Theory Fade

'Working Themselves Impure: A Life Cycle Theory of Legal Theories' by Jeremy K. Kessler and David Pozen in (2016) 83 University of Chicago Law Review 1819-1892 comments

 Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. 

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory’s persistence may foster down the line.

'Working for the Weekend: A Response to Kessler & and Pozen' (Virginia Public Law and Legal Theory Research Paper No. 2017-33) by Charles L. Barzun comments

In Working Themselves Impure: A Life Cycle Theory of Legal Theories, Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

Barzun concludes

The authors are hardly the first to succumb to the temptation of conceptualizing methodological debates in law around a dichotomy between internal and external points of view.  The distinction tempts the legal metatheorist because it promises to yield insights free of controversial moral or metaphysical commitments. Maybe that is why the distinction is now endemic to legal theory. But in my view, the distinction is an intellectual crutch that ought to be kicked away for good. It no longer serves any useful purpose, and it blocks clear and creative ways of thinking about law. ... 

Is there a better alternative? I am not sure, but if so, I think it begins with the recognition that two things are simultaneously true: (1) all human endeavors to organize immediate human experience into systems or patterns of thought are imperfect and so contain anomalies and contradictions, and (2) we cannot live or think other than by relentlessly engaging in such organizing and generalizing endeavors, sometimes consciously and often not. Accepting (1) means that we should not be surprised by the authors’ observations about legal theories because, as their own illuminating discussion shows, the adulteration process they identify is pervasive in intellectual life. Accepting (2) means that there is no escaping the difficulties recognized by (1). So the authors are right that no decision procedure can free judges from the need to make controversial evaluative judgments when deciding cases. But nor can any “perspective” be reached that will free legal theorists (or metatheorists) from the need to make controversial conceptual, causal, or evaluative judgments when analyzing theories for the sake of practical decision-making of any sort. If there is no exit from this predicament, then the best the metatheorist can hope for is that she be- comes marginally more aware of the “interests and ideals” driving her own judgments and perhaps someday even learns to distinguish between the two. In the meantime, all she can do is keep on trying to get it right, get it right.

There's a lighter perspective in Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533, a 'sovereign citizen' case with catchwords featuring

applicant arrested on warrant after failing to appear on charge of possession of cannabis – applicant alleging plants supplied by God – whether the criminal law can prohibit conduct approved by God – whether applicant bound by the laws and usages of this State – where applicant claiming to be a self-governed man who believes the King James Version Bible 1611 is the supreme law. 

The judgment states

The application was brought on behalf of a man described as “Adrian Ashley of the House of Cooper”. He was purportedly represented by a man who describes himself as “Keith Charles of the House of Haffey” as “petitioner”. The petitioner objected when I addressed him as “Mr Charles”, asserting that “Mister” is a military title and that he is not in the military. Without acceding to the correctness of that contention, I will refer to him (as a matter of respect) as the petitioner. The petitioner indicated that Adrian Ashley also objects to the title “Mister” on the same basis. I will refer to Adrian Ashley as the applicant.

Further

The petitioner presented a number of witness statements and other documents to the Court. He also addressed the Court orally and provided additional information in response to questions asked by me. As best I was able to ascertain from the information provided, the application was based on a number of grounds. I will address those grounds in the order I consider logical rather than the order in which they were presented in the material relied upon by the petitioner.

First, it was suggested that the applicant was arrested for conduct which is incapable of amounting to an offence. The petitioner explained that the applicant was charged after being found in possession of cannabis. The petitioner contended that all plants were given to man by God, citing Genesis 1:29 of the King James Version Bible 1611, which states: And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.

The point might have been made in response to the petitioner’s submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes. In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act 1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

The second basis for the application revealed by the material put before the Court by the petitioner was that the manner of the applicant’s arrest was unlawful. The petitioner presented a witness statement by a person described as “Izabella-marie, a living soul (woman) of majority in age”. She stated that the applicant answered a knock on the door one morning. She heard him calling for help and went to the front patio where she saw “two casually dressed strangers assaulting Adrian” (they were later identified to be police officers). The applicant asked her to call the petitioner in his capacity as “Occupant of the Office of Special Executor for the Cooper, Adrian Ashley, Estate”, which she did.

At the petitioner’s suggestion, she asked the strangers why they were arresting the applicant. The strangers said they were arresting him “for not appearing at a court hearing”. According to the statement, the applicant was arrested forcefully and assaulted by police.

The petitioner also provided his own statement, headed “Testimony to the facts”. As noted in the statement of Izabella-marie, the petitioner was not present at the premises when the applicant was arrested but spoke to her and to police by telephone throughout the incident. In order to make sense of the petitioner’s statement, it is necessary to understand that he adopts the curious practice of referring to himself variously in the third person singular, as “One”, and in the first person plural, as “We”. He stated:

(12) Throughout the time we were communicating it was also made known that One is the Occupant of the office of Commonwealth public official (Crimes Act 1914 – Section 13), common law notary public and Special Executor of the Cooper, Adrian Ashley, Estate, and that they had not followed due process of law and were assaulting Adrian without warrant and had made a false arrest and if they were to now take him from the property it could be seen as abduction and kidnap and as they were armed with guns, armed kidnap in company, and they were reminded at one point that ignorance of the law is no excuse.

(13) Despite being made aware of these above facts, they forcefully removed Adrian against his will, and took him to Newtown Police Station, which to our knowledge of the law is false imprisonment. As the men stepped out of their alleged office when they first laid hands on Adrian without following due process of law to which Adrian is fully entitled, along with his unalienable freedoms/liberties and rights. ...

The Court states

The letter asserted, in effect, that the applicant is beyond the reach of the criminal law:

Adrian-ashley is a national of the Commonwealth of Australia and not an Australian citizen, therefore the statute/legislation that is being forced upon him does not apply as he is a self-governing man who does not consent to be governed, and has only complied to police demands under duress so as to remain neutral and not be construed as belligerent.

The letter concluded by expressing the hope that the attached documents “make clear to all those concerned the position Adrian-ashley holds as a loyal subject of The Queen and his belief that the King James Version Bible 1611 as the supreme law” [sic].

The documents attached with the letter included an “Affirmation of Truth” and “Testament to Will by Proclamation” each signed by the applicant. Those documents were evidently calculated to achieve or record the applicant’s status as a self-governing person who is not bound by the law of any Sovereign State. An aspect of the position adopted by the applicant is that he expressly does not accept “any benefits or privileges of any Sovereign State”. It was not explained how, consistently with that position, he can invoke the jurisdiction of this Court. 

I did not think it was reasonably arguable that the applicant’s affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law. Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).

After hearing from the applicant at length, I formed the view that no reasonable basis for a writ of habeas corpus was disclosed and, indeed, that the application was manifestly hopeless. In that circumstance, I did not consider it appropriate to grant the relief sought or to make orders for any further step to be taken in the proceedings.

I wish to record that, during the hearing, I informed the petitioner on a number of occasions that it remains open to the applicant to make a release application under the Bail Act 2013 (NSW). The petitioner appeared to reject that proposition, evidently taking the view that a release application is only appropriate in circumstances of lawful detention, whereas he contends the applicant’s detention is unlawful. The petitioner’s view is misconceived in that respect and he potentially does the applicant a disservice in adhering to it. It is to be hoped that the applicant is aware of his entitlement (notwithstanding his stated position of eschewing the benefits and privileges conferred upon him by the State) to bring a release application under the Bail Act. Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.