Main points
We wrapped up the Speluncean Explorers case by looking at the last two decisions: Keen and Handy’s.
Keen has a view of the nature of the law and of the role of the judiciary. The law is given in written statute and past court decisions. It includes neither morality nor consideration of the purposes of the law.
Handy views law as one part of government and he thinks that judges should think of their role accordingly. He finds the question about what the law is much less interesting than questions about good government.
Purposes
I think we did a pretty good job of showing at least that there isn’t serious doubt about the purpose of law in general. So Keen’s across the board skepticism about enquiries into the purposes of anything seems misplaced. We can only interpret the “letter” of the law if we assume that someone put it on the page with the intent to communicate, for starters.
As Michael pointed out, it remains an open question whether it’s possible or desirable for judges to look into the purposes behind specific laws. We batted around a few reasons why they should and a few reasons why they shouldn’t.
Common sense
It’s hard not to appreciate Handy’s point of view. As Stephanie said, at least one thing that we would like from our judges, as from all government officials or, heck, all people, is common sense. If everyone knows that the death sentence against me is wrong, I would very much want someone in an official position to stand up and put a stop to it. It seems crazy to have a system of government that reaches the opposite conclusion.
At the same time, we were a bit worried about his reliance on polls or, more broadly, linking his decisions to the common sentiments of his society. Another thing we would like judges to do is to exercise common sense against the obsession of the moment.
Of course, if you have good reason to think that judges are especially unreliable (strictly speaking, less reliable than other officials), then maybe you don’t want judges to do that. In fact, maybe you don’t want judges at all!
More!
Bernice and Alex asked for the citation to the Harvard Law Review that revisited the Speluncean Explorers case.
I’m going to give it to you, but only with some trepidation. I think you’re much better off writing your paper by formulating your own opinion first. It isn’t the sort of thing where reading more gives you more facts or anything like that. In my own case, I often get confused or lose my nerve if I read too broadly at the beginning of thinking about something.
Plus, it’s really long.
You’ve been warned. While it will be put into the reserve list shortly, here it is … right now!
Kozinski, Justice, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, and Stupidest Housemaid. “The Case of the Speluncean Explorers: Revisited.” Harvard Law Review 112, no. 8 (1999): 1876-923. [JSTOR]
You might also like the introduction to that issue of the Harvard Law Review by David Shapiro {JSTOR].