation, everything that we think of, as a law, a constitutional provision, a big deal in our society falls on to the principal side of the equation, right? Which is to say, you know, what does it mean to have freedom of speech? The Fourth Amendment protects you against unreasonable searches and seizures, like what's unreasonable. The Fifth Amendment says that you shall not be deprived of life, liberty, or property without due process of law. What's the process? And how much of it? Are you do that? Those are all hard questions, right. And so I think when you think about how the law develops, you think about the fact that it begins from a position that like, the law is supposed to be hard. The law is supposed to set up these hard questions.
It's interesting, because I've always said to people, I will go to law school, if they promised me that the day I graduate, I can sit on the Supreme Court. And it's because this level of constitutional interpretation and the exploration of principles is what interests me right on philosopher, right, what everyone's shocked to hear that. But even principles are themselves built on all sorts of assumptions, and ideology, and context, you know, what, what it meant to bear arms, in the 18th century, to the to the, to the colonists to the to the founders actually meant the right to, to serve in the military, it didn't mean to own weapons, but the interpretation of these sorts of things, changes radically over time. And so given that, are the people who interpret these inherently political agents, and what I mean by that is, can you have a supreme court or say, a federal judge,
can really be a sort of neutral or at least contextual arbiter and interpreter of these principles, or whether we agree with their particular positions or not? Are all especially supreme court justices, just political agents, and what they're going to do is find an interpretation that justifies and leads their position forward.
So that I think is the question of that's, that's going to guide them next four years. And I will tell you the answer that I give to that question has changed over the last four years. And I think the way that I would phrase it now and reserve the right to change it, again, would be something like this, that our system recognize it would be. So the answer would be yes. Right. You're like, wait, wait, wait, I asked him either work question. But But the answer would be yes. Right. And it would be that judges are inherently political animals. But nevertheless, it is a useful fiction that has animated our country and helped it survive for nearly two and a half centuries. That, to think that there are objective right answers, even in hard cases, right, then in other words, even though you may use a political calculus to say, how do we think this is gonna go? The the idea that the judges themselves are relying on something more is, I think, key to this notion of the rule of law, and the notion that, that there are things worth adhering to even when there are no consequences when you don't, right. So that's a lot kind of to unpack. And I've got a couple really crucial examples that I want to talk about, but one where I want to sort of engage you because you've got a passion for this. Where I think kind of the beginning of the end began, was was with a case that you're no doubt familiar with called DC versus Heller Supreme Court case from 2008. And just as background, that case was decided in 2008. And so we had 220 years of jurisprudence prior to DC versus Heller, and DC versus Heller struck down the District of Columbia as ban on the absolute ban on the possession of handguns within the confines of the city of Washington, DC. Prior to DC versus Heller, the number of supreme courts, I usually will ask this as a question, but you'll get it right and it'll spoil the gag. I would say what do you think in the hundreds of 1000s of cases that the Supreme that the courts have handled? Prior to DC v. Heller? What do you what do you think the number of times the Supreme Court has invalidated a local city or a state ordinance or law on the ground that that law transgressed the Second Amendment to the Constitution? And the answer is, of course zero, right. It was the first time that the Supreme Court ever said that restrictions on the type of firearms that people owned, would constitute a constitutional rights violation. And it was made all the more galling by the fact that DC had had a handgun ban, in effect for 16 years, at the time, that that DC v Heller was was brought. And and the particular version that was challenged, was in effect for 33 years at the time that that that Heller brought his case. So in other words, this was if you go back to sort of our rule of law principles, everybody on earth knew that in the District of Columbia since time immemorial, you could not have a handcuff, right? It certainly didn't seem to be unworkable. It didn't seem to be a problem. It wasn't the case where like people weren't on notice. It really seemed to fit like all of the criteria of the rule of law. And and the only thing that changed was Antonin Scalia was added to the US Supreme Court. And conservative, a particular kind of conservative judicial activist jurisprudence, had become very popular in writing in Law Review magazines,
published legal journals. And so the, the National Rifle Association decided to find a guy to get arrested under the law and to bring a test case right to openly violate the law in dc in order to bring a test case, and the idea was not that anything was different, other than the political composition of the Supreme Court was different. And you know what? He was? Correct.
