College Quarterly
Summer 2004 - Volume 7 Number 3
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On How Knowingly To Condone an Illegal Act

by Robert S. Cahill, Ph.D.
with introductory comments and an epilogue by Howard A. Doughty

(Editor's note: Although this essay was written more than thirty-five years ago, it has relevance for some of the challenges we face in education today. The resolution of the case discussed is reported in the "Epilogue" below.)

Introduction

Academic freedom, a concept not formally embraced by colleges in Canada in the past, is going through a bit of a rough patch everywhere in postsecondary education. The repression of free speech is subtle and rarely a matter of public debate. It has yet to involve the authority of the state. Few teachers have felt direct pressure from their institutions or from public authorities. No professor has been dismissed or imprisoned because of accusations of support for "the axis of evil." The cause of the classroom "chill" takes other, more insidious, forms.

First, contraction of government funding has made schools more dependent on institutional "entrepreneurship" and "corporate partnerships." Both have the potential to give the private sector added influence over curriculum by reducing the quantity and quality of courses that might properly be called "education" and increasing those that emphasize vocational "training." In such courses, not only is critical analysis diminished, but the content of courses often embodies corporate social values to the neglect or outright rejection of alternative interpretations.

Second, where critiques remain, their promulgators face the threat of corporate lawsuits on matters arising from alleged breaches of research contracts, the case of Dr. Nancy Olivieri being iconic. Add to this the threat of frivolous and vexatious individual libel suits against professors as a result of controversial statements made, for example, in media interviews and, as former York University Faculty Association President Susan Dimock has remarked, it is plain that academic experts who make statements on matters of public policy can easily be threatened. As a result, both teachers in the humanities and the "hard" sciences may become timid.

Third, innovative educational technology (and especially "e–learning") may impose ideological blinders on curriculum. Multiple-choice questions and answers flashed across a computer monitor are not exactly the stuff of Socratic dialogue. Internet-based training may be useful as a means for people in remote communities or prison cells to acquire a diploma but, to quote computer guru, Clifford Stoll (1999, p.101), "Distance learning? It's an excellent way to get a third-rate education."

Fourth, the ever-present danger of "political correctness" has sunk to the level of allowing accusations alone to stand as conclusive evidence that professors are guilty of sexual, cultural and "faith-based" discrimination and harassment. Even to raise issues related, for example, to the Israeli-Palestinian conflict is to risk offending some student or (worse) a parent. To question religious teachings on gender issues is to invite accusations of religious intolerance. To affirm, unequivocally, the raw datum of biological evolution is to take a chance that some fundamentalist will be affronted and report a simple biology lecture as an assault on religious conviction.

Finally, the emergence of the national security state has combined with the so-called "war on terror" to limit the discretionary freedom of speech once in ample supply in the mass media and education. Given the anxieties of those who fear the "clash of cultures," the ambitions of those who feed upon it, and the genuine worries of those who seek to make reasoned comments about its implications, educators can be forgiven for declining comment when invited to speak to political controversies.

Because of these and other pressures to withdraw into obsequiousness, it might be instructive to reflect on the feistiness that was once more evident in colleges and universities. The breathless reporting of current events and generalized social amnesia combine to make us forget that high levels of anxiety concerning international relations are nothing new. Moreover, when we put such matters as "terrorism" in perspective, we can discover that there was a time not long ago when controversies were handled somewhat differently. These questions, lively enough in the United States during the Vietnam conflict, take on a broader relevance in light, for example, of the US Patriot Act, Canada's War Measures Act and current Canadian Anti-Terrorism legislation. (HAD)

Reference

Stoll, C. (1999). High Tech Heretic. New York: Doubleday)


On How Knowingly To Condone an Illegal Act

The occasion for this essay is the tenure appeal case of my colleague at the University of Hawaii, Dr. Oliver M. Lee, whose tenure has been placed in jeopardy in the face of numerous charges of "immaturity," "lack of judgement" and the like, at various times and from various elements of the university community and its environs. It has also been alleged that Dr. Lee is to be condemned because, in his capacity as faculty advisor to a student organization known for its radical political views, he condoned the publication by that organization of a statement urging various acts aimed at sabotaging the American war effort in Vietnam. Numerous people have subsequently argued that, in doing so, Dr. Lee "knowingly condoned an illegal act." At this, some people felt, they must "draw the line," and Dr. Lee must forfeit whatever prior claims he might have had to academic tenure. Whether or not the university will grant Dr. Lee tenure is, at this writing, still under debate and still unknown. Whatever happens, as a political analyst, I find the case to be provocative in that it raises a number of compelling juristic, philosophical and political questions.

