So metaphysics considers questions about the nature of things, the nature of entities.
Epistemology talks about how we know things, our knowledge, our cognitive access to things.
Ethics talks about what we should do.
How we should act toward things.
All three of those sorts of areas show up in the law: ethics and metaphysics and epistemology.
So ethics, the right and wrong thing to do, obviously is constantly involved in the law.
Law is telling people to do things.
Some things that law tells people to do are wrong in themselves.
Some of them are wrong only because the law tells them to do it.
So there's a great distinction in the law, in the criminal law, between malum in se crimes
and malum prohibitum crimes.
So distinguishing between malum prohibitum and malum in se in the law requires an analysis
of ethics.
You have to know that there are things that are wrong in themselves.
And there are other things that are wrong merely because they are prohibited.
Making that distinction requires an analysis of ethics.
Metaphysics and epistemology or ontology and epistemology is an important distinction in
the law.
There's a distinction between how things are and how much knowledge we have of those things.
So it's possible for the Constitution to be a certain thing.
For the Constitution to consist of meaning expressed at a particular point in time, according
to the linguistic legal conventions of that time.
It's possible for the Constitution to be a certain thing, but us not to know it or not
to know it perfectly.
Not to know it as clearly as we might like to know it.
So there's a distinction in the law between how it is and how much we know about it.
This is important for a couple of issues in the law.
One is the issue of deference from a court to a legislature.
If a court doesn't know exactly what the Constitution requires in a particular circumstance, there's
a long tradition of saying in unclear cases, the judiciary has to defer to the legislature
on issues of constitutionality.
In Fletcher versus Peck, only in a clear case, the Supreme Court says, does it exercise judicial
review.
Similarly, there's issues about epistemology in precedent.
So one theory that several Justices have indicated, Justice Thomas talks about demonstrably erroneous
precedent.
Precedent that whose error has been demonstrated is very, very clear.
Justice Breyer says that if it's an extremely important case, you better be sure that a
precedent is wrong before you overrule it.
Justice Stevens in his McDonald v. Chicago dissent the day he retires says that the original
meaning of the privileges or immunities clause is not as clear as it would need to be to
dislodge 137 years of precedent.
So according to Stevens's view,the more precedent we have, the bigger the dislodging reliance
interests costs.
The more certainty you have to have about original meaning in order to overrule a decision.