Anthony Scalia

THE TANNER LECTURES ON HUMAN VALUES

Delivered at

Princeton University

March 8 and 9, 1995

Anthony·Scalia is American Supreme Court justice, he was educated at Georgetown University and the University of Freiburg, obtaining a law degree at Harvard University, served as the "Harvard Law Review," the review editor. Former presidential executive office of Telecommunications Policy Office under the lawyer, served as assistant attorney general in the Justice Department Legal Advisory Office America. A law professor at University of Virginia and the University of Chicago, he served as visiting professor at the Georgetown University, and Stanford University, resident scholar America enterprises association. In 1982 he was nominated as USA federal appeals court judge, in 1986 he takes the oath of office as chief justice of the Supreme court. Explanation: he wrote "the federal courts and the law" (1997).

I

The topic is"The common law courts in civil law system: the role of USA federal court in the Constitution and the laws of", someone suggested I speak on the topic, it happened today they were not there. This topic I reflected on the today America legal education concerns, one reason is: I believe that for the general meaning of statutory interpretation, I personally hold the attitude (in broad TextualismTextualismAnd the famous) and I interpret attitude of the Constitution (in broad originalism theoryOriginalismThe well-known) does not fit the first intuition and many legal circles. On the first day of the lecture, I will try to depict the generalized to the common law system, common law is how to describe teaching, with the interpretation of statutes, compare and contrast the main business of the modern court. In tomorrow's lecture, I will discuss the technical details of some text explained, including those specifically applicable to the constitutional interpretation technology.

To did not go to law school and passed the first grade students in learning the huge impact to feel is very difficult. Many students talk about this phenomenon: it is like a spiritual rebirth, acquisition of a new cognition and mode of thinking. Therefore, even if the law also don't know much, but as the saying goes, he can"Thinking like a lawyer".

The number of first year of law school professor's course of people of suffocation, the most influential of course are the common law professor, Professor of common law methodology courses, such as tort, contract, property, criminal law. Our legal people is sharpen their teeth at common law. For understanding the effectiveness of common law must have, you must understand the following sentence: in fact, the common law is not universally accepted law, excluding those who judge as the general common people. That is to say, it is not"The customary law"It is often used, is not reflected, but by the development of the law. Perhaps in the infant real common law, the court just as has been widely accepted social usage elaboration; but it is certain, even in common law fully mature moment, an ingrained business practices or social learning can also the basis for the court's judgment. But from ancient times, can be traced back to the "case" (YearbookYear Books) era, records where the British since the late thirteenth Century until early sixteenth Century judicial decisions, in addition to the previously judicial decision will follow the precedent principle as "habits" in this layer of meaning, any between custom and common law equality have ceased to exist.

Oliver·Wendell·Holmes the great influence the "common law" is still as a recommendation to law students new introductory reading of literature, the book slightly about habits early Germanic and England. But this book talk about most is a judicial decision and write a judge them, whether they are famous or little known;Chief Justice Choke, Doderidge, J., Lord Holt, Redfield, C.J., Rolle, C.J., Hankford, J., Baron Parke, Lord Ellenborough, Lord Holt, Peryam, C.B., Danby and Brian, Brett, J., Cockburn, C.J., Popham, C.J., Hyde, C.J., etc., etc.. Holmes's book is the rational praise, to those in order to create a common law and by reference to pay tribute to people uphold rational quality.

This is the law of the image, the law is common law. This is the law for the impression of aspiring legal person, even before the summer they have not read the read Holmes, this is the first time they break the law when the impression. You all know the methods of case law, the renowned professor Jens Field put it into the film and television program. The students were assigned to a series of reading arrangement in the case in the book reveals how the development of case law. In the field of contract law I have taught, students should read, discuss a famous case old in classHadley V.Baxendale,[1]It is the 1.5 of a century ago by British financial Court (English Court of Exchequer) case. A mill with a broken beam completely unable to start. In order to do a new beams, we must put the old one to the mill steam mechanism Greenwich architects do there. The Miller sent one of his workers to the carrier's office, ask need how long delivery; workers told the man the mill stopped now, so the beam must be immediately sent out. Man replied, if at noon to send, receive send in second days. The beam to the carrier there and pay the cost of transporting the Miller in second days before noon; but due to the carrier's negligence, the girder vibration days before being sent out, resulting in more work for a few days the recovery started. The Miller charged, he advocated is the gold of damages for breach of contract in violation of transport and shutdown in those days of profit and loss, this is many times the number of natural carrier for transportation costs. The carrier said he shouldn't be so far away that occurs as a consequence of the legal responsibility.

