Checkerboard Policy

Somerset v. Stewart also confronts the reader with what Ronald Dworkin referred to as ‘checkerboard solutions.’ To be brief, a checkerboard solution is one that is designed or manipulated to apply to separate groups of people differently (Dworkin, 179). These solutions are unjust on their face, as they confer rights and obligations differently between groups of people, and are an affront to the notion of integrity in the law. If we think of checkerboard politics in the context of the American political arena, the Supreme Court’s controversial decision in Roe v. Wade provides interesting talking points. The decision allows abortions for all women before a certain point in the pregnancy, that point being the beginning of the third trimester at which time the fetus is thought (by the court at least) to be viable. This temporal ban is also applied to all women, nationwide. The argument can be made that even in retuning control of abortion bans to the states would not necessarily be a form of a checkerboard solution, as each state would ostensibly organize their abortion bans in a coherent and equal fashion (Dworkin, 186).

Somerset presents the reader with a checkerboard solution. The decision seems to have created a double standard within the British Empire; slavery was interpreted as having been ruled illegal in this decision within the bounds of England and Wales, but not so in the American Colonies – equally as invested a member of the Empire as the other constituent parts. In this sense, the court – or those interpreting the court – created a rule that affected different groups of people differently. Residents of the Island were ostensibly divested of their slave holdings – arguably unjust by the mindset of the time, whereas residents of the Colonies were allowed to perpetuate their ghoulish practice. To revert, only momentarily, to the Wade decision – the argument that giving the banning power back to the states does not necessarily create a checkerboard solution falls victim to a larger macroscopic claim, that is applicable to our discussion of Somerset. Dworkin argued that while the states may create their bands in an equal and coherent manner, the manner in which they do so can still create an issue of integrity on the national scale in that all other rights are considered “national in scope.” (Dworkin, 186) By this logic, allowing the states to control some rights of citizens, but not others, is in itself a checkerboard solution. This of course presupposes that the ability to seek an abortion is itself a right, or that the privacy found to be an integral issue in abortion by the Court is itself a right – for the purposes of this discussion, it is easier to assume that those are both true statements. In Somerset, the Court’s decision does exactly this. It recognizes the brutality of the practice in question, and the right of self-determination held by Somerset, but only within certain geographic boundaries. Had Stewart not retuned to England with his slave, and had remained in Boston with him; he would not have been divested of his slave.

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Pragmatism vs. Integrity: Round Two

One who belongs to the integrity as law school of thought will espouse the belief that the administration of justice requires consistency in jurisprudence (Dworkin, 166). The pragmatist, however, might argue that consistency for the sake of it is not equal to the administration of justice, and that justice is best administered through an interpretation, by a judge, of what is best for the community in the long term.

It is interesting that these schools of thought are found in equal measure in Somerset. Consider the lack of precedent upon which both sides of the dispute hang so much import. Lord Mansfield sees that there is no precedent in the English common law upon which to justify the legality of slave ownership within the geographic United Kingdom. The absence of precedent forces him to decide what is, in his view, the best possible solution for the Empire’s future. Alternatively, one might make the argument that he chose to respect the integrity of English common law. To wit: no favorable precedent exists, and one will not be brought into being here. While no negative precedent previously existed, one is not necessarily created here when one bears in mind the supremacy of Parliament in the English legal system – this court says no, but that does not necessarily make it perpetually binding.

This is perhaps the greatest flaw in considering the debate between these two schools of thought. The distinction, in many cases, between pragmatism and integrity in the law can be one that is merely imagined. In Somerset, for example, it is impossible to say whether or not Lord Mansfield was concerned with with continuity – in fact, given his statement at the end of the opinion that his decision is final, “what ever the consequences.” One might ague that this decision was made, from Mansfield’s point of view, for the better of the future, or with insouciance toward it.

Pragmatism vs. Integrity

We are confronted with a tug of war between pragmatism and law as integrity in our present case discussion. The pragmatic view, very simply put, eschews adherence to precedent for the sake of precedent, and denies – at least to some extent – the existence of legal rights. The pragmatist would argue that cases at law should be decided in their own right, based upon that which is best for the community. Should a governing rule emanate from a jurisprudential decision, that rule would be based upon the future good of the community, and will be adhered to under the same terms. The theorist who aligns with the law as integrity argument – Ronald Dworkin – would argue that precedent is an integral part of jurisprudence, as it provides a solid framework upon which jurists may base their opinions.  Integrity in the law therefore requires a large level of “constructive interpretation:”

