Prof. Brian Leiter – Jurisprudence, 2013
University of Chicago
Overview, big q’s
i. How can we know the “law” [epistemology]
a. Theories of adjudication
ii. What is the law [metaphysical] – real, or useful fiction (construction)? What is a valid law?
a. Theories of Law.
a. Look at samples online
b. Format: one quote – (1) explain it, (2) argue how other positions interact with it.
c. Citation: sparingly, but if you quote a passage, cite the page number.
i. If you cite what the author’s view is, you should cite the page number – but again, not fully necessary.
d. Explanation: be in depth; pay attention to the question.
I. How ought judges decide; how do/ought we discover the law.
a. Descriptive theories
i. What do judges actually do; empirical question.
b. Normative theories – how ought we discover law?
i. Assumes there is a valid metaphysical theory of law.
ii. Justify Coercion and legitimacy; predictability; good policy . . .
1. Methods of adjudication should comport with preserving government’s legitimacy (Scalia) or moral rectitude (classic liberals)
A. Formalism – law is all you need
a. Motivations: [why ought]
i. Logic; natural law theory;
ii. Predicatibility; avoid individual bias (“mini-tyranny”) [Beccaria]
iii. Legitimacy: If judges made law, they wouldn’t be judges.
b. Vulgar: discover law by pure logical syllogism.
i. Beccaria: formalism provides “fixed code of law” by avoiding discretionary interpretations of the “spirit” of law (CR 1-2).
ii. Zane: “Every judicial act resulting in a judgment consists of a pure deduction” (CR 3) from facts and rules.
1. DESCRIPTIVE claim about what law is; it is a pure deduction.
2. If courts make law, they “habitually act unconstitutionally” (CR 3)
a. Descriptively useful but incomplete: How do you pick between set of reasons, facts, or premises for a pure deduction?
b. Frank’s response – there is no “established law,” “but mature persons must face the truth, however unpleasant” (LMM, pg 116).
III. Sophisticated formalism: the class of legal reasons rationally determines one correct decision, in a range of cases.
a. Range =
i. Dworkin: range = all cases
ii. Others: just easy cases, maybe indeterminacy in cases of first impression.
b. Reasoning is mechanical – rational, syllogistic. Once the class of legal reasons is ascertained against the facts of a case.
. Not D’s view: law is constructive, not purely deductive: justification adds more; formalism is pure fit. )
c. Autonomous from non-legal reasoning. (Dworkin accepts, but expands meaning of “legal reasoning” to include principles of political morality)
o judges use non-legal reasoning [politics, pragmatism, bias] in certain decisions, and therefore the set of legal reasons is indeterminate about what the law is in any given case..
i. Grew out of scientific positivism (reduce things to empirical methodology; pushback against naturalism) + terminology from behaviorism (psychology; input/output view of mind).
ii. Implicitly hard positivists: valid legal norms set by pedigree. [range of “legal reasons” is limited, excludes morality].
iii. Holmes: “if you want to know the law and nothing else, you must look at is as a bad man, who cares only for the material consequences which such knowledge enables him to predict” (Path of the law 459)
i. Law is rationally indeterminate; legal reasoning underdetermines decisions in some range of cases.
ii. Structure of argument:
(1) There is some agreed list of uniquely legal reasons (within the “laugh out loud” boundaries) that practitioners of law openly accept in arguments and written decisions, as opposed to taboo reasons (pragmatism, etc).
(2) Two+ legitimate and sound legal reasons could equally apply to a case to determine what the law is in that case
(a) (Llewellyn, Bramble Bush canon; interpreting precedent loosely/strictly: equally valid
(b) NY v U.S.: National League of Cities in Garcia: loose reading vs. strict, either are valid.
(3) If differing legal reasons apply, judges must choose between them.
(4) In choosing between legal reasons for a case, Judges must be doing more than they say they are on paper – they exercise personal judgments of morality, pragmatism, or bias.
(a) Law is really tied to practice, not abstract ideals or what courts say they are doing. Realistic acceptance of what courts do.
(b) The class of legal reasons is indeterminate of a decision in any given case.
(c) Legal reasoning is not autonomous (wide range of non-legal inputs into legal reasoning) and
(d) not automatic (wide discretion of outcomes when choosing between equally valid legal reasons).
a. But: Judicial “craft” intuitions = law?
. can’t explain conflicting case outcomes; begs question.
IV. Sociological realits: most cases on appeal are indeterminate, but easy cases can be predicted well enough on sociological background of judges.
a. Judges are products of many sociological factors in their background.
b. Llewellyn: judges decide on their “sense” of a case, relying on canons of interpretation
c. Oliphant: different fact patterns of situation types → specific outcomes.
i. Courts did one thing (enforce custom, protect employees) while masking decisions in “law”
a. Led to restatements of law
d. Cohen: judge’s sociological background (schools, race, etc) determine how they view a case (Law and Modern Mind 106)
i. “A judicial decision is a social event”; at the “intersection of social forces” (Transcendtal nonsense 843)
ii. A “Judicial Index” would help lawyers predict law,
≠ primary rules; generally converge on secondary rules of recognition.
2. Scandinavians (Ross) – law is reducible to physical facts; reconcile ordinary meaning of law with metaphysical grounding.
3. Hart’s Methods: resolve confusions of analysis of concepts. Ordinary understanding tested against other beliefs/presmises.
i. Law is not what it ought to be; simply a social fact.
1. Social thesis: what counts as law is a social fact.
2. Separation thesis: What law is and ought to be are different questions.
3. Requirements of law:
a. Generally addressed; generally followed, lasting standing orders.
A. Austin’s command theory:
i. law is command of sovereign backed with threat of sanction.
i. Institutions are sovereign iff they are habitually obeyed and obey no other.
ii. Hart: Austin doesn’t account for internal rules guiding officials and conferring power.
1. Austin assumes only motivation to follow law is is prudence –
a. BL: Should follow gunman’s rules, but not obliged to.
b. Hart: officials follow secondary rules for more than that (justice roberts: “I follow the constitution, not for self-interested reasons”)
i. Could be unlimited reasons besides prudence. (Social norms, habit, morality).
2. Different conceptual structure for secondary rules – changes standards of behavior, without legal consequences.
a. ‘I follow the law because it is law” vs. “I follow the law because otherwise X will happen”
i. Noncompliance Law implies a necessary nullity; a sanction is contignent.
3. Continuity of power requires rules.
a. No habit until soveriegn already established; catch-22.
4. Continuity of law: “standing” law doesn’t need re-iteration by every next ruler.
5. Power conferring rules:
a. Office of sovereign pre-supposes rules of recognizing the office beyond the sovereign.
b. Failure to comply with secondary rules conferring power not given force by sanction, but by the failure to take power under the rule.
6. Source of law: not a final sovereign source, but any institution recognized by officials from an internal point of view.
a. Social contract = “perpetual revolution,” no law ever.
B. Hart’s on Indeterminancy of legal rules.
Rejects ‘conceptual rule skepticism’ of realists. [law = only what courts do].