The 1987 Constitution of the Philippines (Art. VIII, Sec. 9) provides that “the Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”
The old constitutional procedure subjected all nominees to Supreme Court to the strict and partisan scrutiny of the Commission on Appointments of the Philippine Congress, following the American constitutional model. The JBC procedure under the Philippine Constitution, theoretically, shields the judges and justices, and the appointment process, as much as possible, from politics. I assume, of course, rightly or wrongly, that the JBC members are not beholden to the President and the politicians loyal to her.
If the President is not happy with the three recommendees of the JBC, does she have the right to reject the entire list? This constitutional question is yet undecided in Philippine jurisprudence.
The latest letter by Supreme Court spokesman, Atty. Jose Midas Marquez, addressed to the editors of the Philippine Daily Inquirer, seems to give us a clue as to the tentative position, at least, of the incumbent Chief Justice, Hon. Reynato Puno, if not of the entire Supreme Court.
He states in his aforementioned letter that as mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC); that, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC; that consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others; that this is a limitation on the presidential prerogative; and that to be sure, this cannot be allowed under the watch of the incumbent Chief Justice.
The above position is, of course, debatable, if we consider the constitutional doctrine of separation of powers. May JBC, which is not a constitutional body but merely a constitutional creation, limit the scope of the constitutional power of the President to appoint Supreme Court Justices? I do not think so. May the President reject the entire list of recommendees submitted to her by the JBC and require the latter to submit to her a new list, if she thinks the persons mentioned in the original list are not deserving of her appointment based on her standards, whatever those may be? I think so. But if such is the case, I admit that we may be opening our Judiciary to a worse kind of partisan control, this time by a single Executive and not by a collective Congress. Which is more dangerous to our country? You are free to express your opinion.
There will be seven vacancies in the Supreme Court by next year. By then, 14 out of 15 justices would ba appointees of the incumbent Pres. Gloria Arroyo, who does not have the trust of a great majority of the Filipino people as of the latest opinion surveys.
May I reproduce below the Marquez letter. Thus:
JBC to consider groups’ recommendations
Philippine Daily Inquirer
First Posted 04:24:00 11/29/2008
I write in reaction to the various views and reports on the public’s renewed concern over the appointment of new Supreme Court justices, which the retirement of seven incumbent justices next year will necessitate. (“‘Bantay Korte’ to watch SC appointments,” Philippine Daily Inquirer, 11/18/08; “Choosing Supreme Court justices,” Philippine Daily Inquirer, 11/10/08; “7 justices to retire next year,” Philippine Daily Inquirer, 11/8/08; etc.)
The matter of appointments to the Supreme Court is a matter of high public interest. Thus, Chief Justice Reynato S. Puno himself has called on private groups to help search for the best candidates for the high court. Accordingly, the recent formation of a citizens’ search committee within the Supreme Court Appointments Watch (SCAW) consortium, and the launching of Bantay Korte Suprema are welcome developments toward the call of the Chief Justice.
The 1987 Constitution (Art. VIII, Sec. 9) says, “The Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.” This departure from the old process where presidential appointments to the judiciary shall be confirmed by the Commission on Appointments was introduced by the framers of the 1987 Constitution to shield the judges, and the appointment process, as much as possible, from politics.
As mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC). Thus, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC. Consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others. This is a limitation on the presidential prerogative. To be sure, this cannot be allowed under the watch of the incumbent Chief Justice.
Rest assured that the JBC will highly consider the recommendations of the SCAW, the Bantay Korte Suprema and other well-minded organizations, and will continue to perform its constitutional mandate functions and duties—independently—to the best interest of the high court, and the country.
In this regard, the public hearing on the first vacancy commenced on Nov. 19, 2008, at the Division Hearing Room, 1st Floor, Supreme Court.
JOSE MIDAS P. MARQUEZ, assistant court administrator; chief, Public Information Office, Supreme Court, Manila
See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20081129-175092/JBC-to-consider-groups-recommendations (November 29, 2008).
I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.
Saturday, November 29, 2008
Monday, November 24, 2008
Judicial screening
In the November 24, 2008 issue of the Philippine Daily Inquirer, columnist Fr. Joaquin Bernas, a renowned Philippine constitutionalist, wrote the following about the Judicial and Bar Council, which is in charge of screening the applicants to judicial positions in the Philippines:
1. We would naturally expect that members of the Judicial and Bar Council themselves would likewise be of proven competence, integrity, probity and independence. At this moment we have no choice but to take it on faith that the ex officio members (the Chief Justice, the Secretary of Justice, and the members of Congress) as well as the regular members (the four appointed by the President with the consent of the Commission on Appointments) possess the desired qualifications. The current interest of the public, however, is in insuring that the JBC will be able to submit to the President a list of potential justices endowed with proven competence, integrity, probity and independence.
2. The JBC, as I recall, was a brainchild of the late Chief Justice Roberto Concepcion. It grew out of dissatisfaction with how the Commission on Appointments of Congress had behaved in the past. It will be recalled that under the 1935 Constitution all appointees, except those exempted by Congress, needed confirmation by the Commission on Appointments. Concepcion thought that appointees to the judiciary from the lowest judge to the justices of the Supreme Court should be screened in a less politically colored way. Thus was created the JBC, with the primary responsibility of limiting the President’s appointments to the judiciary to a list of at least three names.
3. I suggest that voting on who should be considered for appointment to the judiciary, especially to the Supreme Court, is a public and not a private act. Public office is a public trust for which public officers are answerable to the people. How they vote is a matter of public interest about which the public has a constitutional right to be informed.
4. In a sense, the JBC is also in the dock. The interviews of nominees conducted by the JBC are now open to the public. The public will be watching to see if their deliberations and decisions are characterized by integrity, probity and independence.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081124-173975/The-JBC-in-the-dock
1. We would naturally expect that members of the Judicial and Bar Council themselves would likewise be of proven competence, integrity, probity and independence. At this moment we have no choice but to take it on faith that the ex officio members (the Chief Justice, the Secretary of Justice, and the members of Congress) as well as the regular members (the four appointed by the President with the consent of the Commission on Appointments) possess the desired qualifications. The current interest of the public, however, is in insuring that the JBC will be able to submit to the President a list of potential justices endowed with proven competence, integrity, probity and independence.
2. The JBC, as I recall, was a brainchild of the late Chief Justice Roberto Concepcion. It grew out of dissatisfaction with how the Commission on Appointments of Congress had behaved in the past. It will be recalled that under the 1935 Constitution all appointees, except those exempted by Congress, needed confirmation by the Commission on Appointments. Concepcion thought that appointees to the judiciary from the lowest judge to the justices of the Supreme Court should be screened in a less politically colored way. Thus was created the JBC, with the primary responsibility of limiting the President’s appointments to the judiciary to a list of at least three names.
3. I suggest that voting on who should be considered for appointment to the judiciary, especially to the Supreme Court, is a public and not a private act. Public office is a public trust for which public officers are answerable to the people. How they vote is a matter of public interest about which the public has a constitutional right to be informed.
4. In a sense, the JBC is also in the dock. The interviews of nominees conducted by the JBC are now open to the public. The public will be watching to see if their deliberations and decisions are characterized by integrity, probity and independence.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081124-173975/The-JBC-in-the-dock
Ravished
In his column Separate Opinion in the Philippine Daily Inquirer, issue date November 23, 2008, entitled “The Backbone of a Banana”, former Philippine Supreme Court Associate Justice Isagani Cruz made the following remarks, which, I think, deserve, some reflection by freedom-loving lawyers of the Philippines:
1. Whatever our concept of justice, I believe our commitment to it must begin with the courts—of justice, as we call them. Although holding “neither purse nor sword,” the judiciary is an indispensable ingredient of the democratic government. The lifeblood of every libertarian regime pulsates in the vitality of its judicial system and the capacity of the courts to uphold the majesty of law.
2. The Supreme Court of the Philippines was like a pure and innocent maiden until its chastity was ravished by martial law. Having savored the thrill of surrender during that lustful period, it has learned the practical benefits of accommodation with the political departments as a more convenient way of life. A regrettable example is Mabanag v. Lopez Vito, where it dismissed the constitutional challenge to the Parity proposal as a political question and thus gave Americans more rights to our natural resources than our own citizens.
3. That craven case has since been reversed by more courageous decisions, but it continues to seduce the Supreme Court to go astray every so often. We had that reasonable fear before with the present tribunal composed of all appointees of President Arroyo except for one solitary figure from a past administration. However, that apprehension dissolved in 2006 when it decided three leading cases—Senate v. Ermita, Bayan Muna v. Ermita and David v. Arroyo—that assured the overjoyed nation that its allegiance was not to Malacañang but to the rule of law.
4. But, alas, our elation was short-lived. Early this year, the Supreme Court that before seemed so righteously bold reconsidered its bravura and decided to repent, not for its sins but its ungratefulness to its benefactor. In Neri v. Senate, it sustained the President’s executive privilege covering the dark secrets of the malodorous ZTE contract despite the people’s constitutional right to transparency in government.
5. As a former member of the Supreme Court, I can say that it is easy to support any decision it chooses to make, good or bad, and for whatever motives. This can be done with jurisprudence. Chief Justice John Marshall of the US Supreme Court reportedly used to say after coming to his own unresearched but “gut” conclusion on a pending case, “That is our decision, gentlemen. Let Justice Story find the precedents.”
6. Our high tribunal during martial law found enough jurisprudence to justify the Marcos despotism even as there were also enough contrary rulings from braver courts. These better cases were buried in unmarked graves like the desaparecidos of the dictator.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081123-173826/The-backbone-of-a-banana
1. Whatever our concept of justice, I believe our commitment to it must begin with the courts—of justice, as we call them. Although holding “neither purse nor sword,” the judiciary is an indispensable ingredient of the democratic government. The lifeblood of every libertarian regime pulsates in the vitality of its judicial system and the capacity of the courts to uphold the majesty of law.
2. The Supreme Court of the Philippines was like a pure and innocent maiden until its chastity was ravished by martial law. Having savored the thrill of surrender during that lustful period, it has learned the practical benefits of accommodation with the political departments as a more convenient way of life. A regrettable example is Mabanag v. Lopez Vito, where it dismissed the constitutional challenge to the Parity proposal as a political question and thus gave Americans more rights to our natural resources than our own citizens.
3. That craven case has since been reversed by more courageous decisions, but it continues to seduce the Supreme Court to go astray every so often. We had that reasonable fear before with the present tribunal composed of all appointees of President Arroyo except for one solitary figure from a past administration. However, that apprehension dissolved in 2006 when it decided three leading cases—Senate v. Ermita, Bayan Muna v. Ermita and David v. Arroyo—that assured the overjoyed nation that its allegiance was not to Malacañang but to the rule of law.
4. But, alas, our elation was short-lived. Early this year, the Supreme Court that before seemed so righteously bold reconsidered its bravura and decided to repent, not for its sins but its ungratefulness to its benefactor. In Neri v. Senate, it sustained the President’s executive privilege covering the dark secrets of the malodorous ZTE contract despite the people’s constitutional right to transparency in government.
5. As a former member of the Supreme Court, I can say that it is easy to support any decision it chooses to make, good or bad, and for whatever motives. This can be done with jurisprudence. Chief Justice John Marshall of the US Supreme Court reportedly used to say after coming to his own unresearched but “gut” conclusion on a pending case, “That is our decision, gentlemen. Let Justice Story find the precedents.”
6. Our high tribunal during martial law found enough jurisprudence to justify the Marcos despotism even as there were also enough contrary rulings from braver courts. These better cases were buried in unmarked graves like the desaparecidos of the dictator.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081123-173826/The-backbone-of-a-banana
Silence
In 2001, Prof. Stefan H. Krieger of the University of Oregon published an article entitled “A TIME TO KEEP SILENT AND A TIME TO SPEAK: THE FUNCTIONS OF SILENCE IN THE LAWYERING PROCESS”, 80 Or. L. Rev. 199 (2001), which I wish to summarize here for legal research purposes of the visitors of this blog.
In his article, Prof. Krieger makes the following conclusions, which, I think, deserve serious reflection and consideration by the Bench and the Bar:
1. The legal profession is infatuated with the verbal. In relationships with clients, lawyers want detailed information and often become frustrated with evasive and ambiguous answers. In negotiations, they frequently strive to overwhelm the other side with words: arguments, threats, and posturing. When a tentative agreement has been reached, they spend, at least in the opinion of laypersons, inordinate amounts of time, parsing each and every term, and attempting to forge a deal that will take into account every possible eventuality. In formal hearings and trials, lawyers pride themselves on the precision and incisiveness of their arguments and examinations, ridiculing a witness' uncertainty and hesitation and often trying to take control of the courtroom with the power of their voices.
2. Much of legal education supports this culture. Many law professors demand the quick, precise answer, take advantage of student pauses and hesitations to make their point, and often appear to reward the glib response. At the end of the semester, mastery of a subject is evaluated solely on a three-hour examination in which rapid recall and recitation of the course material is the value.
3. Lawyers' infatuation with the verbal, however, ignores the fact that not all communication is informational. The details, demand for precision, search for the right words, the focus of most of a lawyer's craft, can ignore the interpersonal and contextual components of language. Lost in all the verbiage is an understanding of the communicative power of silence. Silence plays a variety of functions in human communication both to facilitate the sending of verbal messages (pauses and hesitations; intervening silences) and to send their own messages (assent; promotion of reflection and discussion; deep silences; and marking of social distance). Disregard of these functions can often lead to unreflective discourse and misunderstanding. Lawyers can have all the words right but can miss the mark when they do not have an appreciation of the function of the spaces between words. Especially in cross-cultural contexts, the failure to understand how someone from a less verbal culture uses silence can result in serious misunderstandings.
Effective lawyering requires knowledge not only of the grammar of language, but also the rules of silence. Obviously, much of a lawyer's practice needs to focus on verbal precision and the crafting of words into a persuasive and coherent message. But without a grasp of the forms and functions of silence, lawyers cannot communicate effectively with their clients, their adversaries, or decision-makers. Both as speakers and listeners, the messages sent can be lost or misunderstood in all the lawyerly noise. As strange as it may initially sound, a lawyer can at times be most effective when she does not speak.
Most of literature assume that a lawyer's skill is almost exclusively verbal and focus primarily on how a lawyer should craft language to communicate effectively. Lawyers are students of language by profession. They exercise their power in court by manipulating the thoughts and opinions of others, whether by making speeches or questioning witnesses. In these arts the most successful lawyers reveal (to those who can appreciate their performance) a highly developed skill. While this literature examines the use of language in the representation of clients, it largely ignores the role of silence in the lawyering process. Moreover, it rarely acknowledges that words can, at times, impede communication.
Many commonly assume that silence on the part of a lawyer, client, or witness has a negative connotation and discourage its use for clear communication. Silence during a trial may present considerable problems for the court. By its very nature, silence is ambiguous and therefore messy. Questions about its meaning may lurk in the shadows unless the court or the attorneys assume an active role in resolving the ambiguities. For example, what does it mean when a witness is slow to answer or generally reticent? What meaning lies in the behavior of a hesitant witness - careful thinking in order to report recollections faithfully or cautious planning to fabricate a false version?
Scholars in other social disciplines have recognized the significance of silence as a powerful means of communication. They reject the notion that silence is simply the absence of speech and contend that silence can serve positive, as well as negative, communicative functions. They assert that like speech, silence can have a wide variety of meanings depending upon several factors, including the mental states of the participants, the context of the discourse, and the culture within which the communication occurs.
Depending upon the backgrounds of the participants, the occasion, and the verbal and nonverbal contexts surrounding the silence, the following list identifies a number of typical potential meanings:
1. The person lacks sufficient information to talk on the topic.
2. The person feels no sense of urgency about talking.
3. The person is carefully pondering exactly what to say next.
4. The silence may simply reflect the person's normal rate of thinking.
5. The person is avoiding discussion of a controversial or sensitive issue out of fear.
6. The silence expressed agreement.
7. The silence expressed disagreement.
8. The person is doubtful or indecisive.
9. The person is bored.
10. The person is uncertain of someone else's meaning.
11. The person is in awe, or raptly attentive, or emotionally overcome.
12. The person is snooty or impolite.
13. The person's silence is a means of punishing others, of annihilating others symbolically by excluding them from verbal communication.
14. The person's silence marks a characteristic personality disturbance.
15. The person feels inarticulate despite a desire to communicate; perhaps the topic lends itself more to intuitive sensing than to verbal discussion.
16. The person's silence reflects concern for not saying anything to hurt another person.
17. The person is daydreaming or preoccupied with other matters.
18. The person uses silence to enhance his own isolation, independence, and sense of self-uniqueness.
19. The silence marks sulking anger.
20. The person's silence reflects empathic exchange, the companionship of shared mood or insight.
There is a grammar of silence, a set of rules structuring the relationship between verbal utterances and the unspoken, which demonstrates the function of silence in a given situation. This grammar may seem, at first blush, more difficult to understand than the grammar of the verbal, but it still can be similarly decoded.