Right. So I want to interrupt here, because this is, this is the moment where the philosophers had explodes. Right? Um, and I will say that, that there's nothing inherently wrong with having a test case like Rosa Parks was a test case, right? She planned it was right. So there's nothing inherently wrong with that. When I teach philosophy of law, which is one of my favorite, but also one of the hardest classes to teach, I often teach Michael Waldman's excellent book, the second amendment of biography, and it tells the entire story in detail of what you're talking about. And when I have to summarize the book in one sentence to my students, I always say the same way. The answer to the question, is there an individual right to own a gun? was no, because there wasn't. And then the Supreme Court said there was so there was, because an individual right to own a gun, is what the Supreme Court says, it is. Right? Hopefully, I say it a little more eloquently by students, but nevertheless, right? a philosopher thinks that there either is or isn't an individual right to own a gun, that somewhere in the world of form somewhere in in, in some sort of moral universe, there is this notion of a right, and the job of the law is somehow to access that right. This is the core of natural law theory, the opposition of, of legal realism and and, and God again, falling on my head. But the American system seems to say, No, there is what we say there is. And it's not about attaching to some abstract morality. But it's about articulating either what we say is in the Constitution, or what we want the kids the constitution to say is, is the divorce between legal and legality and morality, a necessary posture for someone who practices law, kind of philosopher who is committed to that the idea that legality and morality have to overlap in some important way, can they not be a lawyer? Does a lawyer have to say, we're not talking about morality? We're talking about legality rights are what the Supreme Court says it is. Oh, they are. And that's it. Let's move on.
Yeah, again, so much to tear into that. The first is, while I wouldn't disagree with that assessment, in fact, I set you up to give that assessment, right. Like that. I think it's, it's why I began my previous answer with I think the rule of law is a useful fiction, right, like, and and useful fictions can take on a self regulating quality of their own
right. So Money, money is a useful fiction, right? Yeah. That's the classic one. Right. Yep.
So I do think that it is important that and I think that there's kind of a regulatory feedback cycle here. So I think it is important that judges ask themselves and and believe, and are selected using criteria other than how do I reach a certain political end in order to adjudicate this case? Right? And really do right, give more than just lip service to I am trying to ascertain, though the capital R capital a right answer, and I am using ordinary and neutral, acceptable legal principles to to arrive at that answer. So I think it's important that judges do that. I think it's important that their rulings reflect that. And then I think it's important that the public looks at that and says, Yes, that's what makes the judicial system work. And so therefore, I will hold my accountant representatives responsible if and when they fail to put in judges that that follow that sort of mold. We've been on a negative feedback loop for 40 years. And that negative feedback loop has been engineered by certain kinds of conservative judicial activists, who under the guise of CO opting the rule of law right now. have adopted phrases like it's a judge's job just to call balls and strikes to be a neutral umpire that sort of thing. And have adopted a methodology that is radically unmoored from our nation's history from the way in which law was done in this country for two centuries. And and in doing so have really completed the task at the supreme court level of transforming the Supreme Court into an openly political weapon of conservative outcomes. You can see, right, Chief Justice john roberts being troubled by this right, you can see that it bothers him that his name, if nothing changes will be attached to because he is the chief justice. What has the potential of being one of the most ignominious supreme courts in our nation's history and that his grandchildren will have to read about the Roberts Court in the same way that, you know, our kids today? Read about Plessy v. Ferguson, right. And they're like, Oh, yeah, a Roberts Court the most, you know, humiliating, low point in American