The Socratic Method tested

Four Argentinean researchers recently published what might be described as a replication of Socrates' own form of the Socratic method. Andrea P. Goldin, Laura Pezzatti, Antonio M. Battro, and Mariano Sigman, From Ancient Greece to Modern Education: Universality and Lack of Generalization of the Socratic Dialogue, 5 Mind, Brain, and Education 180 (2011). 2400 years ago, as they observe (I admit I haven't gone back to check Plato's account myself), Socrates taught Meno's slave how to create a square with twice the area of another square, by asking the slave a series of questions designed to help the slave come to recognize the method that needed to be used. The authors report that many of the 58 contemporary Argentineans to whom they presented the same problem, and the same questions, made the same error as Meno's slave did (the mistake was to think that doubling the length of each side of the square would double the total area; in fact, doing that quadruples the square's area). The persistence of this mistake is a particularly clear proof of the continuing frailty of human reasoning, and that's interesting in itself, notably for the doubt it raises about "the efficacy of the modern educational system" (at 183).

But the authors also report that "to our great surprise," when the experimental subjects were asked to double the size of a new square at the end of the Socratic dialogue, "more than half of the adolescents (57.1%) and almost one third of the adults (32.4%) ... failed to respond correctly." (182) The authors says that "[o]ur observation of a lack of generalization in a strict Socratic dialogue extends a broad literature which has questioned the efficacy of unguided education, despite their broad popularity and intuitive appeal." (183)

The idea that the Socratic method, so central to traditional law teaching, might be demonstrably ineffective has a certain ironic appeal. But actually I think the lesson of the piece is rather different.
It certainly seems fair to say that one exposure to the Socratic method often is not enough to enable a student to acquire a skill and be able to apply it to new problems (even very similar ones). But why should it be? Meno's slave, and the students in this experiment, had no opportunity to practice what they had learned. Socrates could have returned to the task of teaching his student the following day, with a new square as the subject, and could have reminded the student then of the insights of their previous discussion. That's the sort of approach that seems likely to help someone digest a lesson more deeply and learn the special skill of "transferring" that lesson to new contexts.

Meanwhile it is perfectly possible that Socrates' approach, with the benefit of enough repetitions, will have another effect -- namely that it will help the student to really understand why (as the lesson shows) one can double a square's volume by creating a square with sides equal in length to the original square's diagonal.  That insight might mean that the student is better able to go on to master deeper and more intricate problems, because his or her knowledge is based on more than simply memorization of prescribed rules.

I don't want to overstate the case for the Socratic method. It might very well be that for many students a bit of straightforward instruction, followed by drills, would eventually produce a mastery just as firm and just as comprehending as the approach I've just imagined. All that I think is clear is that the Argentinean experiment by itself doesn't prove the superiority of any such alternative. (Nor do the authors assert that it does.)

It is intriguing, meanwhile, to see that the authors view the Socratic dialogue as "probably one of the most emblematic examples of education in a minimally guided environment, in which learners must discover or construct essential information for themselves." (183) I wouldn't describe Socratic dialogue as "minimally guided," but the authors' implicit comparison to many other forms of education is instructive. Socratic dialogue, at times an elaborate performance starring the professor (as my friend Bob Dinerstein has recently noted), can also be a process in which students take responsibility for their own learning, far more than they do in a class where the prescribed lessons are all spelled out. The Socratic method in law school has even been described as a form of skills teaching, in which students learn the skill of legal reasoning precisely by performing it themselves. Clinical teaching -- sometimes seen as the humane and practical response to Socratic tyranny and abstraction -- itself is often quite Socratic, as professors supervising cases may firmly resist giving students instruction and instead ask question after question.

So does the Socratic method pass its test? I think the answer is that we have more questions to ask.

How long does law school need to be?

Is three years enough time to train a future lawyer?

One answer is another question: what does it mean to say a future lawyer has been trained?

And one answer to that second question is: "a lawyer is trained when she is ready to practice law on her own." There is a logic to this answer: a law degree in the US entitles you to take the bar exam and, if you pass it and your state's character test, you are legally entitled to practice law. There are a few areas of law for which some additional credential is absolutely required, but not many.

But in fact, as a colleague of mine has said, no one in his right mind would hire such a lawyer to handle important matters if he had the money to choose someone he trusted. Nor would any senior lawyer hand over difficult cases to a new subordinate without further training and supervision -- again, assuming the lawyer's organization had the resources for these steps.

Whether or not law school should prepare people to practice on their own, in other words, it seems that few believe it does. One way to understand that consensus is to say that it seems to be widely felt that three years is not enough.

More precisely, it seems to be widely felt that three years of law school as currently constituted is not enough.

The next question (for my next post) is  "how much more -- or different -- do we need?"

The smart move for underdogs

What's the smart move for underdogs? Malcolm Gladwell provided an answer in an essay called "How David Beats Goliath: When Underdogs Break the Rules," published in The New Yorker of May 11, 2009. As the title indicates, the smart move is not to play by the powerful players' rules. The big boys by definition are the ones who prospered under the rules, and quite likely they're also the ones who wrote them. So it stands to reason that if the rules remain unchallenged, those who are already doing well under them will continue to do so.

There are limits to the force of this lesson. It may be the smart move to lie, cheat or kill, in a world where powerful people don't need to do those things (that may not be our world, but that's another story) -- but lying, cheating and killing are still moral wrongs. Moreover, the rules may be set up more or less fairly: in a democracy, there is some real chance that insurgent political groups will be able to win power within the rules; and in a well-regulated capitalist state, a new competitor may be able to triumph over established industries (see Microsoft, Google, Apple).

So Gladwell's lesson isn't a mandate for immoral action or for anarchy. But it is a guide to the smart move within those limits. Thus David and Goliath: David brought an unexpected tactic, the slingshot, and an intensity of effort (Gladwell quotes the Bible: "And it happened as the Philistine arose and was drawing near David that David hastened and ran out from the lines toward the Philistine") that overcame Goliath. So also Gladwell's extended lesson on the power of the full-court press in basketball -- it requires a lot of effort but disables stronger opponents. So also guerrilla warfare. Those less-powerful actors who are willing to depart from existing conventions do well, while their counterparts who meet the powerful on the powerful's terms lose.

Why don't more people try the smart, underdog move? Gladwell's answer: "The coaches who came to Louisville [where Rick Pitino's college teams practiced the full court press] sat in the stands and watched that ceaseless activity and despaired. The prospect of playing by David's rules was too daunting. They would rather lose." That sounds like laziness, and that alone may be part of the answer. In many circumstances it is acceptable to be mediocre, and playing by the winner's rules will make weaker teams dependably mediocre.

But Gladwell's own account indicates there's more to it than that. He also writes that "[w]e tell ourselves that skill is the precious resource and effort is the commodity. It's the other way around. Effort can trump ability ... because relentless effort is in fact something rarer than the ability to engage in some finely tuned act of motor coordination." This observation suggests that the weak stay with the approach of the powerful because they believe that the approach of the powerful is actually superior. The weak want to be like the strong. Or, put differently, they envy the strong and believe that by becoming like them they can triumph over them. And they believe this strongly enough to discount evidence that suggests the smart move is to become unlike their competitors -- a feat of reasoning fallibility that appears to be absolutely typical of how people think.

There surely is one other problem. Even if we free ourselves from the tyranny of the conventional, we haven't yet figured out the right unconventional move. Or at least we may not have -- the utility of some moves in some contexts, like the full court press in basketball, may now be perfectly clear if we have eyes to see with. In other settings, however, the smart move (or moves -- of course there may be more than one) may not be easy to discern, and certainly many unconventional moves will turn out to be dumb as well. So the question for law schools that aren't prospering by the current rules is: what's the smart move? I'll work on that in future posts.

