LEGAL OPINIONS AND JURISPRUDENCE THEORY

Eric Rukamp
February 23, 2017
PHI 317-01: Philosophy of Law
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Jurisprudence has seen a near constant evolution of our understanding of law’s role.

Whereas in medieval times law was seen as a combination of legality and morality,

contemporary law has roots in legal realism and its separation of the legal and moral. In coming

to understand the changing nature of jurisprudence, we have come to know Thomas Aquinas’

theory in natural law, Ronald Dworkin’s system of rights, and all the theories within legal

positivism [Austin, Holmes, and Hart]. In order to understand the dividing line between these

different philosophical camps, we can apply their theories to court cases and see how their

reasoning plays out. To this end, the cases of Small v. United States (544 U.S. 385), Korematsu

v. United States (323 U.S. 214), and Grutter v. Bollinger (539 U.S. 306) will be used as

examples. Within each case, the reasoning behind the ruling may be attributed to own of the

learned theories. Therein, they will also exemplify how divided the understanding can be in the

realm of jurisprudence.

In the case of Small v. United States, you had an American citizen [convicted of a crime

in a foreign court] charged with buying a firearm after serving a sentence of greater than one

year – a federal offense. The plaintiff had been convicted in the lower courts, and appealed to the

Supreme Court. The Supreme Court found in favor of Small, ruling 5 to 3 that the verbiage

“…convicted in any court…” only could apply to domestic, American courts (274). This was the

majority opinion as voiced by Justice Stephen Breyer. The dissenting opinion disagreed on the

interpretation of the word “any.” Here we see a classic difference in the literal interpretation of

the law. A legal positivist may argue that it ought to be interpreted from the source; if the

original thought was for any court, the law will apply to any court because the judges may will it.
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It’s a very literal interpretation of law, and when you account for the positivist separation thesis,

the law is the law separate from morals. Conversely, a theorist such as Dworkin would argue that

there would be a legal gap between Japanese and American law. Their law may not cover the

same rights as our law, therefore the separation thesis is completely contradictory in answering

the legal question. The vagueness of the word “any” leaves a gap that must be interpreted

contemporarily by judges.

I find myself in agreement with the Supreme ruling, especially in regards to the judges’

filling in the legal hole left by the ambiguous verbiage of the law. Given that some of the

American legal body was written 200 years ago, it’s often the case that the law needs flexible

interpretation for contemporary cases. Being so set on the literal interpretation of the law also

brings into question the sovereignty of foreign nations. If “any court” applied to foreign and

domestic courts alike, then Japan would be subject to our legal system and vice versa. Courts the

world over would be forced to know not only their domestic law, but all other foreign law as

well. It would be a colossal headache, more so than the headache law already is. To that point,

the law can’t be literally what is written; judges interpretations need to account for the modern

context the laws are being applied to. I would reckon it be a good idea to adjust the legal

verbiage in light of this ruling, which could help clear up at least one legal headache.

The next legal case is the landmark case of Korematsu v. United States, where Japanese-

American citizen Fred Korematsu called into question the constitutionality of the order for the

internment of Japanese-American citizens on the West Coast. The Supreme Court ruled that the

order was constitutional, insofar that the order was necessary to protect the West Coast during a
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time of war. The ruling allowed the government to forcibly remove people of a particular group,

suspending their rights as American citizens, because the order could be rationally connected to a

military objective during war (279). The court was split 6 to 3 on this ruling; all three dissenters

attributed the ruling to racism and fear. This majority ruling is such a disturbing contradiction of

law. A natural theorist would be rightly disgusted with the ruling. Law exists to uphold the

common good; the common good is being prevented by forcibly taking away peoples’ ability to

work, and therefore live a good life. To that end, a natural theorist would argue this law is so

egregious, that it isn’t a law at all. However, a legal positivist would argue that because the law

is deriving from a legitimate authority, and that the morality of the action is completely beside

the point, this is indeed a law.

I couldn’t be more disgusted by this ruling. Yes, I have the luxury of looking back with

perfect hindsight into this. However, at no point do I see the justification the court thought it

saw. What I saw was a court upholding government abuse of its own citizens simply because of

one, ethnic quality. This was a ruling made out of fear, not logic. I hold the same opinion

regarding any “espionage” charge or what-have-you, especially when it’s made during a war.

Our country is built on law that upholds natural rights granted to all our citizens. It’s completely

contradictory for the law to allow the highest authority to act like it is outside the law. I find it so

hard to reflect on this law because it induces such strong disgust. I suppose it’s this very disgust

that lands me in the natural theorist camp regarding this case.

Our final case for reflection, Grutter v. Bollinger, deals with the affirmative action policy

of the University of Michigan Law School. The issue at hand was UMLS’ policy of giving
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consideration to applicants of an underrepresented minority in order to encourage cultural

diversity. Yet again, the Supreme Court was split 5 to 4, ruling in favor of the University on the

grounds that the University was also using other criteria to admit applicants. This practice

prevented it from being branded a quota system, according to Justice Sandra Day O’Connor

(295). However, in trying to decide based off precedents of Regents of California v. Bakke (438

U.S. 265), it failed to really clarify the legality of affirmative action and instead resulted in four

separate dissenting opinions. The majority of dissenters labeled the University’s actions as a

thinly-veiled, unconstitutional quota system. In addition, it found that the University’s actions

and its goal of being an elite law school had absolutely no correlation. Justices Thomas and

Scalia specifically noted that the University ought to be “forced to choose between its classroom

aesthetic and its exclusionary admissions system.” They further noted that universities like

Berkeley Law were able to create a diverse school environment without giving special treatment

like affirmative action.

Herein I note another schism between natural and positivist theories. Natural theorists

would argue that because the law is upholding a common good, this is a good law. Although, it

can be argued that in upholding one person’s common good over another, you are inadvertently

affecting another person’s good life. Positivists may argue that the morality is subjective; the

authority of the college to run its admissions policy gives it the necessary authority to rule how it

wants. Between the two, I have difficulty in making my own personal decision. Affirmative

action, when it was first made law, certainly served a good purpose insofar as ensuring a

common, good quality of education for minorities. However, the law may have outlived its
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usefulness; the law isn’t serving a common good without inhibiting another common good, thus

making it a bit of a contradiction. As much as some would believe otherwise, affirmative action

served its purpose best immediately after slavery and segregation’s abolishment. Now, in the

generations after the fact, it doesn’t serve its core purpose anymore. We have the understanding

of the right to fair treatment without hindrance by creed, race, ethnicity, gender, and so on.

Jurisprudence has been divided since the time of enlightenment, and that notion has been

truly exemplified in these court cases [and many more]. Understanding the law by way of a

single theory leaves open the door to arguing based on the theory’s shortcomings. We may never

have a total understanding of the law; no matter how we try to account for it, there is always

some bit of ambiguity that requires reason to fill in the blank. If there will always be ambiguity

in the law, there will always be arguments on how to use reason to fill in that blank. This isn’t

the end of the divide in jurisprudence; I have only begun to understand the division therein.