Saturday, July 4, 2009



I always knew that the law was imperfect. Even before law school, I harbored skepticism for legal process. Intuitively, I knew that human law did not aim for justice; rather, it aimed merely to provide order and to confound its listeners. Yesterday, I used satire to illustrate the law’s capacity to confound. Franz Kafka routinely alluded to the law’s obscurity in his short stories and novels, including The Trial, The Metamorphosis, Before the Law and In The Penal Colony. In fact, “legal characters” in those stories—whether executioners, judges or lawyers—speak an elusive language that their listeners can barely grasp. In the Penal Colony story, an executioner speaks only in French, while the condemned man stands there utterly oblivious to his impending doom.

When Kafka’s characters hear legal discourse, they fall into confusion. They know their lives and fortunes are at stake, yet they cannot figure out what the lawyers are talking about. It is oddly similar to the way Old Testament characters feel when attempting to figure out God’s plans. See, e.g., Job. For both Kafka and the Talmud, there is some knowledge inaccessible to the human mind. In Kafka’s world, the law represents “inaccessible knowledge.” It operates on a higher plane, somewhere beyond human understanding. It is powerful. It holds its subjects in its grasp. Yet it is incomprehensible, just like God’s will.

But the law is not God. It is a human invention. True, it confounds. It is hard to understand; in many cases it is maddeningly counterintuitive. Yet it can be understood. And in my experience, the more I understand the law, the more I see that it proceeds on hypocritical premises. It really has no abstract claim on right or justice, yet it aims to convince people that it does. With its perplexing rules, arcane exceptions and double-speaking rhetoric, the law ensures orderly property transfers and criminal punishment for “undesirable behavior.” These things do not come from God; they are men’s concerns. They affect men’s bodies and possessions. Most legal subject matter is not ethereal or majestic. Quite the contrary, it is yawningly banal.

It is not even completely honest. When I studied law, I marveled when I encountered situations in which the law simply “makes things up” to arrive at particular results. The law professes respect for “truth” and the “way things actually happen.” Yet in both practice and theory, the law sacrifices these things for administrative convenience. Judges call these embarrassing shortcuts “legal fictions.” They allow the law to segue effortlessly between practical reality and an artificial legal overlay. After all, legal results are not the same as actual results. It is one thing to say John killed Bill; that is “practical reality.” But it is something else entirely to say that John murdered Bill. Murder is a legal conclusion. It may or may not reflect “actual reality.” Instead, only a judge or jury—viewing the facts long after they happened—can decide whether to make the conclusion: “This is murder.” Murder does not really exist; rather, it is merely a judgment applied to past actions after the event. And the law manufactures fictions to help these post hoc judgments along, whether or not they conform with “actual reality.”

Intent is essential to many legal judgments. In criminal law, the word “intent” appears in virtually every case. Why? Simple: Because crimes are essentially written recipes. Legislatures concoct “crime recipes” that define behavior that they do not like. They then compile all their “recipes” in a book called the “criminal code” and let the Judiciary determine whether particular human behavior fits the “recipes” they wrote down. For example, the legislature may define the “murder recipe” as follows: “Murder is the intentional killing of one human being by another.” What is the recipe, then? Well, you need several ingredients. First, you need two people: one killer and one victim. The killer has to do something, namely, kill the victim somehow. The victim has to die as a result of the killer’s action. More importantly, at the time the killer kills, he must intend to kill the victim. That is a “mental requirement.”

This all sounds simple. But how does a “factfinder” decide—long after the event—whether a particular person “intended” to kill another? After all, intent is internal. We never know what other people “intend” at particular moments. That is a great mystery in life. Even if a person says what he wants to do, he might actually want something else. Lying aside, intent means a person’s subjective preconception concerning the future results of his conduct. Intent refers to what the individual thinks or expects will happen when he acts a certain way. Intent refers to expected results. In short, it is exquisitely individual; and it is virtually impossible to prove. When someone gets killed, for example, the killer may have expected something quite different than the other person’s death. He might have only intended to run a stoplight, or even just play a joke that went horribly wrong. He may have intended only to hurt the other person. Whatever his “expectation” may have been, it certainly was not to extinguish the victim’s life.

But this does not suit the law. After all, an orderly society cannot tolerate killings, nor can an orderly society cannot allow killers to merely say they “didn’t mean it” to escape the law’s wrath. Still, how does the law get around the philosophical difficulty surrounding intent? If the murder recipe requires intent, it must mean the law must prove the killer actually expected to kill the victim through his action, right?