Rawls and clinics

A thoughtful observer, responding to the latest wave of criticism of legal education, argues that clinical legal education -- though valuable -- isn't anything like the cure. What concerns this observer is the likelihood that students will become so absorbed in the press of practice in clinics that they will not accomplish something else they need to do, namely to engage deeply with critical perspectives, such as the philosophy of John Rawls, that will help them to judge how to act and what to seek in the world they will soon enter.

I think it is undeniable that clinics are not the place for a deep engagement with Rawls. That's equally true, of course, of a contracts course that focused on the details of modern contract doctrine -- even though some of Rawls' writing falls in the tradition of social contract thinking. As a general proposition, a deep engagement with philosophy requires ... a deep engagement with philosophy, and no course whose focus is on legal doctrine or legal practice will be likely to provide room for that kind of study.

Whether the same is true for other perspectives from beyond the law that students might need to study on their way to being lawyers may be more debatable. A clinic or a seminar focused on a public policy problem -- say, the treatment of homeless people in this country, or the involuntary hospitalization of the mentally ill -- may be an excellent place for students to encounter issues of sociology, psychology and public policy. These or other courses may also provide opportunities to study the interaction of law and economics. Certainly not every clinic will explore issues like these in depth (nor will every nonclinical seminar), but some can.

I'm more concerned, though, with Rawls and with moral philosophy. Clinics present many issues that call for moral judgments by lawyers and law students, but in the clinics -- as, I assume, in most lawyers' day-to-day practice -- these judgments are not made primarily by working through the views articulated by great philosophers. Presumably they're not made this way by most lawyers in practice either, nor by most people in their daily lives. Does the fact that clinic students are doing what practicing lawyers do amount to a defense?

Arguably not. One might respond that it is precisely because most people don't approach problems this way that our common solutions to problems are so flawed. Or one might say that while most people outside of schools don't address issues this way, it's the function of schools to provide learners with a foundation that they will be able to utilize, perhaps without even consciously being aware they are doing so, in the years to come.

I don't want to deny entirely the force of these responses. In particular, I do agree that school is a time to step back from what is immediate and seemingly self-evident, to challenge one's own thinking and develop judgments that are deeper than those with which one began. That function is probably a reason why the preparation for practice should not be all practice, since it is difficult -- not impossible, but difficult -- to challenge one's own thinking in the very midst of applying it.

But at the same time I don't think it is possible to show that the way people achieve mature morality is by academic study. Academic study does shed light, but much of it what it does is to induce confusion, and that confusion isn't likely to be fully resolved in any one course, or even any series of courses. Meanwhile, growth as a moral person may proceed on quite different paths -- through empathetic response to suffering, for example. Growth as a social thinker may be the result as much of growth in one's personal relationships as of growth in one's academic mastery of the relevant issues.

So in the end I don't think the fact that clinics are not the place to learn Rawls, or more generally the place to explore extra-disciplinary perspectives on law, should dissuade us from thinking -- as the current critique of law schools urges -- about how to make our schools more practice-oriented. And when we turn to that task, it seems to me that the claim of clinics (and other skills courses) is a powerful one: to learn to practice, one must practice.

Interpreting the torture statute's meaning, continued

Jeremy Waldron, in his book Torture, Terror and Trade-offs: Philosophy for the White House (2010), offers another argument against the President's right to ask his or her lawyers for a precise answer to the question of what conduct the torture statute actually forbids. Actually, he does not argue against the President's seeking precision; rather he argues against the President's treating the torture statute as a problem to be maneuvered around. Asking what the statute forbids isn't necessarily part of trying to circumvent it, and I don't take Waldron to be arguing that Presidents are barred from seeking precision if that is all they are seeking.

What Waldron is arguing is that Presidents have no right to treat law as something to undercut and evade. In this, Presidents are quite unlike ordinary citizens. Because the rule of law exists to protect individual freedom, Waldron argues (at 322), "there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inapproriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear."

Why are Presidents (and governments) different, on Waldron's account? Because government does not have a right to individual freedom; in fact, absence of law binding government creates peril for individual freedom. Government exists in large part to protect its citizens' freedom, and that freedom would not exist unless it included freedom from lawless government action, otherwise known as abuse of power. (322-23) "Government lawyers," therefore, "should not be in the business of looking for pockets of unregulated discretion or loopholes in such regulations as do exist. They should not be advising their political bosses that they are entitled to avoid the impact of legal constraint where it is ambiguous or unclear." (323-24) And he applies this approach even to the realm of international law, arguing that "[g]overnments are bound in this arena, as in any arena, to show themselves devoted to the principle of legality in all their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly." (329)

Waldron implies, however, that there may be exceptions to these conclusions. He writes (323 n.6) that "[t]he Rule of Law is just one of the normative ideals that apply to government action. Others, such as efficiency or even security may sometimes pull in a different direction." If security did present a more pressing claim than the rule of law in a particular situation, presumably the duties of a lawyer asked about the law could similarly shift -- unless it is the job of lawyers always to stand for the law, even if other actors (generals, perhaps) may legitimately choose to disregard the law's demands. Whether Waldron would allow lawyers some freedom of action on these grounds isn't entirely clear; he emphasizes that while lawyers do serve multiple goals, "we pursue justice and the social good through the Rule of Law, not around it or in spite of it." (320)

So: is it inconsistent with the rule of law for a government lawyer to try to limit the legal constraints on the government by employing the tools of legal argument and interpretation to construe those constraints to be as modest as possible? That's the loophole-finding, advantage-taking role Waldron finds quite appropriate for the lawyer representing an individual citizen, and quite inappropriate for the lawyer representing the government. If that role is indeed inappropriate for a government lawyer, then presumably those lawyers can offer the President only such legal arguments and interpretations as support the full implementation of the law as it's written, as well as the full realization of its underlying policy goals.

There is a lot to be said for the proposition that just laws and democratic choices deserve the full support of the government and its lawyers. But not all laws are just, nor are all democratic choices, and not all laws result from untainted democratic processes. What, then, are the obligations of the government lawyer who encounters an unjust or undemocratic law?

To be sure, one person's injustice is another's categorical imperative. Who is to say what is unjust and what isn't? As a general proposition, in legal representation it is the client rather than the lawyer who says what is desirable -- as long as the bounds of the law are not breached. With a lawyer for the President, this general rule seems especially apt, because the President, not the lawyer, was elected to represent the views and needs of the people.

So let us imagine that government lawyers are asked to construe an unjust law, that is, a law viewed by the President as unjust. Just to make this hypothetical a bit more real, let's suppose it's a statute that forbids any "transactions" between government agencies and undocumented aliens. Let's suppose also that the statute could most easily be read to bar, as "transactions," even the provision of emergency medical services to an undocumented alien, but that this reading is not absolutely compelled by the available interpretive materials (such as the text or the statements of the enacting legislators). And suppose that the President (or the Governor of Alabama, since this law is not entirely unlike that state's harsh new law regulating undocumented aliens) believes the law is unjust. So the President asks, in effect, "How can we minimize the application of this law by the use of the tools of legal argument and interpretation?"

It seems to me that in this case narrow interpretation serves justice. As I've mentioned, Waldron distinguishes between the pursuit of justice and the rule of law, on the ground that lawyers "pursue justice and the social good through the Rule of Law, not around it or in spite of it." I am not as comfortable as he seems to be with the idea that the rule of law in and of itself is not partly a matter of justice. Could a society with clear and consistently applied, but deeply unjust, laws be said to enjoy the rule of law? There probably has never been such a place -- deep injustice is likely always accompanied by arbitrariness -- but in principle I'd say that that hypothetical nation (a nation that apartheid South Africa, for instance, aspired to be) was not a country governed by the Rule of Law. What anti-apartheid lawyers used to say was that such a country had rule by law instead.