“The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the post-interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.” (SOURCE)

These concepts would seem to clash in our present case, in spite of the fact that they would likely have come to the same conclusion. The decision turned upon the moral abhorrence of slavery as a practice, to an extent, but it also turned upon a discussion of the contents of English law. To wit: there existed no common law ban nor permission for the practice, and Lord Mansfield saw that it was unfit for the common law to do so. In this, we see a dependance upon a lack of precedent, and an opportunity for a jurist to act with a clean slate for, in his mind – and I think we can agree, in our minds, the betterment of the English (and Welsh) community.  Furthermore, Lord Mansfield did not (and as a matter of English legal theory, could not) debar the Parliament from enacting a statute permitting the practice on the Island – in fact, he said that if it was to be deemed legal, such was the only way. In this regard, one might argue that the Lord took a pragmatic approach, by noting simply that the practice was currently not provided for by English law, and that the society would benefit from the common law’s not providing for it – but that the Parliament could simply see otherwise down the road.

The believer in integrity may have had to come to the same conclusion via a different road. Or maybe not. The ‘integritist’, such as Dworkin, would have reasoned that a reliance upon legal rights must have driven the case, as there was no relevant controlling law. In this, there are two possible outcomes:

  1. The contemporary integritist – that is, contemporary to the time – might have ruled in favor of Stewart instead of Somerset. This may be so because Stewart had certain legally given rights as a property owner. Remember, the court accepted the notion that English law protected the contracts pertaining to the sale of slaves. As such, at least in theory, English law can be argued to have supported the notion that the sale was valid. If this is true, Stewart had certain legal rights to Somerset. However, the integritist might have argued, on the other hand, that Somerset had his own legal and natural rights – such as self-determination, and as such could not be held as property.
  2. Realistically, there is no chance the Ronald Dworkin – as the originator of this theory of integrity – would have ruled any differently than Mansfield. It is likely that his basis of rationale would have flowed from a Natural Law viewpoint, espousing the ethical principles that are grossly violated by the practice.

Somerset v. Stewart

My next few entries will revolve around the former English highest court’s decision in Somerset v. Stewart. These entries will discuss the case as it relates to Ronald Dworkin’s writings, specifically (and to varying extents) those involving pragmatism, law as integrity, legitimacy, and community obligations.

It seems necessary to first have an understanding of what this case is about before commencing analysis, so a brief of the case can be found below. We’ll leave it there for today.

Somerset v. Stewart

LOFFT 1, 98 ER 499 (King’s Bench 1772)

*Note: The King’s Bench was England’s highest court at the time this case appeared.

 

FACTS: The petitioner, James Somerset, was a slave purchased by the respondent, Charles Stewart, in Boston Massachusetts. Stewart returned to England with Somerset in 1769, and in 1771 Somerset escaped captivity, but was promptly found and detained. He was forcibly turned over the Captain John Knowles of the HMS Ann and Mary, to be sent to Jamaica and resold into slavery. An application for a writ of habeas corpus was submitted on his behalf, and duly granted. Captain Knowles was compelled to present the petitioner before the court to ascertain the legality of his detention. Advocates for the petitioner argued that while Somerset’s purchase was technically legal within the American Colonies, the common law and statutory law of England did not support the enslavement of another. Furthermore, England’s common law of contracts does not support the notion that one may agree to a contract binding one’s self into perpetual slavery or servitude. Advocates for the respondent argued that while there is no evidence of slavery being allowed by English common or statutory law, there is also no evidence against that it is illegal, nor is the argument made by the petitioner’s advocates that there exists any legal debarment. Furthermore, as the petitioner was legally purchased, and there were no previously existing laws stating otherwise, the petitioner was the legal property of the respondent, and the respondent must not be stripped of the same.

ISSUES: Does the English common law provide support for the respondent’s right to detain a slave?

HOLDING: No. Ruling is provided in favor of petitioner.

RULE: The English common law provides no legal support for the detention of slaves, or for the practice of slavery in general. Such support must be inculcated through positive (statutory) law.

REASONING: While the English common law provides legal support to contracts involving the sale of slaves, it does not provide support for the forcible treatment of a slave in his person; a distinction to which Lord Mansfield attaches great importance. The practice of forcible treatments of slaves, and thus slavery in general, is found to be such an “odious” practice that Lord Mansfield declares that no moral or political support for it may derive from the common law, and that only positive law, which outlasts its purposes and principles, can be “suffered to support it.”