The basic thesis of the article of Prof. Krieger is that effective lawyering requires an awareness of the significant role that silence plays in communication. Most lawyers love to hear the sound of their own voices and often view silence - either on their own part or on the part of their client, a witness, or an opposing attorney - as a sign of weakness. Consistent with the culture of much of contemporary society, many lawyers feel the need to avoid silence at all possible costs. In the process, they can get lost in all the noise. As speakers, they can easily turn off their audiences by talking too much; as listeners, their need to hear immediate responses, to fill in any silence, can create obstacles to fruitful discourse. Silence frequently does not reflect a lack of knowledge or hesitancy, but provides a means for expressing feelings and ideas. Indeed, it often is one of the most effective ways of combating the noise of legal communication and reanimating the power of words. Understanding the positive functions of silence can help attorneys better interpret silences on the part of a client, witness, or adversary; can assist them in communicating more effectively with clients, adversaries, and decision makers; and can give them an appreciation of the uses of the unspoken for persuasive advocacy.
Obviously, silence, just as verbal communication, does not always serve a positive function. At times, for instance, silence can indicate weakness, avoidance, lack of preparation, or deception. The point of is not to endorse the unbridled use of silence as a means of communication or to encourage lawyers to assume that a client's or adversary's lack of response always reflects some deeper, profound meaning. The thrust is to urge lawyers to become more conscious of their own use of words and silence in their communication and to become more reflective about others' silence.
Communication theorists contend that, at least for hearing individuals, there is no such thing as absolute silence. We are thoroughly enmeshed in layers of energy exchanges. The sonic expression of these exchanges is so constant that, for the most part, we remain unconscious of it. In short, there is no real escape from the noisy vibrancy of life. While our ears and its cochlea are our central receptors for hearing, there are no unique "points of view" to audition.
From the standpoint of the function of language, silence is a relative term. It is not simply the absence of language. The misconception that silence is totally apart from language arises from the mistaken belief that language is used solely to exchange information. Communication theorists contend that in addition to the information exchange (the ideational function), language serves at least two other functions: interpersonal, and textual. The ideational function represents those situations when the speaker, as observer, talks "about something". The interpersonal function concerns the interaction of the speaker with the audience. This is the component through which the speaker intrudes himself into the context of the situation, both expressing his own attitudes and judgments and seeking to influence the attitudes and behaviour of others. The textual function makes language relevant by giving it a context. It signals whether a given text is intended as a lecture, poem, play, joke, chit-chat, or some other form of speech event.
All communication, including discourse in the practice of law, consists of far more than exchange of information. Although information gathering and dissemination are certainly important components of lawyering in either the transactional or dispute resolution contexts, the interpersonal and textual aspects of language are also crucial to a lawyer's craft. In an interview with a client, for example, the interpersonal language used by the lawyer in eliciting information can have a significant effect on whether all the pertinent facts within the client's personal knowledge are discovered. In a negotiation, the attorney's choice of language can set the context for the discussions by suggesting to the other side her attitude in regard to the issues on the table or telegraphing her seriousness about reaching a deal. Finally, in a closing argument, regardless of the information the lawyer relates, her language choice can either connect with or alienate the finder-of-fact.
Although silence, by its very nature, provides quite limited informational content about peoples, events, and actions, it can play a significant role in the realm of the interpersonal and textual functions of language. In fact, the dictionary definition of "silence" reflects the fact that silence is part of language, not totally distinct from it. Silence is an alternative or response to speech, a deliberate state or condition, or even a type of communication.
In the context of oral communication, silence and speech are not total opposites. Rather they constitute a "continuum of forms ranging from the most prototypical instances of silence to the most prototypical instances of speech." In a limited capacity, silence allows speech to make sense. Obviously, speech would be pure gibberish without some silences. On a very basic level, the cessation of sound in the production of consonants creates the pattern of consonants and vowels that makes "speech." Pausing or hesitating within the stream of speech makes it possible for each speaker to take her turn. Lulls within a particular conversation give each party an opportunity to reflect on the discourse. Without silence, speech would be nothing but endless noise and could not perform any of the functions of language. Indeed, in situations where speakers do not take a breath, engage in simultaneous discourse, or fail to take a time out from heated arguments, speech can actually be disruptive of communication.
Just as one can utter words without saying anything, one can say something [*211] without uttering words. Examples of such silences are numerous: refusing to answer a question; ignoring a tactless comment; communicating anger or resentment; acknowledging agreement with a proposal; or expressing awe or respect for the other party. And just as the meaning of speech depends in part on silences, the meaning of silences hinges largely on the surrounding utterances. A particular silence only has meaning in the context of its surrounding utterances. The act of saying consists of two basic components: the said and the unsaid. The former component includes the actual utterance and those real and imagined ones that precede it and that follow. The unspoken presumptions and implications belong to the latter.
The repertoire of codes (of either speech or silence) from which we select depends in part on the particular culture in which we are communicating. While in some cultures, for example, density of speech is valued, in others silence is a virtue and loquaciousness is considered antisocial. Accordingly, the decision-making process of when to use speech or silence or any combination of the codes along the noise-silence spectrum may hinge in some way on the specific community's attitudes toward silence.
Not all silence is communication. Communication does not occur, for instance, when a passenger on a bus sleeps wordlessly through the trip next to her seat-mate; when a visitor to an art gallery stands silently awestruck by a work of art; when a hushed courtroom sits still mesmerized by a closing argument; or when an abused woman cowers in silence when attacked by a man. Just as not all noise is part of speech, the absence of sound does not necessarily constitute communication.
French poet Max Picard observed: Language has lost its spiritual quality; all that remains is its purely acoustic quality. Listening is only possible when there is silence in man; listening and silence belong together. Instead of truly speaking to others, today we are all waiting merely to unload on to others words that have collected within us. Speech has become a purely animal, excretive function.
A second form of silence which structures communication is "intervening silence." n64 While pauses and hesitations are primarily unintentional interruptions of the sequence of speech reflecting an effort to find the correct word or meaning, intervening silences are intentional attempts to punctuate words, phrases, or sentences to highlight the content of speech. Of all the senses, only hearing gives the appearance of progressing through time; silences can give a pattern to this temporal flow. Consider, for example, a comedian's telling of a joke. The silence before the punchline commands the audience's attention, stops what could be a monotonous flow. Without this silence, the joke could fall flat. Similarly, the tension created by the storyteller's silence before the suspenseful climax draws the listener's attention.
Related to intervening silences, a third form of structuring silences is "fore and after silence." Within a discrete utterance, intervening silences make particular sound phrases (words, phrases, and sentences) distinct from every other sound phrase. In contrast, fore and after silences make every particular utterance distinct from another utterance. They serve a framing function for speech: fore silences provide the open space immediately before the utterance begins, and after silences furnish an interval immediately after the utterance. They give a silent backdrop for all communication.
The most popular understanding of silence as communication is the belief that the failure of one party to a communication to respond to another party implies assent. Silence on the part of the auditor is frequently taken to mean agreement with the speaker. Since one is usually led to speak when something is wrong, silence suggests that one sees nothing wrong, that he gives assent to what exists. The old legal maxim derived from Roman law, qui tacet consentire videatur ("silence implies consent") reflects this notion. Also, in many other cultures, in particular ritual contexts, silence by a listener is regarded as consent.
A danger exists, however, in over-reliance on this notion. Silence by a listener in response to a demand or request by a speaker can have many more meanings than consent. Indeed, even in the legal setting, silence implies consent is not mechanically applied. Courts look to the full context both before and after the silence to determine its meaning.
Silences can increase our awareness of what we are saying. But they can also communicate to the listener the desire for further reflection and discussion. Communication scholars theorize that lengthy interactive silences allow listeners to make inferences and judgments about what has and has not been said, to reflect on the possible meanings of both verbal and silent messages, and to come to their own conclusions.
Not only can silence encourage processing of the message by the listener, but it can also coax her into expressing herself. Many participants in discourse have the common misconception that the more one speaks, the more one encourages the listener to respond. Many of us become anxious when a listener does not immediately reply to our speech and, before she can answer, we add more words to encourage a verbal reaction. At times, however, excessive talk, repetitious haranguing, and more verbiage can actually terminate the communicative process. Silences can signal that the lines of communication remain open and that no one has the intention of closing them. Too much speech, on the other hand, can have the effect of terminating discourse.
A cautionary note, however, is in order. People who fill their discourse with an inordinate amount of silence can actually discourage open communication. An interesting study of the behavior of participants in small group discussions highlights this point. The researcher found that the participants in discussions viewed silent members (those who did not speak unless spoken to) in a more unfavorable light than not only those who made positive contributions (those who encouraged participation and tried to resolve the conflict) but even those who made negative contributions (those who discouraged participation and resolution). Apparently, participants viewed negative members as contributing more to the resolution of the issues than those who remained silent. To promote communication, then, silence must be used in the context of sufficient information exchange so that discourse is encouraged.
In certain contexts silence can actually communicate an assertion of power. In situations when speech is expected, a communicator, by refraining from words, can attempt to take control of the discourse. Even when the silent communicator is in a subordinated social position, silence can constitute an assertion of power. A suspect in police custody or a hostile witness at a deposition, for example, can refuse to answer or evade questions by the detective or the lawyer. Additionally, silence can communicate an assertion of power by demonstrating dissent. Strategic use of silence by dissenters in a public setting where words are expected can draw attention to the protest and register a judgment of disapproval.
One of the functions of language is ideational: to exchange information about people, objects, and events. By attempting to communicate our knowledge of this information concretely and unambiguously, speech usually serves this function much better than silence. But precisely because this mode of speech conveys certainty of perception, it is often inadequate to communicate certain very strong emotions. Words are used as symbols to convey the knowledge we wish to impart to a listener. At times, however, we have knowledge of an experience we are undergoing but cannot find the words to articulate it. In everyday parlance, we are "left speechless." The only symbols we have to convey this message are "deep silences."
Deep silences occur in several types of situations. First, they will often come in reaction to unexpected conditions such as a tragic report of a sudden death, illness, catastrophe, joyous news of the birth of a child, accomplishment of a friend or family member, or personal success. Faced, on the one hand, with the uncertainty and ambiguity of isolation, bewilderment, or terror, or, on the other hand, with overwhelming feelings of happiness, we frequently feel that words are unnecessary, that the circumstances "speak for themselves." Moreover, in those situations utterances are simply inadequate to convey the message because words, in their very concreteness, fail to express the depth of our feelings.
A second type of deep silence communication occurs between two intimates. Words help to create connections between people, but once those relationships are developed, words may become superfluous. To lovers or old friends, while some information exchange is obviously necessary in discourse, often the purpose of their conversation is not primarily ideational but interpersonal. For intimates, words may be unnecessary and may actually be considered intrusive in the relationship. As one commentator puts it, "It is not through speech or acts but through silence that the deepest bonds are cemented. One sure fruit of this communion of silence is that it invites the deepest and most intimate of confidential sharing."
A third and final type of deep silence is the silence of hatred and anger. While the lack of utterance between two people can reflect intimate communion, that silence - even between the same two individuals - can suggest deep estrangement.
When some people feel betrayed or hurt by a remark or another's conduct, their emotions may be so intense that they may treat the relationship as dead and feel that any verbal exchange would be worthless. They are not merely using silence as a weapon in an argument to persuade the other party or as a "time out" for reflection. By withdrawing from words, they are communicating the rupture in the relationship.
Similar to other communicative silences, whether a particular silence is a deep silence in reaction to an unexpected event, one of intimacy, or one of hatred, will depend on its context. The utterances prior to the silence and the circumstances surrounding it will, of course, help in an understanding of its meaning. But it is important to recognize that a deep silence has its own meaning apart from the utterances: that the communicator's intense emotions have made her feel that words are inadequate, unnecessary, or impossible to express.
Related to formulaic silences are those used to avoid conflict. At times, when individuals are engaged in a highly emotional disagreement, one or more of the parties will refrain from utterance to give themselves the distance to disengage from the conflict. Their purpose is not to reflect on the discourse or develop an appropriate response, but to avoid further confrontation. By giving the parties social distance, silence allows them to "let off steam," to release the tension of the situation.
The final form of silences marking interpersonal distance is the use of silence as a weapon. Here a party does not use silence to avoid conflict but rather as a strategic maneuver in an ongoing conflict. Use of the "silent treatment" sends a message of indifference or even outright disdain for the party, her conduct, or her position on an issue. In fact, "such silent treatment of the opponent may be even more powerful than uttering the harshest of words and drives many people crazy." In some communities, entire groups of individuals use the silent treatment to shun a member, to mark interpersonal distance against an individual who has breached some social norm.
Besides the particular situational setting, cultural context can also have a significant bearing on a silence's meaning. For a person to communicate with individuals from an unfamiliar society, she must not only be able to interpret the literal content of different utterances but also know the kinds of codes, channels and expressions [which are used] in what kinds of situations an ethnography of communication. In regard to silence, she needs to grasp what particular functions silence plays within that culture and to understand that different cultures have different interpretative norms for giving meaning to specific acts of silence. A lack of awareness of these norms can lead to significant misinterpretations of silence.
While a number of studies have been conducted on the meaning of silence in different cultures, the only major generalization that can be drawn concerns the divergent attitudes in high context and low context cultures. In high context cultures (such as Japan and Arab countries), individuals rely most heavily on how a statement is said rather than the content of what is said; in low context cultures (such as Germany and the United States), people rely primarily on the substance of what is uttered. While in high context societies, the parties rely a great deal on nonverbal communication and pay less attention to detail, in lower context societies, they focus on the words and literal meaning of the communication. Consistent with these broad definitions, researchers have found that while individuals in high context cultures unconsciously use silence in their everyday conversations to send "scripted" messages about their feelings, communicators in low context cultures do not have such embedded scripts in their communications to send subtle silent messages but tend to use silence strategically, making conscious choices of when to refrain from speech.
The ability to communicate well is obviously critical to almost every aspect of the lawyer's craft. Much of a lawyer's work is involved in dealing with people - listening to clients, developing rapport with them, handling them, persuading judges or opponents, and so on. The skills of the successful lawyer lay in mastery of the human interaction - how to listen, how to persuade, how to meet emotional and psychological needs of clients, opponents, judges, indeed, everyone they deal with professionally.
As many commentators contend, language itself is inherently indeterminate depending in large part on the speaker's and listener's context for its meaning. Even with those limitations, attempts are made to develop a variety of oral advocacy techniques that lawyers can employ on a context-specific basis. Similarly, this analysis of silence in the lawyering process strives to identify possible meanings that silences can have in their interactions so that they can determine, within the context of the particular communication, how best to use silence or respond to its use by their audience. While it can be argued that interpreting silences may be a more daunting task than deciphering words, the following analysis will show that a lawyer's comprehension of silences will assist her in communicating her messages and understanding those she receives.
In an initial interview of a client, a lawyer has a number of goals: (1) to form an attorney-client relationship; (2) to determine the client's goals; (3) to gather as much as the client knows about the facts; and (4) to reduce the client's anxiety without being unrealistic. Whether or not the lawyer is successful in meeting these goals depends in large part on her ability to make the client feel comfortable, to encourage the client to communicate freely, and to remove inhibitions to communication, such as authority, cultural, psychological, or social barriers. Her capacity to respond to and use silences is essential to each of these skills.
As demonstrated earlier, pauses and hesitations can actually be very helpful to a speaker in communicating her message. They can aid her in becoming more aware of what she is saying; they can encourage her to explore her thoughts and feelings; and they can assist her in fine tuning her utterances. In many interviews, especially in their initial stages, the client's pauses and hesitations serve these functions. If, for example, she is embarrassed to discuss her problem with a stranger or fears the attorney as an authority figure, pauses and hesitations can give her time to become more comfortable with the setting and explore her feelings. If she is experiencing uneasiness in confronting the fact that she has to handle this legal problem, these silences can assist her in coming to grips with the fact that she cannot avoid her situation. If she is uncertain as to her memory of the particular events, pauses and hesitations can help her clarify her memory.
To use pauses effectively, however, a lawyer must overcome the popular misconception that silence is a failure in communication. As described previously, speakers feel a pressure to talk and fear that they will be considered inadequate as communicators if the discourse does not flow. Listeners feel uneasy, unsure of what the speaker is trying to say, and impatient to hear her thoughts or feelings. Pressured to talk, the speaker may not sufficiently process her thoughts and feelings and may not communicate her full message; impatient to hear more information, the listener may fill up the silence with her own talk.
Lawyers need to overcome their discomfort with pauses and hesitations in discourse and their desire to rush along the flow of the interview. Especially at the beginning of an interview, a lawyer needs to be sensitive to the possible barriers between the client and herself and should view pauses and hesitations as opportunities for the client to reach his own comfort level, not as a failure to move the interview. She should avoid filling in the spaces with rephrased, probing, closed-ended questions or, even worse, attempting to complete the client's thoughts. Instead, a lawyer should allow the client to continue speaking either by maintaining and using her own silence, non-verbal facilitators (e.g., nodding or leaning forward), or words of encouragement.
When faced with a client who is unable to remember key facts, to make up his mind about a course of action, or to decide whether or not to enter into a retainer agreement, lawyers tend to want to ask more questions; to try to clarify points; or to probe further. Although these techniques can, at times, be very helpful, too much talking can actually be distracting for the client. It can deter clients from drawing their own conclusions and can discourage them from freely expressing their thoughts and feelings.
