Professional Documents
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Legal Realism & Scepticism: (Class #7)
Legal Realism & Scepticism: (Class #7)
(Class #7)
Readings
Class #7 (M 9/26)
Class #8 (W 9/28)
Dworkin, Integrity in Law [158-174]
Class #9 (M 10/3)
Scalia, Common-Law Courts in a Civil-Law System [175-184]
Dworkin, Comment [185-190]
Scalia, Response to Dworkin [190-193]
-H.L.A. Hart
(1897)
The Predictive Theory of Law
what is law?
i.e. a prediction re: what a court will decide to do given a particular set of facts
in particular whether (& to what extent) the court will exert the public force and the
whole power of the state vs. one of the parties to the dispute
The Predictive Theory of Law
so the prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law
but -- what are the means of our study? how do we make these predictions?
lawyers rely on empirical data the whole extant body of statutes, case law (the reports of
previous judicial decisions & opinions), treatises
lawyers try to generalize all this data into a thoroughly connected system in order to
make these prophecies more precise
this shared vocabulary makes it easy to pass from one domain to the other it is
common in legal reasoning to take these [legal] words in their moral sense
but this is a fallacy nothing but confusion of thought can result from assuming that
the rights of man in a moral sense are equally rights in the sense of the Constitution and
the law
we should gain very much in the clearness of our thoughtif every word of moral
significance could be banished from the law altogether and replaced with some purely
legal term
more.
Law & Morality
to determine what the law is, we should take the point of view of the bad man
i.e., the p/o/v of a man who cares nothing being moral or ethical
all he wants to know is whether & what consequences will result from his doing or not doing
certain acts so he can plan his conduct accordingly to stay within the law & avoid being
sanctioned
the bad mans idea of a legal duty is correct it 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
court
thus -- we wash [the notion of duty] with cynical acid to see what it really means
Law & Logic
but the idea that logic is the only force at work in the development of the law is
another fallacy
in reality the very root & nerve of every judicial decision is the belief or opinion of
the court towards the matter at hand the attitude the court takes towards the political,
economic, political & social aspects of the case
every judicial decision embodies the preferences of a given body in a given time & Place
(1930)
A Rough Definition of the Law
what is the law? -- from the p/o/v of the average man a person facing a particular set of
facts
or
the average man only cares about the latter --but what are the grounds for making these
guesses / predictions / prophecies about what the court will decide given this particular set of
facts?
(1951)
The Doctrine of Precedent
the doctrine of stare decisis lets us predict what courts will decide in a particular case
the doctrine of precedent = the rule laid down by the court in a previous case should
control the outcome of all subsequent cases with similar relevant facts
courts accept stare decisis as authoritative and binding as controlling the deliberative
process
so, in theory prediction (what the court will decide in the future) is based on precedent
(what the court decided in the past) given similar relevant facts
but, in reality how the court will in fact rule depends more on the judges attitude than
on prior precedent ..
Ambiguity
the judges attitude is more important than prior precedent for purposes of prediction
b/c the law is indeterminate
b/c rules are general whereas -- judicial disputes involve particular facts
e.g., No Vehicles in the Park is the rule -- but what shall we do with a scooter?
This Is a Pragmatic World
judges can & do classify the facts in wide or narrow & weak and strong ways
this latitude lets them interpret the rules laid down in prior cases as they see fit
but -- they are expected to write & publish opinions explaining the rationale for their
decisions and this public scrutiny serves as the check and limits on their discretion
so -- the lawyer / advocates job is persuasion presenting the facts in a way designed to
induce [in the court] the attitude toward the result your client desires
i.e., -- try to get the court to classify the relevant facts in a way that lets you win because
then the facts are either inside or outside the controlling rule as you prefer