jurisprudential history. So I think john roberts really cares about that institution. I think, by and large, the corruption has not completely the political corruption has not completely trickled down to and dominated at the, at the district court level. And we could we could talk about that sort of sort of at the at the first entry point. But But yeah, and then So then the question becomes, how do you break out of that? death spiral? Right. And, and, and somebody to whom I give a ton of credit, is Rhode Island senator Sheldon Whitehouse. And he filed You know, this from listening to opening arguments, but he filed an amicus brief in a gun control case, a case called New York pistol and Rifle Association. And in that, it had nothing to do whatsoever with the merits of the case, it said, Your conservative court, you're probably going to take this case, and you're probably going to come up with a conservative outcome. And I'm here to tell you that will damage your institutional legacy. Because I'm attaching social science research that shows for the last 12 years, right, from October 2005 to October 2017, the Roberts Court issued 78 opinions that were either Five, four or five, three, and of those 7873 of them were lined up with the interests of major Republican Party, donors, political backers, philosophy, right. Every single time each one of those 73 cases, the five conservative justices voted to achieve a conservative outcome. Right, which kind of dovetails back to to our first question, right, which is you judge the fairness of the process by looking at the outcomes? And what are the odds that 73 times in a row, we just happen to come up with a conservative outcome, right, really, really low?
I want to ask a variation of that or pull a thread by talking about something that you've talked quite a bit about, in the last few weeks, for obvious reasons and opening arguments. And that's the question of whether Trump could pardon himself. For the record. We're recording this. Two days, my math is off for two days, I ended the Biden administration, and it'll be broadcast a little later. So if if the world has fallen apart, by the time you hear this, don't blame us. But anyway, you have come out and said on numerous occasions that you believe that that legally, Donald Trump can as president pardon himself, and what you often say is, which I find really admirable and I certainly don't have a position, I'm not qualified to position but but you say, I wish it weren't the case. I think it would be horrible If he did, but on my reading of the Constitution and other things, Donald Trump can pardon himself, legally. There are lots of other people who disagree with you. And then there's legal debate. Can you imagine a circumstance in which any of the Supreme Court justices or people on the federal bench say, you know what, I wish acts I wish there were no abortions. I wish people could own guns. But the fact of the matter is, the Constitution says they can't. So no matter what I want, it has to be this has our system gone so far. That that is is almost conceptually impossible that a justice will say, here's my personal opinion in my desire. But the fact of the matter is, the law doesn't support it. And I got to go against myself. Can you imagine that happening?
So I can if you give me a time machine, because look at and again, it doesn't have to be set for that far in the past it I only have to set it for 1992. Right? Because that that's what happened with a case called Planned Parenthood versus Casey, right. And the justices who wrote the majority opinion, Sandra Day O'Connor and Anthony Kennedy, were firmly of the belief that Roe versus Wade had been wrongly decided they had been added to the Supreme Court during the Reagan administration during his two terms in office. And and this follow the exact same model as the DC v. Heller model. Right. So conservatives, and you are correct to point out that there's nothing inherently wrong with with testcases. Conservative said, Oh, okay. We're now at a point where the makeup of the court has changed rather drastically since Roe v. Wade since 1973. And we think that we have enough justices who have firmly said, we find, you know, I do not believe that the innate Liberty contained within the Constitution protects a woman's reproductive decisions, right. And they brought a test case. And they were rather shocked to discover that the Supreme Court declined to reverse Roe versus Wade. And, and those justices Sandra Day O'Connor and Anthony Kennedy, wrote, look, whether how we would rule if we were given