Brandeis University, Philosophy Department
Spring 2006
Brandeis University Web Stite

Philosophy 22B

Philosophy of Law

Professor Andreas Teuber
Prof. Teuber


"Grudge Informers and Fugitive Slaves: The Law and Fundamental Principles of Human Decency"

"You're the Judge"


Drawing on the reading and your own considered intuitions and good judgment, decide the cases on the following pages in light of that theory of law that best resolves the problems and/or puzzles raised by the cases. In the course of explaining the theory of law that best supports and justifies your decision in the cases, think of the arguments that might be made against both your decision and the theory you think best justifies your opinion in each case, and respond to them. In defending your position, offer the most principled arguments you can make.

In thinking of objections to your decisions and the theory that best justifies your deciding the cases as you do, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive..

Offer not only what you believe to be the best defense of your decision, but also present the clearest expression of that theory of law that best helps to make sense of your reasoning, think of some other legal theory (or theories) that supports a different line of reasoning, and respond to it (to them).

  • Papers should be between 6 and 7 pages in length and are due on Monday, May 8th by 10:00 AM for seniors. ALL seniors.

  • 4:00 PM on Monday, May 8th or Tuesday, May 9th or Wednesday, May 10th for everyone else.

  • Papers should be handed in to the Philosophy Department Main Office (RABB 303).

    NOTE: Please number pages. We would also like (once again) to have two copies of the paper, marked COPY # One and COPY # Two. Thanks.


"The Grudge Informer and The Fugitive Slave"

1. The Grudge Informer

Consider the following:

In 1944, a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts; though what he had said was apparently in violation of [the 1934] statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people. The husband was arrested and sentenced to death; apparently pursuant to the statutes, though he was not executed but was sent to the front. In 1949, the wife was prosecuted in a West German court for the offense we would describe as illegally depriving a person of his freedom. This was punishable as a crime under the German Criminal Code of 1871 which had remained in force since its enactment. The wife pleaded that her husband's imprisonment was pursuant to the Nazi statutes and hence she had committed no crime. The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband's liberty by denouncing him to the German courts, even though he had been sentenced by the court for having violated a statute, since, to quote the words of the court [of appeals in 1949], the statute "was contrary to the sound conscience and sense of all decent human beings." - Lon Fuller

The 1934 law that the wife cited in her defense was ruled by the court of appeals in 1949 to have been invalid since it contravened, what might be called, "fundamental principles of human decency."

Do you agree with the court's rejection of the wife's reliance on Nazi law? If so, why? If not, why not?

Perhaps the court of appeals should have acknowledged that the 1934 Nazi statutes did have the force of law. Perhaps to find the wife guilty of unlawfully depriving her husband of his liberty, the court of appeals in 1949 needed a "new" law nullifying retrospectively the Nazi statutes. Would "new" retrospective legislation have helped to make the case against the wife or would that only have had made legal matters worse?

What do you think?

2. Natural Law v. Legal Positivism

The reasoning of the court of appeals court against grudge informers such as the wife in this case was followed, as Lon Fuller is eager to convey, in many (other) cases, "cases," he says, "which have been hailed as a triumph of doctrines of natural law and as signaling the overthrow of [legal] positivism."

Really? How might this be so? How does the reasoning adopted by the court in the case above indicate "the triumph of natural law?"

What would a legal positivist like H. L. A. Hart say in response to the court's reasoning? If you had to decide this case, how would you decide it and, taking just these two theories of law, natural law theory and legal positivism, which of the two, which of the two theories, do you find yourself leaning towards?

Are you more inclined in your reading of how best to decide this case of the grudge informer to adopt a natural law position or a legal positivist position? This is just about leaning now. Which way do you lean?

3. Natural Law Theory

Perhaps a little reading in this area may be of some use. Perhaps. You discover that Brian Bix has an essay explicitly on the topic of "Natural Law Theory." There it is: the very first reading in the Philosophy of Law book. How could you miss it? As both Thoreau and Martin Luther King seem to have believed, the only obligation a person has is to do what he or she thinks is right and natural law theory would appear to point the way towards "doing the right thing."

You notice, too, after you retire to your chambers (you are deciding this case, remember) that there are several other articles in the book from Philosophy of Law that might also come in handy. There's an essay by Lon Fuller with the title "Eight Ways to Fail to Make Law" that sounds intriguing and also looks short. "Short," you mumble under your breath, "short is good," and you make a mental note to read that, too. A quick look at these two essays, you tell yourself, sounding very much like Professor Teuber, a teacher you had while at Brandeis, that even if you end up rejecting natural law theory, that rejection can only help to make your own position that much clearer and available to view. Still all this seems to be slowly mounting up to a whole lot of reading. "Then again," you tell yourself, "you haven't looked so forward to sitting down and reading since you were thirteen when you read your first Harry Potter book!"