The lawyer should let the client know what information is sought; what work the client has to do; or what specific issues must be decided. She should also give the client a message allowing him to take the time to reflect about the information required or the decision to be made. If possible, the interview should be recessed for this purpose.
Lawyers need to be clear in using silence as a tool for encouraging reflection lest the client start to feel anxious. If the client does not understand that the lawyer's silence has a purpose or feels that the silence has gone on too long, he may feel embarrassed, unsure whether the lawyer is floundering; whether she even cares about his problem; or whether the lawyer disapproves of something he said. Counseling literature is replete with suggestions as to the proper length of time for such silences: three to six seconds; up to fifteen seconds; or four to twenty percent of a two-minute segment of the session. The appropriate time for these silences will depend on the context of the situation: the complexity of the issue involved; the comfort level of the client; the success of the client in remembering information or making a decision; and any looming time pressures. The client's nonverbal cues, reflecting either concentrated thinking or uncomfortable fidgeting, should give the lawyer some guidance regarding when to move on with the session.
Often in the midst of an interview or counseling session, a client will communicate her feelings and thoughts with deep silences. A battered spouse in a domestic violence case, for example, might interrupt her description of her partner's abusive conduct with a silence reflecting the immensity of the pain she feels. A widow, recovering from the recent death of her husband, might have great difficulty discussing the distribution of his estate because of her grief. In the midst of the litigation of a case or the transaction of a deal, a totally unforeseen event might occur that radically changes the status of the case or the relationship of the parties and has a deep emotional impact on the client: a significant motion may be granted or denied; property sought to be acquired by the client may be condemned; or an unanticipated eviction notice may be served. Stunned by such events, the client may be left speechless.
Recognition of deep silences can be helpful to a lawyer in several respects. In terms of rapport, an empathetic response to the emotions reflected in the silence can strengthen the lawyer-client relationship. Even if the lawyer believes she would not have the same feelings in similar circumstances, she cannot ignore the impact of the experience on the client. At the very least, when faced with a deep silence, a lawyer should not embark immediately on probing, informational questions. She might want to engage in "active listening," mirroring the feelings with a reflective response, such as "You must feel real grief about the death of your husband," for the widow left speechless discussing his estate. Especially in cases when the client is obviously distraught, the lawyer might merely join the client in her silence. Since the client feels that his experience cannot be verbalized, these circumstances may not be the occasion for the lawyer to display her wonderful verbal skills. In fact, the lawyer's own deep silence may be the most appropriate message to the client that she understands his emotions.
In regard to information-gathering, such silences can be very important to a complete understanding of a case. They may indicate areas for fact investigation. If, for instance, in a sex discrimination case, a client's account of her interactions with a particular co-worker is punctuated with long silences, an inference can be drawn that possibly emotionally-laden issues exist between them. The silence may only mean that the client wants to protect a friend from becoming involved in the case or that she fears that the co-worker will not corroborate her story. But it may also suggest that the co-worker was involved in the discrimination and that the client has great difficulty describing her experiences with him. These silences then may call for further sensitive questioning of the client or interviews with other witnesses to the interactions. Deep silence may also suggest the need for the client to reappraise his strategy in a case. If, for instance, he reacts in prolonged deep silence in response to an unforeseen circumstance in a hotly-contested case (e.g., an adverse ruling of a motion or a heated rejection of an offer), the lawyer may want to explore alternative strategies with the client.
Many lawyers, especially inexperienced ones, may interpret silence as assent. The popular notion in American society, and especially the talkative legal culture, is that silence signifies agreement. n208 If the client does not want to talk about the different options, the lawyer assumes that he is satisfied with the offer on the table and that there is no reason for continuing the dialogue. n209 But, as the review of the different meanings of silence has shown, a client's minimal response [*245] in a counseling session may actually be subject to a wide variety of interpretations: that the client is tentative about his decision and wants to reflect on it; that he is emotionally upset by the offer but cannot express his feelings at that moment; or that he simply wants to avoid a conflict with a lawyer he feels has ignored his interests.
A lawyer, then, needs to be sensitive to these quiet moments in counseling. She should not jump to conclusions about the meaning of a minimal response or nod. Especially with clients who have been disempowered in much of their lives, the lawyer should try to encourage the client to articulate her feelings to confirm the meaning of the silence. Often, it is helpful to ask the client to describe explicitly the bases for his decision. The client may pause or hesitate in his response, but the lawyer should give him the opportunity to reflect fully on his initial response.
For a lawyer both to interpret properly the meaning of a client's silences and to use silence effectively herself, she must have some broad understanding of the functions of silence in the client's culture. As discussed previously, different cultures can have significantly diverse attitudes toward the use of silence in given situations. Just as a lawyer can be severely disadvantaged if she tries to communicate without an interpreter with a client who only has limited proficiency in her language, interviewing and counseling a client from a different culture without any sensitivity to issues of silence can interfere significantly with the discourse. In an initial interview, for instance, a client from a culture where only limited conversation is the norm between strangers might be put off by a very talkative attorney. If that same client responds to probing questions with silence or minimal information, the lawyer needs to understand that the client may be marking social distance and that the development of a relationship may take more effort than lively colloquy.
The danger of jumping to conclusions is very prevalent when lawyers confront silences in witnesses' stories. Throughout the fact investigation of a case - either informal interviews or formal depositions - lawyers encounter a wide variety of silences in the different stories being told. The traditional law of evidence has developed some interpretive rules for some of these silences, many of which unfortunately jump to conclusions as to the meaning of the particular silence. One rule, for example, allows for silences to be interpreted as "adoptive admissions": When a statement is made in the presence of a party containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak is considered an admission. Another rule of evidence is that if a written statement is given to a party and read in the presence of others, the party's failure to deny its assertions may be received as an admission, when under the circumstances it would be natural for the person to deny them if he or she did not acquiesce.
The goal of any lawyer in a negotiation should be to communicate persuasively with the other side. Negotiation is not just a series of offers, counteroffers, and concessions. Nor is it limited to the identification of interests, generation of options, and development of solutions. The energy that fuels both of these processes - what moves parties to concessions or mutual solutions - comes from communication about the parties' rights and powers.
Some lawyers, however, ignore this goal and instead seek to prevail in a negotiation by pummeling the other party with words. They assume that by the sheer force of their arguments and threats, they can force the other side into agreement. By ignoring the persuasive aspects of the negotiation process, they run the risk of inviting counterthreats, pressuring the other side into terminating the discussions, and damaging any ongoing relationships between the parties.
Productive communication in negotiation requires the ability to listen to the concerns of the other party and to try to convince it to change its position. Whether the lawyer is using an adversarial strategy (concentrating on obtaining concessions from the other side for the distribution of limited resources) or a problem-solving strategy (focusing on developing solutions that can integrate the resources of both sides), the lawyer's aim is to motivate the other party to make an agreement on terms as favorable as possible to her client. "Negotiation is not a monologue with the other party's lawyer as a passive audience. Rather, it is a dialogue in which [each lawyer tries] to persuade the other party to reach a mutually agreeable decision on issues."
In his article, Prof. Krieger makes the following conclusions, which, I think, deserve serious reflection and consideration by the Bench and the Bar:
1. The legal profession is infatuated with the verbal. In relationships with clients, lawyers want detailed information and often become frustrated with evasive and ambiguous answers. In negotiations, they frequently strive to overwhelm the other side with words: arguments, threats, and posturing. When a tentative agreement has been reached, they spend, at least in the opinion of laypersons, inordinate amounts of time, parsing each and every term, and attempting to forge a deal that will take into account every possible eventuality. In formal hearings and trials, lawyers pride themselves on the precision and incisiveness of their arguments and examinations, ridiculing a witness' uncertainty and hesitation and often trying to take control of the courtroom with the power of their voices.
2. Much of legal education supports this culture. Many law professors demand the quick, precise answer, take advantage of student pauses and hesitations to make their point, and often appear to reward the glib response. At the end of the semester, mastery of a subject is evaluated solely on a three-hour examination in which rapid recall and recitation of the course material is the value.
3. Lawyers' infatuation with the verbal, however, ignores the fact that not all communication is informational. The details, demand for precision, search for the right words, the focus of most of a lawyer's craft, can ignore the interpersonal and contextual components of language. Lost in all the verbiage is an understanding of the communicative power of silence. Silence plays a variety of functions in human communication both to facilitate the sending of verbal messages (pauses and hesitations; intervening silences) and to send their own messages (assent; promotion of reflection and discussion; deep silences; and marking of social distance). Disregard of these functions can often lead to unreflective discourse and misunderstanding. Lawyers can have all the words right but can miss the mark when they do not have an appreciation of the function of the spaces between words. Especially in cross-cultural contexts, the failure to understand how someone from a less verbal culture uses silence can result in serious misunderstandings.
Effective lawyering requires knowledge not only of the grammar of language, but also the rules of silence. Obviously, much of a lawyer's practice needs to focus on verbal precision and the crafting of words into a persuasive and coherent message. But without a grasp of the forms and functions of silence, lawyers cannot communicate effectively with their clients, their adversaries, or decision-makers. Both as speakers and listeners, the messages sent can be lost or misunderstood in all the lawyerly noise. As strange as it may initially sound, a lawyer can at times be most effective when she does not speak.
Most of literature assume that a lawyer's skill is almost exclusively verbal and focus primarily on how a lawyer should craft language to communicate effectively. Lawyers are students of language by profession. They exercise their power in court by manipulating the thoughts and opinions of others, whether by making speeches or questioning witnesses. In these arts the most successful lawyers reveal (to those who can appreciate their performance) a highly developed skill. While this literature examines the use of language in the representation of clients, it largely ignores the role of silence in the lawyering process. Moreover, it rarely acknowledges that words can, at times, impede communication.
Many commonly assume that silence on the part of a lawyer, client, or witness has a negative connotation and discourage its use for clear communication. Silence during a trial may present considerable problems for the court. By its very nature, silence is ambiguous and therefore messy. Questions about its meaning may lurk in the shadows unless the court or the attorneys assume an active role in resolving the ambiguities. For example, what does it mean when a witness is slow to answer or generally reticent? What meaning lies in the behavior of a hesitant witness - careful thinking in order to report recollections faithfully or cautious planning to fabricate a false version?
Scholars in other social disciplines have recognized the significance of silence as a powerful means of communication. They reject the notion that silence is simply the absence of speech and contend that silence can serve positive, as well as negative, communicative functions. They assert that like speech, silence can have a wide variety of meanings depending upon several factors, including the mental states of the participants, the context of the discourse, and the culture within which the communication occurs.
Depending upon the backgrounds of the participants, the occasion, and the verbal and nonverbal contexts surrounding the silence, the following list identifies a number of typical potential meanings:
1. The person lacks sufficient information to talk on the topic.
2. The person feels no sense of urgency about talking.
3. The person is carefully pondering exactly what to say next.
4. The silence may simply reflect the person's normal rate of thinking.
5. The person is avoiding discussion of a controversial or sensitive issue out of fear.
6. The silence expressed agreement.
7. The silence expressed disagreement.
8. The person is doubtful or indecisive.
9. The person is bored.
10. The person is uncertain of someone else's meaning.
11. The person is in awe, or raptly attentive, or emotionally overcome.
12. The person is snooty or impolite.
13. The person's silence is a means of punishing others, of annihilating others symbolically by excluding them from verbal communication.
14. The person's silence marks a characteristic personality disturbance.
15. The person feels inarticulate despite a desire to communicate; perhaps the topic lends itself more to intuitive sensing than to verbal discussion.
16. The person's silence reflects concern for not saying anything to hurt another person.
17. The person is daydreaming or preoccupied with other matters.
18. The person uses silence to enhance his own isolation, independence, and sense of self-uniqueness.
19. The silence marks sulking anger.
20. The person's silence reflects empathic exchange, the companionship of shared mood or insight.
There is a grammar of silence, a set of rules structuring the relationship between verbal utterances and the unspoken, which demonstrates the function of silence in a given situation. This grammar may seem, at first blush, more difficult to understand than the grammar of the verbal, but it still can be similarly decoded.
The basic thesis of the article of Prof. Krieger is that effective lawyering requires an awareness of the significant role that silence plays in communication. Most lawyers love to hear the sound of their own voices and often view silence - either on their own part or on the part of their client, a witness, or an opposing attorney - as a sign of weakness. Consistent with the culture of much of contemporary society, many lawyers feel the need to avoid silence at all possible costs. In the process, they can get lost in all the noise. As speakers, they can easily turn off their audiences by talking too much; as listeners, their need to hear immediate responses, to fill in any silence, can create obstacles to fruitful discourse. Silence frequently does not reflect a lack of knowledge or hesitancy, but provides a means for expressing feelings and ideas. Indeed, it often is one of the most effective ways of combating the noise of legal communication and reanimating the power of words. Understanding the positive functions of silence can help attorneys better interpret silences on the part of a client, witness, or adversary; can assist them in communicating more effectively with clients, adversaries, and decision makers; and can give them an appreciation of the uses of the unspoken for persuasive advocacy.
Obviously, silence, just as verbal communication, does not always serve a positive function. At times, for instance, silence can indicate weakness, avoidance, lack of preparation, or deception. The point of is not to endorse the unbridled use of silence as a means of communication or to encourage lawyers to assume that a client's or adversary's lack of response always reflects some deeper, profound meaning. The thrust is to urge lawyers to become more conscious of their own use of words and silence in their communication and to become more reflective about others' silence.
Communication theorists contend that, at least for hearing individuals, there is no such thing as absolute silence. We are thoroughly enmeshed in layers of energy exchanges. The sonic expression of these exchanges is so constant that, for the most part, we remain unconscious of it. In short, there is no real escape from the noisy vibrancy of life. While our ears and its cochlea are our central receptors for hearing, there are no unique "points of view" to audition.
From the standpoint of the function of language, silence is a relative term. It is not simply the absence of language. The misconception that silence is totally apart from language arises from the mistaken belief that language is used solely to exchange information. Communication theorists contend that in addition to the information exchange (the ideational function), language serves at least two other functions: interpersonal, and textual. The ideational function represents those situations when the speaker, as observer, talks "about something". The interpersonal function concerns the interaction of the speaker with the audience. This is the component through which the speaker intrudes himself into the context of the situation, both expressing his own attitudes and judgments and seeking to influence the attitudes and behaviour of others. The textual function makes language relevant by giving it a context. It signals whether a given text is intended as a lecture, poem, play, joke, chit-chat, or some other form of speech event.
All communication, including discourse in the practice of law, consists of far more than exchange of information. Although information gathering and dissemination are certainly important components of lawyering in either the transactional or dispute resolution contexts, the interpersonal and textual aspects of language are also crucial to a lawyer's craft. In an interview with a client, for example, the interpersonal language used by the lawyer in eliciting information can have a significant effect on whether all the pertinent facts within the client's personal knowledge are discovered. In a negotiation, the attorney's choice of language can set the context for the discussions by suggesting to the other side her attitude in regard to the issues on the table or telegraphing her seriousness about reaching a deal. Finally, in a closing argument, regardless of the information the lawyer relates, her language choice can either connect with or alienate the finder-of-fact.
Although silence, by its very nature, provides quite limited informational content about peoples, events, and actions, it can play a significant role in the realm of the interpersonal and textual functions of language. In fact, the dictionary definition of "silence" reflects the fact that silence is part of language, not totally distinct from it. Silence is an alternative or response to speech, a deliberate state or condition, or even a type of communication.
In the context of oral communication, silence and speech are not total opposites. Rather they constitute a "continuum of forms ranging from the most prototypical instances of silence to the most prototypical instances of speech." In a limited capacity, silence allows speech to make sense. Obviously, speech would be pure gibberish without some silences. On a very basic level, the cessation of sound in the production of consonants creates the pattern of consonants and vowels that makes "speech." Pausing or hesitating within the stream of speech makes it possible for each speaker to take her turn. Lulls within a particular conversation give each party an opportunity to reflect on the discourse. Without silence, speech would be nothing but endless noise and could not perform any of the functions of language. Indeed, in situations where speakers do not take a breath, engage in simultaneous discourse, or fail to take a time out from heated arguments, speech can actually be disruptive of communication.
Just as one can utter words without saying anything, one can say something [*211] without uttering words. Examples of such silences are numerous: refusing to answer a question; ignoring a tactless comment; communicating anger or resentment; acknowledging agreement with a proposal; or expressing awe or respect for the other party. And just as the meaning of speech depends in part on silences, the meaning of silences hinges largely on the surrounding utterances. A particular silence only has meaning in the context of its surrounding utterances. The act of saying consists of two basic components: the said and the unsaid. The former component includes the actual utterance and those real and imagined ones that precede it and that follow. The unspoken presumptions and implications belong to the latter.
The repertoire of codes (of either speech or silence) from which we select depends in part on the particular culture in which we are communicating. While in some cultures, for example, density of speech is valued, in others silence is a virtue and loquaciousness is considered antisocial. Accordingly, the decision-making process of when to use speech or silence or any combination of the codes along the noise-silence spectrum may hinge in some way on the specific community's attitudes toward silence.