Roe v. Wade, as a matter of first impression is, is one way. But we do not come to this on a blank slate. We come to this in light of history, in light of the then 20 years that that Roe v Wade had been the law of the land. And they say so when we re examine our prior decisions, the first and foremost question that we ask in order to uphold and they use the phrase the rule of law, is, we say, did we so screw up that we've got to make a change? Right. So and here's how O'Connor and Kennedy put it in place. They said, We may ask whether the rule has proven to be intolerable, in defying practical workability whether it is subject to a kind of reliance that would lend a special relationship to the consequences as overruling and add inequity to the cost of repudiation. weather related principles of law have so far developed as to have left the old rule no more than a remnant of an abandoned doctrine, or whether the facts of soul changed or come to be seen so differently as to have robbed the old rule of any significant applicant application, or justification. And we could talk about that those are all interlac interlocking overlapping principles, right. But But, but as I read those out to you, you note the extreme of the language, right? If there was an idea of Yeah, we we owe deference and humility to our past decisions. Now, if they're so wrong, right, if they're wrong on the level of Plessy v. Ferguson in 1954. Right now, man, we we thought we had a good philosophical justification for separate but equal, but boy, that was not the case. Right? It is unworkable. And the rule is now an abandoned doctrine. Right? Yeah. Okay, we're willing to step in and go are bad, we got that wrong. Let's start again. But everything shouldn't be up for grabs, simply because the political nature of the court the political composition of the Supreme Court changes. And, and that's the way I was, like I said, 28 years ago, I think john roberts would like it to be that way. But, you know, it's gonna be a challenge getting there.
You know, those those criteria for when precedent should be overturned are really, really interesting and certainly would be the subject of at least a whole other show, if not, but underlying this, this, this discussion are two basic ideas. The first is that the stability of the law is a good in itself, right and that and that All else being equal, you keep the laws the same unless there's a compelling reason to overturn it. And that comes from, you know, what, what you just described, which is the consequences of the law are so atrocious, and it's an abandoned doctrine, and we have to admit that we're wrong. The second, which is really interesting to me, is this notion that legal thinking legal reasoning is a very particular species of reasoning. It's built on this idea that you have this precedent. And your job is to say, okay, given that this is we'll call it true or given, we've worked if we've held this, what follows? The question that I have is, is it possible? And I'm not gonna I'm gonna try not to make this too abstract. Is it possible within the model of legal reasoning? Is it possible, internally, to know when you should overturn a precedent? Or does it have to have external standards? Like, the world is burning down, and we have to change things? So I'm not sure that that's clear. But But I'll ask it again, in different form. If you're reasoning from a precedent, can you only use the law to overturn a precedent? Or do you have to use facts, contexts empirical information or or abstract moral claims in order to get outside the system?
So I think actually, your your clarification, asked a different question. So let me try and let me try and answer both. First, I want, again, to emphasize what you've said, right? The the value, the reason that story decisis is important, and that the law is not up for grabs, goes all the way back to our rule of law justifications. Just for those folks who aren't familiar with it. starry decisis is the name for the principle that litigation has to be decided based on precedent. And, and the primary one again, this is really, really important to me, as a lawyer with clients, right? Like, we can talk about high minded principles, but but but my clients pay me to tell to answer their question of, can I do x? Right? And so when the law is completely up in the air, then you as a person, and you as a person who hires a lawyer to give an expert opinion, the answer might be, I don't know. Right? And and I don't know, is a terrible place to be. Well, number one, people don't like to pay for the advice.