Now it has become a law after she repeatedly polished subtle argument. Like most of the other into the stage of the proceedings of the argument that, we can't really considered that there is a sleeve can be used as a universal, customary law and the general practice of court administration. Briefly, the court ruled that the carrier is true, so it is very important to establish the rules of the next one: not all default caused by damages can reply in breach of contract, only those"For the fair and reasonable to consider the contract parties in the contract on the occasion of the"Damages to get replies. This conclusion, the judicial opinion contains some policy reasons, decision cited British court earlier judicial opinions, but for the law and even a word or two references are not. While lawyers had argued, stipulated in the "French Civil Code" offset in the system is indeed caused a court notice. Because of the absence of British law's sake, contract law therefore is almost the entire British judges creation.

At this point, I must be inserted in said a few words on the (in my body that contract Pharaoh Professor forced I do), even assuming that this new rule is: reply only can reasonably foreseeable damages, the Miller than the carrier is more likely to win the case. The court's judicial opinions just ignore the fact, the carrier is told to mill has been shutdown, the carrier man things of course is very clear, so hasty reason is to make the mill reopened, the mill strikes during the course there will be loss of profits. But if you think of this case. The conclusion is wrong, and that this is very important, then you are not like a lawyer or legal thinking, at least not like an ordinary method. Conclusion the absolute is secondary. You see, this famous old case is famous, not because they are correct, but because of the rule of law they announced to be wise. The common law courts play two functions. One is to apply the law to the facts. All of the judge(adjudicator), French judges, arbitrators, even the baseball and soccer referee, do the same things. But the second functions, but also more important, is to create a law.

If you sit in Professor Jens Field's class, and just arrangementHadley V.BaxendaleThe case as a reading assignments, you will find the classroom discussion does not only describe and analyze judicial opinions. Wild (but in this appearance, it is a good heart of) the old professor will propose a variety of"Hypothetical ideas"Test"Predictability"The effectiveness and adequacy of the rules. For example, you are a blacksmith, a young knight riding a horse without a horseshoe Malay here in front of you. Knight told you he was on the way back to Black, his ancestral estate, he must be in the evening of the same day there, to claim his inheritance, otherwise the estate will fall into the evil evil cousin, he ruthlessly Nottinghamshire sheriff. Your contract is nailed to a value of 3/4 pence in Malaysia palm. A defective or palm nail level is too bad, the knight to Black, everything is too late. If you really want to take the legal responsibility for all numbers Knight this to inherit property? 3/4 pence imposing liability this degree is reasonable? If taking into account the possibility for the legacy liable parties will make another price? In other words, there should not be something beyond just limit the damage of predictable, golden principles of compensation? Indeed, perhaps the putative risk sharing theory cannot explain whyHadleyV.BaxendaleAfter all, it was the right result, though not for the reason given by the accurate principle.

You see, this is how wisdom fun fun! Please believe me, I was you describe them not to lure the audience has not yet become a legal person to go to law school; but to explain to you why the first year of law school is unforgettable: because this year they are playing a common law judge. The converse is also playing the role of king, designed the laws that should be the management of the human from their superior mind. How to stimulate! No wonder there are laws so many people have tasted the wine heart longs to become a full measure of judge!

In addition to learning how to think, how to design"The best"The rule of law, a first year law school also added another skill, this skill to become an outstanding common law judge is crucial. This is the so-called"Difference"Case of technology. This is a must skill. The common law law making a summary of the premise condition is the doctrine of precedent. This principle requires a case in the judgment are followed in the next case. Obviously, without this principle, the common law courts will not create any"Law", can do is to solve a particular disputes before them. The provisions of this law elements: the future court should insist to lurk in judicial decisions, this decision has become the rule of law principle. (there are legal provisions, such in the civil law system is not authoritative law rather than in any previous judicial interpretation of the provisions of the law. Previous judicial opinions will be reference, persuasive, many academic review also have this effect, but they are not binding.)