4. Legal Positivism

There are also three essays, two by H. L. A. Hart on "Law as the Union of Primary and Secondary Rules" and "Positivism and the Separation of Law and Morals" and the other, a reply, by Lon Fuller (again) called, "Positivism and Fidelity to Law." Hart seems to be opposed to Fuller's view that law, to be law at all, has to meet some minimal set of moral requirements.

You notice, too, that there's an essay which appears to put Hart's view into some sort of perspective by one of the editors of the Philosophy of Law book, Jules Coleman on "Negative and Positive Positivism," pp. 105-18. "Positive 'positivism,'" you chuckle to yourself, "that's a bit redundant." You decide that a quick read, at least a skim, of these four essays is a "must" for someone in your position and so you decide to give yourself a few hours of "reading time" before making up your mind whether to decide for or against the wife in this case.

5. The Decision Comes Down To You

Imagine that you have been miraculously transported back to the late 1940's, to the year 1949 to be exact, and the above case of a grudge informer has come before you. Imagine that you just so happen to sit on the bench of the court of appeals that it about to decide whether or not to convict the wife in this case of unlawfully depriving her husband of his liberty.

Imagine, too, that there are five of you, five justices on the Appeals Court where you now sit and two justices appear to be rady to reject the wife's defense of her actions and her reliance on Nazi law and two seem to be in favor of accepting her defense. Thus, the decision is now "your decision." Do you find the wife guilty or not guilty? Yes or no? What is your opinion? What do you think? And, most importantly, which way do you lean? Towards which theory of law? Natural law theory or legal positivism?

6. Ronald Dworkin's "Third Theory of Law"

Now having made your decision and revealed which way you are inclined, towards natural law theory or legal positivism, consider Dworkin's "Third Theory of Law." The theory of law advanced by Ronald Dworkin appears to fall somewhere in-between the views of Fuller and Hart. Is that the best way to describe it? Dworkin's "third theory," as it has come to be known, is neatly captured in two essays included in the Philosophy of Law book: "The Model of Rules" and "Integrity in Law." "Both look like 'must reads,'" you say to yourself.

You also decide to skim the accompanying opinion in Riggs v. Palmer, since it appears that Dworkin makes much of this case in the first of these two essays and it seems to share certain affinities with the case that has come before you, the case of the grudge informer. In Riggs v. Palmer, you dimly recall, the court ruled that Elmer could not inherit under a will of someone he murdered, even though, at the time, the case law and the existing statutes did not bar a murderer from inheriting property from a man he murdered. Nonetheless the court in Riggs did not allow Elmer to gain his inheritance since to permit such a thing would be contrary to the principle that one should not profit from his or her own wrongdoing.

"This sounds," you say to yourself, "very much like deciding against the wife in the grudge informer case that has now come before you by rejecting her reliance on the 1934 Nazi statutes because they are "contrary to the sound conscience and sense of all decent human beings." Or perhaps it isn't? "I guess," you say to yourself, "I need to think."

7. Decisions. Decisions

Which theory of law, which one of the three theories now: natural law theory, legal positivism, or Dworkin's "Third Theory," best explains and justifies your decision in the grudge informer case? Why? On what grounds? Connect your decision in the case with one or another of the three theories as clearly and as explicitly as you are can. Think of several strong objections that might be raised against your decision in the grudge informer case as well as objections to your appeal to this or that theory of law to explain and justify your decision, and respond to them, that is, respond to these objections..

8. The Fugitive Slave

Imagine that you are miraculously transported back in time to the year 1856, to Massachusetts before the outbreak of the Civil War, to a time in American history when slavery is still practiced throughout the South. Massachusetts is a free State, but that much you know. Imagine, too, that you (not so unsurprisingly) find the practice of slavery morally repugnant. You have even spoken out against it at numerous social gatherings.

You also happen to be a Federal judge; that is your job; and you have just been asked to hear a case involving one named "Jim" (last name unknown), a slave from Virginia who fled from Virginia to Massachusetts nearly three years ago. A little more than a month ago a slave-catcher located Jim and now his owner wants his "property" back.

9. The Legal Defense Fund

Several prominent members of the community of Lancaster where you live have come to know Jim over the last three years. He has been working for the Rowlandson family and during this time has been treated as a human being with many of the rights and respect that a human being can reasonably be expected to enjoy. Jim loves his new home in Massachusetts and does not want to go back to Virginia. The people of Lancaster have secured Jim the best attorney they could find.