But whether the pursuit of justice is integral to honoring the rule of law, or whether it is a separate value that lawyers also serve, in the end is not critically important. Either way, in the case I've described, the path to justice (or at least a path to justice) is to seek a reading of the statute that minimizes its reach, by employing the available sources of interpretive guidance to generate a narrow interpretation of its terms -- even though that interpretation isn't the one those materials most easily support. That means that in situations where governments are constrained by unjust laws, they may indeed rightly react by turning to manipulative lawyering as a response. Waldron's concerns about government's duty to the system of law itself may weigh against this course of action and sometimes, maybe even often, may weigh so heavily that this approach, even if it is a path to justice, would be the wrong path to follow. But I don't think this path could always be ruled out.

How can a government come to be "constrained" by unjust laws? Isn't the government itself the lawmaker? Yes, abstractly; but not always, concretely. Congress can pass a law over the President's veto; the President then is obliged to implement it (at least unless it is unconstitutional), but if the President believes the law is unjust, what I've argued is that it could be right for the President and the President's lawyers to use legal interpretation to minimize that injustice. Similarly, a nation may be subject to international law rules whose meaning at first blush would be unjust to that nation and its citizens; and in such situations the nation and its lawyers might be right to use legal maneuvering to avoid this reading of the law.

I want to emphasize that I do not think either the national or international law prohibitions on torture and mistreatment of prisoners are unjust. But suppose the President felt otherwise. A President taking that view could legitimately say that his or her request for aggressive lawyerly interpretation of the torture prohibitions was not a denial of the rule of law, but an effort to seek justice within the constraints of the law.

There is also a more prosaic reason to defend aggressive government lawyering, namely that the legal system makes meaning from argument. Suppose a statute can be read either broadly or narrowly; the underlying policies said to be embodied in the statute favor a broad reading, but the terminology used in the law seems to point to a narrower reading -- one that would constrain government freedom of action less. If government lawyers should never look for "pockets of unregulated discretion," as Waldron maintains, then it might follow that they should not argue for this narrower reading. But the legislature that enacted the law, and the citizens who read it (with the benefit of training in statutory interpretation), might believe that the narrower reading is the right one. If the interpretive arguments favaoring that view aren't pressed, and as a result are ignored by judges or other decisionmakers, then the rule of law may have been injured -- because the methods of the law's interpretation are themselves part of the body of law whose stable and predictable application the rule of law protects. I don't mean to suggest that the government's lawyers must make any and all arguments just because the arguments can be devised, and in fact there are many reasons why that shouldn't be the government's duty (the arguments may actually disserve other goals the government has; other parties may be available to press the points on their own; or other parties may not be available to refute what the government says, in which case only the points the government embraces will get serious consideration by decisionmakers). But I do want to maintain that rule of law values may favor arguing against the extension of legal controls on the government, even though other rule of law concerns may (as Waldron says) favor the extension of such controls.

All of this leads me to say that we cannot take the rule of law, by itself, as a sufficient reason to bar government lawyers from making arguments that seek to expand the government's freedom from legal restrictions. That, however, doesn't mean that limiting the reach of the torture statute was legitimate. It does suggest that the President as client could believe it was legitimate to ask for such an interpretation, and it underlines the importance of examining how lawyers should answer such a request. 

Is it legitimate for a President to ask exactly what conduct the torture statute forbids?

In a piece I've been working on for some time, on how to correctly interpret the United States' "torture statute," I've argued that it is legitimate for a President to ask his or her lawyers to explain precisely what conduct the statute does and does not cover. But one might well respond that really the right approach to this statute is to avoid coming anywhere near it. Or, less sweepingly but to the same effect, one might argue, with Jeremy Waldron, that society has provided as much precision as it should when it communicates that it prohibits "the deliberate infliction of severe pain"; he urges that no one "has a legitimate reason for demanding that the prohibition be . . . 'drawn closer' than that." Jeremy Waldron, Torture, Suicide, and Determinatio, 55 American Journal of Jurisprudence 1, 24 (2010).

Does that mean that it is really not legitimate for the President to ask the lawyers for a precise reading of the statute's terms? Not necessarily. Waldron's point, as he phrases it, is that the President could not rightly demand more precise meaning. To demand more precise meaning, however, may be to insist upon a binding determination in advance: so much is legal, so much is not. There are many circumstances in which the exact application of the law to actual conduct is not certain in advance, or even after the fact; those many areas of uncertainty are much of what lawsuits are made of. But we do not tell people, usually, that in those areas of uncertainty they must just do the best they can on their own. Instead, normally, we say that they can ask their lawyer, if they're fortunate enough to have one, for an expert opinion on what the law really does mean.

Why? Because in a society governed by the rule of law, the laws must be knowable. Secret law, at least as a general matter, can't be permitted. Since the written law is always at least somewhat in need of interpretation, it must be permissible for anyone, including the President, to ask a lawyer to interpret it -- otherwise its true meaning would remain hidden. Such questions are legal, and legitimate.

Is it ever illegal to ask what the law is? Surprisingly, the answer to this question is probably yes. A client might very well want to know what the law is in order to carry out some illegal scheme -- a classic example would be the client who inquires, "What countries don't extradite people charged with murder?" The client who asks about the law as part of a criminal enterprise may well be acting illegally even in asking the question, and evidence of that question might someday be offered as part of the proof of the client's guilt. On the other hand, a client who asks what the law is, so that he or she can come as close to violating it as possible -- but not violate it -- is acting legally, even if such a client deserves to be called a "bad man [or woman]," as Oliver Wendell Holmes, Jr., famously did.

So it might be argued, to make all this concrete, that when President Bush asked his lawyers to interpret the torture statute, he did so as part of an illegal scheme to covertly violate that very statute. Therefore the question itself was illegal.

That might be argued, but it's not at all clear that the argument would be correct. It seems, in fact, that while President Bush was eager to circumvent various legal restrictions, he did not want -- or his advisers on his behalf did not want -- to do so by directly violating the law. Jack Goldsmith, in his book The Terror Presidency: Law and Judgment Inside the Bush Administration (2009), reports that when he told Alberto Gonzales and David Addington, top Administration lawyers, that "[t]he President can also ignore the law, and act extralegally," they "looked at me as if I were crazy." (At 80.)

If, then, Bush wanted to take the "bad man" view of the torture statute -- to come as close to violating it as possible, but not violate it -- then his question was legal, even if his approach was repellent.

If, on the other hand, Bush wanted to arrange an escape from liability akin to flight to a country from which extradition would be impossible, that context would make his question part of an illegal scheme. Suppose, for instance, that he consciously engineered knowingly false advice from counsel, advice that could be transmitted through the executive branch, and then secured passage of legislation making reliance on advice of counsel a defense against criminal liability -- that might be the equivalent of planning one's flight from prosecution. But if, on the other hand, President Bush sought and obtained good faith advice, and then obtained legislative support for a defense of good faith reliance on this advice, all that would likely be entirely legal. 

There is also a third possibility. Waldron describes it in his book, Torture, Terror and Trade-offs: Philosophy for the White House (2010). There he says that "[w]e know, for a fact, that administration lawyers strove mightily in 2002 and 2003 to undermine the clarity of the legal framework relating to torture. . . . The aim was to create an atmosphere in which honorable people, inside and outside the armed forces, would come to think of the rule against torture as a muddled and difficult technical issue rather than a clear and uncompromising prohibition." (At 266.) The point, to quote Goldsmith again, was that "[t]he President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did legal." (Goldsmith, at 81.)

