This is the final part of a three-part series. Read parts one and two here

A judge is a law student who marks his own examination papers.

— Attributed to H. L. Mencken


Liberty is the right to do everything which the laws allow.

— Baron de Montesquieu, Charles Louis de Secondat (L’Esprit des lois, 1748)


In Part 2 of this essay, I recounted a civil lawsuit whose troubling facts did not easily relate to the legal principles that normally define and distinguish the torts known as negligence and battery. Readers were challenged to take on the role of a judge, consider the oral arguments of the lawyers for the defendant and the plaintiff, and then sort out the facts and the law in order to make a judgment as to whether the case involved battery or negligence. The fate of the lawsuit was at stake – it would either be allowed to continue or be dismissed.

This third and final part of the essay will focus on how judicious readers likely grappled with the case, which will lead to some telling conclusions about the nature of law in general and of legal decision-making in particular. In turn, those conclusions will further characterize the critical nature of Durant’s “cap,” highlighted in Part 1. But as a preliminary matter, two points need to be made.

The first, for the sake of any skeptical readers who questioned how realistic the case was with its seeming crazy quilt of facts, is to confirm that it is based on an actual case in which, yes, the defendant’s “playful” act caused very serious physical injury, the plaintiff filed her complaint too late for a claim of battery, and the defendant then sought to have the entire case dismissed.

The second, for those now curious to learn about that real case, is to advise that I am not going to tell you anything about how the real judge ruled because that is just not important. The role-playing exercise was valuable in and of itself as a crucible for your own reasoning. Your experience in trying to decide the case is all that matters here, and is everything in the conclusions to be drawn hereafter.

I would guess that readers at once felt great sympathy for the plaintiff’s situation. One easily imagines that the harm she suffered was traumatic. How unfair then, or so it might seem, that she should be prevented from filing a standard legal complaint that, as is commonly done, alleges both battery and negligence (thus leaving it up to the judge and jury to decide which tort is the proper basis for finding liability and awarding damages, if any). But, as noted, there was no legal excuse for the late filing of her complaint as to the claim of battery, and so that claim had to be dismissed.

Many of you judges then probably felt the pull of emotional bias, hoping perhaps to find a way to rule against the defendant’s further motion that the entire case should be dismissed on the argument that his act was “clearly” battery, not negligence. But if that is how you went about trying to judge the matter, you committed the legal sin of ruling over the law instead of allowing the law to rule over you (as well as all the rest of us). You overrode the integrity of the legal process, rendering the law a mockery.

Now, without question, to be human means to be almost always affected with emotion and interest and their close cousins prejudice and bias. But if the legal process is not to be a façade for personal whim, but instead an honest effort at thoughtfulness, then a judge must be sure to strive to make it so. Here is the first important lesson about the “upholding” of law: judges – as well as lawyers and jurors – are honor-bound to treat fidelity to the law as their strongest bias.

Which brings us to the real “fun” of the exercise – reasoning through the facts of the case as respectively characterized by the lawyers in their competing interpretations and applications of the relevant law.

Now for those who really took the time to reach what you truly felt was both a reasonable and reasonably defensible decision, you must have been struck by how many different factors and concerns were in play in your mind. And the overarching realization must have been, could not have been otherwise, that the so-called rules of law were right off the bat insufficient to give you much guidance. Sure, you grasped the basic definitions of battery and negligence; you saw how the examples I gave of careless Sara and willful John fit those definitions well enough. But Jones v. Smith seemed more like a defective jigsaw puzzle, with few pieces neatly fitting together short of being “pressed” to do so.

Well, welcome to the practice of law. You can choose to look at the situation in either of two ways: the law at times turns out to be quite a clumsy human invention for bringing order to our lives, or life at times turns out to have quite a genius for frustrating our worthy aspirations. I can attest that, on the whole, members of the legal profession wholeheartedly embrace the second view. But on either view, the one constant aspiration of law is to continue to build upon and improve itself. Which turns out to be a very good description of the exercise you undertook and that lawyers and judges and juries take up all the time, in case after case after case.

So let us take a closer look at the factors and concerns you had to deal with in your deliberations. The crux of the ultimate decision you had to make – whether Smith’s act is battery or negligence – is which legal rule defining battery should be used: the single intent or dual intent rule. But even if you started by focusing only on the facts and issues within the case at hand, the choice is not a clean one, meaning that while the first rule would dictate battery, the second rule could still point to either battery or negligence depending on whether Smith could be said to have intended an offense to Jones. As Smith’s lawyer then argued, his client’s action should be seen to satisfy that part of the second rule since not only was the physical contact intended but offensiveness was intended, too, which he characterized as “teasing,” “making fun of,” “embarrassing,” and even “bullying.” But these contentions by the defendant are only that: they are as yet neither settled facts nor facts whose legal implications are clear.

So it turns out you now had an additional legal issue to grapple with: what kinds of “offensiveness,” especially in the vein of teasing, should as a matter of law satisfy the rule. (Another example of “dark text.”) And depending on what you decided here and if you also went on to decide that the second intent rule should apply, then it would fall to the jury following a trial to decide as a matter of  fact whether Smith intended his act to give offense to Jones, and if so what kind of offense. Here the jury would finally decide if the case involved battery or negligence. (But if battery, that would then end the case as Jones would still only be allowed to recover damages for negligence.)

