To Be Decided: May 5th or 7th, 2003
By the Philosophy of Law Class


Drawing on the reading and your own considered intuitions and good judgment, answer the question (s) on the following pages. In writing your opinion, think of the arguments that might be made against it, and respond to them. In defending your position, offer what you believe are the most principled arguments you can make.

In thinking of objections to your opinion, 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 point rather than at its weakest, that can only help to strengthen your own opinion and make it that much more persuasive.

The paper should be about five (5) to seven (7) pages in length, preferably typewritten. Papers are due on Monday, May 5th by 9:00 a.m. for Seniors and by 4:30 p.m. on Wednesday, May 7th, for everyone else. All final papers should be handed in to the Philosophy Department Main Office, Rabb 305.


What Should a Judge Do When Faced with an Immoral Law?

Imagine that you are miraculously transported back in time to the year 1854, to California at the height of the "Gold Rush." Imagine, too, that you are Chief Justice of the California Supreme Court and the following case has come before you.

George W. Hall was convicted of murder based primarily on the testimony of three Chinese witnesses. Hall appealed his conviction, asking that it be overturned because, he claimed, the Chinese witnesses were prohibited from testifying under California law and the Superior Court to which he appealed agreed.

Hall argued that the testimony of the Chinese witnesses in his case should be excluded because a California law passed in 1850 barred an "Indian or Negro" from testifying against "a White person." The court was faced with having to decide whether the law also applied to ethnic Chinese. The case has now come before you for review. What is your decision? How will you decide?

What judges decide matters. You, of course, know that, but what many do not realize is that judges not only "decide cases," they also decide what the law is. How they decide what the law is also matters and is critical not only to our understanding of what role a judge ought to play but also to our understanding of the nature of law.

The statute on which Hall based his argument to exclude the testimony of the Chinese witnesses was enacted on April 16, 1850, by the California legislature and it read as follows: "no black, or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against any white person" in a criminal proceeding. The lower court gave three reasons for agreeing with Hall and for overturning his conviction. Here is that opinion which has now come to you and to the California Supreme Court for review:

Mr. Ch. J. Murray delivered the opinion of the Court: [George W. Hall], a free white citizen of this State, was convicted of murder upon the testimony of Chinese witnesses. The point involved in this case, is the admissibility of such evidence. The 394th section of the Act Concerning Civil Cases, provides that "no Indian or Negro shall be allowed to testify as a witness in any action or proceeding in which a White person is a party." The 14th section of the Act of April 16th, 1850, regulating Criminal Proceedings, provides that "No Black or Mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man." The true point at which we are anxious to arrive is, the legal signification of the words, "Black, Mulatto, Indian and White person," and whether the Legislature adopted them as generic terms, or intended to limit their application to specific types of the human species.

Before considering this question, it is proper to remark the difference between the two sections of our statute, already quoted, the latter being more broad and comprehensive in its exclusion, by use of the word "Black," instead of Negro. Conceding, however, for the present, that the word "Black," as used in the 14th section, and "Negro," in 394th, are convertible terms, and that the former was intended to include the latter, let us proceed to inquire who are excluded from testifying as witnesses under the term "Indian."

When Columbus first landed upon the shores of this continent, in his attempt to discover a western passage to the Indies, he imagined that he had accomplished the object of his expedition, and that the Island of San Salvador was one of those Islands of the Chinese Sea, lying near the extremity of India, which had been described by navigators. Acting upon this hypothesis, and also perhaps from the similarity of features and physical conformation, he gave to the Islanders the name of Indians, which appellation was universally adopted, and extended to the aboriginals of the New World, as well as of Asia.

From that time, down to a very recent period, the American Indians and the Mongolian, or Asiatic, were regarded as the same type of the human species. In order to arrive at a correct understanding of the intention of our Legislature, it will be necessary to go back to the early history of legislation on this subject, our statute being only a transcript of those of older States. At the period from which this legislation dates, those portions of Asia which include India proper, the Eastern Archipelago, and the countries washed by the Chinese waters, as far as then known, were denominated the Indies, from which the inhabitants had derived the generic name of Indians.