Let us assume that these descriptions are accurate, and furthermore that what the lawyers did was what the President asked them to do (though exactly what the President himself asked may be quite uncertain). In that case, his question was not "what precisely does the torture statute prohibit?" but rather something like "Please devise a plausible argument that the torture statute does not prohibit very much."

It seems to me that even this question is not forbidden by Waldron's initial injunction that no one has the right to demand specificity concerning the statute. The President, on this account, was not demanding that the law be acknowledged to be X. Rather, he was asking his lawyers to argue that the law is X. Argument that the law is X, or Y, however, is an absolutely standard part of the process of determining what the law actually is. Lawyers routinely say things to the effect that "under the law, rightly interpreted, my client has acted lawfully." Then they support that claim with elaborate interpretive arguments. In doing so, the lawyers are bound by good faith, but they are not actually required to believe their own contentions. If the net result is to persuade others -- "honorable people" -- of the correctness of the view they've asserted, all that is just part of our society's process of lawmaking.

That would not be so, however, if the President's question was something like "Please devise some argument, no matter how preposterous and unreasonable, that the torture statute does not prohibit very much." If that was the President's question, then he might well have been asking the lawyers to violate their duty of good faith -- and then we would be approaching the "illegal scheme" zone again.

I asked near the beginning of this post whether it was "legitimate" for a President to ask for a precise interpretation of the torture statute. What I've answered is that in general -- not always, but in general -- it is perfectly legal and legitimate for clients to ask their lawyers for as much precision as can be discerned, and even to ask their lawyers for advocacy of particular interpretations on their behalf. This is important, because if the President can legitimately ask this question, then we need to consider how it should legitimately be answered (and this is what I've been trying to do in the essay I mentioned).

                                                                   * * *

I have left one possibility unexplored till now, and want to briefly consider it: namely, that the President's questions might be legal, but still illegitimate. Broadly we can imagine two different kinds of illegitimacy, which we might call "procedural" and "substantive."

What would procedural illegitimacy be? Here's one possible answer: perhaps the President does not have the same prerogative to ask lawyers to concoct arguments on his or her behalf as ordinary clients do. Much of the work of interpreting the torture statute and other laws that constrained the Bush Administration's response to 9/11 was done by the Justice Department's Office of Legal Counsel, and it is quite possible that that office has acquired special duties of dispassionate analysis that were violated by the legal work done in the Bush era. Especially because the Office of Legal Counsel's opinions evidently are often treated within the Executive Branch as authoritative rather than just more or less persuasive, it is also quite possible to argue that if the President deliberately sought opinions that required the lawyers giving them to violate those duties of dispassion, then his requests were illegitimate. They would have been all the more illegitimate if the President then relied on the reputation of the office as a basis for "selling" its opinions to soldiers and investigators and interrogators; and they would also have been all the more illegitimate if those lower-level officials who wanted to escape the prohibition on torture understood and embraced the President's maneuver. But it should be acknowledged that exactly how dispassionate the office must be is a contested matter. Perhaps the point is most contestable in the field of war and foreign policy, where it is possible to argue that the President's interpretations of our legal duties are constitutionally entitled to some measure of deference; arguably, the President is entitled to endorse interpretations that legal reasoning alone would not support.

And what about substantive illegitimacy? Waldron argues in his book that the prohibition on torture is a key, fundamental part of our legal order. It would follow that deliberately seeking to undercut its force would damage not just the strength of this prohibition but other integral components of the rule of law. This is damage not to how the law is arrived at (procedure), but what the law is (substance). Waldron's argument is important, though I hope to return to the issue it raises, of just when a challenge to some part of our present law should be deemed illegitimate rather than seen as part of the ongoing process of argument through which our law lives.

For now, I'll just say that if the President's questions are legal, then even if they are illegitimate they may deserve an answer -- but the lawyers giving the answer may be able to do so in ways that resist the illegitimacy.

How wolves bred people

In his article "From the Cave to the Kennel," Wall Street Journal, Oct. 29, 2011, Mark Derr reviews new evidence and inference about the process by which wolves became dogs. The old view, as he describes it, was that some wolves entered human settlements as scavengers, and we set about transforming them into dogs. The new view is that wolves and humans chose each other, and that early domesticated dogs were much closer to wolves than we might have thought. "The emerging story," he writes, "sees humans and proto-dogs evolving together: We chose them, to be sure, but they chose us too, and our shared characteristics may well account for our seemingly unshakable mutual intimacy."

Derr points out that humans assisted by dogs would have had "a competitive advantage over those without," as their dogs would have served both as camp guards and pack animals (early dogs were big). Then he comments, but without elaboration, that "[t]he relationship between dogs and humans has been so mutually beneficial and enduring that some scholars have suggested that we--dog and human--influenced each other's evolution."

How would that have come about? Well, of course we don't know. But it's easy to see what might have happened. Those humans who had dogs to help them were more secure and more mobile, and hence more likely to survive.  Their children were more likely to survive too. And we're more likely to be the descendants of the humans who were good at associating with wolves and dogs than of other humans.


What does it take to be good at associating with wolves? Communication skills are probably important; those humans who were best at conveying instructions to other creatures who lacked language would have been best able to take advantage of the aid wolves could offer. Empathy would also have been useful, in part to make communication more effective, but perhaps also to make interaction more enjoyable. The wolves that chose us would have preferred to stay with the people they liked.


The upshot is that the interaction between humans and wolves tens of thousands of years ago favored people who were empathetic and communicative. Not overwhelmingly empathetic, to be sure; humans and wolves no doubt hunted together from a very early time, and jointly treated various other animals as prey pure and simple. But the people who made friends with wolves could well have been somewhat warmer and more social than others. And once those traits were favored as a result of the survival value of having wolves or dogs as companions, then their impact needn't have been limited to our dealings with wolves. We are the descendants not of those with an empathy-with-wolves trait, perhaps, but rather of those with an empathy trait -- now available to help shape our relations with many other animals, not to mention with each other.


So if people and wolves evolved together -- or, put differently, if wolves bred people even as people much more emphatically bred wolves -- what wolves bred us for may have been traits that are an important part of what we think of today as most distinctly humane.

On trading off security and liberty

In "Security and Liberty: Critiques of the Tradeoff Thesis," Professor Adrian Vermeule argues that it is undeniable -- yet widely and mistakenly denied -- that the "tradeoff thesis" is correct. This thesis, as his abstract puts it,  is that "there exists a security-liberty frontier, such that policies below the frontier can be changed so as to improve both security and liberty, while if policy is already at some point on the frontier, neither security nor liberty can be increased without decreasing the other (the tradeoff curve)."

I wouldn't deny that we need to weigh security and liberty concerns, or that they do sometimes clash, or that in principle we might decide to sacrifice one or the other when we encounter such a clash -- and that in this sense we do indeed sometimes need to trade off between security and liberty. One can accept all that without saying whether, in such a situation, we should lean in favor of security or instead in favor of liberty, and I take Vermeule's point in this paper to be that we should start by recognizing the reality of tradeoffs so that we can get on to arguing about which way to make the trades.

But the way we picture problems has an impact on how we reason about them, and Vermeule (elaborating, he explains, on an illustration he and Professor Eric Posner offered in their book Terror in the Balance: Security, Liberty and the Courts (2007)) offers (at 2) a picture that consists of a graph. On one axis is security, on the other liberty. A smooth curve connects the maximum level of security, accompanied by zero liberty, to the maximum level of liberty, accompanied by zero security. On this curve, the security-liberty frontier, it is impossible to increase liberty without decreasing security, and vice versa.