But I love it the law firm of Socrates write
it Right, exactly. But But it also means you can't You have no idea how to conform your conduct, right? If If, if a lawyer can't tell you, yeah, you're safe to do X or no, you better not do x, then it calls into question kind of that that how are we any different than North Korea? Right? on the on the philosophical level? So. So I want to underscore that as that's the reason, right? You want laws to be stable, so people know what to how to behave? Then you ask the question, how do we have in applying starry decisis. Right, what are sort of the internal versus the external criteria? And I want to talk I mean, this is sort of the flip side of the planned parenthood versus Casey decision. The reason I had to travel back in time is because today's Supreme Court what while not explicitly overruling, or even it or even formally saying, well, we look at it a little differently than we did in Planned Parenthood. Today's Supreme Court has elevated the idea that reaching the right result, that is, their preferred result is the most important criterion in determining whether to depart from from prior precedent. So we've been talking about abortion and gun rights cases. But but but to me, one of the most dangerous decisions that has come out from the Supreme Court in in recent years is a 2018. case called Janice versus asked me, and it's a tiny little labor law question. It's about how public unions may spread their dues when they represent the entire populace. Right. And so we know for example, that you have the right to opt out of a union Even if they collectively bargain on your behalf, and that they can't impose political dues on non members, but something that people who've been trying to Union bust for a long time have been trying to get rid of is their ability to spread the union's ability to spread administrative costs, as well. And the justification is really, really simple, particularly when you're talking about like the teachers union, when you're talking about a government union that is negotiating on behalf of everybody, including non union members to getting the the the conditions that apply to everybody. unions are allowed to spread those administrative non political costs out to the membership. And in various states, right, including Michigan, Republicans have tried for 50 years to change those laws at the ballot box. And they've lost right there their states right that are that prohibit because you could prohibit that by law. They brought up a case in 1975. a case called Abood and Abood said it's unconstitutional. What the argument that was being made in Abood was, it's unconstitutional for a union to spread administrative costs to non union members. And the Supreme Court said get out of here with that, right. That's, that's a crazy argument. It is it is preposterous, because we've already excluded any of the political aspects in in only passing on the administrative costs. Much like with DC v. Heller, the same union busting right wing brought a new case in 2017. On the exact same facts, and the argument was, it's time to get rid of a boon. a boon was a terrible decision. And therefore, we want you to overrule it. And cutting to the chase. The Conservative Supreme Court did, right. They said, okay, yep, five, four. And they overruled Abood. They said, Yep, unions can't spread. Even the public unions can't spread even their non even their administrative costs to non members. And they and they tackled the question now. They tackled it 38 pages or excuse me, 33 pages into the decision. Right. So of well. How about that story decisis,
how much weight do we give to a boot? And the answer right, this is a Samuel Alito decision was that starry decisis is at its weakest when we're dealing with a decision that was wrongfully decided. Right. And if you stop at the guy, that's what they said. They said, Look, the first thing we look to is a rigid your direct quote, page 35. An important factor in determining whether a precedent should be overruled is the quality of its reasoning, and of quote, and this is one of those things that you don't realize how insidious a sentence it is, until you watch it in practice, because by definition, every case you want to overturn you think the prior one was not well reasoned. If you thought it was well reasoned, you you wouldn't be in favor of overturning it right? If If Planned Parenthood v. Casey had began the same way as the Janice decision, we would have overturned Roe v. Wade in 1992. Right, because those judges clearly thought Roe was wrongfully decided. But they said, despite the fact that it was wrongfully decided, does this have some force on us? Does it restrain us in any way? And 30 years ago, the court said Yes, it does. And today, this court says, No, it doesn't. And ultimately, if this court is not reined in, if this court is not checked, in some way, have some ideas on how to do that, then then then I think that concept of the rule of law will be lost. And I think that the average person's answer will be Yeah, no, it there is no other factor. There is no such thing as precedent constraining. It's just who happens to be on the court at the time that the question comes up. And I think we will have lost something that was precious to the founding of this country.
There was an example very recently to show exactly what you're talking about, in terms of, you know, your clients needing to know what's going to happen and they're not going to pay for I don't know, the Trump administration sold off or tried to sell off drilling rights to the to Anwar and Alaska, the the Arctic reserve, and no one wanted to buy it, and no one wanted to buy it because they knew that he was coming out of power and that the Biden ministration would have done different rules and different principles, and they might end up wasting their money. And so in that instance, that instability stopped commercial activity, I think for the good, but but that's a matter of interpretation. But that leads me ultimately to I want to ask the question of the episode, but then I want to ask a variation of it, which is, is the law consistent? Whatever that might mean. And the real question is, is that even the right question to ask, right? When I asked, Is the law consistent? Am I really asking a question that I really should be focusing on something else? Because it's not as meaningful as, say, a philosopher wants it to be?