Ethnology, at that time, was unknown as a distinct science, or if known, had not reached that high point of perfection which it has since attained by the scientific inquiries and discoveries of the master minds of the last half century. Few speculations had been made with regard to the moral or physical differences between the different races of mankind. These were general in their character, and limited to those visible and palpable variations which could not escape the attention of the most common observer. The general, or perhaps universal opinion of that day was, that there were but three distinct types of the human species, which, in their turn, were subdivided into varieties of tribes. This opinion is still held by many scientific writers, and is supported by Cuvier, one of the most eminent naturalists of modern times.

Many ingenious speculations have been resorted to for the purpose of sustaining this opinion. It has been supposed, and not without plausibility, that this continent was first peopled by Asiatics, who crossed Behring's Straits, and from thence found their way down to the more fruitful climates of Mexico and South America. Almost every tribe has some tradition of coming from the North, and many of them, that their ancestors came from some remote country beyond the ocean. From the eastern portions of Kamtschatka, the Aleutian Islands form a long and continuous group, extending eastward to that portion of the North American Continent inhabited by the Esquimaux. They appear to be a continuation of the lofty volcanic ranges which traverse the two continents, and are inhabited by a race who resemble, in a remarkable degree, in language and appearance, both the inhabitants of Kamtschatka (who are admitted to be of the Mongolian type), and the Esquimaux, who again, in turn, resemble other tribes of American Indians. The similarity of the skull and pelvis, and the general configuration of the two races; the remarkable resemblance in eyes, beard, hair, and other peculiarities, together with the contiguity of the two continents, might well have led to the belief that this country was first peopled by the Asiatics, and that the difference between the different tribes and the parent stock was such as would necessarily arise from the circumstances of climate, pursuits, and other physical causes, and was no greater than that existing between the Arab and the European, both of whom were supposed to belong to the Caucasian race.

Although the discoveries of eminent archeologists, and the researches of modern geologists, have given to this continent an antiquity of thousands of years anterior to the evidence of man's existence, and the light of modern science may have shown conclusively that it was not peopled by the inhabitants of Asia, but that the Aborigines are a distinct type, and as such claim a distinct origin, still, this would not in any degree, alter the meaning of the term, and render that specific which was before generic.

We have adverted to these speculations for the purpose of showing that the name of Indian, from the time of Columbus to the present day, has been used to designate, not alone the North American Indian, but the whole of the Mongolian race, and that the name, though first applied probably through mistake, was afterwards continued as appropriate on account of the supposed common origin. That this was the common opinion in the early history of American legislation, cannot be disputed, and, therefore, all legislation upon the subject must have borne relation to that opinion. Can, then, the use of the word "Indian," because at the present day it may be sometimes regarded as a specific, and not as a generic term, alter this conclusion? We think not; because at the origin of the legislation we are considering, it was used and admitted in its common and ordinary acceptation, as a generic term, distinguishing the great Mongolian race, and as such, its meaning then became fixed by law, and in construing statutes the legal meaning of words must be preserved.

Again: the words of the Act must be construed in pari materia. It will not be disputed that "White" and "Negro" are generic terms, and refer to two of the great types of mankind. If these, as well as the word "Indian," are not to be regarded as generic terms, including the two great races which they were intended to designate, but only specific, and applying to those whites and Negroes who were inhabitants of this continent at the time of the passage of the Act, the most anomalous consequences would ensue. The European white man who comes here would not be shielded from the testimony of the degraded and demoralized caste, while the Negro, fresh from the coast of Africa, or the Indian of Patagonia, the Kanaka, South Sea Islander, or New Hollander, would be admitted, upon their arrival, to testify against white citizens in our courts of law.