Now Vermeule is careful to say that "[t]he level and shape of the frontier are not fixed; they change over time, as exogenous threats wax and wane. Moreover, the level and shape of the frontier may change because society shifts resources towards or away from security policy, thus expanding or contracting the set of feasible measures." (3) It seems perfectly consistent with Vermeule's thinking, therefore, to infer that the actual "security-liberty frontier" is far from a smooth curve. Different threats, different measures, different circumstances of all sorts, could mean that this curve is far from smooth. It might be, for instance, that on this frontier, at some hypothetical point X (say, the point at which warrantless surveillance of US citizens is instituted), a very modest resulting increase in security could be accompanied by a drastic loss of liberty. This doesn't mean that the security-liberty frontier idea is false, but it does mean that the implication -- from the graph presented to illustrate it -- that tradeoffs are gradual may be quite mistaken, and that in turn may be a reason to treat these tradeoffs as less a matter for pragmatic calculation than for principled, determined challenge.

Moreover, it's not actually clear that there will always be a frontier. A society is a moving target, and intervention A will surely have not only planned effect B but also unplanned effects C and D. The increase in surveillance may entail an increase in resources devoted to surveillance, resources that shift the range of possible policies and so move the security-liberty frontier's location. More broadly, the correct analogy may be to Heisenberg uncertainty: the very act of altering a society's mix of security and liberty policies may itself shift that society's security-liberty frontier. 

Even if there is a frontier, it may sometimes, perhaps often, be impossible to mark. A given security measure, it is said, will have such-and-such an impact on security, at such-and-such a price for liberty. But none of these calculations can be certain. (Vermeule recognizes many of the difficulties of calculation in his essay.) Nor is it likely to be easy to determine that we are in fact on -- or not on -- the security-liberty frontier, which is in principle the only circumstance in which it makes sense to consider trading off liberty for security (since until we reach the frontier, by assumption we could increase security without any tradeoff against liberty). So to ask whether a given tradeoff moves us in the right or wrong direction on the security-liberty frontier may be to ask a question that is simply unanswerable. An unanswerable question may not be the right one to ask.

It seems to me, in short, that the "tradeoff thesis" and the "security-liberty frontier" are not one idea but two. There may well be circumstances in which security and liberty do conflict and choices may indeed have to be made between them, but those choices will be much less certain and much less straightforward than the smooth contours of the tradeoff curve seem to suggest. A proper sense of our own limited capacity for calculation is, I think, a reason to lean in favor of maintaining the liberties we have achieved over so many years of effort.

Cognitive illusions and law school grades

Daniel Kahneman, the famous cognitive theorist, has an article in the Oct. 23, 2011 New York Times Magazine called (in the online version) "Don't Blink! The Hazards of Confidence." His point, illustrated with striking stories from soldiering and high finance, is that people often work very hard to carry out a task which they believe will lead to some result, even when they encounter evidence that proves that the task in question has no connection to the result they desire. So, for instance, Kahneman himself, with other colleagues, evaluated military officer candidates' performance in a one-hour group leadership exercise as a way to tell whether the candidates would become good officers -- and he and his colleagues continued to make confident predictions based on the exercise even after they obtained data showing that their ability to predict was almost zero. They suffered from what he calls an "illusion of validity."

He doesn't argue that all expertise is equally self-deluding. Instead, he writes that "[t]rue intuitive expertise is learned from prolonged experience with good feedback on mistakes." In addition, "the environment" needs to be one "in which the judgment is made sufficiently regular to enable predictions from the available evidence." Some settings -- apparently the stock market is one -- are just too irregular for predictions to be made. Presumably the best course in such contexts is to make no predictions at all, for example by investing in index funds which will assure that you do exactly as well as the market as a whole.

Is it possible to predict who will be a good, or a successful, lawyer? (I realize those two adjectives have meanings that overlap but aren't the same.) Sometimes the answer is surely yes. A student from a very highly-regarded law school who does very well at that school has a strong chance of getting a job in a law office with high standards of practice and vigorous training, and he or she probably will go on to a successful career. But that example is a misleading one, because what makes the prediction possible may not be any direct function of the student's ability (reflected here only in his or her high grades and the fact that the student is at a highly regarded law school) so much as it is the result of a set of social factors that mark out a relatively smooth path to success. And even here, if we asked which of our full-of-promise students would turn out to be the best, or the most successful, I think we would have a lot more difficulty answering.

I implied just now that grades reflect ability. But do law school exams measure future legal success? I know of no study that finds evidence of this, perhaps in part because it's so difficult even to formulate an objective and usable measure of success. (Nevertheless, as a colleague has pointed out to me, many legal employers have historically placed a great deal of weight on grades.)

Rather than contending that law school exams actually measure the chance of future success, it seems more plausible to maintain that law school exams measure legal reasoning ability, which is, in turn, a component of success. But it isn't certain that exams measure legal reasoning ability very well, since (as has often been pointed out) it's not self-evident that the ability to rapidly deploy knowledge hastily crammed before an exam is a very good measure of ability to perform all or most of the various reasoning tasks that practicing lawyers actually undertake. Being able to do well on law school exams is a pretty good predictor of ability to do well on the bar exam -- which is essentially a really big and long law school test -- but the bar exam's ability to measure reasoning ability in general, or in other contexts, is also questionable.

All of this does raise the possibility that law school grades, collectively, are like the officer candidate screening test Kahneman performed. Until we can measure success, we will have to accept that it may turn out that the grades we law professors give really don't correlate much with anything except each other. (Even that correlation isn't perfect, but I think it is probably true that over 3 years of law school a pattern of grades usually emerges.)

But I would not suggest giving up altogether, and instead resorting solely to the law school equivalent of an index fund (would that be universal pass-fail grading?). That's partly because I think grades do roughly measure some aspect of reasoning ability, and I'm inclined to think that ability shown on exams does to some extent reflect ability in other reasoning contexts as well. (This may be my illusion of validity.) But I also think that  grades probably measure -- imperfectly -- more than legal reasoning ability. To be specific, they measure success in law school, and not success on a one-hour, artificial exercise (as in Kahneman's military screening) but in the principal occupation of a student's life over a three-year period. Good grades are a measure of "successful-ness," which in turn is a reflection of a host of factors, including ability, determination, self-discipline and adaptability, all of which are probably relevant to the course of one's future life. It's often said that law school is a process of socialization, and "successful-ness" might be rephrased as the accomplishment of socialization.

So in the end law school grades may be a predictor of future success (and not just because so many advantages, such as Law Review membership, accrue to those who get these good grades -- and in turn promote their chances of success elsewhere). Anyone hiring a young employee would like a measure of his or her successful-ness, and we have reason to think that law school grades may be a genuine measure of that. We also have ample reason to think that they're far from a perfect measure of this complex set of qualities, let alone of how the current student will grow and develop on these scores over time. That, I think, does counsel in favor of modesty of prediction: we may know something, but we don't know too much. It is tempting to say that we should still rely on whatever we do know, because that's better than nothing (and also may be a cheap way to carry out an otherwise very difficult task). But to borrow again the language of finance, perhaps the legal profession really should diversify its portfolios, and put a healthy chunk of its resources -- that is, its hiring predictions -- into considering criteria other than grades. Perhaps employers should even make some use of "index funds" or, in other words, should acknowledge that seeming differences in credentials may actually not have predictive value. Many employers may already do this. For those that don't, the next problem for law schools is how to persuade employers to consider, but not be seduced by, the grades we give.