Not all silence is communication. Communication does not occur, for instance, when a passenger on a bus sleeps wordlessly through the trip next to her seat-mate; when a visitor to an art gallery stands silently awestruck by a work of art; when a hushed courtroom sits still mesmerized by a closing argument; or when an abused woman cowers in silence when attacked by a man. Just as not all noise is part of speech, the absence of sound does not necessarily constitute communication.
French poet Max Picard observed: Language has lost its spiritual quality; all that remains is its purely acoustic quality. Listening is only possible when there is silence in man; listening and silence belong together. Instead of truly speaking to others, today we are all waiting merely to unload on to others words that have collected within us. Speech has become a purely animal, excretive function.
A second form of silence which structures communication is "intervening silence." n64 While pauses and hesitations are primarily unintentional interruptions of the sequence of speech reflecting an effort to find the correct word or meaning, intervening silences are intentional attempts to punctuate words, phrases, or sentences to highlight the content of speech. Of all the senses, only hearing gives the appearance of progressing through time; silences can give a pattern to this temporal flow. Consider, for example, a comedian's telling of a joke. The silence before the punchline commands the audience's attention, stops what could be a monotonous flow. Without this silence, the joke could fall flat. Similarly, the tension created by the storyteller's silence before the suspenseful climax draws the listener's attention.
Related to intervening silences, a third form of structuring silences is "fore and after silence." Within a discrete utterance, intervening silences make particular sound phrases (words, phrases, and sentences) distinct from every other sound phrase. In contrast, fore and after silences make every particular utterance distinct from another utterance. They serve a framing function for speech: fore silences provide the open space immediately before the utterance begins, and after silences furnish an interval immediately after the utterance. They give a silent backdrop for all communication.
The most popular understanding of silence as communication is the belief that the failure of one party to a communication to respond to another party implies assent. Silence on the part of the auditor is frequently taken to mean agreement with the speaker. Since one is usually led to speak when something is wrong, silence suggests that one sees nothing wrong, that he gives assent to what exists. The old legal maxim derived from Roman law, qui tacet consentire videatur ("silence implies consent") reflects this notion. Also, in many other cultures, in particular ritual contexts, silence by a listener is regarded as consent.
A danger exists, however, in over-reliance on this notion. Silence by a listener in response to a demand or request by a speaker can have many more meanings than consent. Indeed, even in the legal setting, silence implies consent is not mechanically applied. Courts look to the full context both before and after the silence to determine its meaning.
Silences can increase our awareness of what we are saying. But they can also communicate to the listener the desire for further reflection and discussion. Communication scholars theorize that lengthy interactive silences allow listeners to make inferences and judgments about what has and has not been said, to reflect on the possible meanings of both verbal and silent messages, and to come to their own conclusions.
Not only can silence encourage processing of the message by the listener, but it can also coax her into expressing herself. Many participants in discourse have the common misconception that the more one speaks, the more one encourages the listener to respond. Many of us become anxious when a listener does not immediately reply to our speech and, before she can answer, we add more words to encourage a verbal reaction. At times, however, excessive talk, repetitious haranguing, and more verbiage can actually terminate the communicative process. Silences can signal that the lines of communication remain open and that no one has the intention of closing them. Too much speech, on the other hand, can have the effect of terminating discourse.
A cautionary note, however, is in order. People who fill their discourse with an inordinate amount of silence can actually discourage open communication. An interesting study of the behavior of participants in small group discussions highlights this point. The researcher found that the participants in discussions viewed silent members (those who did not speak unless spoken to) in a more unfavorable light than not only those who made positive contributions (those who encouraged participation and tried to resolve the conflict) but even those who made negative contributions (those who discouraged participation and resolution). Apparently, participants viewed negative members as contributing more to the resolution of the issues than those who remained silent. To promote communication, then, silence must be used in the context of sufficient information exchange so that discourse is encouraged.
In certain contexts silence can actually communicate an assertion of power. In situations when speech is expected, a communicator, by refraining from words, can attempt to take control of the discourse. Even when the silent communicator is in a subordinated social position, silence can constitute an assertion of power. A suspect in police custody or a hostile witness at a deposition, for example, can refuse to answer or evade questions by the detective or the lawyer. Additionally, silence can communicate an assertion of power by demonstrating dissent. Strategic use of silence by dissenters in a public setting where words are expected can draw attention to the protest and register a judgment of disapproval.
One of the functions of language is ideational: to exchange information about people, objects, and events. By attempting to communicate our knowledge of this information concretely and unambiguously, speech usually serves this function much better than silence. But precisely because this mode of speech conveys certainty of perception, it is often inadequate to communicate certain very strong emotions. Words are used as symbols to convey the knowledge we wish to impart to a listener. At times, however, we have knowledge of an experience we are undergoing but cannot find the words to articulate it. In everyday parlance, we are "left speechless." The only symbols we have to convey this message are "deep silences."
Deep silences occur in several types of situations. First, they will often come in reaction to unexpected conditions such as a tragic report of a sudden death, illness, catastrophe, joyous news of the birth of a child, accomplishment of a friend or family member, or personal success. Faced, on the one hand, with the uncertainty and ambiguity of isolation, bewilderment, or terror, or, on the other hand, with overwhelming feelings of happiness, we frequently feel that words are unnecessary, that the circumstances "speak for themselves." Moreover, in those situations utterances are simply inadequate to convey the message because words, in their very concreteness, fail to express the depth of our feelings.
A second type of deep silence communication occurs between two intimates. Words help to create connections between people, but once those relationships are developed, words may become superfluous. To lovers or old friends, while some information exchange is obviously necessary in discourse, often the purpose of their conversation is not primarily ideational but interpersonal. For intimates, words may be unnecessary and may actually be considered intrusive in the relationship. As one commentator puts it, "It is not through speech or acts but through silence that the deepest bonds are cemented. One sure fruit of this communion of silence is that it invites the deepest and most intimate of confidential sharing."
A third and final type of deep silence is the silence of hatred and anger. While the lack of utterance between two people can reflect intimate communion, that silence - even between the same two individuals - can suggest deep estrangement.
When some people feel betrayed or hurt by a remark or another's conduct, their emotions may be so intense that they may treat the relationship as dead and feel that any verbal exchange would be worthless. They are not merely using silence as a weapon in an argument to persuade the other party or as a "time out" for reflection. By withdrawing from words, they are communicating the rupture in the relationship.
Similar to other communicative silences, whether a particular silence is a deep silence in reaction to an unexpected event, one of intimacy, or one of hatred, will depend on its context. The utterances prior to the silence and the circumstances surrounding it will, of course, help in an understanding of its meaning. But it is important to recognize that a deep silence has its own meaning apart from the utterances: that the communicator's intense emotions have made her feel that words are inadequate, unnecessary, or impossible to express.
Related to formulaic silences are those used to avoid conflict. At times, when individuals are engaged in a highly emotional disagreement, one or more of the parties will refrain from utterance to give themselves the distance to disengage from the conflict. Their purpose is not to reflect on the discourse or develop an appropriate response, but to avoid further confrontation. By giving the parties social distance, silence allows them to "let off steam," to release the tension of the situation.
The final form of silences marking interpersonal distance is the use of silence as a weapon. Here a party does not use silence to avoid conflict but rather as a strategic maneuver in an ongoing conflict. Use of the "silent treatment" sends a message of indifference or even outright disdain for the party, her conduct, or her position on an issue. In fact, "such silent treatment of the opponent may be even more powerful than uttering the harshest of words and drives many people crazy." In some communities, entire groups of individuals use the silent treatment to shun a member, to mark interpersonal distance against an individual who has breached some social norm.
Besides the particular situational setting, cultural context can also have a significant bearing on a silence's meaning. For a person to communicate with individuals from an unfamiliar society, she must not only be able to interpret the literal content of different utterances but also know the kinds of codes, channels and expressions [which are used] in what kinds of situations an ethnography of communication. In regard to silence, she needs to grasp what particular functions silence plays within that culture and to understand that different cultures have different interpretative norms for giving meaning to specific acts of silence. A lack of awareness of these norms can lead to significant misinterpretations of silence.
While a number of studies have been conducted on the meaning of silence in different cultures, the only major generalization that can be drawn concerns the divergent attitudes in high context and low context cultures. In high context cultures (such as Japan and Arab countries), individuals rely most heavily on how a statement is said rather than the content of what is said; in low context cultures (such as Germany and the United States), people rely primarily on the substance of what is uttered. While in high context societies, the parties rely a great deal on nonverbal communication and pay less attention to detail, in lower context societies, they focus on the words and literal meaning of the communication. Consistent with these broad definitions, researchers have found that while individuals in high context cultures unconsciously use silence in their everyday conversations to send "scripted" messages about their feelings, communicators in low context cultures do not have such embedded scripts in their communications to send subtle silent messages but tend to use silence strategically, making conscious choices of when to refrain from speech.
The ability to communicate well is obviously critical to almost every aspect of the lawyer's craft. Much of a lawyer's work is involved in dealing with people - listening to clients, developing rapport with them, handling them, persuading judges or opponents, and so on. The skills of the successful lawyer lay in mastery of the human interaction - how to listen, how to persuade, how to meet emotional and psychological needs of clients, opponents, judges, indeed, everyone they deal with professionally.
As many commentators contend, language itself is inherently indeterminate depending in large part on the speaker's and listener's context for its meaning. Even with those limitations, attempts are made to develop a variety of oral advocacy techniques that lawyers can employ on a context-specific basis. Similarly, this analysis of silence in the lawyering process strives to identify possible meanings that silences can have in their interactions so that they can determine, within the context of the particular communication, how best to use silence or respond to its use by their audience. While it can be argued that interpreting silences may be a more daunting task than deciphering words, the following analysis will show that a lawyer's comprehension of silences will assist her in communicating her messages and understanding those she receives.
In an initial interview of a client, a lawyer has a number of goals: (1) to form an attorney-client relationship; (2) to determine the client's goals; (3) to gather as much as the client knows about the facts; and (4) to reduce the client's anxiety without being unrealistic. Whether or not the lawyer is successful in meeting these goals depends in large part on her ability to make the client feel comfortable, to encourage the client to communicate freely, and to remove inhibitions to communication, such as authority, cultural, psychological, or social barriers. Her capacity to respond to and use silences is essential to each of these skills.
As demonstrated earlier, pauses and hesitations can actually be very helpful to a speaker in communicating her message. They can aid her in becoming more aware of what she is saying; they can encourage her to explore her thoughts and feelings; and they can assist her in fine tuning her utterances. In many interviews, especially in their initial stages, the client's pauses and hesitations serve these functions. If, for example, she is embarrassed to discuss her problem with a stranger or fears the attorney as an authority figure, pauses and hesitations can give her time to become more comfortable with the setting and explore her feelings. If she is experiencing uneasiness in confronting the fact that she has to handle this legal problem, these silences can assist her in coming to grips with the fact that she cannot avoid her situation. If she is uncertain as to her memory of the particular events, pauses and hesitations can help her clarify her memory.
To use pauses effectively, however, a lawyer must overcome the popular misconception that silence is a failure in communication. As described previously, speakers feel a pressure to talk and fear that they will be considered inadequate as communicators if the discourse does not flow. Listeners feel uneasy, unsure of what the speaker is trying to say, and impatient to hear her thoughts or feelings. Pressured to talk, the speaker may not sufficiently process her thoughts and feelings and may not communicate her full message; impatient to hear more information, the listener may fill up the silence with her own talk.
Lawyers need to overcome their discomfort with pauses and hesitations in discourse and their desire to rush along the flow of the interview. Especially at the beginning of an interview, a lawyer needs to be sensitive to the possible barriers between the client and herself and should view pauses and hesitations as opportunities for the client to reach his own comfort level, not as a failure to move the interview. She should avoid filling in the spaces with rephrased, probing, closed-ended questions or, even worse, attempting to complete the client's thoughts. Instead, a lawyer should allow the client to continue speaking either by maintaining and using her own silence, non-verbal facilitators (e.g., nodding or leaning forward), or words of encouragement.
When faced with a client who is unable to remember key facts, to make up his mind about a course of action, or to decide whether or not to enter into a retainer agreement, lawyers tend to want to ask more questions; to try to clarify points; or to probe further. Although these techniques can, at times, be very helpful, too much talking can actually be distracting for the client. It can deter clients from drawing their own conclusions and can discourage them from freely expressing their thoughts and feelings.
The lawyer should let the client know what information is sought; what work the client has to do; or what specific issues must be decided. She should also give the client a message allowing him to take the time to reflect about the information required or the decision to be made. If possible, the interview should be recessed for this purpose.
Lawyers need to be clear in using silence as a tool for encouraging reflection lest the client start to feel anxious. If the client does not understand that the lawyer's silence has a purpose or feels that the silence has gone on too long, he may feel embarrassed, unsure whether the lawyer is floundering; whether she even cares about his problem; or whether the lawyer disapproves of something he said. Counseling literature is replete with suggestions as to the proper length of time for such silences: three to six seconds; up to fifteen seconds; or four to twenty percent of a two-minute segment of the session. The appropriate time for these silences will depend on the context of the situation: the complexity of the issue involved; the comfort level of the client; the success of the client in remembering information or making a decision; and any looming time pressures. The client's nonverbal cues, reflecting either concentrated thinking or uncomfortable fidgeting, should give the lawyer some guidance regarding when to move on with the session.
Often in the midst of an interview or counseling session, a client will communicate her feelings and thoughts with deep silences. A battered spouse in a domestic violence case, for example, might interrupt her description of her partner's abusive conduct with a silence reflecting the immensity of the pain she feels. A widow, recovering from the recent death of her husband, might have great difficulty discussing the distribution of his estate because of her grief. In the midst of the litigation of a case or the transaction of a deal, a totally unforeseen event might occur that radically changes the status of the case or the relationship of the parties and has a deep emotional impact on the client: a significant motion may be granted or denied; property sought to be acquired by the client may be condemned; or an unanticipated eviction notice may be served. Stunned by such events, the client may be left speechless.
Recognition of deep silences can be helpful to a lawyer in several respects. In terms of rapport, an empathetic response to the emotions reflected in the silence can strengthen the lawyer-client relationship. Even if the lawyer believes she would not have the same feelings in similar circumstances, she cannot ignore the impact of the experience on the client. At the very least, when faced with a deep silence, a lawyer should not embark immediately on probing, informational questions. She might want to engage in "active listening," mirroring the feelings with a reflective response, such as "You must feel real grief about the death of your husband," for the widow left speechless discussing his estate. Especially in cases when the client is obviously distraught, the lawyer might merely join the client in her silence. Since the client feels that his experience cannot be verbalized, these circumstances may not be the occasion for the lawyer to display her wonderful verbal skills. In fact, the lawyer's own deep silence may be the most appropriate message to the client that she understands his emotions.
In regard to information-gathering, such silences can be very important to a complete understanding of a case. They may indicate areas for fact investigation. If, for instance, in a sex discrimination case, a client's account of her interactions with a particular co-worker is punctuated with long silences, an inference can be drawn that possibly emotionally-laden issues exist between them. The silence may only mean that the client wants to protect a friend from becoming involved in the case or that she fears that the co-worker will not corroborate her story. But it may also suggest that the co-worker was involved in the discrimination and that the client has great difficulty describing her experiences with him. These silences then may call for further sensitive questioning of the client or interviews with other witnesses to the interactions. Deep silence may also suggest the need for the client to reappraise his strategy in a case. If, for instance, he reacts in prolonged deep silence in response to an unforeseen circumstance in a hotly-contested case (e.g., an adverse ruling of a motion or a heated rejection of an offer), the lawyer may want to explore alternative strategies with the client.
Many lawyers, especially inexperienced ones, may interpret silence as assent. The popular notion in American society, and especially the talkative legal culture, is that silence signifies agreement. n208 If the client does not want to talk about the different options, the lawyer assumes that he is satisfied with the offer on the table and that there is no reason for continuing the dialogue. n209 But, as the review of the different meanings of silence has shown, a client's minimal response [*245] in a counseling session may actually be subject to a wide variety of interpretations: that the client is tentative about his decision and wants to reflect on it; that he is emotionally upset by the offer but cannot express his feelings at that moment; or that he simply wants to avoid a conflict with a lawyer he feels has ignored his interests.
A lawyer, then, needs to be sensitive to these quiet moments in counseling. She should not jump to conclusions about the meaning of a minimal response or nod. Especially with clients who have been disempowered in much of their lives, the lawyer should try to encourage the client to articulate her feelings to confirm the meaning of the silence. Often, it is helpful to ask the client to describe explicitly the bases for his decision. The client may pause or hesitate in his response, but the lawyer should give him the opportunity to reflect fully on his initial response.
For a lawyer both to interpret properly the meaning of a client's silences and to use silence effectively herself, she must have some broad understanding of the functions of silence in the client's culture. As discussed previously, different cultures can have significantly diverse attitudes toward the use of silence in given situations. Just as a lawyer can be severely disadvantaged if she tries to communicate without an interpreter with a client who only has limited proficiency in her language, interviewing and counseling a client from a different culture without any sensitivity to issues of silence can interfere significantly with the discourse. In an initial interview, for instance, a client from a culture where only limited conversation is the norm between strangers might be put off by a very talkative attorney. If that same client responds to probing questions with silence or minimal information, the lawyer needs to understand that the client may be marking social distance and that the development of a relationship may take more effort than lively colloquy.