To argue such a proposition would be an insult to the good sense of the Legislature. The evident intention of the Act was to throw around the citizen a protection for life and property, which could only be secured by removing him above the corrupting influences of degraded castes. It can hardly be supposed that any Legislature would attempt this by excluding domestic negroes and Indians, who not unfrequently have correct notions of their obligations to society, and turning loose upon the community the more degraded tribes of the same species, who have nothing in common with us, in language, country or laws. We have, thus far, considered this subject on the hypothesis that the 14th section of the Act Regulating Criminal Proceedings and the 394th section of the Practice Act, were the same. As before remarked, there is a wide difference between the two. The word "black" may include all negroes, but the term "negro" does not include all black persons.

By the use of this term in this connection, we understand it to mean the opposite of "white," and that it should be taken as contradistinguished from all white persons. In using the words "no black or mulatto person, or Indian shall be allowed to give evidence for or against a white person," the Legislature, if any intention can be ascribed to it, adopted the most comprehensive terms to embrace every known class or shade of color, as the apparent design was to protect the white person from the influence of all testimony other than that of persons of the same caste. The use of these terms must, by every sound rule of construction, exclude every one who is not of white blood. The Act of Congress, in defining what description of aliens may become naturalized citizens, provides that every "free white citizen," etc., etc. In speaking of this subject, Chancellor Kent says that "the Act confines the description to 'white' citizens, and that it is a matter of doubt, whether, under this provision, any of the tawny races of Asia can be admitted to citizenship." (2 Kent's Com. 72.)

We are not disposed to leave this question in any doubt. The word "white" has a distinct signification, which ex vi termini, excludes black, yellow, and all other colors. It will be observed, by reference to the first section of the second Article of the Constitution of this State, that none but white males can become electors, except in the case of Indians, who may be admitted by special Act of the Legislature. On examination of the constitutional debates, it will be found that not a little difficulty existed in selecting these precise words, which were finally agreed upon as the most comprehensive that could be suggested to exclude all inferior races. If the term "white," as used in the Constitution, was not understood in its generic sense as including the Caucasian race, and necessarily excluding all others, where was the necessity of providing for the admission of Indians to the privilege of voting, by special legislation?

We are of the opinion that the words "white," "negro," "mullatto," "Indian," and "black person," wherever they occur in our Constitution and laws, must be taken in their generic sense, and that, even admitting the Indian of this continent is not of the Mongolian type, that the words "black person," in the 14th section, must be taken as contradistinguished from white, and necessarily excludes all races other than the Caucasian. We have carefully considered all the consequences resulting from a different rule of construction, and are satisfied that even in a doubtful case, we would be impelled to this decision on grounds of public policy. The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls. This is not a speculation which exists in the excited and over-heated imagination of the patriot and statesman, but it is an actual and present danger. The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State, except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government.

These facts were before the Legislature that framed this Act, and have been known as matters of public history to every subsequent Legislature. There can be no doubt as to the intention of the Legislature, and that if it had ever been anticipated that this class of people were not embraced in the prohibition, then such specific words would have been employed as would have put the matter beyond any possible controversy. For these reasons, we are of opinion that the testimony was inadmissible. [4 Cal. 399, October, 1854]

What is Your Opinion?

Do you agree or disagree with this opinion? If not, why not? If so, why? Write an opinion for or against admitting the testimony of the Chinese witnesses, think of several strong objections to your opinion, and respond to them. In the course of writing your opinion, imagine that, although you are sitting in judgment in the late 1850's in California, you happen to have access to a number of readings from Philosophy of Law.

The Role of a Judge

You notice that Joel Feinberg has an essay in the primary text for Philosophy of Law called "The Dilemmas of Judges Who Must Interpret 'Immoral Laws'." "Wow," you say to yourself, although that is not your usual way of expressing yourself, "that looks as if it were written for someone exactly in my position!" Indeed on closer examination, you discover much to your surprise the essay just happens to contain a section (pp. 115-20) on the Fugitive Slave Laws which you dimly recall discussing in class. How you would decide the hypothetical fugitive slave case involving Jim might help you to figure out how you might best decide Hall's request to have his murder conviction overturned.