The Killing of Muammar Qaddafi

Muammar Qaddafi appears to have been murdered. He was captured, perhaps already injured but still able to stand and to speak, and then he was shot to death. That's a war crime and a regular crime.

His murder should not surprise us. He ruled by brutality, and died the same way. But it is worth noting that this is not simply poetic justice. Rather, it reflects a fundamental truth: that the rules of war, and other rules that somewhat restrain the utter ferocity of conflict, depend on mutual adherence for their continued effectiveness.

It might be a good thing if human beings who were regularly subjected to outrageous and unlawful violence characteristically continued to live by the very rules whose violation was wreaking havoc upon them. Whether it would or wouldn't be a good thing depends on your assessments both of strategic calculations of deterrence and your views of the reasons for the binding force of moral rules. But whether or not such conduct would be a good thing, it isn't likely. People don't act that way. We're too quick to anger, too skeptical of each other's intentions, too impatient with enduring suffering. Not everyone, but probably most of us.

If you live by the sword, you will die by the sword -- if your enemy can get his hands on a sword. Qaddafi's did.

Opposing the proposed appointment of a new Chief Justice of South Africa

After South Africa's Constitutional Court decided that President Jacob Zuma's extension of Chief Justice Sandile Ngcobo's term was unconstitutional (a decision I wrote about here and here), President Zuma announced his intention to appoint Mogoeng Mogoeng, already a justice on the Court, to be its Chief Justice. The Constitution requires the President to consult the Judicial Service Commission and political party leaders from the National Assembly prior to appointing a Chief Justice, and as one step in that process the Judicial Service Commission is accepting public comments about the appointment.

I've joined several other US-based law teachers in submitting a letter criticizing this proposed appointment. Here it is:

The Secretariat

The Judicial Services Commission

Private Bag XI

Constitution Hill

Braamfontein 2017

SOUTH AFRICA

August 26, 2011

Fax No. 011-27-86-649-0944

Chiloane@concourt.org.za

Dube@concourt.org.za

By e:mail and Fax:

This Memo is in response to the Judicial Services Commission’s call for public comments on the nomination of Justice Mogoeng Mogoeng as the next Chief Justice of South Africa. We are a group of USA-based law professors who have written extensively on South African constitutional issues, and who have followed the proceedings of the Constitutional Court since its establishment in 1995. We are all admirers of the jurisprudence of the Constitutional Court, particularly the court’s path breaking and innovative human rights jurisprudence.

We write to express our concern at President Zuma’s decision to nominate Justice Mogoeng Mogoeng as the next Chief Justice. We do so not to impugn the integrity of Justice Mogoeng, but to suggest that his appointment will betray the transformative vision embodied in the constitutional text and in the jurisprudence if the Constitutional Court thus far. Those of us who write and teach in the area of the constitutional law and human rights law have been inspired by that vision.

The Constitution of South Africa has been much heralded and constantly referenced by constitutional and human rights scholars and advocates. In addition, judgments of the Constitutional Court have been admired, particularly in the court’s human rights jurisprudence. Although some problems since 1994 have tested the capacity of the legal system, especially in the area of criminal justice, the South African legal system is for the most part highly regarded and widely admired. Several reasons account for this, but one is the caliber of judges appointed to the nation’s highest courts, including the Supreme Court of Appeal, but particularly the Constitutional Court. Indeed, the Constitutional Court’s first appointed judges constituted an impressive range of the country’s most admirable legal talent, including legal giants of the anti-apartheid legal establishment. The judgments of the court, and particularly its human rights jurisprudence, are widely cited and analyzed. It may not be an overstatement to suggest that the South African Constitutional Court is currently viewed as one of the pre-eminent constitutional courts for interpreting international legal principles, particularly as those principles pertain to human rights. Since its establishment in 1995, the Constitutional Court has achieved a solid reputation and an impressive degree of credibility among the international legal community. Its judgments have been seen as central to the transformative project of nation-building in South Africa, and a model to countries of the global north and global south.

The Constitutional Court is in fact one of the pre-eminent contemporary institutions articulating the transformative possibilities embodied in the international human rights texts. The Court has interpreted these texts in its judgments, and in doing so has provided a vehicle for lawyers, activists and law teachers internationally to pursue rights in their respective locations. The Constitutional Court may be a South African institution, but its reach and its audience are international. We are members of that international audience.

We believe the JSC has a responsibility to do more than decide whether the President's nominee is "qualified" to serve as Chief Justice. Rather, the JSC's special task is to reach a judgment about whether the nominee will sustain the momentum of the rights revolution in South Africa. As law scholars in the United States, we are well aware that the individuals serving on the highest court of the country can profoundly change the direction of its jurisprudence, for good or for ill, without any change in the words of the Constitution. We fear that as Chief Justice, Justice Mogoeng will fail to build on the enormous efforts that have been made in South Africa to transform the lives of those subordinated and marginalized under apartheid. In particular, recent reports about Justice Mogoeng’s judgments in cases involving violence against women and the rights of sexual minorities raise concerns about his commitment to the values the Constitutional Court till now has protected under South Africa’s Constitution.

Is it a response to these concerns to say that this appointment is part of the transformation of the South African judiciary? We agree that South Africa's judiciary is, like South Africa itself, engaged in a complex and vital process of transformation. Moreover, the JSC has a special responsibility to further that transformative process. But this is not the issue here. We are especially concerned that President Zuma has made this decision while overlooking other jurists who not only have more substantial judicial experience than Justice Mogoeng, but have also themselves played important roles in South Africa's transition to democracy, and who fully embrace the transformative vision of the Constitution, including the current Deputy-Chief Justice Moseneke, who has served two Chief Justices.

We urge the members of the Judicial Services Commission to consider our perspectives even though we are located in the USA and do not live in South Africa. We may be far away physically but we feel a deep connection to constitutional developments in South Africa.

We respectfully submit these perspectives and thank you for your consideration.

Sincerely

Associate Dean Penelope Andrews, City University of New York School of Law

Professor Taunya Banks, Jacob A. France Professor of Equality Jurisprudence, University of Maryland  Francis King Carey School of Law 

Associate Dean Stephen Ellmann, New York Law School

Associate Dean James Gathii, Governor George E. Pataki Professor of International and Commercial Law, Albany Law School

Professor Erika George, S.J. Quinney College of Law, University of Utah

Professor Mark S. Kende, James Madison Chair in Constitutional Law, Drake Law School

Professor Karl Klare, George J. and Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law

Dean Makau Mutua, SUNY Distinguished Professor and Floyd H. & Hilda L. Hurst Faculty Scholar, Buffalo Law School

Distinguished Professor Ruthann Robson, City University of New York School of Law

Professor Kendall Thomas, Nash Professor of Law, Columbia Law School

Professor Lucy Williams, Northeastern University School of Law

[Institutions listed for identity purposes only]

A very important question about Harry Potter

Spoiler alert: this post contains plot details from the last Harry Potter film and the final Harry Potter volume!

So after I saw the final Harry Potter film (Harry Potter and the Deathly Hallows Part 2), I went back to the text -- that is, the book. There are a bunch of differences. For instance:

In the book, Harry is looking for the diadem of Rowena Ravenclaw, which no person living has seen, and he has the idea of speaking to someone not living -- namely, a ghost. That idea belongs to Luna in the movie.

In the book, when Harry, Ron & Hermione need to escape from Gringott's, it's Harry who has the idea of grabbing on to a dragon to get them out of there. In the movie, Hermione has this bright idea.

