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A Pragmatic Standard of Legal Validity

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A PRAGMATIC STANDARD OF LEGAL VALIDITY A Dissertation by JOHN OLIVER TYLER, JR. Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY May 2012 Major Subject: Philosophy A PRAGMATIC STANDARD OF LEGAL VALIDITY A Dissertation by JOHN OLIVER TYLER, JR. Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Approved by: Chair of Committee, John J. McDermott Committee Members, Scott Austin Gregory F. Pappas Ben D. Welch Head of Department, Gary Varner May 2012 Major Subject: Philosophy iii ABSTRACT A Pragmatic Standard of Legal Validity. (May 2012) John Oliver Tyler, Jr., B.A., Texas A&M University; J.D., SMU School of Law Chair of Advisory Committee: Dr. John J. McDermott American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law. These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism. In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method. This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of iv reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior. The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent. The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will. Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil. v DEDICATION To my wife Odile and our four children, Grace, John, Rachel, and Daniel vi ACKNOWLEDGEMENTS I would like to thank my committee chair, Dr. John J. McDermott, and my committee members, Dr. Scott Austin, Dr. Gregory Pappas, and Dr. Ben Welch for their generous guidance and support throughout the course of my research. Thanks also to my friends and colleagues and the Philosophy Department faculty and staff for making my time at Texas A&M University such a positive experience. I also wish to express my deep gratitude to three men whom I regard as mentors. Dr. Manuel Davenport of the Philosophy Department at Texas A&M University introduced me to philosophy forty years ago. Chief Justice Clarence Guittard of the Dallas Court of Appeals, whom I served as Briefing Attorney, exemplified the ideal appellate judge. My law partner Joe H. Reynolds exemplified the ideal legal practitioner. Their examples illuminate my footsteps. Finally, thanks to my parents for their sacrifices and encouragement, and to my wife Odile for her long-suffering kindness and love. vii TABLE OF CONTENTS Page ABSTRACT ................................................................................................................................ iii DEDICATION............................................................................................................................... v ACKNOWLEDGEMENTS............................................................................................................ vi TABLE OF CONTENTS.............................................................................................................. vii CHAPTER I INTRODUCTION: THE PRAGMATIC ORIGINS OF NATURAL LAW................... 1 I. The Contemporary Schism in American Jurisprudence.................................. 1 II. The Pragmatic Origins of the Natural Law Tradition.................................... 7 III. Two Pragmatic Principles Transform English Law...................................... 45 IV. Goal and Philosophical Method…………..……….......………………….. 48 II THE CONFLICT BETWEEN NATURAL LAW AND LEGAL POSITIVISM ........... 56 I. The Natural Law Tradition in Jurisprudence.................................................. 56 II. The Positivist Tradition in Jurisprudence...................................................... 81 III. The Supplanting of Natural Law by Legal Positivism.................................. 94 IV. The Need for a New Validity Standard and Philosophical Method......….. 112 III ATHENS AND THE TRIAL OF SOCRATES............................................................ 119 I. Political Instability and Athenian Law............................................................119 II. The Athenian Legal System.......................................................................... 121 III. The Trial of Socrates.................................................................................... 150 IV. Evaluation of the Athenian Legal System….......………………………… 176 IV THE GALILEO AFFAIR............................................................................................. 180 I. Legal Proceedings before the Congregation of the Holy Office.................... 182 II. Prelude to Galileo's First Inquisition............................................................. 189 III. Galileo's First Inquisition (February 7, 1615).............................................. 194 IV. Prelude to Galileo's Second Inquisition....................................................... 201 V. Galileo's Second Inquisition......................................................................... 214 VI. Evaluation of Galileo’s Second Inquisition…......….…………………….. 227 viii Page CHAPTER V LEON TROTSKY AND THE MOSCOW TRIALS................................................... 235 I. The Soviet Legal System................................................................................ 238 II. Trotsky’s Rivalry with Stalin………………..…………………………….. 254 III. The Moscow Trials...................................................................................... 259 IV. The Dewey Commission............................................................................. 273 V. Evaluation of the Soviet Legal System …….…...………………………… 289 VI CONCLUSION: A NEW STANDARD FOR LEGAL VALIDITY............................ 295 I. A New Standard for Legal Validity............................................................. 295 II. The Principle of Reason............................................................................... 297 III. The Principle of Consent............................................................................ 315 IV. The Principle of Autonomy........................................................................ 320 V. Conclusions................................................................................................ 327 WORKS CITED ......................................................................................................................... 333 VITA ........................................................................................................................................... 360 1 CHAPTER I INTRODUCTION: THE PRAGMATIC ORIGINS OF NATURAL LAW I. The Contemporary Schism in American Jurisprudence The American legal system resembles a planet caught between two suns. One sun is the natural law tradition of English common law. Deeply influenced by the philosophy of John Locke, this tradition is rooted in the English Revolution of the seventeenth century and elegantly expressed in Blackstone's Commentaries on the Laws of England. The second sun is the tradition of legal positivism. Originating in Jeremy Bentham's criticisms of Blackstone, legal positivism finds its most influential formulation in H.L.A. Hart's The Concept of Law. The two suns are wholly incompatible. Since no planet can faithfully orbit opposing suns, the course of American law is now unsteady and erratic, and practitioners can no longer predict its
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