The common law system is binding on such a precedent, obviously for a lawyer or judge, it is essential to establish whether the cases at hand belonging to a judgment of the principles established by the. Hence the"Difference"The earlier case, or that it is an art, or a game. As the theme for a series of lectures is not too much, I'm not going to talk here too deep. So to speak, for a previous case what"Referee"What are the swing, large space. In the strict sense, the judgment of the referee does not exceed before this court the truth. For example, suppose a plasterer contracting to my house painted green, but he brushed terribly ugly purple red. And if not me, but my neighbors sued the plasterer default. The court will be the lack of contract"Relativity"This procedure is not to accept the. Here"Relativity"The painter is refers to the formation of contract, instead of with my neighbors and I. If this is a computer company and I the home computer repair, I can not work normally, the company work is bad, the consequences of my wife lost a whole series of important documents, you need a lot of time to copy out. She sued the computer company. The principle of the broad earlier case (if you can't find the relative nature of the contract is not occurred litigation) are leading the case, decided not to accept the prosecution. But a good common law lawyers will argue (some of the outstanding common law judge made this decision) that the principle is not applied to this new fact situation, in this case the breach is in the home to use items and damages to the members of the family, although the family members and not a contract a party. In other words, the previous case like this is"Difference".

To be clear, due to the presence of stare decisis, as I described earlier, the common law by the precedent restriction is not freely branches Wang Yi but in a specific way growth. The past every word said cannot be erased, but allowing plus qualifications. The first case is put on the desktop:"If there is no relative, there is no legal liability for breach of contract obligation"A participant; and:"Unless the victim is the home life member". Then the game to continue.

As I described it, a law student, every one of America every new legal person American opened his eyes to see at first glance is the judicial opinions to create legal system and creating the law on the previous cases using the difference between technical activities. This impression will be with their life. The image in his mind the great judge is Holmes, is Cardoso, who has"Know what is the best treatment of the case at hand rule of law"The wisdom of the people, is the master"From the previous case be perpendicular and horizontal applied the most appropriate rules between free"Skills of people, these men or women, their difference of the previous case while doing work, one arm to ward off the interference from the other side of the high-speed, set aside a precedent from the rear of the interception, until (cheer) ultimately towards his goal: the proper legal. This great image of the judge with the law students, the past has now become a judge people, the tradition of common law is passed.

All of these, if not since the last century in the government to develop a tendency to mature, it is not qualified"Good"Method; this trend is democracy. In many countries, the judge is no longer the king's agent, because there is no king. The legal system in the UK, I suggest we will judge as to some extent the legislature's agent, because the Supreme Court in theory, England is the house of lords. The colonial America was such a system. The Massachusetts legislature is called theGeneral Court of Massachusetts(the Massachusetts Council). And the highest organ of the Massachusetts Supreme Judicial Court judges are calledSupreme Judicial CourtThe reason is: in the establishment, our Federal Republic on the occasion, the country adopted the principle of separation of powers of the government. This principle as the foundation of the Federal Constitution proposed by the bill, "won praise in the Federalist Papers" in the forty-seventh. James Madison said, the number of relations between the old system to judge the law. Madison quoted Montesquieu's words (for approval):"If the referee's power with legislative power, the life and liberty of the subject will under the despotic arbitrary control, because the judge will therefore become the legislators."[2]I am not suggesting that, Madison is saying that the common law were made in violation of the separation of powers system. He wrote these words in the era of the mainstream image collection, the common law is a long-standing rule, nationally unified legal (but not different among the states in law), the judge only in"Found"The law rather than create a law. But in this century, with the rise of legal pragmatism, we began to admit the judges is in fact"Create"The common law, each state has its own common law.

But I do want to say, once we accept that this is consistent with the actual point of view, to understand the common law courts actually do what words, behavior made law common law of Democracy (if not for the actual system on the significance of the principle of separation of powers) constitute the incompatible relationship is very obvious. Yes, even in the legal realism is popular, many people also have to see clearly. One of the main reasons behind this is the nineteenth Century enactment of movement. And this movement linked to the most revered name is Dafydd·Dudley·Field, many other enthusiastic reformers also stand to him. This group of reformers, Robert·Lantuoer(Robert Rantoul)In 1836 Massachusetts Scituate"July 4th"His speech had to say the following words:

"Judge made law is retroactive law, so it is unjust. An act is not prohibited by law, but from the judicial interpretation. The legislature could not produce legal effects such as "constitution," ban it do. "Bill of rights" that judicial system can not exceeding legislative authority: but it out, also beyond the scope of legislative power is not a tumult.

Judge made law is a special kind of legislative activities. The judge is the person with flesh and blood. He could feel the specific cases with color to bring his prejudice. If he intends to do different judgments in a case, he only needs to be done to distinguish, thus creating new laws. The legislature must according to the general view. In general, in a moment as a whole category of cases rules."[3]

It is these cushion field. LantuoerRantoulObserve the common law "has been called the human rational perfect achievement," he said:

"The common law is the human rational perfect achievement, like sugar alcohol is mature. The common law that a pure spirits is a double distillation purification of rational, nutrient rich, healthy until a poison. To the less sophisticated intellectual, rational is sweet and pleasant. But the reason for the nostalgic paranoid don't make rational victims confused, muddleheaded ground to be dragged into the maze to make mistakes."