My purpose in this essay is to shed some light on the problem of the sense in which it is possible for anyone at all—the man in the street, the attorney, the faculty advisor to a student organization—to "knowingly condone an illegal act." This purpose requires me to establish what it means to "condone" something, what is meant by an "illegal act," and what can be meant by "knowing" that an act is illegal. Note that for the present purpose, I am not in the least concerned about the question of whether or not it is desirable to condone illegal acts, or to object to them, or either to obey or to disobey "the law." Instead, my concern is exclusively with coming to some understanding of the conditions under which, and the sense in which, it is possible to do any of these things.

In my own experience, the answer to this question is by no means self-evident, and any attempt at arriving at a satisfactory answer is made doubly difficult by the common sense tendency to think of "the law" as a kind of material or anthropomorphic object—a stick to be "broken," a weight to be "upheld," a "ruler" which, in the place of men, "rules," and so forth. To be sure, a great many people seem to think that they can readily find out what the law is, in much the same way that they can find out what time it is, or where the Amazon has its headwaters, or how far it is from Vienna to Rome. I feel far less sanguine about such a possibility, however, especially in view of the fact that American society has managed to produce a densely populated profession of attorneys, on and off the bench, whose main business it is to keep trying to find out what the law is, and who rarely establish what it is to each other's satisfaction.

In my own thinking about "the law," I have found it useful to distinguish between three kinds of law—symbolic, expected, and historical. In light of these distinctions, in turn, it seems possible to make some headway toward understanding the sense in which one can know what acts are legal and what acts are illegal, and hence the sense in which it is possible to "knowingly condone an illegal act." Such an understanding is of more than merely academic importance. One of its very practical implications is that it helps us to clarify the grounds on which it is meaningful to evaluate, criticize, and reward or punish a legal advisor on the basis of legal advice duly provided. In a litigious society such as our own, such clarification can be very useful.

It may be best to introduce the three-fold legal typology which I have in mind in the context of a formulation of the law introduced by Oliver Wendell Holmes over one hundred years ago in an essay published in the Harvard Law Review. Holmes, of course, was soon to become a notable justice of the United States Supreme Court. Writing in 1897, he identified the study of law as the study of the "predictions of the incidence of the public force through the instrumentality of the courts," hoping thereby to eliminate "one of the many evil effects of the confusion between legal and moral ideas," i.e., the tendency for thought on such subjects as "to get the cart before the horse, and to consider the right or the duty as something existing apart from and independent of the consequences of it its breach, to which certain sanctions are added afterward" (Holmes, 1966, p. 176). He would be at pains, he argued, to show that a "legal duty, so called, is nothing but a prediction that, if a man does or omits certain things, he will be made to suffer in this or that way by judgment of the courts—and so of legal right" (Holmes, ibid.). In short, according to Holmes, the study of the law was nothing more than the predictions of what courts will do.

As Holmes put it:

"When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is entrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the instrument of the public force through the instrumentality of the courts" (Holmes, 1966, pp. 175-176).

It was within this frame of reference, moreover, that Holmes regarded the recorded collection of revised statutes, opinions, and all the other documentary baggage of the law as to have been "properly" called the "oracles of the law," and viewed the most important meaning of every "new effort of legal thought" as an effort to "make these prophesies more precise, and to generalize them into a thoroughly connected system" (Holmes, 1966, p. 176).