In the book, Ron & Hermione tell Harry about their getting into the Chamber of Secrets to acquire basilisk fangs (for destroying the horcruxes in which Voldemort has secreted parts of his soul); Ron says he remembered, more or less, the words in Parceltongue -- snake language -- that Harry ad uttered when he got into the chamber some volumes back. In the movie, we actually see Ron & Hermione accomplish this, and the action comes complete with some sexually-charged banter that's part of the build-up of their becoming, beyond any doubt, an item.

All of these changes make Harry not quite so much the focus, and bring our attention to other characters in the story. On the other hand, in the movie the final fight between Harry and Voldemort seems to feature just the two of them, while in the book their duel takes place at the climax of, and in the same place as, the climactic battle in which everyone is involved. So in this respect the staging is more Harry-centric.

So what are we to make of these changes?

One answer is that there is a law of conservation of Harry: if his role declines in three smallish places, it must increase to an equal extent in one prolonged, crucial scene.

A second is that there are at least two ways to tell the story that are equally correct. And if two, why not three or more? The varying details of individual tellings still converge into a single fundamental narrative, the true essence of Harry Potter.

A third is that there is no single Harry Potter story. I said that I went back to the text, meaning the book, but who is to say that the book is the text? The movie is a text too. Of course Hollywood routinely distorts the texts of the books it turns into films, but here, as it happens, J.K. Rowling is both the author of the books and a co-producer of the movie. So she is, in some sense, a creator of both. If the true Harry Potter story is the story she created, she has created it twice, and in somewhat different forms. As poets sometimes rewrite their own poems years after their initial publication, so J.K. Rowling has revisited her own story. There are, therefore, at least two authoritative versions of the Harry Potter canon.

A fourth is that there is, after all, one and only true Harry Potter story: the book. When J.K. Rowling authorized variations from the book in the movie, she wasn't creating another authoritative version. Rather, she was just like all the rest of us as we encounter her books: she was interpreting them. J.K. Rowling had no more, and no less, license to retell the Harry Potter story than we do (except under copyright law), and her film reading of her own book is only an interpretation of the true text.

All of these arguments probably have analogies in biblical studies or constitutional law -- but I won't pursue them! The movie's fun, just as the book was -- and I hope this post doesn't spoil any of it for you.

Once more with feeling: who exactly are we?

One more note (for now) on this topic, the subject of my posts yesterday and the day before.

There's now experimental evidence that we actually make certain decisions slightly before we become aware of having done so -- the circuits for taking action begin to fire before we report deciding. One question such evidence raises is about the actual function of the conscious mind; is it just the brake on ill-considered choices by other parts of our brains, or is it instead the rationalizer of them ( to persuade ourselves or others of the rightness of what we've already done), or does it come into play, perhaps, for some more complex set of decisions whose nature isn't captured by the experimental reports? But for now I'm not concerned with the question of what the point of consciousness is.

Rather, what's interesting about this evidence, in the context of the question of who exactly we are, is that it indicates that some part of us besides our conscious minds makes some of our decisions. Presumably that part of us also thinks about those decisions, in some way or other evaluating the pluses and minuses of possible courses of action. Perhaps this part of us thinks in very primitive ways, but it thinks. (Reflexes may not be examples of "thought," but my impression is that the decisions I'm focusing on are not so instantaneous as to be reflexive.) And "we" don't have direct access to those thoughts, until they emerge in the form of an already-made decision.

Perhaps these masked thoughts are available to us through dreams or psychoanalysis or both. But at the least it seems to be the case that anyone who has not achieved such access is operating partly in the dark about his or her own self. And it may be that even when we achieve greater (perhaps never complete?) access to our own thoughts and feelings, what we find is not that we are in fact a single coherent person after all -- just now visible at last -- but something more like a core personality and a periphery, made up of routines (emotions, thoughts, reaction paths) that actually aren't integrally connected to the rest of ourselves.

It's often said that we aspire to wholeness, and that age helps us to achieve this. But the corollary of these propositions is that for many of us, or for all of us in some respects, we are not in fact whole. "We" -- that is, single fully organized "I's" -- don't quite exist.

Who are we again?

If it's unclear whether each of us is made up of cells of more than one species right now (the subject of my last post), it turns out that it's also unclear how many species each of us is made up of as a matter of genetics. In an article ("Annals of Evolution: Sleeping with the Enemy") in the August 15-22, 2011 New Yorker, Elizabeth Kolbert reports that it now appears that all humans except those whose ancestors never left Africa interbred with the Neanderthals they encountered as they (the humans) spread out, with the result that "all non-Africans, from the New Guineans to the French to the Han Chinese, carry somewhere between one and four per cent Neanderthal DNA" (page 71).

From this we learn two things. First, it is possible, in fact typical, for human beings to have within them DNA from another species. Does that make these human beings not human? Obviously not; these DNA-borrowing humans are most of the humans there are. (Whether the Neanderthals should be described as "non-human," by the way, is itself part of what's at issue -- what's the line between humans and non-humans? But as I understand it, even if Neanderthals are humans they're not our particular species of humans, homo sapiens.)

On the other hand, does the lack of this admixture of another species' DNA make someone not actually a human in the sense we should today understand the term? Again, clearly not. Hundreds of millions of members of our species don't have any Neanderthal DNA.

Matters seem likely to grow more complex -- that is, it seems likely that we will find more of these borrowings from other species. Kolbert reports the recent discovery of another non-homo sapiens species, the Denisovans (named for the cave in which a finger bone from the species was found) -- and it turns out that one group of modern humans, the New Guineans, share "up to six per cent Denisovan DNA" (page 74). Presumably this six per cent is in addition to their 1 - 4 % of Neanderthal DNA. And who knows who else we interbred with? As Kolbert emphasizes, it appears that we routinely interbred with those we were exterminating. (Did we exterminate the Neanderthals deliberately, or just as a byproduct of taking the fruit of the land away from them? We don't know. But it's hard not to think that the circumstances of our "borrowing" of DNA were very unpleasant.)

So it is quite possible for members of our own species to carry within them DNA from one, two, perhaps more other, closely related species. And different members of our species carry different mixes of DNA from these other species. Kolbert's article focuses on the search for whatever it may be that makes us distinctively human -- the genes that we have to have, and that those other species lacked. That's a useful search, but the fact remains that even if "we" are the beings who share this as yet unidentified characteristic, there are many things that we don't share with each other, and do share, apparently, with the members of other species, long extinct.

One more point: Suppose there is some genetic essence of humanity that distinguishes us from our close relatives -- the Neanderthals and Denisovans of the past, or the clearly not-human, but very smart, chimpanzees of the present. But once we've identified this essential spark of humanity, what about all the inessential details? Would genetically green hair take someone out of the human race, if he or she held the human spark? That seems implausible. What about webbed feet? Again, that change by itself doesn't seem to make a human being inhuman. But what's the boundary? It's clearly not genetic identity; after all, as Kolbert notes (at 72), there's a lot of genetic variation between members of our species (presumably even leaving aside the heritage of borrowings from other species by some but not all of our ancestors).

In short, it seems as though the definition of human is going to turn out to be an act of will rather than a fact of biology.

Who are we anyway?

According to an article posted on the N.Y. Times website today (George Johnson, "Cancer's Secrets Come Into Sharper Focus," August 15, 2011):

As they look beyond the genome, cancer researchers are also awakening to the fact that some 90 percent of the protein-encoding cells in our body are microbes. We evolved with them in a symbiotic relationship, which raises the question of just who is occupying whom.

“We are massively outnumbered,” said Jeremy K. Nicholson, chairman of biological chemistry and head of the department of surgery and cancer at Imperial College London. Altogether, he said, 99 percent of the functional genes in the body are microbial.