10. The Hearing

A hearing has already been held at which it was determined that Jim should be returned to his owner. Jim's lawyer has, however, objected to these proceedings and the case has come before you on appeal and by special writ. Jim's lawyer contends that the hearing was a mockery of justice. There was no jury and the federal official who presided knew that he stood to gain a higher fee if Jim was returned than if he was not. "How can we," Jim's lawyer argued, "honestly presume that this official's judgment was impartial?" Jim was arrested without a warrant and was given no opportunity at his hearing to question his status as a slave. For three years now Jim has been living in a free State, in the City of Lancaster in the State of Massachusetts. "Surely," Jim's attorney argued, "this should count for something."

11. The Procedures

Jim's attorney does, however, acknowledge that the procedures that he found objectionable were established by Congress in 1793 and 1850 in statutes known as "The Fugitive Slave Acts." These laws are the law of every state throughout the country. Jim's attorney believes that Massachusetts as a free state has the power to establish its own procedures to ensure that the rights of individuals like Jim to both due process and a fair hearing are strictly observed, i.e., that Massachusetts as a free state has the power to impose restrictions on the hearing process in the interests of the alleged slave. And, indeed, Massachusetts has enacted such restrictions. But so far, i.e., up to this point, Massachusetts has adhered to The Fugitive Slave Acts and abided by the procedures the Acts establish.

12. The United States Constitution

Jim's owner from Virginia has not even bothered to hire an attorney for the scheduled appeal. He himself has come from Virginia to make the case before you (you, the judge, remember) since he believes that the case is open and shut. Even though, he points out, Massachusetts has adopted its own procedures to deal with matters of this kind, the Constitution of the United States (Article IV, Section 2) clearly states that

No person held to service or labor in one State, under laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

This provision in the Constitution was adopted as part of what is generally known as "the grand compromise" between the slave states and the free states. The compromise consisted of the agreement of the slave-holding states to join the union, provided that the new nation's Constitution recognized and promised to preserve the legal legitimacy of slavery in those states that wanted to keep the practice, and Virginia was one of those states.

13. The Fugitive Slave Laws

The Fugitive Slave Acts were simply enacted to give effect to this Constitutional provision. Indeed, Jim's owner has serious doubts whether this appeal is even legal since the Fugitive Slave Acts simply required a hearing. That hearing has now been held and all the procedures specified by Congress and in the Acts have been followed to the letter. Indeed the Fugitive Slave Acts themselves set out the procedures to which Jim's attorney objects, which Jim's attorney believes "offend" Jim's rights to "due process": The federal official who presided at a hearing and who returned the alleged slave to his purported master was entitled to receive a higher "commission," than if he were not; there was no provision for a jury trial, and the defendant was not allowed, according to the Acts, to contest whether he was in fact a slave, that issue being left to be decided in the slave state from which he came after his return.

And now, at his hearing, it has been determined that Jim should be returned to Virginia. Jim's owner has been overheard to say several times: "What's wrong with those folks up North? The issue is settled; enough already," or words to that effect.

14. Due Process

In response to the arguments from Jim's attorney that the procedures followed at the hearing violated ordinary notions of due process as well as the restrictions on such proceedings imposed by Massachusetts law, Jim's owner argues that the hearing in Massachusetts was only intended to be preliminary. He says the Fugitive Slave Acts make this clear. Jim was not deprived of due process of law; due process will take place in Virginia after Jim is returned. In any event it is wrong to require a full scale trial in Massachusetts to determine Jim's status as a slave since this would in turn require Jim's owner to bring a large number of witnesses more than 500 miles to be heard before a jury which is likely to be opposed to the very institution of slavery on which his claim is based and would, in effect, deprive him (Jim's owner) of his slave, that is, of his property without due process of law, to say nothing of his (Jim's owner's) Constitutional rights.

Jim's attorney retorts ("snorts" is perhaps more appropriate) that Jim can hardly expect to get "a fair trial in Virginia" where everyone, "and their uncle" believes in the institution of slavery. But as a Federal Judge, you know that whatever private doubts you and your fellow Massachusetts judges might have about the legal respectability of the Virginia Courts, it was an integral part of the national compromise that federal judges should not be guided by such doubts in their legal opinions. Article IV, Section 1 of the U.S. Constitution says that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of any other State."

You have taken all this in and heard the arguments on both sides. Did the procedures followed at his hearing violate Jim's rights to due process? And if so, should he not be returned until - at the very least - he has a "fair" trial or hearing?

What do you think? In this instance, what does procedural justice require? Will procedural justice best be secured by sending Jim back to Virginia or by giving him a new and "fair" trail in Massachusetts?

You're the Judge; what do you think?

15. Interpreting the Constitution

In a final flurry of argument, Jim's owner argues that whatever "technical" defects may be found in the procedures established by the Fugitive Slave Acts, it was understood at the outset, from the very founding of the country that the states have diverse institutions and ways of life and that the Union of States exists and can survive only through compromise on issues and in situations where these diverse institutions and ways of life come into conflict.