The judge made law, by extracting some precedent does not include everything from precedent, he created the law. He developed his own precedent, but these precedents itself from expanding to other precedent. It is by this aspiration and compatible principles, establish legal system set in the absence of legislative authority and intervention.[4]

As you may know, code of nineteenth Century by Rantoul and Rumsfeld pushing movement was widely opposed by lawyers, therefore are also failed to achieve substantial success. But there are exceptions, a field of civil procedure law, the civil use case. (incidentally, I always feel that I'm curious about is, lawyers and judges only willing to give up the judicial law making field is actually only the litigants, lawyers and judges the important field. The civil procedure law course was only the first grade curriculum in law school) Today, in general, the ancient civil law field: Contract Law, tort law, property law, trust and property rights law, family law, these areas of the law are still firmly in the hands of state common law court. Sure as a gun, the real situation is very likely: because of stare decisis erosion is not small, in these areas than outside the judicial building ever more vertical and horizontal freely. Those past even the most clever mind is also difficult to make the distinction between technical decision today can be directly overthrown.

This discussion I guide you, and not to force everyone to the common law as attached to the democratic system on the shell of the parasite and hate hate not scrape it. In this respect my efforts can not be more than Dafydd·Dudley·Field more successful. No, I am satisfied with the common law and the development of common law process in their original place. Has shown that, in many fields, which is the development of legal good means, maybe is the best means. It may be said, most judges (Madison described under the elite"From the people are far off")[5]The growth of private law is created to universal democratic system of a reasonable and appropriate restriction. Or like the end of the nineteenth Century James from New YorkC.Carter, the field code plan diligently opponents, with this view more delicate way to put it: "the problem is, the growth of the law, the development and improvement of whether" should be "kept by people according to its special aptitude elected people's guidance? (i.e. judge) "or" turned to a legislative body number processing, these people qualification and lost due to the nature of their duties are not allowed as the highest function?".[6]

Although I do not intend to go to war and common law, but I really doubt common law judge's attitude, this kind of thinking is a such questions:"What is the solution for the best on this case? What can be done to avoid any obstacles in the thing?"I question a lot of work and most of the work I do as well as the judge did comply. We live in an era of legislative activities, the majority of this law is enacted law. So, as a legal historian proposed in modern times, "the government's main task, the main work and even law lies in the legislature and the executive organ, even the so-called private law has also turned into law. The vast majority of norms and rules governing the country actually came from Congress and legislatures, formulated by the administrative organs cannot count the rule itself is important even legal origin is crucial."[7]In the federal courts, especially the fact that, because the federal courts are unable to bear little supervision work, there is no so-called common law. I as a point of controversy federal judges are to solve the regulation text or text is the text of the constitution or the law interpretation. Let's put aside "constitution". Many people believe that the file is actually a permit judges to development of freedom of speech, protection from unreasonable search and seizure, the evolution of the common law rules. I think that is wrong, I do believe, in the back of my talks to discuss this question. I think that would make the written constitution the frustration of purpose. But now we do not need to stop arguing about it. Because of the constitutional issue trial activities accounted for only a relatively small part of the majority of judge. Indeed, even in the American Supreme Court, I estimate the issues we face are only less than 1/5 belongs to constitutional disputes, if the criminal law cases are excluded, probably less than 1/20. I do most of the work is to explain the federal regulation law and federal agencies to meaning. Therefore, making object method explained, the importance of itself is enough to deserve attention and study, it should be the main business of lawyers and judges. Can not simply regard these as an inconvenient role superposition main role on common law judge made law in the role of the. Indeed, attack the common law judge can handle the mental model of all, is a good remedy for incompetence and ultra vires.

Henry·Hart and Albert·Sax (or William·Ace Craig's and Philip·Professor Friki, the famous, has been teaching but never published "Hart-Sax's theory of legal process "two edition of a Book) accurately America law of statutory interpretation of this science status:

Don't expect any statutory interpretation theory, either your own or other people what theory, can the court actually how to make precise statements about the law. It is difficult to accept the fact is: America court does not exist can make people understand, generally accepted, be consistent, One principle runs through it all. applicable law interpretation theory.[8]

This is really a sad comment: we USA judge, when we do most things, but can't let people understand the theory.