The danger of jumping to conclusions is very prevalent when lawyers confront silences in witnesses' stories. Throughout the fact investigation of a case - either informal interviews or formal depositions - lawyers encounter a wide variety of silences in the different stories being told. The traditional law of evidence has developed some interpretive rules for some of these silences, many of which unfortunately jump to conclusions as to the meaning of the particular silence. One rule, for example, allows for silences to be interpreted as "adoptive admissions": When a statement is made in the presence of a party containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak is considered an admission. Another rule of evidence is that if a written statement is given to a party and read in the presence of others, the party's failure to deny its assertions may be received as an admission, when under the circumstances it would be natural for the person to deny them if he or she did not acquiesce.
The goal of any lawyer in a negotiation should be to communicate persuasively with the other side. Negotiation is not just a series of offers, counteroffers, and concessions. Nor is it limited to the identification of interests, generation of options, and development of solutions. The energy that fuels both of these processes - what moves parties to concessions or mutual solutions - comes from communication about the parties' rights and powers.
Some lawyers, however, ignore this goal and instead seek to prevail in a negotiation by pummeling the other party with words. They assume that by the sheer force of their arguments and threats, they can force the other side into agreement. By ignoring the persuasive aspects of the negotiation process, they run the risk of inviting counterthreats, pressuring the other side into terminating the discussions, and damaging any ongoing relationships between the parties.
Productive communication in negotiation requires the ability to listen to the concerns of the other party and to try to convince it to change its position. Whether the lawyer is using an adversarial strategy (concentrating on obtaining concessions from the other side for the distribution of limited resources) or a problem-solving strategy (focusing on developing solutions that can integrate the resources of both sides), the lawyer's aim is to motivate the other party to make an agreement on terms as favorable as possible to her client. "Negotiation is not a monologue with the other party's lawyer as a passive audience. Rather, it is a dialogue in which [each lawyer tries] to persuade the other party to reach a mutually agreeable decision on issues."
Saturday, November 22, 2008
Expressive law
In 2000, Prof. Richard McAdams published an article entitled “AN ATTITUDINAL THEORY OF EXPRESSIVE LAW”, 79 Or. L. Rev. 339, which I which to summarize and discuss here, for legal research purposes of the visitors of this blog. In his article, Prof. McAdams makes the following conclusions:
1. Law influences behavior by what it says. In a democratic society, legislation and other law can change what people believe about the approval patterns in their community or society. The law operates as a signal of popular opinion. Because people value approval, intrinsically or instrumentally, such beliefs influence behavior. Updating one's beliefs to account for the law, an individual will infer the prospect of greater disapproval costs from behavior the law condemns, which gives the individual an incentive to obey the law that is independent of the legal sanctions.
2. Like other accounts of expressive law, the attitudinal theory suggests that economic theorists should stop implicitly assuming that law matters only because legal sanctions affect the costs of behavior. The economic analysis of a legal rule is at least presumptively incomplete when it ignores the possibility that law influences behavior expressively, as by influencing beliefs about approval patterns.
3. In addition, the attitudinal theory of expressive law has a number of interesting implications including: that local law will have a greater expressive effect than state or national law; that the expressive effect depends on the degree to which the public believes that law is positively correlated with public opinion; that courts can have an expressive effect because court decisions are so correlated; that ideological interest groups will seek to capture the expressive power of law as a means of expanding their influence over the behavior of others; and that some limits on government expression may be desirable to avoid its undesirable exploitation by such groups.
Law is often defined by the fact of its sanction. The state does not merely recommend compliance with the rules we call law, but backs those rules with liability or punishment. Law affects behavior "expressively" by what it says rather than by what it does. Law changes behavior by signaling the underlying attitudes of a community or society. Because people are motivated to gain approval and avoid disapproval, the information signaled by legislation and other law affects their behavior.
The attitudinal theory has three components. First, there is a motivational assumption that an individual's behavior depends, in part, on what actions she believes others will approve or disapprove. The motivating power of approval may arise either because the individual values approval for its own sake, or as an instrument for achieving some other end. Second, there is a claim that individuals have imperfect information about what others approve and that their beliefs about such matters are frequently (though not inevitably) mistaken. Given their concern for approval, individuals are therefore sensitive to new sources of information. Third, there is a claim that democratically produced legislative outcomes are positively correlated with popular attitudes and therefore provide a signal of those attitudes. Independent of the sanction, the legislative signal influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
The attitudinal theory of expressive law also presents several interesting implications. First, the theory implies that local ordinances will have a greater expressive effect than state or national legislation because most approval and disapproval occur locally, where others observe us. Second, the perception that "special interests" control the legislature will undermine the expressive effect because it depends on the size of the perceived positive correlation between public attitudes and legislation. Third, court decisions may also have an expressive effect because court decisions often reflect public attitudes. The most significant implication, however, is some insight into political conflict over symbols.
Economics explains an individual's behavior as the result of his preferences, beliefs, and opportunities. That is, an individual seeks to maximize satisfaction of his preferences, given his beliefs about how he can accomplish these ends, subject to the constraints of his opportunities. In recent years, various rational choice theorists have applied this basic framework to explain social regularities, such as norms, that were at one time thought to be outside the range of economic theory.
The utilitarian analysis of law is dominated by a focus on legal sanctions. The above analysis, however, begins to reveal how law might have a significant expressive effect, an effect dependent not on the legal sanction but on what the law says. Law signals the existence of information held by the law-maker. In particular, democratically enacted legislation provides information about what elected representatives believe their constituents approve and disapprove. Because legislators have a professional interest in correctly judging approval patterns, their enactments reveal their private information about such patterns. The law, not the sanction, then influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
It would be naive to deny that elected representatives sometimes feel immune from popular pressure. Legislators know that many citizens do not vote and those that do have imperfect information about how their representative has voted on or otherwise influenced legislation. Even if the citizen knows what her representative did, she also has imperfect information about whether the result was desirable. Perhaps the legislator had investigated the matter, possessed superior information, and acted paternalistically in the voter's interest. Finally, when the citizen enters the voting booth with the thought of ousting her representative in retaliation for some legislative act, she will have only a limited range of electoral options. Even if the voter disapproves of many of the incumbent's votes, she may still think herself better off with the incumbent than the challenger. For these reasons, democratic processes often fail to reveal or displace pluralistic ignorance. Not only do these limitations weaken the connection between majority preferences and legislative outcomes, but there are strong nonmajoritarian influences over legislation.
Here enters public choice theory and the problem of "rent-seeking." Rent-seeking occurs when a well-organized but narrow interest group exploits these limitations to secure a legislative transfer of material wealth from a larger and poorly organized majority. The obvious point is that lobbying groups influence legislators with campaign contributions and other favors. Less obvious before public choice theory was the relevance of a collective action problem.
When legal scholars talk of the expressive function of law, they often mean the expressive function of court-made law. The claim is that judicial pronouncements shape how individuals frame social and political issues and otherwise have a powerful symbolic effect on behavior. Indeed, if courts are "counter-majoritarian" institutions, as much legal theory suggests, then judicial decisions are not constrained by, and therefore cannot be a signal of, diffuse public attitudes. Under this line of thinking, the attitudinal model predicts that judicial decisions have no expressive effect.
The constitutional debate over the extent to which the Supreme Court is counter-majoritarian tends to obscure a second point: that much of what courts do is not constitutional. Courts interpret statutes and exercise common law powers. In both cases, they are subject to being "overruled" by the legislature, which has primacy in non-constitutional fields.
Two theories predict that courts would attempt to avoid issuing rules that legislatures feel compelled to supplant. First, if judges are motivated by prestige, they will presumably seek to avoid the loss of prestige that occurs when legislators enact highly popular legislation that "corrects" a judicial decision. Another theory posits that judges seek to implement their own policy preferences. If so, judges will get more of what they want if they push the policy only slightly beyond what it desires. The claim here is that legislatures can give attention to only a limited number of issues and that they are more likely to allocate that time to overruling judicial decisions the more those decisions deviate from legislative preferences. In other words, a statutory interpretation or common law rule is more likely to survive if it is consistent with or only slightly offends the popular attitudes that influence legislatures. Thus, under either a prestige model or a policy preferences model, non-constitutional decisions are constrained by popular attitudes. More precisely, popular opinion constrains publicized cases, but (as with legislation) law's expressive effect is, in any event, limited to cases that attract public attention.
Symbolic governmental actions, and the controversy they generate, present something of a puzzle for economic analysis. Even when the symbolic action involves legislation, it imposes no real sanction and allocates no material resources. Why then do people invest so much in a purely symbolic struggle? One can give an explanation based entirely on preferences. To satisfy this preference is then no different than satisfying material preferences. One's ends--to observe the veneration or desecration of the symbol--make rational some degree of political involvement to achieve those ends.
While a group may use symbolic governmental action to demonstrate its actual majority status, the struggle is not limited to signaling true approval patterns. Ideological interest groups would prefer to constitute a majority but will settle for creating the appearance of being the majority. Creating pluralistic ignorance will serve the group's interests nearly as well because, as noted above, this outcome can be stable and can substantially influence behavior. For this reason, opposing groups vying for public influence each will claim to represent the "mainstream." More generally, the size of an interest group often becomes a hotly contested issue, with a group expending significant effort in claiming to have the largest possible membership.
1. Law influences behavior by what it says. In a democratic society, legislation and other law can change what people believe about the approval patterns in their community or society. The law operates as a signal of popular opinion. Because people value approval, intrinsically or instrumentally, such beliefs influence behavior. Updating one's beliefs to account for the law, an individual will infer the prospect of greater disapproval costs from behavior the law condemns, which gives the individual an incentive to obey the law that is independent of the legal sanctions.
2. Like other accounts of expressive law, the attitudinal theory suggests that economic theorists should stop implicitly assuming that law matters only because legal sanctions affect the costs of behavior. The economic analysis of a legal rule is at least presumptively incomplete when it ignores the possibility that law influences behavior expressively, as by influencing beliefs about approval patterns.
3. In addition, the attitudinal theory of expressive law has a number of interesting implications including: that local law will have a greater expressive effect than state or national law; that the expressive effect depends on the degree to which the public believes that law is positively correlated with public opinion; that courts can have an expressive effect because court decisions are so correlated; that ideological interest groups will seek to capture the expressive power of law as a means of expanding their influence over the behavior of others; and that some limits on government expression may be desirable to avoid its undesirable exploitation by such groups.
Law is often defined by the fact of its sanction. The state does not merely recommend compliance with the rules we call law, but backs those rules with liability or punishment. Law affects behavior "expressively" by what it says rather than by what it does. Law changes behavior by signaling the underlying attitudes of a community or society. Because people are motivated to gain approval and avoid disapproval, the information signaled by legislation and other law affects their behavior.
The attitudinal theory has three components. First, there is a motivational assumption that an individual's behavior depends, in part, on what actions she believes others will approve or disapprove. The motivating power of approval may arise either because the individual values approval for its own sake, or as an instrument for achieving some other end. Second, there is a claim that individuals have imperfect information about what others approve and that their beliefs about such matters are frequently (though not inevitably) mistaken. Given their concern for approval, individuals are therefore sensitive to new sources of information. Third, there is a claim that democratically produced legislative outcomes are positively correlated with popular attitudes and therefore provide a signal of those attitudes. Independent of the sanction, the legislative signal influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
The attitudinal theory of expressive law also presents several interesting implications. First, the theory implies that local ordinances will have a greater expressive effect than state or national legislation because most approval and disapproval occur locally, where others observe us. Second, the perception that "special interests" control the legislature will undermine the expressive effect because it depends on the size of the perceived positive correlation between public attitudes and legislation. Third, court decisions may also have an expressive effect because court decisions often reflect public attitudes. The most significant implication, however, is some insight into political conflict over symbols.
Economics explains an individual's behavior as the result of his preferences, beliefs, and opportunities. That is, an individual seeks to maximize satisfaction of his preferences, given his beliefs about how he can accomplish these ends, subject to the constraints of his opportunities. In recent years, various rational choice theorists have applied this basic framework to explain social regularities, such as norms, that were at one time thought to be outside the range of economic theory.
The utilitarian analysis of law is dominated by a focus on legal sanctions. The above analysis, however, begins to reveal how law might have a significant expressive effect, an effect dependent not on the legal sanction but on what the law says. Law signals the existence of information held by the law-maker. In particular, democratically enacted legislation provides information about what elected representatives believe their constituents approve and disapprove. Because legislators have a professional interest in correctly judging approval patterns, their enactments reveal their private information about such patterns. The law, not the sanction, then influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
It would be naive to deny that elected representatives sometimes feel immune from popular pressure. Legislators know that many citizens do not vote and those that do have imperfect information about how their representative has voted on or otherwise influenced legislation. Even if the citizen knows what her representative did, she also has imperfect information about whether the result was desirable. Perhaps the legislator had investigated the matter, possessed superior information, and acted paternalistically in the voter's interest. Finally, when the citizen enters the voting booth with the thought of ousting her representative in retaliation for some legislative act, she will have only a limited range of electoral options. Even if the voter disapproves of many of the incumbent's votes, she may still think herself better off with the incumbent than the challenger. For these reasons, democratic processes often fail to reveal or displace pluralistic ignorance. Not only do these limitations weaken the connection between majority preferences and legislative outcomes, but there are strong nonmajoritarian influences over legislation.
Here enters public choice theory and the problem of "rent-seeking." Rent-seeking occurs when a well-organized but narrow interest group exploits these limitations to secure a legislative transfer of material wealth from a larger and poorly organized majority. The obvious point is that lobbying groups influence legislators with campaign contributions and other favors. Less obvious before public choice theory was the relevance of a collective action problem.
When legal scholars talk of the expressive function of law, they often mean the expressive function of court-made law. The claim is that judicial pronouncements shape how individuals frame social and political issues and otherwise have a powerful symbolic effect on behavior. Indeed, if courts are "counter-majoritarian" institutions, as much legal theory suggests, then judicial decisions are not constrained by, and therefore cannot be a signal of, diffuse public attitudes. Under this line of thinking, the attitudinal model predicts that judicial decisions have no expressive effect.
The constitutional debate over the extent to which the Supreme Court is counter-majoritarian tends to obscure a second point: that much of what courts do is not constitutional. Courts interpret statutes and exercise common law powers. In both cases, they are subject to being "overruled" by the legislature, which has primacy in non-constitutional fields.
Two theories predict that courts would attempt to avoid issuing rules that legislatures feel compelled to supplant. First, if judges are motivated by prestige, they will presumably seek to avoid the loss of prestige that occurs when legislators enact highly popular legislation that "corrects" a judicial decision. Another theory posits that judges seek to implement their own policy preferences. If so, judges will get more of what they want if they push the policy only slightly beyond what it desires. The claim here is that legislatures can give attention to only a limited number of issues and that they are more likely to allocate that time to overruling judicial decisions the more those decisions deviate from legislative preferences. In other words, a statutory interpretation or common law rule is more likely to survive if it is consistent with or only slightly offends the popular attitudes that influence legislatures. Thus, under either a prestige model or a policy preferences model, non-constitutional decisions are constrained by popular attitudes. More precisely, popular opinion constrains publicized cases, but (as with legislation) law's expressive effect is, in any event, limited to cases that attract public attention.
Symbolic governmental actions, and the controversy they generate, present something of a puzzle for economic analysis. Even when the symbolic action involves legislation, it imposes no real sanction and allocates no material resources. Why then do people invest so much in a purely symbolic struggle? One can give an explanation based entirely on preferences. To satisfy this preference is then no different than satisfying material preferences. One's ends--to observe the veneration or desecration of the symbol--make rational some degree of political involvement to achieve those ends.
While a group may use symbolic governmental action to demonstrate its actual majority status, the struggle is not limited to signaling true approval patterns. Ideological interest groups would prefer to constitute a majority but will settle for creating the appearance of being the majority. Creating pluralistic ignorance will serve the group's interests nearly as well because, as noted above, this outcome can be stable and can substantially influence behavior. For this reason, opposing groups vying for public influence each will claim to represent the "mainstream." More generally, the size of an interest group often becomes a hotly contested issue, with a group expending significant effort in claiming to have the largest possible membership.
Paradox
I wish to summarize and discuss a 2000 legal article of Prof. Prof. Harold R. Medina of Columbia Law School, USA, entitled “THE CONTENT OF OUR CASEBOOKS: WHY DO CASES GET LITIGATED?”, for purposes of legal research of the visitors of this blog.
Using the law and economics model, Prof. Medina advances the view that the central paradox of litigation is the fact that taken together, the parties to a lawsuit are losers from the moment they enter the process of adjudication.
He urges lawyers and jurists to understand the behavioral dynamics that drive the real people we encounter in our profession. He theorizes that if our predictions make use of the narrow incentive structure admitted by law and economics, they will often fail (because) this impoverished model fails to capture a robust picture of human decision-making. He believes that the task of the Bench and the Bar is to adapt the system of dispute resolution to the world in which real humans exist, imperfections and all.