One principle enshrined in the Constitution as clearly as anything can be is that the rights citizens have by virtue of the various institutions of the States in which they live are to be protected - not just within the boundaries of their own states -but throughout the Union. A Virginia slave-owner's property in his slaves is one of these rights; the clear meaning of Article IV, Section 2 of the Constitution and the Fugitive Slave Acts is to protect this right. And then for emphasis he pounds the table and shouts: "MY RIGHT!" Jim should be returned, he argues, to Virginia where it can be properly decided by the evidence of many witnesses, many of whom shall know and recognize Jim, whether he is in fact "my slave."

Jim's attorney replies that there are parts of the Constitution that clearly presuppose a conception of freedom antagonistic to slavery; in particular, in the first ten amendments, in the so-called Bill of Rights. Jim's owner retorts that Jefferson who wrote the Declaration of Independence and was primarily responsible for the amendments was himself a slave-owner. The original intent of the amendments was never meant to apply to slaves.

Jim's attorney replies that the conception of federalism implicit within the Constitution gives the State of Massachusetts the power to supervise the capture of men and women in its own territory. Jim's owner replies that this power must be exercised, however, in ways that respect the institutions of Virginia and the rights of Virginian citizens "LIKE ME," he parenthetically cries, suddenly pounding the table with his fist again, adding, after collecting himself, "especially as these rights are further protected by federal law."

16. Duty vs. Conscience

In one last ditch effort to save the day, Jim's attorney makes an appeal to your conscience. Common human decency requires the decision, he says, to go in Jim's favor. Whatever else one might say about the law, the pro-slavery provisions of the Constitution and the Fugitive Slave Acts violate Jim's more fundamental, natural right to be free, adding "you cannot, you must not, in good conscience, return Jim to his Southern master."

Jim's owner, having restored himself to a semblance of calm, looks you in the eye and says "you have solemnly sworn, your Honor, with great publicity, to uphold the highest law in the land, the Constitution itself. Please, your Honor, do not violate this most sacred promise to the public in order to satisfy personal conscience."

17. The Opinion

Through the lens or in light of that theory of law you found served best to support and justify your decision in the grudge informer case, write an opinion for or against the return of Jim to Virginia, think of several strong objections to your opinion, and respond to them. How does one or another theory of law, natural law theory, legal positivism or Dworkin's "Third Theory," clarify the decisions you are tempted to make in both the grudge informer and fugitive slave cases.

In the course of writing your opinion, imagine that, although you are sitting in judgment in the late 1850's in Massachusetts, but you happen to have access to a number of readings from Philosophy of Law. The same readings to which you had access in arriving at your decision in the grudge informer case. This should be no more difficult to imagine than that you have been transported back to Massachusetts in the year of 1856. Indeed, it may be easier to imagine since you have (presumably) already transported yourself back to the late 1940's and to the year 1949 and a few years more of time travel cannot be much more arduous or incredible than the recent "trip" you have been on.

Why you have so much access to a Philosophy of Law class taught at Brandeis in the early years of the 21st century once you travel to post-war Germany in 1949 or to pre-Civil War Massachusetts in 1856 is hard (for you) to fathom? But you decide not to dwell on this extraordinary wrinkle in time. You are truly grateful to have all the help you can get with making your decisions and writing your opinions in these cases. The Philosophy of Law text edited by Jules Coleman and the late Joel Feinberg certainly comes in handy in addressing these cases.

It's unfortunate, you think to yourself, that judges at the time, in 1949 and 1856 did not have access to a book such as the Philosophy of Law text that so neatly and clearly spells out a number of alternative approaches to deciding had cases. Had judges at the time had copies of the Philosophy of Law book by their bedsides or had they had the opportunity to enroll in PHIL 22B and actually come to class, their decisions might have been that much more consistent and clear and we might all have benefited.

18. Conclusion

So there you have it: you are to write an opinion for or against convicting the wife in the case above of unlawfully depriving her husband of his liberty as well as an opinion for or against the return of Jim to Virginia, think of several strong objections to your opinions, and respond to them.

In the course of writing your opinions in these cases, bring the two decisions together under one umbrella, under one theory of law that best supports and explains your having decided the cases as you do. Ask yourself if one or another theory really captures only one way of deciding each case. Is a judge, say, who subscribes to Dworkin's "Third Theory," forced to keep Jim in Massachusetts or might a judge send Jim back to Virginia and justify his doing so by relying on a Dworkinian approach to the law? Ask yourself the same question about natural law theory and legal positivism.

Finally, feel free to reflect on what your decisions in these cases and the theory of law you draw on to explain those decisions tell you, tell us, about such puzzles in the law as where to draw the line between law and morality and how to weigh the role played by rules, policies, and principles in the adjudication of hard cases.


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