[3.3.] Legal Realism.[1]

 

The intellectual movement known as Legal Realism emerged in the United States in the 1920s and 1930s. Prominent realists included Karl Llewellyn (mentioned below, 3.3.1.2) and Felix Cohen (discussed below, 3.3.4). The law professors and lawyers involved in this movement considered Oliver Wendell Holmes, Jr. (discussed in the last set of notes, 3.3.1.) as one of their most important forerunners.

 

 

[3.3.1.] Oliver Wendell Holmes, Jr.[2]

 

One of Holmes’ most important works is the essay “The Path of the Law” (1897).[3] In it, he set forth:

·         his so-called “prediction theory” of law (which appears to be connected to the philosophical tradition of pragmatism, discussed by Simon, and is perhaps one reason why Holmes’ form of legal realism is sometimes called legal pragmatism)

·         his “bad man” account of the law

·         his criticism of legal formalism

 

 

[3.3.1.1.] The Prediction Theory of Law.

 

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 intrusted 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 incidence of the public force through the instrumentality of the courts.[4]

 

There are at least two ways to interpret what Holmes is saying here, one more charitable than the other.

 

On the less charitable interpretation, Holmes’ view is that the law is nothing but a tool for predicting what judgments a judge and jury will make. There is nothing to the practice of law but predicting what a given court will do in a given case.

 

There are two related objections to this view of the law, made by legal positivist H. L. A. Hart.[5]

 

 

(1)    It makes judicial decision-making much too easy. This is because it implies that when a judge is trying to figure out what the law is, she is really only trying to predict how she will rule in a given case.

 

(2)    It is unclear how a judge could ever be wrong about a given law. If a correct understanding of the law amounts to nothing but a correct prediction about what a judge will do in a given case, then, so long as a judge knows what she herself is going to do, there is no room for her to make a mistake.

 

On the more charitable interpretation, Holmes was not saying that law is merely a tool for making predictions; rather, he was describing how the practicing attorney needs to think about law in order to do his job. The job that a working attorney does is to make such predictions for his client. Understood in this way, Holmes is not implying that the law is limited to such predictions.

 

However, pulling against the more charitable interpretation is the fact that Holmes explains legal rights and duties strictly in terms of predictions:

 

The primary rights and duties with which jurisprudence busies itself ... are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas ... is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But … 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 court; and so of a legal right.[6]

 

Here Holmes seems to be making the following points:

·         The best way to understand the concepts of legal right and legal duty is to separate them completely from the corresponding moral concepts (moral right and moral duty). [This suggests that Holmes ought to be classified as a legal positivist.]

·         Rather, we should understand a legal duty in terms of what will happen if a person fails to act in a certain way: “You have a duty to do x” = “if you do not do x, you will be punished.”

·         And we should understand a legal right in terms of what will happen if a person does act in a certain way: “You have a right to do x” = “if you do x, you will not be punished.”

 

It is at this point that Holmes’ account of law most closely resembles other ideas from the tradition of pragmatism, in particular the pragmatic maxim of Charles Peirce (1839-1914): “Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then our conception of these effects is the whole of our conception of the object.”[7]

·         For example, what does it mean to say that a diamond is hard? Peirce’s pragmatism says that we can clarify our idea of hardness by interpreting that claim into if-then statements that say what someone would experience were they to interact with a hard object in a given way, e.g., if you were to attempt to scratch glass with the diamond, the diamond would be scratched; if you were to attempt to scratch the diamond with glass, the diamond would not be scratched; etc.

 

 

[3.3.1.2.] The “Bad Man” Account of the Law.

 

You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

... If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.[8]

 

Holmes made it clear that he was advocating setting aside questions of morality in order to understand and learn the law. Thus, for Holmes, taking on the role of the “bad man” is a device for learning the law. This does not mean that there is no connection between law and morality.

 

In fact, there is a sense in which, for Holmes, the law flows from, or has its basis in, “our moral life.”

 

I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.[9]

 

Nonetheless, he says some things that seem to lean toward legal positivism...

 

Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.[10]

 

This passage also suggests that the uncharitable interpretation of the Prediction Theory might be the right one!

 

Holmes’ view is echoed in this passage by legal realist Karl Llewellyn (1893-1962); “rules ... are important ... so far as they help you see or predict what judges will do or so far as they help you get judges to do something. That is their importance. That is all their importance except as pretty playthings.”[11]

 

 

[3.3.1.3.] Against Legal Formalism.

 

The danger of which I speak is ... the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. ... I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. [12]

 

Holmes was explicitly rejecting the sort of formalism endorsed by Christopher Columbus Langdell. In particular, he was making the following claims:

 

·         A legal system cannot be deduced from general principles the way that theorems in geometry can be deduced from geometrical axioms.

·         When judges disagree, it is not just a matter of one judge having reasoned incorrectly, as if he or she has simply miscalculated a column of numbers.

·         Judicial decisions are “cloaked” in the language of logic, but what lies beneath the legal reasoning are beliefs about the relative “worth” or value of different aspects of the case at hand, and sometimes these beliefs are not fully conscious.

 

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said ... I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.[13]

 

·         Judges must inevitably take account of social considerations, including economic considerations, in forming their legal opinions. In particular, they should consider whether a given law or ruling will have good consequences for society.

·         This aspect of legal reasoning ought to be made explicit.

·         Since it has, up to now, not been made explicit, lawyers and judges frequently feel certain in their decisions; but if the actual issues at stake were made explicit, they would see how controversial their positions are and thus feel far less confident about them.

 

For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.[14]

 

·         Legal reasoning should be explicit about the social and economic considerations it embraces—so much so that lawyers and judges would benefit from being trained in economics and statistics.

 

 

Stopping point for Monday February 26. For next time, read pp.110-17.

 

Your reading touches on Hynes v. New York Central Railroad (192) but does not mention this important fact: Harvey Hynes died when he was electrocuted by falling electric wires owned by NYCR. He was standing on the plank about to dive into the Harlem River when he was struck and killed.