Prof. Medina writes that as disputants enter the litigation process, they are clear losers because “any division of the stake between them, whether it be one side taking all, or half-and-half, or anything in between, leaves the parties jointly in the same position as when they began their dispute: however they slice it, they will still have the entire pie to share. Once lawyers and courts and filing fees and witnesses and depositions and all the rest are brought into the picture, the pie starts getting smaller and smaller.
He adds that regardless of the contractual terms with their attorneys and even if represented on contingency, clients soon realize that they are signing away a significant amount of resources to their newly acquired legal representatives. Most parties quickly learn this lesson, he states, and a remarkably stable ninety-five percent of cases manage to get resolved well short of trial.
As applied to law, the critical economic insight regarding litigated cases comes from asking a simple question about the incentives that would lead people to actually seek a trial resolution in a case.
The key insight begins with a very simple model that assumes each party enters the
litigation process with an expected value attached to the claim of the plaintiff.
At its most simple, the model appears as follows: EVP= P x A minus CP.
In this simple model, EVP represents the expected value of the case to the plaintiff. As set forth in this account, the plaintiff’s expectations are a function of her probability of success (P), the likely award to be obtained (A), and the costs associated with prosecuting the claim (Cp).
This calculation can then also be expressed as the defendant’s expected loss from a plaintiff’s claim.
Here the scaled down version of the model appears as follows: EVD= P x A plus CD.
The defendant’s calculation is the mirror image of the plaintiff’s, with one critical difference: the costs are added to the defendant’s likely loss, whereas they are subtracted from the plaintiff’s likely recovery.
Thus, these streamlined equations reflect the fact that the costs associated with litigation are a joint loss to the parties and are subtracted from their joint welfare.
By combining these two equations, it is possible to isolate what is termed a “settlement zone” in which two parties with convergent expectations of the likely award and the probability of the plaintiff prevailing are able to negotiate a mutually advantageous end to the litigation. This may be represented as follows:
SETTLEMENT ZONE CREATED BY CP PLUS CD,
WHEN PARTIES AGREE ON VALUES OF P AND A
If parties can agree on the likelihood of P (the probability of the plaintiff winning) and A (the amount that will be awarded if she wins), what they are really arguing about is how to divide up the costs of litigation, CP and CD.
For this model to work, however, there must be a convergence of the estimated value of the case, which is a function of the likelihood that the plaintiff will prevail and the prospective damage award if she does indeed triumph.
So if there is agreement on both the probability of the plaintiff prevailing and the likely size of the ensuing award, cases should settle almost immediately, before much of the pie is eaten away by the transaction costs associated with litigation.
What then if the parties’ estimates of probable success or likely award do not converge? This turns out to be the arena for intervention of the American rules of procedure. The basic law and economics insight is to claim that the source of divergence between the parties must rest on incompatible assessments of either the facts or the law governing a particular case.
Since the parties (and society) are best served by promoting quick settlements that conserve the joint resources of the parties, the rules of procedure should attempt to intercede to remove the sources of division. The object of the rules of procedure is to foster the just, speedy, and inexpensive resolution of disputes.
As a society, we invest heavily in the creation of the public good known as decisional law. We build courthouses, staff them with respected leaders of the communities called judges, stock them with bright clerks, and demand that their experiential wisdom be reduced to written form. The resulting case law forms the heart of the common law enterprise and is publicly available to counsel to inform their assessments of the strength of the claims put forward on behalf of their clients.
In addition, we allow for a relatively quick reality check of the legal basis for a plaintiff’s claim through the rules on motion to dismiss. In some circumstances we may even allow for interlocutory appeals, mandamus, or certification of a case to a state appellate court, all for the purpose of providing an early look at the governing legal principles.
Factual disagreements are more difficult. Here the true rendition of the factual strength of a party’s claim lies not in the public domain but almost certainly in the private knowledge of the litigants themselves. As long as the parties have private information about their side of the case, the prospect of settlement may be significantly compromised.
Here too the rules of procedure seek to intercede. Rather than draw on a body of knowledge that is maintained in the public domain, as with published decisional law, the combined effects of notice pleading and liberal discovery serve to create a limited public domain of shared information between the parties.
The scope of discovery is the single most distinctive feature of American procedure and its scope and cost not only draw attention but also typically shock foreign litigants who find themselves in American courts. But under the economic model of litigation, the costs of discovery serve two important functions.
First, the fact that parties face significant costs in the litigation process expands the potential settlement zone and creates a greater possibility of mutually advantageous settlement, even if the parties do not have perfectly matched assessments of the likely prospects were the case to go to trial.
More significantly, the costs of discovery are justified to the extent that they bring the parties’ assessments of the case into line at some point prior to trial. Under this approach, discovery not only allows for a trial to be “on the merits” if the parties are unable to settle, but “the investment in mutually shared information makes settlement much more likely”.
Once the parties have discovered all the information relevant to the claims and defenses in the case, and once they have read from the same decisional law and tested the application of the law through motions to dismiss and motions for summary judgment, there is no reason to believe that the parties should not settle.
We must understand how people actually behave under conditions of stress and uncertainty. Why then do cases go to trial once the lawyers have tested the law and discovered the facts? First, there is the possibility of parties just getting it wrong. Second, there are always new areas of law, new claims, new conceptions of rights and duties. Third, it may be the case that parties diverge in their estimations of likely trial outcomes because the law is unsettled in the particular domain in which their dispute arose. Thus, there are two potential explanations for cases going to trial. The first is mistake and the second is uncertainty in the state of the law.
To conclude that parties are being helped to settle in an efficient manner, we need to assume that they will integrate the “shared knowledge of the facts and the law” in such a way as to further their achievement of “shared assessments of the case”. In other words, we need to have a behavioral theory of “how parties make decisions in conditions of uncertainty as they go about the process of acquiring the costly information about the relevant law and facts through the litigation system”.
The concern is not over the benefits of liberal pleading and court-supervised discovery compared to some more formalized common law pleading regimes from days gone by. The concern is over the assumption of how parties will respond to the new regime. The challenge is to understand how people integrate information. People individually and even aggregated through market transactions simply do not see the world through the lenses offered up by the expected-value economic calculus.
For example, people value losses more than gains and that they will invest more heavily in seeking to avoid a loss than realize a gain, even of equal value. Perhaps as a consequence, people value what they have over what they may aspire to have. This is known as the endowment effect and is a robust effect, even if the goods are of equal value.
There is also the problem of “framing” — the effect that presenting the same information as a matter of gains or losses has on the valuation. In one study, the first group was asked how much should be awarded to make whole the victim of the accident. The second group was asked how much they would have to be paid to accept the harm suffered by the victim. The only difference in asking the question in one or another way is to pose the inquiry as backward-looking (ex post relief) or as forward-looking (ex ante valuation of the harm). In either case, the hypothesis is that the value should be the same. But the responses to the questions did not prove such hypothesis.
Using the law and economics model, Prof. Medina advances the view that the central paradox of litigation is the fact that taken together, the parties to a lawsuit are losers from the moment they enter the process of adjudication.
He urges lawyers and jurists to understand the behavioral dynamics that drive the real people we encounter in our profession. He theorizes that if our predictions make use of the narrow incentive structure admitted by law and economics, they will often fail (because) this impoverished model fails to capture a robust picture of human decision-making. He believes that the task of the Bench and the Bar is to adapt the system of dispute resolution to the world in which real humans exist, imperfections and all.
Prof. Medina writes that as disputants enter the litigation process, they are clear losers because “any division of the stake between them, whether it be one side taking all, or half-and-half, or anything in between, leaves the parties jointly in the same position as when they began their dispute: however they slice it, they will still have the entire pie to share. Once lawyers and courts and filing fees and witnesses and depositions and all the rest are brought into the picture, the pie starts getting smaller and smaller.
He adds that regardless of the contractual terms with their attorneys and even if represented on contingency, clients soon realize that they are signing away a significant amount of resources to their newly acquired legal representatives. Most parties quickly learn this lesson, he states, and a remarkably stable ninety-five percent of cases manage to get resolved well short of trial.
As applied to law, the critical economic insight regarding litigated cases comes from asking a simple question about the incentives that would lead people to actually seek a trial resolution in a case.
The key insight begins with a very simple model that assumes each party enters the
litigation process with an expected value attached to the claim of the plaintiff.
At its most simple, the model appears as follows: EVP= P x A minus CP.
In this simple model, EVP represents the expected value of the case to the plaintiff. As set forth in this account, the plaintiff’s expectations are a function of her probability of success (P), the likely award to be obtained (A), and the costs associated with prosecuting the claim (Cp).
This calculation can then also be expressed as the defendant’s expected loss from a plaintiff’s claim.
Here the scaled down version of the model appears as follows: EVD= P x A plus CD.
The defendant’s calculation is the mirror image of the plaintiff’s, with one critical difference: the costs are added to the defendant’s likely loss, whereas they are subtracted from the plaintiff’s likely recovery.
Thus, these streamlined equations reflect the fact that the costs associated with litigation are a joint loss to the parties and are subtracted from their joint welfare.
By combining these two equations, it is possible to isolate what is termed a “settlement zone” in which two parties with convergent expectations of the likely award and the probability of the plaintiff prevailing are able to negotiate a mutually advantageous end to the litigation. This may be represented as follows:
SETTLEMENT ZONE CREATED BY CP PLUS CD,
WHEN PARTIES AGREE ON VALUES OF P AND A
If parties can agree on the likelihood of P (the probability of the plaintiff winning) and A (the amount that will be awarded if she wins), what they are really arguing about is how to divide up the costs of litigation, CP and CD.
For this model to work, however, there must be a convergence of the estimated value of the case, which is a function of the likelihood that the plaintiff will prevail and the prospective damage award if she does indeed triumph.
So if there is agreement on both the probability of the plaintiff prevailing and the likely size of the ensuing award, cases should settle almost immediately, before much of the pie is eaten away by the transaction costs associated with litigation.
What then if the parties’ estimates of probable success or likely award do not converge? This turns out to be the arena for intervention of the American rules of procedure. The basic law and economics insight is to claim that the source of divergence between the parties must rest on incompatible assessments of either the facts or the law governing a particular case.
Since the parties (and society) are best served by promoting quick settlements that conserve the joint resources of the parties, the rules of procedure should attempt to intercede to remove the sources of division. The object of the rules of procedure is to foster the just, speedy, and inexpensive resolution of disputes.
As a society, we invest heavily in the creation of the public good known as decisional law. We build courthouses, staff them with respected leaders of the communities called judges, stock them with bright clerks, and demand that their experiential wisdom be reduced to written form. The resulting case law forms the heart of the common law enterprise and is publicly available to counsel to inform their assessments of the strength of the claims put forward on behalf of their clients.
In addition, we allow for a relatively quick reality check of the legal basis for a plaintiff’s claim through the rules on motion to dismiss. In some circumstances we may even allow for interlocutory appeals, mandamus, or certification of a case to a state appellate court, all for the purpose of providing an early look at the governing legal principles.
Factual disagreements are more difficult. Here the true rendition of the factual strength of a party’s claim lies not in the public domain but almost certainly in the private knowledge of the litigants themselves. As long as the parties have private information about their side of the case, the prospect of settlement may be significantly compromised.
Here too the rules of procedure seek to intercede. Rather than draw on a body of knowledge that is maintained in the public domain, as with published decisional law, the combined effects of notice pleading and liberal discovery serve to create a limited public domain of shared information between the parties.
The scope of discovery is the single most distinctive feature of American procedure and its scope and cost not only draw attention but also typically shock foreign litigants who find themselves in American courts. But under the economic model of litigation, the costs of discovery serve two important functions.
First, the fact that parties face significant costs in the litigation process expands the potential settlement zone and creates a greater possibility of mutually advantageous settlement, even if the parties do not have perfectly matched assessments of the likely prospects were the case to go to trial.
More significantly, the costs of discovery are justified to the extent that they bring the parties’ assessments of the case into line at some point prior to trial. Under this approach, discovery not only allows for a trial to be “on the merits” if the parties are unable to settle, but “the investment in mutually shared information makes settlement much more likely”.
Once the parties have discovered all the information relevant to the claims and defenses in the case, and once they have read from the same decisional law and tested the application of the law through motions to dismiss and motions for summary judgment, there is no reason to believe that the parties should not settle.
We must understand how people actually behave under conditions of stress and uncertainty. Why then do cases go to trial once the lawyers have tested the law and discovered the facts? First, there is the possibility of parties just getting it wrong. Second, there are always new areas of law, new claims, new conceptions of rights and duties. Third, it may be the case that parties diverge in their estimations of likely trial outcomes because the law is unsettled in the particular domain in which their dispute arose. Thus, there are two potential explanations for cases going to trial. The first is mistake and the second is uncertainty in the state of the law.
To conclude that parties are being helped to settle in an efficient manner, we need to assume that they will integrate the “shared knowledge of the facts and the law” in such a way as to further their achievement of “shared assessments of the case”. In other words, we need to have a behavioral theory of “how parties make decisions in conditions of uncertainty as they go about the process of acquiring the costly information about the relevant law and facts through the litigation system”.
The concern is not over the benefits of liberal pleading and court-supervised discovery compared to some more formalized common law pleading regimes from days gone by. The concern is over the assumption of how parties will respond to the new regime. The challenge is to understand how people integrate information. People individually and even aggregated through market transactions simply do not see the world through the lenses offered up by the expected-value economic calculus.
For example, people value losses more than gains and that they will invest more heavily in seeking to avoid a loss than realize a gain, even of equal value. Perhaps as a consequence, people value what they have over what they may aspire to have. This is known as the endowment effect and is a robust effect, even if the goods are of equal value.
There is also the problem of “framing” — the effect that presenting the same information as a matter of gains or losses has on the valuation. In one study, the first group was asked how much should be awarded to make whole the victim of the accident. The second group was asked how much they would have to be paid to accept the harm suffered by the victim. The only difference in asking the question in one or another way is to pose the inquiry as backward-looking (ex post relief) or as forward-looking (ex ante valuation of the harm). In either case, the hypothesis is that the value should be the same. But the responses to the questions did not prove such hypothesis.
Tuesday, November 18, 2008
Senate coup
Yesterday Sen. Manuel Villar was ousted from his position as Senate President. Today I wrote him the following letter.
November 18, 2008
Fax
Sen. Manny Villar
BFRV Field Office
Las Pinas City
Mabuhay:
This is a personal note from a tukayo and a friend in Las Pinas City, where your political career started.
Do not be negatively affected by the move of Lacson, Madrigal, Roxas, Legarda, et. al.
The Filipinos know that among the presidentiables, e.g., De Castro, Roxas, Legarda, Lacson, Fernando, you are the most qualified, in terms of business and management experience, moral character, dedication to duty and love of country.
Lacson, et. al. only succeeded in intensifying the love of the Filipinos for you, as the underdog victim of selfish power grab and blind partisanship.
Continue your firm struggle to serve our abused country. Have a clear vision of what you wish to achieve as a selfless statesman. Stick to your noble dreams. Follow your humble heart.
I am placing on record my full support for you.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder, Las Pinas City Bar Association
Partner, Laserna Cueva Mercader Law Offices
November 18, 2008
Fax
Sen. Manny Villar
BFRV Field Office
Las Pinas City
Mabuhay:
This is a personal note from a tukayo and a friend in Las Pinas City, where your political career started.
Do not be negatively affected by the move of Lacson, Madrigal, Roxas, Legarda, et. al.
The Filipinos know that among the presidentiables, e.g., De Castro, Roxas, Legarda, Lacson, Fernando, you are the most qualified, in terms of business and management experience, moral character, dedication to duty and love of country.
Lacson, et. al. only succeeded in intensifying the love of the Filipinos for you, as the underdog victim of selfish power grab and blind partisanship.
Continue your firm struggle to serve our abused country. Have a clear vision of what you wish to achieve as a selfless statesman. Stick to your noble dreams. Follow your humble heart.
I am placing on record my full support for you.
Have a blessed and liberated day. Thank you.
Sincerely,
Atty. Manuel J. Laserna Jr.
Founder, Las Pinas City Bar Association
Partner, Laserna Cueva Mercader Law Offices
IBP House
In response to a text message I received today from the communication center of the Integrated Bar of the Philippines (IBP), in re: the 18th IBP House of Delegates to be held on November 20-22, 2008, I am reproducing below my 2006 letter to the IBP National Office suggesting various urgent reforms in the programming and performance of the IBP House of Delegates.
In my reply text message today to the IBP national communication center, I wrote:
“Re: 18th House on Nov. 20, pls. relay to Natl Pres to design the Program of Activities in a way that would give 80% of the time to Real Deliberations on Issues affecting the Bar, Bench, Justice sys., and Legal Educ. Avoid too much guests’ speeches and evening socials with too much alcohol and women. It is not a social event. It is the Lawyers’ Congress. Invite participations from law deans, laws profs asso., law NGOs, Media Asso., and law students asso., Make it a true consultative and deliberative body of lawyers. Do not waster IBP funds. Publish in Inquirer its Minutes and Resolutions. Thanks. – Atty. Manuel Laserna Jr., Founder, Las Pinas City Bar Asso; Past VP, IBPPPLM Ch.; retired Law Prof., FEU”.