What do I intend, in this context, by the distinctions I choose to draw between symbolic, expected and historical law? Briefly, historical law is, in Holmes' terms, "what courts do." Expected law, in turn, is what people, both people in a general sense and attorneys in particular, expect courts to do, what they predict about future judicial decision-making behavior, future historical law. Finally, symbolic law is the collection of authenticated legal documentation to be found in a society—statutes, opinions, written constitutions, and so forth—in addition to historical law with a view to making accurate predictions about what courts will do. The attorney, for example, studies both the symbolic law and past historical law with a view toward anticipating probable outcomes. The rest of us do much the do the same thing, though with less systematic awareness of the nature of symbolic and historical law, and we tend to seek counsel only when we lack confidence in our own expectations about the likely future historical lawfulness of some project we have in mind.

What courts do, then, is mete out, or choose not to mete out, punishment in the name of "the law." What lawyers, or people acting as their own counsel, do is work out theories and hypotheses designed to predict what courts will do. And what statute makers and legal record keepers do is provide all of us with a system of documentation which is more or less useful to us, to paraphrase Holmes, in our efforts to make our prophesies more precise.

Note that, for each of these three kinds of law, an entirely different kind of phenomenon needs to be described and analyzed if we are to know in each case what "the law" is. To describe the symbolic law, we must identify and analyze the content of the legal system's documentation. To understand the expected law, in turn, we must make psychological assessments of individual mental states as they happen to be distributed in society. Finally, to know what the historical law has been—we have no way of knowing what it is, even though we continuously try to predict what it will be—we must reconstruct particular historical actions taken by courts, actions in which courts have meted out, or chosen not to mete out, punishment for specific acts in the name of the law.

This line of reasoning construes what I like to call the process of the law as being very much like the process of scientific inquiry. From fairly general theoretical notions about how some system works, the scientist derives hypotheses dealing with particular situations, designs experiments to test such hypotheses, analyzes the results of his experiments, and then either rejects, modifies, or continues to maintain his theory in light of the experimental results.

Suppose, for example, that as a scientist I come across a scientific paper delineating a theory which, on the face of it, seems eminently convincing. This is very much like an attorney coming across an authenticated statute, a collection of sentences, whose language quite clearly spells out a set of "illegal" acts and a corresponding set of punishments for engaging in these acts (i.e., a piece of symbolic law). Suppose, then, again as a scientist I formulate an hypothesis derived from this theory to the effect that, under particular conditions, scientifically predicted events will occur. This again is analogous to the attorney formulating a prediction to the effect that, should a client engage in an act like that said to be illegal in the statute, and should the client be detected in doing so by the authorities, then the client is very likely to be punished in one or another court in the name of the law. Finally, suppose that as a scientist I arrange an experiment designed to test my hypothesis and then, on examining the results of my experiment, find that my hypothesis was in error inasmuch as it failed to predict the results which actually did occur. This, finally, is similar to the attorney advising a client against engaging in the act in question, finding that the client has nonetheless engaged in the act and has been detected in doing so, but that the courts have acquitted the person on the ground that the act in question was not against "the law."

Within this frame of reference, then, the attorney is best regarded as a special kind of applied political theorist studying "the law," both symbolic and historical, in order to develop general theories or, as Holmes put it, "thoroughly connected systems" of prophecy on the basis of which to make predictions in particular cases about what acts will or will not be punished by the courts as being outside the law. Attorneys, of course, do more than merely predict and advise. They also advocate, but presumably they advocate as they do in the light of the predictive theories which they hold, which theories include propositions about the likely effects on judicial decision-making behavior of alternative forms of advocacy. As advocates, in other words, the attorney tries to make things happen in the light of his theories about what sorts of behavior on his part will make things happen.

His practical value to those he advises depends on the frequency with which his predictions are accurate. Our confidence in his predictions before they are tested probably depends, in turn, on our belief that he has studied well, has the wit to apply what he has studied to our own case, and will not give us advice in which he himself has no confidence. We place our trust in the superior merits of professional attorneys over amateurs, I should think, chiefly because they have law degrees, have been certified by bar associations, and are widely believed to be governed by codes of ethics which enjoin them to act always in our best legal interest. In brief, the attorney, and the average person as well, even though with less systematic study and less public certification, is engaged in the business of predicting, in particular cases, "the incidence of the public force through the instrumentality of the courts."

