Monday, February 14, 2011

Current Awareness

By Jessica R. Alexander, J.D., M.L.S.,Reference Librarian

The library's "Current Awareness" service is directed to our faculty. However, an article entitled "The Natural Law Lecture, 2010, Torture, Suicide and Determinatio" by Jeremy Waldron in the "American Journal of Jurisprudence, Volume 55, 2010, page 1, is worth pointing out to law students at any level of study. The article contains beautiful illustrations of "natural law" v. "positive law" (the process of determinatio).

Waldron shows how complex philosophical concepts can be illustrated in every day terms. He approaches two controversial criminal questions: torture and assisted suicide. He starts with the reality of physical suffering as a factor in each determination. In cases of assisted suicide, there is usually an individual who is or will be in the future, living with some unbearable physical suffering. In torture an individual is being subjected to some degree of physical pain. Each situation requires two or more actors. Someone has to assist with suicide. Self-inflicted pain is not criminalized as torture.

Before Waldron tackles the specifics of determinatio (defined in the article as the method whereby general forms are particularized as to details) on assisted suicide and torture, he provides an everyday illustration of how "natural law " evolves into "positive law":

"And something similar may be true for law. Natural law principles---indeed, commonsense moral thinking by itself---might indicate to any sensible person the need to slow down whatever they are driving (a horse and cart or an automobile) when they move from a rural to an urban setting. But human law is needed to specify exact speed limits and determine where exactly the limits kick in (where the signs are posted) and that is a task for determinatio." (page 2)

When trying to master complicated concepts even first-year students might want to draw pictures in their minds or on paper of ordinary events or examples of such concepts.

Of course Waldron's article is very scholarly and his arguments tightly drawn. A law student might benefit from just how clearly he defines the issues. He does this again by use of vivid scenarios. He compares the case of a woman seeking to make assisted suicide legal in England with the treatment of water boarding and other painful interrogation measures by officials in the United States.

While reading his article we can see the lady and the water boarder asking, "How far can I go with my planned course of action, before I bump up against the criminal laws?" Where is the bright line? In his article Waldron argues that the woman suffering from an incurable and painful illness has the right to ask where the bright line is drawn. Suicide itself was de-criminalized in England. As for torture, he contends that an interrogator who wants to inflict physical pain has no such right to request a bright line determination. Again, his illustrations are beautiful :

"An example of someone who does have such a legitimate interest might be a tax-payer who says, "I have an interest in arranging my affairs to lower my tax liability much as possible, so I need to know exactly how much I can deduct for business expenses." Another example is the driver who says, "I have an interest in knowing how fast I can go without breaking the speed limit." For those cases, there does seem to be a legitimate interest in having clear definitions. Compare them however to some other cases: the husband who says, "I have an interest in pushing my wife round a bit and I need to know exactly how far I can go before it counts as domestic violence..." (page 23).

The illustrations make the article easier to read and digest. Students will benefit by such examples of clarity in legal thinking and reasoning, regardless of whether one agrees with the legal conclusions that Waldron draws .