However, there are more sad things. Legal education in the legal profession and the America American, most people do not notice that we lack can make theory. A legal academic continue to try hard to in the common law theory, tries to design suitable for contract, tort, the optimal rule, a hand on the formulation of whether there exists significant agnosticism attitude good rules and bad rule interpretation. There are few law school opened this aspect of the curriculum, and no one is the required course. Interpretation of Science (if it is a scientific word) is follow one's own inclination, just by reading the entity law in the case (good and bad), mainly as the securities law, natural resources law, employment law this kind of law, legal interpretation was dribs and set up to fight.

As far as I know, only one article aimed at systematic and comprehensive regulation enacted on law interpretation, entity law that compare only contract law requires the length of about six articles on processing.J.G.Sutherland's "law and statutory interpretation", first published in 1891, followed by a number of editors update, currently consists of eight volumes. One such scale shows that, this is the main not by the teacher or consult a lawyer to use books, but litigation lawyers and expert witness retrieval tools, i.e. lead you to find those who help you say why the law should be the kind of hope in your client's interpretation of the case. Despite the fact that, statutory interpretation in importance with huge growth, but she is still one of the few we find a few monographs in the field. In Sutherland's monograph, EarlT.Professor Crawford's book "interpretation" law is the most recent one of the same type of monograph, the book was published in more than half a century before one nine four1Years. As compared with nineteenth Century after twenty-five years of work, in addition to monographs Sutherland first published in 1891, and "Black Law Dictionary" by Henry·Campbell·Black published in 1896's "legal interpretation and interpretation Handbook",G.A.Inti Lishen published 1888 "law explanation", this is on a similar theme to Sir Peter Maxwell and published in 1875 a British law to America after work, Jo F bishop Landis in 1882 "on law and its interpretation comment" rules "on 1874, Theodore Sedgewick explanation law and of the Constitution (Second Edition)", as well as the 1871 edition of the Potter "as Wallis on law", this book is published by American British law works influenced by Platt Potter Fortunat Davaris's great after work.

Statutory interpretation covers such a broad, I do not expect to do teaching very deeply in this lecture. But I do want to say a few especially to my area of interest. I can tell from the base. American law about the law interpretation of the part is still not formed, not only its methodology is not clear and the specific goal is not clear. So I put forward a basic question: in the interpretation of law, what am I looking for?

Made from the Supreme Court where I and other court judicial opinions can often find such words: judges in the interpretation of law, his goal is to make the "intention" of the legislature has the legal effect. This principle in some form can be back at least to Blackstone period. Unfortunately, it with some (a few) widely accepted specific law interpretation is not consistent with the rules. One of the rules is that, once the text of law clearly, then the whole thing (explain) is over. Why should it? If we explore is the goal of legislative intent rather than say anything, why it can end? Formulation of the words in the selection, the legislature may say the wrong thing. Why not let the show during the congressional debate? Or really, why not allow the court to the house and Senate majority signature oath written testimony as to understand the real intention after lawmakers to express the meaning of the appropriate reference data?

Another accepted explanation is: the new rules created by formulating vagueness of law, it should be solved not only in the Department of law of internal consistency and to make with the previously created law consistent. In order to search for "our intention"The purpose of our assumptions, straight to create legal legislature aware of all other laws. Of course, this is just a fiction. If we really want to find out the subjective intention of the legislature to create laws, are more likely to find out the intentions of the mode is that the new law fragmented, isolated, pay close attention to the text (and legislative history).

We're not really seek legislative intent. We are looking for a"The objective of the"Intention, this is the purpose of a reasonable person from the legal text collection together, BishopBishopIn the ancient monographs exquisitely made the usual expression: "all statutory interpretation rules, its main purpose is to secure the legislators; or exact, lawmakers authorized subjects understand the meaning, intention."[9]We use the objective of this intention, the reason is that, given the laws enacted by the intention and not by the law of the content of the decision given the meaning of the law, which is not in accordance with democratic government, even on the general government. The legend of the tyrant Nero had his edict hanging in the column top, to read law becomes difficult, and therefore a part of induce people irreverence. In accordance with the law the intent of the content rather than the legal name content determines the meaning of the law is also the law tyranny properties. The rule is the law, rather than give the legal person's intention. For me, the essence of famous USA ideal embodied in "the Massachusetts Constitution": government to law government and non government. Since the desire of people to be made; only people can restrict our.