It seems to me that this report raises some question about just who "we" are. I admit I'm not at all expert on any of this, so what I'm saying here is frank speculation. In particular, I'm not sure what portion of human body cells are not protein-encoding, but one possibility is that all human body cells do this, so that what these researchers have found is that most of the cells inside our body are not human cells. If some human cells aren't protein-encoding, that would change the percentage of all cells inside us that are human -- but that would alter the point I'm making only in terms of percentages.

If, again, most cells inside us aren't human, and yet they are integral to us, and part of our daily operations, are they part of us? Suppose, as the article also suggests, that the human cells and the microbial ones may be in chemical communication, and this communication is integral (in some way we don't yet understand well at all) to our daily functioning. Should we say these nonhuman cells are no more "us" than inanimate oxygen or water molecules? But we are made up of inanimate molecules, rendered part of animate beings; the molecules are us. Are we equally made up of other animate beings? I've often thought that it is odd that we are made up of animate cells -- our own, human cells -- that somehow don't count as beings in their own right even though they live and die. But now we're talking about being made up of other beings, independent (though tiny and obscure) beings.

This feels rather weird, but it's not inconceivable. If tremendously powerful computing machines can be created by linking multiple separate machines together, it is conceivable that powerful beings can be created by somehow corralling multiple separate beings. We're accustomed to think of "us" as unities, but perhaps that's a mistake, and we're more like "products" of combining parts.

I'm not certain whether it matters what we're made up of -- whether we as composite creatures behave differently than we would if we were single unities, or whether we have different moral obligations. But the intuitive feeling I have (or "I" have) is that the fuzzier we are as beings, the more we should resist any simple prescriptions about what we must be or do. Even if that's not true, it's hard not to wonder who we are -- and I expect I'll be saying (speculating) more about this little matter in future posts.

The Constitutional Court and the (relative) permanence of the Constitution

The Constitutional Court's decision in the Justice Alliance of South Africa case is a ringing defense of judicial independence and the separation of powers, and I hope will prove to be a lasting part of the foundation of South African constitutionalism. But precisely because of its importance, it deserves not just praise but also analysis.

As I wrote in my first post on this case, the case decides both that the President lacked authority to extend the Chief Justice’s term, as he had in fact tried to do, and that Parliament could not authorize an extension of just the Chief Justice’s term. The first of these, I believe, is easier to justify than the second.

As to the first, the prospect of the President having an unguided discretion to extend the term of office of the Chief Justice was, as the constitutional Court unanimously recognized, deeply threatening to judicial independence. It was, moreover, by no means dictated by the text of the Constitution, which permits the extension of a judge's term by legislation. As quoted in the case, section 176(1) of the Constitution provides:

A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.

Obviously the discretionary choice of the President is not itself an “Act of Parliament,” but Parliament had legislated, to authorize the President to ask the Chief Justice to stay on. That delegation (as the Constitutional Court rightly termed it) was not necessarily unconstitutional. Like the US constitution, South Africa's (the Constitutional Court explains) permits considerable delegation of authority to the Executive to carry out Parliament's directions. But it is reasonable to say that some crucial powers and duties cannot be delegated (though it has been about 80 years since the US Supreme Court found a breach of our so-called "non-delegation doctrine"), and reasonable as well to view the extension of the term of office of the country’s top judicial officer, the Chief Justice, as one of them.

But the second question, whether Parliament could choose to extend just the Chief Justice's term, seems to me a closer call. Parliament hadn't done that yet (it had authorized the President to do it, but that statute fell for the reasons because of the delegation problem just discussed), and so in the US this question likely wouldn't have been ruled on. But such legislation was before Parliament (paragraph 16), and the government asked the court to determine whether it would be within Parliament's constitutional power (paragraph 70). The court took up the issue, and ruled that the Constitution simply did not authorize any extension of judicial terms that treated the Chief Justice differently from the other members of the Constitutional Court.

There were strong separation of powers arguments in favor of this conclusion too. But the relevant constitutional text offered less support. As quoted above, it explicitly provided for “an Act of Parliament extend[ing] the term of office of a Constitutional Court judge.”

Seven justices concluded that this language authorized no distinction between a Chief Justice (or Deputy Chief Justice) and other justices of the Court. (Three others believed parliament could make such a differentiation, but that the record didn't justify its having done so here (paragraphs 95 – 96); I'm not sure the record was sufficient to rule on justification if that was the issue -- but I won't pursue this minority rationale further here.)

The majority justices argue that the Chief Justice is, as a member of the Court, indistinguishable from the other justices -- so that no constitutionally relevant basis for special treatment can exist. This is a somewhat problematic argument. The Chief Justice clearly has administrative responsibilities as head of South Africa's judiciary, and may have “to represent the judiciary and to act on its behalf in dealings with the other arms of government” (paragraph 78), all responsibilities that the regular members of the court don't share. He or she may also have some internal authority in the day-to-day life of the Court; the judgment doesn't speak explicitly to this possibility. In any event, the judgment itself says that the chief justice is "primus inter pares" (first among equals) (paragraph 82), and that somewhat paradoxical phrase itself suggests there is some difference between the Chief justice and the other judges.

So why couldn't Parliament act on that difference? The court's answer is that the constitution must be interpreted "restrictively," so as to protect the separation of powers. (Paragraph 67) Because the power to single out just the Chief Justice for extension risks compromising his or her actual or apparent independence, the constitutional authorization for extension “must …, on general principle, be construed so far as possible to minimize the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.” (Paragraph 75).

But what can Parliament do to change this separation of powers structure? It appears that Parliament thought that its 2001 amendment of section 176(1) (which, as the Court explains at paragraph 2, added the language about extension of terms in the text as quoted above) did give it the discretion to enact legislation treating the chief justice differently, but as I noted in my previous post the court says that what Parliament thought its amendment meant isn't the issue. (Paragraph 60) It seems to follow that Parliament can only amend the constitution in a way that weakens the separation of powers if it does so with a clarity that judicial interpreters cannot reasonably ignore.

This is not an assertion that the Constitution is unamendable -- a beguiling but undemocratic doctrine. Rather, the Court's position, I believe, is that the constitution as a whole carries a meaning that cannot be shifted easily -- and that the judiciary is specially responsible for discerning.

It seems to me that it is indeed a crucial part of constitutionalism that the meaning of the constitution must be more than simply a translation of the latest public opinion polls. Just how much more, however, can be debated. The approach the Constitutional Court has taken might not be a wise doctrine at all in a nation such as the U.S., where changes in the constitutional text are few and far between, and perhaps should get correspondingly greater weight when they do occur. But the American constitutional problem in a sense is that our text is too permanent – hence the constant struggles over whether and how to adapt it to modern circumstances and issues. In South Africa, by contrast, the ANC’s electoral strength is still very great, and the barriers to constitutional amendment (though real) are in general considerably less severe than those of the U.S. constitution. Amendments are quite possible and have been quite frequent in the country’s first decades of constitutionalism.

Moreover, South Africa does not yet have two hundred years of constitutional history to help shield its constitutional guarantees from dilution. No one ever knows whether a constitutional order will survive and flourish, but (as others have observed) in a new constitutional state the uncertainty is probably more acute than in a more established setting. The task of establishing relative permanence is a key South African constitutional problem, and the Constitutional Court here has attempted to meet it.

It seems quite fitting, in the end, that in a case about the independence of the judiciary the Constitutional Court has insisted as well on the strength of the overarching spirit of the South African constitution. Only time will tell whether the Court’s stance secures its position, and the constitution it guards, against political intrusion or makes both even more of a target for such intrusion than they might otherwise have been. But we should admire the effort and hope for its success.