Law as Tradition: Law’s Presence

Professor Martin Krygier’s description and argument for “Law as Tradition” began with a claim about law’s pastness, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all.  The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness).  For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.”  (248)  This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:

In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:

what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.

Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ‘an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and “their historians”]. When it comes to thinking about the past, one characteristic of ‘thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ‘the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’.  What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.

When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality].  All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition.

ECtHR to Issue Ruling in UK Religious Freedom Cases Tomorrow

Tomorrow, a chamber of the ECtHR will release its judgment in Eweida and Others v. United Kingdom. As we explained back in September, when the cases were argued, the ECtHR’s ruling could have a major impact on religious freedom jurisprudence under the European Convention on Human Rights:

The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

CLR Forum will have an analysis of the judgment later this week.

Vega on Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank

Matt A. Vega (Thomas Goode Jones School of Law, Faulkner U.) has posted Beyond Incentives: Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank Act “Bounty Hunting”. The abstract follows.

If you can imagine Wall Street as the American Old West and the Securities and Exchange Commission (“SEC”) as the local sheriff, then the SEC’s new bounty program is the equivalent of nailing up reward signs all over town that read: “Wanted: Dead or Alive.”  The agency is looking for information regarding publicly traded companies, financial services institutions, and other covered entities who may have violated U.S. securities laws, and it is willing, more than ever, to pay a premium for the information.

On July 21, 2010, President Obama signed into law the Dodd-Frank Act that, among other things, amends the Securities Exchange Act of 1934 by adding Section 21F “Securities Whistleblower Incentives and Protection.”  This obscure and little debated section offers whistleblowers multi-million dollar “bounties” for reporting suspected securities law violations directly to the SEC.  Under the program, which went into effect last year, the SEC is required to pay as a bounty to whistleblowers who voluntarily provide the agency with “original information” an amount equal to 10% to 30% of any monetary sanctions exceeding $1 million dollars.  When the average SEC settlement is over $18.3 million dollars, whistleblowers can expect the average bounty to be well in the range of $2 million to $5 million dollars.

This new program is fundamentally flawed because it attempts to combat corporate opportunism by encouraging employee opportunism.  To solve systemic problems like securities fraud and foreign bribery, the SEC needs to look beyond financial incentives.  It needs to take a step back and consider the basic moral principles of mutual self-interest and subsidiarity. These normative arguments were sorely missing in the debates leading up to the final rules implementing the bounty program.  These principles make clear that what is missing from Congress’s latest effort is mandatory internal reporting.

This Article endorses the Whistleblower Improvement Act of 2011, H.R. 2483, which was introduced by Congressman Michael Grimm in the first session of the 112th Congress and would require internal reporting as a condition for money benefits under the SEC’s new bounty program.  This amendment is needed not just to make corporate compliance programs work in the new era of SEC bounty hunting, but to make whistleblowing morally upright.

Mohammedi on Sharia-Compliant Wills

Omar T. Mohammedi (Fordham U. School of Law) has posted Sharia-Compliant Wills: Principles, Recognition, and Enforcement. The abstract follows.

Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Sharia law is obligatory upon all Muslims wishing to comply with their religious obligations. Thus, when it comes to inheritance, many Muslims living in the United States must make the necessary arrangements to ensure that their legacy will pass under the precepts of Sharia law while also maintaining compliance with state law. As Muslim populations across the United States continue to expand, practitioners in the field will face new, interesting dilemmas and challenges. Due to its complexity and differences with the established legal theories of intestacy laws in the United States, Islamic inheritance law proves to be an engaging and important subject.

In ensuring that Sharia-compliant wills that are also in line with state law, practitioners will likely face certain challenges. This article seeks to identify and address such challenges. There are three major areas where these challenges come to the forefront: basic conflicts between U.S. intestacy laws and Islamic inheritance laws; conflicts with the Establishment Clause of the First Amendment of the U.S. Constitution; and potential public policy conflicts arising from the enforcement of certain interpretations of Sharia law.

First, this article will provide an overview of Islamic inheritance laws. It will then compare such laws with U.S. intestacy laws and subsequently discuss how the two might be synthesized and reconciled to satisfy both bodies of law. This article then presents recommendations on how the aforementioned conflicts may be addressed to comply with both Sharia and U.S. law while avoiding Establishment Clause issues. Finally, this article hopes to demonstrate the extent to which a Sharia-compliant may be enforceable in U.S. courts.