I, I love that. And and so let me answer slash not answer that question. Well, the very, very best of my abilities. So So first, I want to point out and thank you for, you know, where I get a little bit into law geekery, they're explaining the importance of starry decisis. And that just means that each court does not come to the law on a blank slate become bound to some degree by by what came before them. And, and let me describe in sort of prior to 1990, I have called this there's no word for this. There's a word for the other side, the other side, uses an umbrella term called originalism and we don't have the time to unpack all of it in the last question. There's no word for my side, I call it the ordinary model of jurisprudence. And I will tell you that when I was in law school, even the most high bound conservatives with whom I disagreed all the time, followed this model, right. And you're about to hear and see why it's open and neutral and available to everyone. Right. But it goes something like this. You recognize first, that the the governing authority, the provision of the Constitution, or the law, sets the principle, right. And if you if you go all the way back to that, I think the first or second question, right, I, I rattled off a bunch of constitutional provisions. And I said, Look, these are super vague things. Right. And, and they are vague, not because our founding fathers were idiots. But But in fact, by design, right. So instead of saying, I mean, could you imagine, right? If the Second Amendment said, when individuals form state militias, they are entitled to one musket, or, you know, to cap and pistol right, like, then then the entirety of the Constitution would have been an anachronism. Right? It's it, we might cheer that on from the, from the gun control perspective, because it would resolve that that question as to what counts as a firearm. But, you know, the First Amendment instead of saying, you know, shall shall not abridge the freedom of speech, or of the press would say, you know, the the US Congress may not stop the publication of a newspaper prior to the print being applied to that, you know, and you'll be left going like, great, how does that apply to me as a podcast, right. So, it, the vagueness of the law is a feature, not a bug, it sets the principle. And it sets a principle like, we can't take away your property without giving you due process of law. And then easy cases are easy, and they don't become a permanent feature of the law. Because you know, how to resolve an easy case, right? The New York Times wants to print a story that is unflattering about President George Washington, and President George Washington, you know, tries by executive order to prevent the New York Times from publishing. That's right. Never happened for a lot of legal, anachronistic and factual, anachronistic reasons. But but right, there's no such case on that in history, because that's an easy case. Right? We know, that's, that's within the core of what was meant to be excluded by the First Amendment. But there were hard cases. And when there are hard cases, what you do is you apply the courts apply the governing principle to the facts at hand to the best of their ability in as neutral a fashion as possible. And you look to prior cases, to see how that has been applied in the past. Right. And so, for example, when asking, you know, to what extent is, you know, can could the government censor us internet broadcast, right? He would say, Well, sure, it looks like an internet broadcast is governed is much closer to Colonial newspapers, then, for example, it would be to the situation where you had three television channels in the 1950s. And certain governmental restrictions were upheld because of the the absolute scarcity, right things like, you know, yeah,
you can't honor profanity at five in the afternoon, right? So in all of that, so what you do is you build a body of jurisprudence. You argue by analogy, as new hard cases arise, you say, the internet is closer to a newspaper than it is to a TV station. And and at some point, you do a reality check. Right? You in rare cases, you say, okay, we've built this kind of edifice on, on one sort of principle. Did we get it wrong? Right? Did we start from the premise that separate is equal? Oh, yeah, we did. Okay. And, and, and at that point, you swallow your pride, and you come forward, and you admit it, and you say, as the Supreme Court, and this is the reason why Brown versus Board of Education is the most celebrated constitutional opinion in in US history. you swallow your pride, and you say, we got that wrong. Right. Separate is inherently unequal. And and we can't do anything to correct the last 50 years, but we can at least correct it now. And that's, that's what I would like to see the court return to a situation where, you know, you It requires a an opinion, on the level of a Brown versus Board of Education to say, this was not just, you know, sam alito does a like a case from 25 years ago, but but the the weight and the judgment of history have proven to us that, that we got it wrong. So I think that almost answers your question. So I feel pretty satisfied with that.