In this sense, a "good attorney" is one who tells us clearly what his level of confidence in his predictions is and then ordinarily gives us "good advice," who, in other words, successfully predicts judicial behavior where it concerns the projects we have in mind. A "bad attorney," in turn, is one who fails to tell us what his level of confidence is and gives us advice which is usually inaccurate. Note that both "good" and "bad" attorneys may, from some moral point of view, be either "good" or "bad" people, and that either "good" or "bad" people may, from a strictly legal point of view, be either "good attorneys" or "bad attorneys."

The acts in which our attorneys advise us to engage in or to refrain from engaging may strike us as immoral or moral, but that is utterly independent of the question of whether or not they have given us good legal advice. The "good man" who is at the same time a "bad attorney" may well exhort us to do preeminently moral deeds which, when detected, promptly land us in jail. Similarly, the "good attorney," whose morals seem generally dubious, may urge us to engage in reprehensible acts which we later come reluctantly to acknowledge as having been responsible for helping us to keep from running afoul of the "instrumentality of the courts." The point, of course, is that what is "legal" (what courts actually decide is legal) may be moral from one or another point of view, but neither more nor less "legal" for all that. Legal advice may be eminently sound, even if it encourages what, from some moral vantage point, seems to demand condemnation.

Now then, what can it mean to "knowingly condone an illegal act"? To "condone," I should imagine, means to indicate in some fashion either approval or the absence of disapproval of some past, present or proposed action. In this sense, I may condone something you have done, are now doing, or are proposing to do. An "illegal act," in turn, may mean either: (a) some set of sentences contained in the symbolic law and purporting to describe acts which are punishable by the courts; (b) some act which is found historically to have been punished by some court in the name of the law; or (c) some act which is expected, if engaged in and detected by the authorities to result in judicial punishment. If, then, I condone an illegal act, it is in the sense that I indicate approval or the absence of disapproval of something which my content analysis of relevant documentation makes me believe has been punished by courts of law in the past, or which, on the basis of my general legal theories, I expect will be punished by some future court if it does not go unnoticed by the authorities.

But there can be little practical significance to approving or disapproving of the verbal description of an act which happens to comprise part of the symbolic law; to do so is merely to approve or disapprove of words. Whether or not any actual act "fits" a description found in the symbolic law is either a matter or successful or unsuccessful prediction of what courts will decide does "fit." To disapprove of "murder" is to disapprove of a word or, at best, of an idea, since we have no way of knowing what acts will or will not be found to constitute "murder" by the courts. History suggests that many kinds of killings somehow fail to qualify as murders. Killing, for that matter, is not against the law, even though "murder" is. The legal problem is always to establish whether or not a particular killing is also a "murder."

Furthermore, by itself, it is no more than a moral conceit to approve or disapprove of actions engaged in by particular persons sometime in the past and then punished by the courts in the name of the law; to do so is merely to approve or disapprove of past deeds of men, most of whom have already paid their penalties and many of whom are quite dead. I might very confidently know precisely the content of the symbolic law and have well-established knowledge of the historical law to date, but such knowledge has no very practical significance unless it helps me to formulate theories on the basis of which I can confidently predict what will turn out to be "illegal" from the point of view of future courts. Practically speaking, in short, condoning acts is important only when the acts condoned are now underway or proposed for future performance, since it is still possible to facilitate or impede them. But, whereas I might well "know" what the symbolic law and the historical law describe, I have only my expectations, my hypotheses, to guide me in anticipating what the historical law governing these particular actions will be at some future date. In short, I have only my own particular contribution to society's expected law to go by if I am able, quite apart from willing, to condone actions which will be found to be either legal or illegal. Thus, in any practical sense, I can "knowingly condone an illegal act" only in the sense that I indicate approval of an act, which I confidently expect will, if detected by the authorities, be punished by the courts.

