| |
| META TOPICPARENT | name="BrookSuttonFirstPaper" |
|---|
| |
<
< | | | |
Just a Little Bit More than the Law Will Allow | | | Rule-skepticism presents two key difficulties for legal formalists. First, no set of prior decisions is sufficient to produce a general rule where that set is incomplete. This resembles the problem of induction familiar to philosophers. However, while a proposition that the sun rises every morning can be tested against experience, legal formalism permits no reference point, independent of and external to precedent, by which the rightness or wrongness of a legal decision could be judged. Thus, where a rule is based on precedent, a holding that expands that rule by expanding the set of decisions from which it derives cannot be incorrect purely as a matter of law. | |
<
< | Rule skepticism raises a second not unrelated challenge for legal formalists, insofar as any set of prior decisions generates an indefinite number of possible rules. Even controlling for absurdities, precedent is likely to yield several equally defensible rule interpretations. Taken together, these challenges indicate a vicious circle: the rule depends on its applications, which depend on the rule. | >
> | Rule skepticism raises a second not unrelated challenge for legal formalists, insofar as any set of prior decisions generates an indefinite number of possible rules. Even controlling for absurdities, precedent is likely to yield several equally defensible rule interpretations. Taken together, these challenges reveal a vicious circle: the rule depends on its applications, which depend on the rule. | | | | | | Following Holmes, legal realist thinkers conclude that legal decisions are inherently and inescapably political. Under their analysis, even a respect for precedent represents a political commitment. However because law is always politics by another name, if a realist approach to legal decision-making does not produce qualitatively different outcomes compared to a formalist approach, the competing theories differ only nominally. In other words, where a judge would reach the same legal conclusion, either by reasoning exclusively from precedent or by abandoning it completely in favor of consciously held policy objectives, the distinction becomes academic. In this way, realism lends itself to the characterization that it permits a little bit more than the law will allow. | |
<
< | Where a realist approach does produce qualitatively different outcomes compared to those conceivable within an existing framework of law—where it makes a clean break from precedent—another question arises: what justifies its authority? Generally, realism bases its authority on a claim to authenticity. The realist judge consciously takes aim at specific social goals, whereas the formalist judge pursues her policy objectives under pretense. | >
> | Where a realist approach does produce qualitatively different legal outcomes than those conceivable within an existing framework of law—where it makes a clean break from precedent—another question arises: what justifies its authority? Generally, realism bases its authority on a claim to authenticity. The realist judge consciously takes aim at specific social goals, whereas the formalist judge pursues her policy objectives under pretense. | | | However, the realist claim to authenticity fails to justify a theory of judicial license that would grant judges wide berth to break with precedent for policy reasons. First, the realist claim is troubled by an epistemological gap. Holmes’s science of values presupposes that the elements of psychic life are knowable as simple matters of fact, like a desk or a lamp. Values, though, are not simple matters of fact, but lenses through which the world is viewed. Therefore, no reference to experience can confirm the primacy of experience with regard to them—just as one cannot see the act of seeing—and transcendental arguments necessarily fall outside the realist project. Accordingly, a realist approach cannot offer a superior claim of access to the psychological substrate underlying a decision, even where the aims of that decision can be clearly grasped. | |
<
< | Second, disregarding the epistemological problem the argument is circular. It would grant broad license to judges to break with precedent for policy reasons on the premise that formalism already permits this. As discussed above however, if formalism actually did grant this license the realist critique would lose its practical relevance. | >
> | Second, the realist argument admits its own circularity. It would grant broad license to judges to base decisions on policy considerations partly on the premise that formalism already tolerates this, if only implicitly. As discussed above however, if formalism actually sustained such broad judicial license the realist critique would lose its practical relevance. Instead, precedent constrains formalist decision-making, even if it cannot predetermine legal outcomes. | | | Conclusion | |
<
< | The realist critique of legal formalism is compelling. Judges cannot avoid their role as policy-makers, and precedent cannot predetermine legal outcomes. However, realists’ objections to formalism overstate the indeterminacy of legal outcomes. This shortcoming is internal to their critique. If a formalist approach truly permitted all conceivable legal outcomes, then the realist counterargument would lose much of its relevance. A judge could pursue a desired social goal under formalist pretense. Instead, a formalist approach enables a narrower field of possible legal outcomes on which forces other than logic must operate to produce a decision. Consequently, any putative loss of intellectual honesty incurred in adherence to the formalist paradigm may be offset by a social gain from increased stability and predictability in the law. Therefore, while legal realism provides a useful tool to analyze past outcomes and predict future decisions, its value as a theory of broad judicial license is dubious. | | | \ No newline at end of file | |
>
> | The realist critique of legal formalism is compelling. Judges cannot avoid their role as policy-makers, and precedent cannot predetermine legal outcomes. However, realists’ objections to formalism overstate the indeterminacy of legal outcomes. This shortcoming is internal to their critique. If a formalist approach could contain all conceivable outcomes, then the realist counterargument would lose much of its relevance. A judge could pursue a desired social goal under formalist pretense. Rather, a formalist approach enables a narrower field of possible legal outcomes on which forces other than logic also operate to produce a decision. Consequently, any putative loss of intellectual honesty incurred in adherence to the formalist paradigm may be offset by a social gain from increased stability and predictability in the law. As a result, while legal realism provides a useful tool to analyze past outcomes and predict future decisions, its value as a theory of broad judicial license is dubious. | | | \ No newline at end of file |
|