Excellent, you've offered us and I say this, as someone who has taught it half a dozen times, at least, you have offered us a crash course in philosophy of law, and my students are going to ask for you rather than me, and I'm going to be out of a job because of it. So I, thank you so much for joining us on why this has been just a treat. And we could talk for another seven hours. And I hope that at some point, you might be willing to come back.
Absolutely. I love this. I mean, part of the reason that I got into podcasting is sort of, you know, long form, journalism communication, you know, to really be able to take these ideas and concepts that need, you know, two minute chunks and go back and forth. And you know, can't be hashed out in 30 seconds or 60 seconds. So this was, this was a ton of fun. I really, really appreciate it and love to come back.
Thank you so much. And for everyone listening, you have been part of the conversation with P Andrew Torres and jack Russell Weinstein and I will be back with a few more thoughts right after this.
Visit IPP LS blog p QED philosophical questions every day. For more philosophical discussions of everyday life. Comment on the entries and share your points of view with an ever growing community of professional and amateur philosophers. You can access the blog and view more information on our schedule our broadcasts and the y radio store at www dot philosophy and public life.org.
You're back with wide philosophical discussions on day life. We're talking with P Andrew Torres, host of the opening arguments podcast and the new clean up on aisle 45 podcast which find subscribe there free. They're amazing. I learned so much several times a week and we got to see Andrews mind at work here. And here not just the empirical details of day to day law, but also the principles that guide his understanding and the kind of things that we have to ask about. Underlying this discussion was a discussion that really underlies my entire philosophy of law class. And ironically, I had forgotten one of the words because my brain doesn't always work the way that should. But the debate is between natural law and positivism. Natural Law is the idea that our laws are built on some moral principle, some moral system some moral idea and we have to access that as accurately as possible. positivism is the idea that The law is just a human product. And we make determinations best on what we think we want to do and what we think we want to write and how we want to organize society. And there are versions of that like legal realism that he talked about. But but that's the division. Is law simply a human creation for human interest? Or is law, an attempt to access the moral and the good? When you ask that question, you're asking not just about the legal experience, but the human experience. The law regulates human actions. And because it regulates human actions, it has to speak to our full experience, it has to speak to our emotions, to our intimacy, to our goals in life, to our beliefs in the divine or lack thereof. It has to speak to love and to hate to violence, to revenge to justice, to hope to all of these things. And that means that the law can be as interesting or as boring. as what we focus on in our lives. Every little law, whether it's the tiniest regulation about business interests, or the grandest right guaranteed in our Constitution is really a mirror into how we want to live, and how we want to treat each other. And I offer that, because the very question that I started the episode with is the law consistent is problematic from the start. Because for the law to be consistent, human beings have to be consistent. And if human beings are consistent, we probably end up being something other than what we really are. So the real question I should have asked is, is the law representative of the human experience? And if so, does it do it? Well? That is a big question and a question for another time. But as a question for you, to pose to yourself, as we look at the changes the country is going to face with the new administration, with the knowledge of what has happened in the last four years and frankly, with a better sense of what we want as people and as a community. You've been listening to jack Russell Weinstein on why philosophical discussions about everyday life Thank you for listening as always, it's an honor to be with you.
Why is funded by the Institute for philosophy and public life Prairie Public Broadcasting in the University of North Dakota's College of Arts and Sciences and division of Research and Economic Development? Skip wood is our studio engineer. The music is written and performed by Mark Weinstein and can be found on his album Louis Sol, for more of his music is a jazz flute Weinstein comm or myspace.com slash Mark Weinstein. Philosophy is everywhere you make it and we hope we've inspired you with our discussion today. Remember, as we say at the Institute, there is no ivory tower.