My old 2006 letter suggesting various reforms to IBP is quoted in full below. (Note:
The IBP National Office ignored the letter. To this day, it remains unanswered).
LASERNA CUEVA-MERCADER
& Associates Law Offices
Unit 15, Star Arcade, C.V. Starr Avenue, Philamlife Village
Las Pinas City 1743 Philippines
Tel/Fax: (0 63 2) 8742539 & 8725443; Mobile : (0 63 920) 326 8824
Email: lcmlaw@gmail.com
Website: http://groups.msn.com/lasernacuevamercader
December 4, 2006
Fax
Atty. JOSE VICENTE SALAZAR
National President
Integrated Bar of the Philippines
Pasig City
RE : 17th HOUSE OF DELEGATES
M A B U H A Y:
Peace!
May I suggest the following in re: the holding and management of future annual sessions of the august IBP House of Delegates:
1. After the evening opening ceremonies on the 1st day, the entirety of the next day (2nd day) and of the 3rd day of the House of Delegates should be focused on pure DELIBERATIONS, not lectures and speeches.
The 17th House spent only 2 hours on deliberations (10 AM to 12 PM on the 3rd day). By then, many had gone home early to their respective chapters, trying to beat their plane schedules in Manila.
Only one keynote speech should be allowed during the opening ceremonies.
The entire event should be devoted to pure and focused deliberations of the resolutions, motions and ideas of the delegates from the chapters throughout the country.
The House is not an MCLE venue or a class seminar but a full-blown DELIBERATIVE BODY of the IBP as enunciated in its By-Laws.
We should grasp the rare opportunity of full and open deliberations by the House of all issues raised by the delegates that affect the IBP, the legal profession, the rule of law, the justice system, the legal education, and the state of the nation and of the world.
The House is the Congress of the 40,000-strong IBP lawyer population.
Let its DELIBERATIVE NATURE be optimized to the fullest for the good of the IBP and the legal profession.
2. It is best to conduct a professional pre-House SURVEY among the chapters and regions to identify the vital issues the chapters might wish to raise in the next House and to measure the degree of their knowledge and attitudes towards such vital issues.
From among the many vital issues, the Board should focus on the top five (5) vital issues for plenary workshop and deliberation purposes.
Let us professionalize the preparation, planning and management of the House, especially in re: its substantive, qualitative and deliberative content.
3. The report of the House should be published in two (2) national dailies and circulated among the mass media nationwide.
The Board should budget funds for the purpose.
Let the general public know our vital resolutions and ideas.
It is not enough to publish the abstract of the House in the IBP Newsletter, whose internal circulation is very limited.
The IBP should sponsor the law deans in the country, the presidents of the law student councils in the country, the heads of selected top law NGOs in the country, and the presidents of the judges associations, court personnel associations, a representative each from the National Press Club, the JUCRA and the JUROR (judicial mass media), a JBC representative, a CA and a SC representative, a representative from the law and justice committees of both houses of Congress, a representative from the DOJ, a representative from the Ombudsman, and a representative from Malacanang Palace to attend the House as non-delegates and observers, free of charge, with the power to participate in the deliberations but without the power to vote.
We need their academic and objective feedback and ideas to protect the House from the genetic danger of intellectual inbreeding, so to speak.
4. The delegates should be asked to evaluate (using a professionally prepared form) the House proceedings before each adjournment.
The goal is to improve future House sessions.
X x x. (This part is omitted. It refers to my protest on too much evening alcohol, dancing, etc. at night time during the event period)
May your day be blessed, enlightened and liberated. Thank you.
Sincerely.
Atty. Manuel J. Laserna Jr., A.B., LL.B., LL.M.
Delegate, 17th IBP House of Delegates, 2006
Managing Partner, LCM Law, Las Pinas City
Vice Pres., IBP PPLM Chapter, 2005-07
Founder, Las Pinas City Bar Assn, 2001
FEU Professor of Law, 1985-2006
In my reply text message today to the IBP national communication center, I wrote:
“Re: 18th House on Nov. 20, pls. relay to Natl Pres to design the Program of Activities in a way that would give 80% of the time to Real Deliberations on Issues affecting the Bar, Bench, Justice sys., and Legal Educ. Avoid too much guests’ speeches and evening socials with too much alcohol and women. It is not a social event. It is the Lawyers’ Congress. Invite participations from law deans, laws profs asso., law NGOs, Media Asso., and law students asso., Make it a true consultative and deliberative body of lawyers. Do not waster IBP funds. Publish in Inquirer its Minutes and Resolutions. Thanks. – Atty. Manuel Laserna Jr., Founder, Las Pinas City Bar Asso; Past VP, IBPPPLM Ch.; retired Law Prof., FEU”.
My old 2006 letter suggesting various reforms to IBP is quoted in full below. (Note:
The IBP National Office ignored the letter. To this day, it remains unanswered).
LASERNA CUEVA-MERCADER
& Associates Law Offices
Unit 15, Star Arcade, C.V. Starr Avenue, Philamlife Village
Las Pinas City 1743 Philippines
Tel/Fax: (0 63 2) 8742539 & 8725443; Mobile : (0 63 920) 326 8824
Email: lcmlaw@gmail.com
Website: http://groups.msn.com/lasernacuevamercader
December 4, 2006
Fax
Atty. JOSE VICENTE SALAZAR
National President
Integrated Bar of the Philippines
Pasig City
RE : 17th HOUSE OF DELEGATES
M A B U H A Y:
Peace!
May I suggest the following in re: the holding and management of future annual sessions of the august IBP House of Delegates:
1. After the evening opening ceremonies on the 1st day, the entirety of the next day (2nd day) and of the 3rd day of the House of Delegates should be focused on pure DELIBERATIONS, not lectures and speeches.
The 17th House spent only 2 hours on deliberations (10 AM to 12 PM on the 3rd day). By then, many had gone home early to their respective chapters, trying to beat their plane schedules in Manila.
Only one keynote speech should be allowed during the opening ceremonies.
The entire event should be devoted to pure and focused deliberations of the resolutions, motions and ideas of the delegates from the chapters throughout the country.
The House is not an MCLE venue or a class seminar but a full-blown DELIBERATIVE BODY of the IBP as enunciated in its By-Laws.
We should grasp the rare opportunity of full and open deliberations by the House of all issues raised by the delegates that affect the IBP, the legal profession, the rule of law, the justice system, the legal education, and the state of the nation and of the world.
The House is the Congress of the 40,000-strong IBP lawyer population.
Let its DELIBERATIVE NATURE be optimized to the fullest for the good of the IBP and the legal profession.
2. It is best to conduct a professional pre-House SURVEY among the chapters and regions to identify the vital issues the chapters might wish to raise in the next House and to measure the degree of their knowledge and attitudes towards such vital issues.
From among the many vital issues, the Board should focus on the top five (5) vital issues for plenary workshop and deliberation purposes.
Let us professionalize the preparation, planning and management of the House, especially in re: its substantive, qualitative and deliberative content.
3. The report of the House should be published in two (2) national dailies and circulated among the mass media nationwide.
The Board should budget funds for the purpose.
Let the general public know our vital resolutions and ideas.
It is not enough to publish the abstract of the House in the IBP Newsletter, whose internal circulation is very limited.
The IBP should sponsor the law deans in the country, the presidents of the law student councils in the country, the heads of selected top law NGOs in the country, and the presidents of the judges associations, court personnel associations, a representative each from the National Press Club, the JUCRA and the JUROR (judicial mass media), a JBC representative, a CA and a SC representative, a representative from the law and justice committees of both houses of Congress, a representative from the DOJ, a representative from the Ombudsman, and a representative from Malacanang Palace to attend the House as non-delegates and observers, free of charge, with the power to participate in the deliberations but without the power to vote.
We need their academic and objective feedback and ideas to protect the House from the genetic danger of intellectual inbreeding, so to speak.
4. The delegates should be asked to evaluate (using a professionally prepared form) the House proceedings before each adjournment.
The goal is to improve future House sessions.
X x x. (This part is omitted. It refers to my protest on too much evening alcohol, dancing, etc. at night time during the event period)
May your day be blessed, enlightened and liberated. Thank you.
Sincerely.
Atty. Manuel J. Laserna Jr., A.B., LL.B., LL.M.
Delegate, 17th IBP House of Delegates, 2006
Managing Partner, LCM Law, Las Pinas City
Vice Pres., IBP PPLM Chapter, 2005-07
Founder, Las Pinas City Bar Assn, 2001
FEU Professor of Law, 1985-2006
Friday, November 14, 2008
Rule of law
I wish to summarize the salient points contained in an old paper entitled “The Rule of Law and the Legitimacy of Constitutional Democracy” written by Prof. Michel Rosenfeld a few years ago, for purposes of legal research of the visitors of this blog. The philosophical and legal concepts discussed therein are still valid.
The rule of law is a cornerstone of contemporary constitutional democracy. It requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law.
The three essential characteristics of modern constitutionalism are limiting the powers of government, adherence to the rule of law, and protection of fundamental rights.
It does not necessarily follow that constitutional democracy under the rule of law is always indispensable or the best alternative. In some cases, constitutional democracy could be superfluous or even undesirable.
For example, in a close knit homogeneous society that is deeply religious and ruled by revered leaders who are widely believed to have direct access to divine commands, a theocracy would plainly seem more appropriate than a constitutional democracy. In such a society, instructions and directions imparted by the religious leaders would be paramount, leaving little room for the rule of law.
In contrast, in heterogeneous societies with various competing conceptions of the
good, constitutional democracy and adherence to the rule of law may well be indispensable to achieving political cohesion with minimum oppression. Such heterogeneous societies can be characterized as pluralistic. Most contemporary nation-states qualify as pluralistic.
Because people in pluralistic societies do not share the same values or interests, the legitimacy of their fundamental political institutions ultimately depends on some kind of consent among all those who are subjected to such institutions. Institutional legitimacy and political justice are conceived in terms of consent. This is the social contract theory as articulated in the philosophies of Hobbes, Locke, Rousseau, Kant, et. al.. The legitimacy of government depends on the consent of the governed.
Constitutional democracy itself can be oppressive since it generally imposes at least two kinds of coercion. To the extent it is democratic, constitutional democracy implements the will of political majorities and coerces political minorities to contribute to the realization of majority objectives with which minorities may strongly disagree. On the other hand, to the extent that constitutional democracy affords protection to certain fundamental rights and certain vindications of such rights frustrate the ability of majorities to fulfill certain objectives which they consider paramount, the enforcement of constitutional rights would seem to lead to a significant amount of coercion.
The rule of law itself is coercive inasmuch as citizens are subjected to laws with which they disagree or which they find oppressive. Consent to constitutional democracy and the rule of law may not eliminate coercion but it would legitimate it. If constitutional democracy and the rule of law can be genuinely legitimated on the basis of some plausible notion of consent, the mere fact they may also be coercive would not necessarily negate their legitimacy.
The "rule of law" is often contrasted to the "rule of men." In some cases, the "rule of men" (or, as we might say today, "the rule of individual persons") generally connotes unrestrained and potentially arbitrary personal rule by an unconstrained and perhaps unpredictable ruler.
At a minimum, the rule of law requires fairly generalized rule through law; a substantial amount of legal predictability (through generally applicable, published, and largely prospective laws); a significant separation between the legislative and the adjudicative function; and widespread adherence to the principle that no one is above the law.
To become legitimate, the rule of law would need democratic accountability, procedural fairness, and substantive grounding. However, satisfying these requirements may be necessary without being sufficient to produce legitimacy. Democratic laws may be oppressive to minorities, procedural fairness may be consistent with a significant measure of substantive inequity, and the substantive values vindicated by any particular instantiation of the rule of law may be rejected by a sizeable portion of the polity.
A further difficulty stems from the split within the rule of law in a constitutional democracy. Even if we assume that, as shields against ordinary laws, constitutional rights command greater support among the citizenry than most ordinary laws, there would still be constitutional rights opposed by some of the citizens. In a constitutional democracy, all laws are prone to being considered advantageous or acceptable by some and oppressive or coercive by others. The fact that all laws, whether constitutional or ordinary, would be approved by some but rejected by others seems to erect a formidable barrier to the legitimation of the rule of law in a constitutional democracy.
Even if there were a consensus on some constitutional constraints, it seems highly implausible that in any pluralist constitutional democracy there would be unanimity on a sufficient core of constitutional fundamentals to directly or indirectly legitimate the rule of law all the way down. There is certainly no such unanimity in the United States, as evinced by deep splits over key constitutional issues including federalism, abortion, affirmative action, equality for women, homosexuals, and the relationship between state and religion.
Actual unanimous consent for any meaningful constitutional constraints, let alone for any rule of law regime, seems highly implausible. Actual consent, however, is unnecessary. It is arguably sufficient for purposes of assessing the legitimacy of a rule of law regime to determine whether acceptance of the latter would be reasonably consistent with the diverse agendas of all concerned.
The legitimacy of law can be established dialogically through communicative action among persons who recognize one another as equals and who agree to accept as legitimate only those laws to which they would all consent, both to enact as autonomous legislators and to follow as law-abiding citizens.
Law cannot be legitimated on purely procedural grounds.
A legal regime is legitimate if it is grounded in the right. Acknowledging that citizens have different interests and competing ideas about the pursuit of happiness, nothing like an actual consent of the entire citizenry could ever validate any piece of legislation. Legitimacy cannot be established at the level of interests or of the good, but only at that of the just and the right—that is, by categorically treating all citizens as free and equal and as ends in themselves. In other words, a law can be legitimate only if it is reasonable for every citizen to accept it as being right and just.
The key question is whether it is proper for citizens—conceived as free and equal and as treating one another as ends in themselves—to have enacted the law in question as legislators and to have willingly accepted to be bound by it as citizens. If the answer is in the affirmative, then the law is legitimate.
The test for self-legislation boils down to a requirement of formal equality before the law. So long as laws are equally applied to all, they must be deemed legitimate regardless of their content.
According to Rousseau, the conflict between clashing individual interests, on the one hand, and the common good of the polity, on the other, could be resolved through pursuit of democratic self-government. In Rousseau’s conception, however, democracy is not mere majority rule with the inevitable consequence that political minorities are compelled to obey laws imposed against their will. Instead, democracy requires implementation of the general will through the efforts of the entire citizenry, working to overcome the disparate demands arising from the realm of clashing private interests in order to embrace as their own what is good for society as a whole.
By partaking in the legal expression of the general will, every citizen engages in self-legislation. Conversely, as a person with private interests, each member of the polity must voluntarily restrain his or her particular interests in order to pave the way for the laws embodying the general will, thus freely consenting to become bound by such laws.
Unlike the United States, the United Kingdom does not have a written constitution, and its judges thus do not have as clear a mandate as their American counterparts to provide a check against legislative powers. Nevertheless, the Anglo-American tradition, relying on the common law, has developed a strong sense of the rule of law. And as we have already seen and will now further investigate, unlike their continental counterparts, the Anglo-American concept of the rule of law is not exclusively dependent on the state as such, but rather functions as a buffer between the interests of the state and those of its citizens.
In its American version, the rule of law is grounded on a written constitution designed to provide legal expression to preexisting, inalienable fundamental rights. These rights are deeply rooted in a vision of natural rights as belonging to the individual and as preexisting and transcending both the social contract and civil society.
In accordance with this vision, the individual agrees to the social contract and civil society in order to secure better coordination in the enforcement of his or her rights. This, in turn, imposes two essential duties on the state—created pursuant to the social contract: the negative duty to refrain from interfering with its citizen’s enjoyment of their inalienable rights and the positive duty to deter or punish private infringements of fellow citizens’ rights through the provision of police protection and the enforcement of private contracts.
Strictly speaking, the latter state duty is positive only in a derivative sense, as its goal is not to confer any right on the individual, but rather to insure that others are prevented from harming or destroying already existing rights. Under the vision in question, therefore, the raison d’être of the state is to safeguard its citizens’ negative rights through self-restraint and through restraint of would-be rights infringers.
The rule of law can be invoked against the state. This raises a paradox. Though the state may be morally obligated to yield whenever it threatens natural rights, so long as it retains a monopoly in lawmaking and law enforcement, nothing short of revolution would seem capable of prompting it to desist from a deliberate course of natural rights infringement.
To the extent that the common law is always changing, predictability is problematic, and it seems difficult to conceive of the rule of law in a setting in which citizens may be unable to discover ex ante the consequences of their acts. Furthermore, so long as the line between judicial interpretation and judicial lawmaking remains blurred, there seems to be no cogent way to draw a plausible distinction between the rule of law and politics.
These difficulties may be surmounted if the lack of predictability associated with the common law could be tempered by procedural safeguards, or if the dynamics of the common law system could foster predictability in ways that are not dependent on rules and if the realm of judicial intervention could be ultimately constrained by principle.
In its purest form, “the common law is a case-by-case judge-made law that evolves through elaboration of precedents by means of a process of accretion, driven by a logic of induction”. Judges are supposed to take relevant precedents into account and to resolve matters at hand in a manner consistent with such prior judicial determinations. In such a system, “legal rules are supposed to emerge gradually by stringing together a sufficient number of successive precedents to circumscribe a distinct path”. But unless all existing precedents compel a determinate outcome, which is often not the case, “the common law approach cannot guarantee predictability”.