The Internal Morality of Law

You notice, too, after you retire to your chambers that there are several other articles in the book fromPhilosophy 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 to yourself under your breath, "short is good," and you make a mental note to read that, too. What if, you say to yourself, the law on which Hall relies to have the testimony of the three Chinese witnesses thrown out fails to make it as "law" because it fails to meet one or another of Fuller's conditions. "Now there's a thought," you say to yourself, proud to have done some thinking so early on in the process.

Natural Law Theory

So, too, you discover Brian Bix' essay on "Natural Law Theory, Jules Coleman's "Negative and Positive Positivism," and J. L. Mackie's "The Third Theory of Law," which seems to be a critique of Dworkin. There is also an essay by Susan Dimock, one by John Austin, and another by H. L. A. Hart, the titles of which escape you at the moment. "But then," you tell yourself, "you haven't looked so forward to sitting down and reading since you read the first Harry Potter book!"

Legal Positivism

There are also two essays, one by H. L. A. Hart on "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 decide that a quick read of these two essays is a "must" for someone in your position and so you decide to give yourself a few days of "reading time" before putting pen to paper.

Dworkin's "Third Theory of Law"

There also appears to be a theory of law advanced by Ronald Dworkin which falls somewhere in-between the views of Fuller and Hart. "That looks like a 'must read'," you mumble to yourself. Dworkin's theory is neatly captured in two essays included in the Philosophy of Law book: "The Model of Rules" and "'Integrity in Law." 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 to bolster his critique of Hart's positivist conception of the law. Dworkin thinks that Hart has no real answer to how courts should resolve "hard" cases such as People v. Hall in which no settled rule of law applies. On Dworkin's view when courts reason about "hard" cases, they appeal to principles other than postited rules. Principles, such as the one invoked in Riggs v. Palmer that "no one should profit from his or her own wrongdoing" can remain a principle of our law even though it is not always followed. So, too, for Dworkin, principles often give expression to background rights held by one or another of the parties in a case and such principles often are quite reasonably appealed to by judges to "trump" or "to take priority" over other sorts of considerations.

Legal Realism

So, too, you discover Oliver Wendell Holmes' essay on "The Path of Law" and Jerome Frank's "Legal Realism," which seem to take an anti-abstract, anti-theoretical approach to the law, concerned more with "law in action" than with "law in books." Cases, not rules, seem key to Holmes and Frank as the source of law. Judges may often give the impression that their decisions are guided by "rules of law," but this is an impression that judges like to give because they are eager to appear to be relying on a logical, rational, step by step thought process when in fact they begin with a "gut feeling" or "intuition" about how they would like the case to come out and work their way backwards to reasons that will fit it.

Theories of Law

Somewhere, too, you have put some handouts on natural law theory, legal positivism, Dworkin's third theory of law and legal realism to which you have also miraculously been given access ONLINE. at http://people.brandeis.edu/~teuber/lawtheory.html


So there you have it: you are to write an opinion for or against allowing the testimony of the Chinese witnesses, to think of several strong objections to your opinion, and to respond to them.

In the course of writing your opinion, it will be helpful to work out in your own mind how a judge who is more or less sympathetic to one or another of the theories of law listed above would decide this case. How would a judge, living at this time, faced with such a law passed by the California legislature in 1850 decide Hall's fate if that judge were a natural law theorist?

Or how would a judge decide Hall's fate if he were a legal positivist and believed in the "separability" of law and morals?

And if a judge subscribed to Fuller's "internal morality of law," how might such a judge decide this case?

And if a judge were a legal realist, what then?

Or what might a judge, who was persuaded by Dworkin's theory of adjudication, say about the "reasoning" of the court in this case and how do you imagine a Dworkinian judge would read or interpret the Califronia statute "in its best light?" Indeed how would a Dworkinian judge respond, do you think, when confronted with an immoral law?

What if the witnesses who gave testimony at Hall's original murder trial had been black, would this case be easier or harder for you to decide? Would you exclude their testimony?

Offer not only what you believe to be the best defense of your decision, but the clearest expression of that theory of law which best supports your argument.


Prepared: May 1, 2002 - 5:02:29 PM
Edited and Updated, May 5, 2002

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