No. In these circumstances, the law resorts to legal fictions. It does not have to prove actual intent. It must only prove legal intent. Legal intent means “intent sufficient to meet the technical definition of ‘intent’ in the murder recipe.” At common law, English courts called this “legal intent” “malice aforethought.” They could have called it anything, really. They could have called it “malice on Wednesday” and apply it every day. The name is irrelevant. But from a practical standpoint, it allowed the law to prove “intent” without proving what actually existed in the killer’s mind. How did it do this? It merely decided for itself what “malice aforethought” means. The law said it could mean “intentionally killing,” “killing with an ‘abandoned and malignant heart,’” “killing as a result of a felony” or “killing with premeditation.” It did not matter whether the killer actually expected these results to follow. It was solely the court’s decision whether to shoehorn his behavior into one of its pre-made categories.

Philosophically speaking, this is pure fantasy. Consider especially the “killing as a result of a felony” category. Under this fiction, the law declares people “murderers” who cause death by participating in a felony of any kind. This means that a robber becomes a “murderer” if the robbery gives the victim a heart attack. The law says: “The felony resulted in the victim’s death. That means the robber had malice aforethought. A man who causes death with malice aforethought fits the ‘murder’ recipe. Thus, the man is a murderer.” This is so even if the man—as a philosophical matter, did not expect to kill anyone by his conduct. He may even have intended something totally different. The law takes this fiction to absurd lengths. Courts have found men guilty of murder who sat in a getaway car while their accomplices robbed a store in which someone died. According to the law’s logical gymnastics, the getaway driver “participated” in the felony, and that “participation” resulted—however remotely—to the death in the store. His “actual intent” means absolutely nothing in this warped analysis. If it did, the law would never convict anyone. Intent is “too difficult” as a philosophical matter. So it settles for fictions and administrative convenience, smug in its belief that no one can really challenge its authority.

In my view, this is pure dishonesty. It does matter whether someone actually intended to cause harm in a murder prosecution. When the law labels someone a “murderer,” it affixes a crippling moral badge. As a society, we condemn people who make “harmful decisions” calculated to injure others. We condemn them more if they actually want to end another person’s life, then do it. In this traditional sense, “murderers” are people who truly want to kill their victims and carry out their desire with violent action. They deserve condemnation because they had bad intentions and acted upon them. Yet we do not as forcefully condemn criminals who do not actually kill their victims, like the getaway car driver or even the robber who had no intent to kill anyone. When the law foists “intent to kill” on these people—even when they actually intended something completely different—the law commits dishonesty. It is no excuse to say that it is “too difficult” to prove what exists in another man’s mind. It is possible to prove what a man intended using circumstantial evidence, even if he insists he intended something else. Neutral witnesses can say they saw the defendant screaming at the victim and waving a broken beer bottle at him before slashing his throat. That proves intent to kill even if the defendant says otherwise. But proving a man intended only to drive a getaway car from a robbery does not make him a “murderer.” It is facetious to say otherwise.

In short, legal fictions make the law look ridiculous. And when the law is verifiably ridiculous in one area, it loses credibility in others. Nonetheless, many scholars—and many jurists—see no problem with legal fictions. After all, according to these apologists, how else are we supposed to prosecute criminals for antisocial behavior? The apologists argue that society has a right to prosecute harmful and dangerous conduct, even if the defendant did not really intend to hurt anyone. They say: “If we had to actually prove intent, these bad men would walk the streets.” But what good does it do to prosecute people using philosophically false concepts? No one likes antisocial behavior and violence, but it is pure sophistry to argue that a getaway driver “intended” to kill someone in a store when all he really wanted to do was drive a car away from the store. From both a grammatical and logical standpoint, the getaway driver did not “intend” to kill anyone. Yet the law says he did. Is this not madness? Still, very few people question this result, because no one wants to defend a criminal. This is unfortunate, if for no other reason than the law—which should aspire to something higher than mere administrative convenience—shamelessly cuts logical corners for shortsighted results. In my view, this tarnishes the law’s reputation because it shows its willingness to bend the truth for convenience.

Law cannot take the moral high ground if it cuts corners. It cannot simultaneously insist on truth and justice while resorting to absurd logical gymnastics to manufacture convictions. I reject the argument that getaway drivers can be transformed into “murderers” because the “murder definition” is “traditional.” We should not follow bad rules because previous generations were too stupid or too cowardly to revise them. Tradition does not magically transform every practice into a indispensable fixture in our lives. Put simply, traditional “murder definitions” are just silly. Convicting people under these definitions cuts against reality. When the law does this, it darkens its own name. The law should stand for logic, consistency and conscientious adherence to genuine evidence, not perplexing rules that yield counterintuitive results. People want the law to be good. But it cannot really be good if it brands getaway drivers “murderers” as readily as it does serial killers. In a word, when legal fictions obscure practical reality, there is no reason why the public should respect the law. It is just being dishonest with us. And dishonesty does not deserve respect.

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