The “inherent lack of predictability associated with the common law” can be somewhat alleviated through “constitutional provisions and statutory laws”. Many key constitutional provisions, such as the "due process" and the "equal protection" guarantees contained in the American Constitution are stated generally and at a high level of abstraction. This allows for a wide range of plausible interpretations, and common law trained judges, who have dealt with such constitutional provisions, have widely differed in their interpretations, making these provisions “nearly as unpredictable as constantly evolving common law standards”.
A procedurally grounded rule of law revolves around three essential components: the rule of law in the narrow sense; the prevalence and maintenance of fundamental due process guarantees; and institutionalization of the adversary system of justice as a means to channel conflicts towards legal resolution rather than towards other possible outcomes.
Even if one considers common law trained judges unpredictable or at times arbitrary, the rule of law in the narrow sense does insure some checks on the exercise of the power of the state in the name of the law. To the extent that judicial decisions must be made public and the reasons for such decisions revealed in published opinions, the likelihood of blatant judicial abuses seems rather remote.
Fundamental due process guarantees have been enshrined in the U. S. Constitution since the adoption of the Bill of Rights in 1791. It has been further argued that the entire Bill of Rights and even the Constitution as a whole is overwhelmingly process oriented. The function of the Constitution and of judicial review is to provide the necessary legal basis for a well-functioning democracy.
The Constitution is meant to insulate the democratically generated legal order against majoritarian excesses and pathologies. In this context, process based guarantees become part and parcel of the rule of law through imposition of procedural constraints on the generation and application of majority-based legal rules.
The justification for substantive due process is that process-based and procedural rights can be persuasively justified only if they are understood as part of a set of fundamental norms inextricably tied to certain crucial substantive values. But to the extent that these substantive values are not universally embraced within the polity, the substance/process dichotomy cannot be legitimately used to vindicate the rule of law in the context of significant unpredictability concerning legal outcomes.
The third component of a procedurally-grounded rule of law is the adversary system of justice. The adversary system blends naturally with the common law approach and complements the rule of law in the narrow sense and in the notion that no one is above the law. Ideally, the adversary system allows each contending party to argue his or her case to an open-minded and disinterested judge who will reach a decision only after having heard and properly weighed all the relevant evidence presented as well as after having duly considered the conflicting interpretations of relevant legal precedents advanced by each of the contenders.
That law is ultimately politics is a position elaborated by the Critical Legal Studies ("CLS") movement. The core of the CLS critique is that common law judges are ultimately unconstrained by the legal materials that they must interpret, and therefore their decisions are political. Typically, the constitutional, statutory, and common law materials with which judges must deal are made up of widely overlapping rules and exceptions, conflicting principles and standards, and open-ended directives susceptible to contradictory interpretations. Accordingly, judges always have a choice among various plausible alternatives with differing political consequences. Because of this, the judicial decision is as political as the legislative or executive one. But it is couched in legal rather than political terms, which often allows it to conceal its politics, thus frequently escaping the adverse reactions that typically confront controversial legislative enactments or executive policies.
Stabilizing expectations in an increasingly complex world is one of the paramount functions of contemporary law. Upon first impression it would seem that a regime of fairly rigid civil law-type rules would be far preferable for this purpose than a set of evolving common law standards, or loosely construed statutory provisions interpreted in accordance with broad common law canons. Upon further consideration, however, common law methodology may be better attuned to the dual task of stabilizing expectations and meeting evolving needs in a rapidly changing economic environment. Indeed, so long as the interests of legislators, judges, and private parties converge, expectations may be kept relatively stable, even in the face of frequent adaptation to novel conditions. While prediction of actual outcomes may be more difficult, confidence in the maintenance of accepted standards concurrently with adaptation to rapidly evolving needs may well provide the best possible means of stabilizing expectations in the polities at the forefront of economic development.
In any pluralist society with diverging conceptions of the good, there may be as wide a lack of consensus concerning what ought to count as a fundamental right, as regarding what would constitute a fair means to stabilize legal expectations. The more disagreement there is on both of those issues, the more existing legal norms are likely to be perceived as a function of politics rather than the institutionalization of the rule of law. More generally, in terms of perception, the rule of law seems to go hand in hand with a relatively high level of integration among diverse perspectives, while the rule of politics seems tied to significant fragmentation within the polity.
The rule of law is a cornerstone of contemporary constitutional democracy. It requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law.
The three essential characteristics of modern constitutionalism are limiting the powers of government, adherence to the rule of law, and protection of fundamental rights.
It does not necessarily follow that constitutional democracy under the rule of law is always indispensable or the best alternative. In some cases, constitutional democracy could be superfluous or even undesirable.
For example, in a close knit homogeneous society that is deeply religious and ruled by revered leaders who are widely believed to have direct access to divine commands, a theocracy would plainly seem more appropriate than a constitutional democracy. In such a society, instructions and directions imparted by the religious leaders would be paramount, leaving little room for the rule of law.
In contrast, in heterogeneous societies with various competing conceptions of the
good, constitutional democracy and adherence to the rule of law may well be indispensable to achieving political cohesion with minimum oppression. Such heterogeneous societies can be characterized as pluralistic. Most contemporary nation-states qualify as pluralistic.
Because people in pluralistic societies do not share the same values or interests, the legitimacy of their fundamental political institutions ultimately depends on some kind of consent among all those who are subjected to such institutions. Institutional legitimacy and political justice are conceived in terms of consent. This is the social contract theory as articulated in the philosophies of Hobbes, Locke, Rousseau, Kant, et. al.. The legitimacy of government depends on the consent of the governed.
Constitutional democracy itself can be oppressive since it generally imposes at least two kinds of coercion. To the extent it is democratic, constitutional democracy implements the will of political majorities and coerces political minorities to contribute to the realization of majority objectives with which minorities may strongly disagree. On the other hand, to the extent that constitutional democracy affords protection to certain fundamental rights and certain vindications of such rights frustrate the ability of majorities to fulfill certain objectives which they consider paramount, the enforcement of constitutional rights would seem to lead to a significant amount of coercion.
The rule of law itself is coercive inasmuch as citizens are subjected to laws with which they disagree or which they find oppressive. Consent to constitutional democracy and the rule of law may not eliminate coercion but it would legitimate it. If constitutional democracy and the rule of law can be genuinely legitimated on the basis of some plausible notion of consent, the mere fact they may also be coercive would not necessarily negate their legitimacy.
The "rule of law" is often contrasted to the "rule of men." In some cases, the "rule of men" (or, as we might say today, "the rule of individual persons") generally connotes unrestrained and potentially arbitrary personal rule by an unconstrained and perhaps unpredictable ruler.
At a minimum, the rule of law requires fairly generalized rule through law; a substantial amount of legal predictability (through generally applicable, published, and largely prospective laws); a significant separation between the legislative and the adjudicative function; and widespread adherence to the principle that no one is above the law.
To become legitimate, the rule of law would need democratic accountability, procedural fairness, and substantive grounding. However, satisfying these requirements may be necessary without being sufficient to produce legitimacy. Democratic laws may be oppressive to minorities, procedural fairness may be consistent with a significant measure of substantive inequity, and the substantive values vindicated by any particular instantiation of the rule of law may be rejected by a sizeable portion of the polity.
A further difficulty stems from the split within the rule of law in a constitutional democracy. Even if we assume that, as shields against ordinary laws, constitutional rights command greater support among the citizenry than most ordinary laws, there would still be constitutional rights opposed by some of the citizens. In a constitutional democracy, all laws are prone to being considered advantageous or acceptable by some and oppressive or coercive by others. The fact that all laws, whether constitutional or ordinary, would be approved by some but rejected by others seems to erect a formidable barrier to the legitimation of the rule of law in a constitutional democracy.
Even if there were a consensus on some constitutional constraints, it seems highly implausible that in any pluralist constitutional democracy there would be unanimity on a sufficient core of constitutional fundamentals to directly or indirectly legitimate the rule of law all the way down. There is certainly no such unanimity in the United States, as evinced by deep splits over key constitutional issues including federalism, abortion, affirmative action, equality for women, homosexuals, and the relationship between state and religion.
Actual unanimous consent for any meaningful constitutional constraints, let alone for any rule of law regime, seems highly implausible. Actual consent, however, is unnecessary. It is arguably sufficient for purposes of assessing the legitimacy of a rule of law regime to determine whether acceptance of the latter would be reasonably consistent with the diverse agendas of all concerned.
The legitimacy of law can be established dialogically through communicative action among persons who recognize one another as equals and who agree to accept as legitimate only those laws to which they would all consent, both to enact as autonomous legislators and to follow as law-abiding citizens.
Law cannot be legitimated on purely procedural grounds.
A legal regime is legitimate if it is grounded in the right. Acknowledging that citizens have different interests and competing ideas about the pursuit of happiness, nothing like an actual consent of the entire citizenry could ever validate any piece of legislation. Legitimacy cannot be established at the level of interests or of the good, but only at that of the just and the right—that is, by categorically treating all citizens as free and equal and as ends in themselves. In other words, a law can be legitimate only if it is reasonable for every citizen to accept it as being right and just.
The key question is whether it is proper for citizens—conceived as free and equal and as treating one another as ends in themselves—to have enacted the law in question as legislators and to have willingly accepted to be bound by it as citizens. If the answer is in the affirmative, then the law is legitimate.
The test for self-legislation boils down to a requirement of formal equality before the law. So long as laws are equally applied to all, they must be deemed legitimate regardless of their content.
According to Rousseau, the conflict between clashing individual interests, on the one hand, and the common good of the polity, on the other, could be resolved through pursuit of democratic self-government. In Rousseau’s conception, however, democracy is not mere majority rule with the inevitable consequence that political minorities are compelled to obey laws imposed against their will. Instead, democracy requires implementation of the general will through the efforts of the entire citizenry, working to overcome the disparate demands arising from the realm of clashing private interests in order to embrace as their own what is good for society as a whole.
By partaking in the legal expression of the general will, every citizen engages in self-legislation. Conversely, as a person with private interests, each member of the polity must voluntarily restrain his or her particular interests in order to pave the way for the laws embodying the general will, thus freely consenting to become bound by such laws.
Unlike the United States, the United Kingdom does not have a written constitution, and its judges thus do not have as clear a mandate as their American counterparts to provide a check against legislative powers. Nevertheless, the Anglo-American tradition, relying on the common law, has developed a strong sense of the rule of law. And as we have already seen and will now further investigate, unlike their continental counterparts, the Anglo-American concept of the rule of law is not exclusively dependent on the state as such, but rather functions as a buffer between the interests of the state and those of its citizens.
In its American version, the rule of law is grounded on a written constitution designed to provide legal expression to preexisting, inalienable fundamental rights. These rights are deeply rooted in a vision of natural rights as belonging to the individual and as preexisting and transcending both the social contract and civil society.
In accordance with this vision, the individual agrees to the social contract and civil society in order to secure better coordination in the enforcement of his or her rights. This, in turn, imposes two essential duties on the state—created pursuant to the social contract: the negative duty to refrain from interfering with its citizen’s enjoyment of their inalienable rights and the positive duty to deter or punish private infringements of fellow citizens’ rights through the provision of police protection and the enforcement of private contracts.
Strictly speaking, the latter state duty is positive only in a derivative sense, as its goal is not to confer any right on the individual, but rather to insure that others are prevented from harming or destroying already existing rights. Under the vision in question, therefore, the raison d’être of the state is to safeguard its citizens’ negative rights through self-restraint and through restraint of would-be rights infringers.
The rule of law can be invoked against the state. This raises a paradox. Though the state may be morally obligated to yield whenever it threatens natural rights, so long as it retains a monopoly in lawmaking and law enforcement, nothing short of revolution would seem capable of prompting it to desist from a deliberate course of natural rights infringement.
To the extent that the common law is always changing, predictability is problematic, and it seems difficult to conceive of the rule of law in a setting in which citizens may be unable to discover ex ante the consequences of their acts. Furthermore, so long as the line between judicial interpretation and judicial lawmaking remains blurred, there seems to be no cogent way to draw a plausible distinction between the rule of law and politics.
These difficulties may be surmounted if the lack of predictability associated with the common law could be tempered by procedural safeguards, or if the dynamics of the common law system could foster predictability in ways that are not dependent on rules and if the realm of judicial intervention could be ultimately constrained by principle.
In its purest form, “the common law is a case-by-case judge-made law that evolves through elaboration of precedents by means of a process of accretion, driven by a logic of induction”. Judges are supposed to take relevant precedents into account and to resolve matters at hand in a manner consistent with such prior judicial determinations. In such a system, “legal rules are supposed to emerge gradually by stringing together a sufficient number of successive precedents to circumscribe a distinct path”. But unless all existing precedents compel a determinate outcome, which is often not the case, “the common law approach cannot guarantee predictability”.
The “inherent lack of predictability associated with the common law” can be somewhat alleviated through “constitutional provisions and statutory laws”. Many key constitutional provisions, such as the "due process" and the "equal protection" guarantees contained in the American Constitution are stated generally and at a high level of abstraction. This allows for a wide range of plausible interpretations, and common law trained judges, who have dealt with such constitutional provisions, have widely differed in their interpretations, making these provisions “nearly as unpredictable as constantly evolving common law standards”.
A procedurally grounded rule of law revolves around three essential components: the rule of law in the narrow sense; the prevalence and maintenance of fundamental due process guarantees; and institutionalization of the adversary system of justice as a means to channel conflicts towards legal resolution rather than towards other possible outcomes.
Even if one considers common law trained judges unpredictable or at times arbitrary, the rule of law in the narrow sense does insure some checks on the exercise of the power of the state in the name of the law. To the extent that judicial decisions must be made public and the reasons for such decisions revealed in published opinions, the likelihood of blatant judicial abuses seems rather remote.
Fundamental due process guarantees have been enshrined in the U. S. Constitution since the adoption of the Bill of Rights in 1791. It has been further argued that the entire Bill of Rights and even the Constitution as a whole is overwhelmingly process oriented. The function of the Constitution and of judicial review is to provide the necessary legal basis for a well-functioning democracy.
The Constitution is meant to insulate the democratically generated legal order against majoritarian excesses and pathologies. In this context, process based guarantees become part and parcel of the rule of law through imposition of procedural constraints on the generation and application of majority-based legal rules.
The justification for substantive due process is that process-based and procedural rights can be persuasively justified only if they are understood as part of a set of fundamental norms inextricably tied to certain crucial substantive values. But to the extent that these substantive values are not universally embraced within the polity, the substance/process dichotomy cannot be legitimately used to vindicate the rule of law in the context of significant unpredictability concerning legal outcomes.
The third component of a procedurally-grounded rule of law is the adversary system of justice. The adversary system blends naturally with the common law approach and complements the rule of law in the narrow sense and in the notion that no one is above the law. Ideally, the adversary system allows each contending party to argue his or her case to an open-minded and disinterested judge who will reach a decision only after having heard and properly weighed all the relevant evidence presented as well as after having duly considered the conflicting interpretations of relevant legal precedents advanced by each of the contenders.
That law is ultimately politics is a position elaborated by the Critical Legal Studies ("CLS") movement. The core of the CLS critique is that common law judges are ultimately unconstrained by the legal materials that they must interpret, and therefore their decisions are political. Typically, the constitutional, statutory, and common law materials with which judges must deal are made up of widely overlapping rules and exceptions, conflicting principles and standards, and open-ended directives susceptible to contradictory interpretations. Accordingly, judges always have a choice among various plausible alternatives with differing political consequences. Because of this, the judicial decision is as political as the legislative or executive one. But it is couched in legal rather than political terms, which often allows it to conceal its politics, thus frequently escaping the adverse reactions that typically confront controversial legislative enactments or executive policies.
Stabilizing expectations in an increasingly complex world is one of the paramount functions of contemporary law. Upon first impression it would seem that a regime of fairly rigid civil law-type rules would be far preferable for this purpose than a set of evolving common law standards, or loosely construed statutory provisions interpreted in accordance with broad common law canons. Upon further consideration, however, common law methodology may be better attuned to the dual task of stabilizing expectations and meeting evolving needs in a rapidly changing economic environment. Indeed, so long as the interests of legislators, judges, and private parties converge, expectations may be kept relatively stable, even in the face of frequent adaptation to novel conditions. While prediction of actual outcomes may be more difficult, confidence in the maintenance of accepted standards concurrently with adaptation to rapidly evolving needs may well provide the best possible means of stabilizing expectations in the polities at the forefront of economic development.
In any pluralist society with diverging conceptions of the good, there may be as wide a lack of consensus concerning what ought to count as a fundamental right, as regarding what would constitute a fair means to stabilize legal expectations. The more disagreement there is on both of those issues, the more existing legal norms are likely to be perceived as a function of politics rather than the institutionalization of the rule of law. More generally, in terms of perception, the rule of law seems to go hand in hand with a relatively high level of integration among diverse perspectives, while the rule of politics seems tied to significant fragmentation within the polity.