In these regards you would normally have the benefit of a greater number of past legal cases and decisions than I provided to inspire and guide you, though likely divided in their reasonings. But in the end you would still be left to decide for yourself. And in your pondering at least the question of which intent rule you should apply, exactly what, I must ask, did you think you were doing? Were you still thinking “legally,” only engaged in “applying” particular legal principles, or did you sense that your perspective had acquired a distinctly political orientation? In having to choose one or the other intent rule, which means, again, that you and you alone (for now) would get to decide which is the better one to use in this case in your jurisdiction and quite possibly in future cases in the rest of your state, how were you not actually making new law in your state?

Well, you were of course. So I hope that you can now appreciate, even if nothing else from this exercise, how lawyers and judges often must, if they are to be able to apply legal words and phrases, essentially create and enforce new law. It is not statutory but judicial; it is not legislated but dictated. And in nearly every instance it can be overruled by a higher court or expressly overwritten by a legislature. Yet as to the basic fact that judges sometimes do make law there can be no rightly denying or pretending otherwise (though wrongly doing so is sadly common).

All the same, your decision about which intent rule to apply likely did not rest on only the facts and legal principles clearly at play in the current case. As the lawyers also urged, you should have taken account of other sorts of tort cases, from sexual harassment in the workplace to the harmful behavior of those in the care or under the supervision of state-run facilities. Jones’s lawyer then argued even more broadly that if you decided to apply the first intent rule you would end up jeopardizing long-standing social customs, thus harming human society at an elemental level.

So in mulling over whether or how your decision should complement roughly similar cases and their legal principles, and also whether or how your decision should sustain traditional ways of life, just what did you think you were doing then?

Sounds to me a lot like philosophy. The first issue of complementing other sorts of tort cases and their legal rulings raises the philosophical concern of coherence, which entails a reasoned judgment of the degree to which two or more situations are related if not identical and therefore should be treated as the same in nearly all of their varieties. As to the current case, is it so close in kind to sexual harassment in the workplace that the legal standards applied to the latter should be applied to it, too? Also, can or should the current case be an exemplar of what justice requires when persons, such as those in or under the care of a state agency, inflict a degree of harm well beyond any actual intent to do harm?

The second issue of what impacts law will or should have on customs and other social beliefs certainly implicates the larger concerns of what is human nature and what should be our cultural values. In these regards, the essential purpose of any court with its judge, lawyers, and jury is to do right by human beings who in the courses of their lives get “caught up,” accidentally or intentionally, in a disagreeable and contesting variety of circumstances. A more deep-seated philosophical – and, by extension, practical – issue that fundamentally defines human society is hard to come by.

If we now step back and take in an overall impression of Jones v. Smith, we can see this exercise in law as rounded out with philosophical concern and reason. From the settled to the unsettled legal rules, to the comparisons to and contrasts with prior related cases, to the core values of our given political society, and to the customary behavior of human beings with their shared expectations of how they should treat and be treated by one another, the task of law is to encompass and assess all of that, and time and again do its best to produce and sustain that quintessence of all hopeful societies – justice. By no means any small task (as if you really needed me to tell you that).

But what the law itself is is the artifact, the tool, the formed structure, the directed process, and in other words the embodiment and expression of human reason and wisdom at their most refined and useful. Law is designed to “rule” over all of human reality. And by “rule,” I mean to rule either by ruling or not ruling, as the case may be, but as the law and its processes determine. Law is nothing if not relentless in its own cause. And here is its overall manifestation as a “dark synergy.”

In terms of its physical effects though, law operates within its given society on the relatively microscopic level of the individual. In its most crucial forum, the courtroom, the law’s jurisdiction is segmented into many, many cases, each often involving only a small group of people, and commonly just one or two persons. But the result of every case literally radiates outward, potentially affecting far more people both in the present and the future. Every case thereby serves to accumulate the ever growing mentality of experience, reflection, and resolution – legal to political to philosophical – that is “the law.”

The “carrying on” of law is thus a piecemeal process. And no one person is or ever can be in control over what those many, many “pieces” add up to over time. But of course what they do in large part “add up to” and constitute is Durant’s “cap,” keeping our baser human nature in check and allowing our civilization to endure.

In these respects the “cap” is a composite, organic creation. Thus it can be said to have a life of its own as it is not beholden to a single intended cause or planned effect of its existence. And that makes it unpredictable and not altogether stable, at least from the perspective of us individual humans. Nonetheless it is our collective responsibility; our respective interests are mutually entwined with its dynamics. But it will always be a most uncertain product of our best intentions regarding the law.

Indeed law is then perhaps best thought of as a project of engineering – a mental and physical, criss-crossing and expansive, reforming and resettling construction of our human willfulness. It shields and protects us from one another and thereby empowers all of us to make the most positive and accomplished use of our fragile, mortal lives. It is a “cap” on chaos, but at the same time also a foundation for everything we humans care to achieve and take just pride in.

Most remarkable of all, the engineering of civilization that is law will never cease. There is no final blueprint to be drawn, nor finished construction to be scheduled. For as long as we humans exist we will need law, and therefore law will always be a work-in-progress. And that makes it the greatest engineering feat that human civilization has ever undertaken and could ever undertake, bar none.

Pervasive in its undergirding all human activity. Elusive in its frequent need to be further understood and developed. Momentous in both its facilitation and manipulation of human willfulness. Mysterious in its ever-evolving intents and designs.


Featured image courtesy of Library of Congress.

About The Author

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Bruce K. Adler is a retired lawyer whose legal practice involved products liability, commercial law, civil liberties, and constitutional law. He remains active in community affairs and local planning. His academic interests include the philosophy of law, social and political philosophy, and the history and philosophy of science. He is fascinated by the “problems” of consciousness and free will. And he feels inspired to do some serious writing on at least law and its related topics.