Whether I have this confident expectation solely on the basis of my own analysis of historical and symbolic law, or on the basis of the confidence in the advice given me by a specialist in such analysis, unless I am willing to delude myself into believing that I am clairvoyant, I have no more "knowledge" than is contained in my confident expectation, my plausible guess. My confidence, in turn, either in my own analysis or in the ability and good faith of my attorney may be sadly misplaced, but I have no way of knowing until my hypothesis is actually tested in the courts.

To sum up, it is nothing but an exercise in moral indulgence to disapprove or approve of mere words in symbolic law or of acts historically punished by the courts, even though we may quite certainly "know" the words we have in mind and the acts that have been punished. It is, however, practically significant to approve or disapprove of acts now underway or being proposed, since it is still possible either to encourage or discourage them. In this instance, however, while one might have quite unequivocal opinions about whether or not such acts are morally correct, he can only guess whether or not they are legal. He knows only that they may have been found to be illegal should some future courts decide to punish their perpetrators on that ground. No matter whether his guess be well-informed or ill-informed, based on little or much skillful or unskillful scholarship, it is inescapably a guess and, as such, may prove to have been in error.

Accordingly, while it may be, from some point of view, morally inexcusable for me to condone an act, and while this may be unequivocally "known" in the sense that you or I have no doubts about what is morally correct, it is literally impossible, in any practically meaningful sense, for me to "knowingly condone an illegal act," unless the phrase is interpreted to mean that I condone an act which I think is very likely, if detected by authorities, to be punished by the courts.

Finally, I simply have no way at all of finding out whether or not you have "knowingly condoned an illegal act" in this sense. To be sure, I may be able to find witnesses who can give reliable testimony on the question whether or not you "condoned" an act by indicating your approval of it. But how can I possibly know whether or not you confidently expected that, if detected by authorities, the act would be punished by the courts in the name of the law. I could ask you, I suppose, but why should I believe you, there being no way to compel you to tell the truth or even to know when you are doing so? Such questions boggle the mind and at such a prospect I feel I must draw the line.

Reference

Holmes, O. W. (1966). The Path of the Law. In M. P. Golding (Ed.), The Nature of Law. New York: Random House.


Dr. Robert S. Cahill is a political scientist, who taught at the University of Hawaii 1962-86, when he resigned to follow his wife, Eloise Buker, as she developed her own work in political science and women's studies. Throughout his academic career in Hawaii he was actively involved in the politics of the Islands. Before, during and after his work as an academic, he has focused sharply on the politics of race—in Hawaii, North America, and elsewhere. After leaving academic life, he worked extensively as a community organizer in the Pacific Northwest, focusing on issues of both racism and economic injustice. Now chiefly retired, he lives in St. Louis, Missouri, with his wife and cat, and occasionally teaches courses at a local university.


Epilogue

Quite apart from the intrinsically fascinating "juristic, philosophical and political questions" discussed above, it is worth noting that the University of Hawaii's Council of Regents initially denied Oliver Lee tenure. Upon the release of the Regent's decision, an eleven-day protest demonstration commenced. Students (including the left-leaning Students for a Democratic Society and the right-leaning Young Americans for Freedom) joined with faculty to occupy the University's administration building until police were summoned and approximately four hundred people were arrested for trespassing. Subsequently, all charges against the demonstrators were dropped. The US Justice Department chose to take no action against the members of the student group whose press release precipitated the crisis. In due course, Dr. Lee was granted tenure whereas the President of the University left to take on new responsibilities as head of the Hawaii Visitor's Bureau. When last seen on the Internet, Dr. Lee was leading a demonstration against the US occupation of Iraq.

The lesson? At perhaps the most dramatic point in the Vietnam conflict, the question of academic freedom was hotly contested and, despite everything, prevailed both on campus and in the US justice system. Today, the Patriot Act in the United States and the Anti-Terrorism Act in Canada make for a markedly different political climate with implications for academic freedom yet to be fully determined.


Professor Howard A. Doughty teaches at Seneca College. He was one of Robert Cahill's teaching assistants during the events described above and, for a part of the material time, was President of the University of Hawaii's graduate student organization.

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