[3.3.2.] Cardozo’s Rejection of “Mechanical Jurisprudence.”

 

Justice Benjamin Cardozo (1870-1928; appointed to SCOTUS by President Hoover to fill the seat vacated by Holmes) is a later exponent of legal realism.

 

He rejected what he called “mechanical jurisprudence,” which would strictly deduce legal decisions from statues and case law without attending to the morality or justice of the decision reached. (This is how Langdell’s legal formalism insisted that legal reasoning ought to proceed.)

 

His decision in Hynes v. New York Central Railroad (1921) illustrates this (see Simon pp.112-3). {An important fact not mentioned in your textbook: Harvey Hynes died when he was electrocuted by falling electric wires owned by NYCR. He was standing on a plank about to dive into the Harlem River when he was struck and killed.}

 

Cardozo wrote this decision while serving on the New York Court of Appeals, the highest court in that state. (The Supreme Court of New York is actually not the supreme court; it is a trial court; the Court of Appeals is the higher of the two.)

 

Cardozo described the way in which NYCR defended themselves against charges that they were responsible for the bather, Harvey Hynes:

 

                In climbing on the board, they [Hynes and his companions] became trespassers and outlaws. The conclusion is defended with much subtlety of reasoning, with much insistence upon its inevitableness as a merely logical deduction. (112, emphasis added)

 

The approach taken by the defense was to demonstrate the general legal principles governing property ownership and trespass, and then to show that as a strict deductive implication of those principles, Hynes and his friends were trespassing, and thus NYCR was not legally responsible for Hynes’ death.

 

The general principles Cardozo has in mind are:

 

“Landowners are not bound to regulate their conduct in contemplation of the presence of trespassers intruding upon private structures.”

 

“Landowners are bound to regulate their conduct in contemplation of the presence of travelers upon the adjacent public ways.” (113) [notice the typo in your textbook!]

 

Cardozo reasons that in this case, it is impossible deductively to infer a conclusion from these principles, since “structures and ways are so united and commingled, superimposed upon each other, that the fields [of exemption and immunity, on one hand, and of liability and duty, on the other] are brought together.”

 

In such circumstances [as those of this case], there is little help in pursuing general maxims to ultimate conclusions. … In one sense, and that a highly technical and artificial one, the diver at the end of the springboard is an intruder on the adjoining lands. In another sense, and one that realists will accept more readily, he is still on public waters in the exercise of public rights. The law must say whether it will subject him to the rule of the one field or the other, of this sphere or of that. We think that considerations of analogy, of convenience, of policy, and of justice, exclude him from the field of the defendant’s immunity and exemption, and place him in the field of liability and duty. … (Cardozo, at Simon 113)

 

In this case, there is no way for a judge to do as a formalist like Langdell says that she should (deduce the single correct decision from general legal principles and the facts of the case in question). So the case must be decided on a basis of something other than deduction from general legal principles.

 

Among the things that Cardozo lists which might serve as a legitimate basis for a decision are justice and convenience, exactly the two sorts of consideration that Langdell dismissed in considering the Mailbox Rule.

 

 

[3.3.3.] Cohen’s Rejection of Legal Fictions.

 

Felix S. Cohen

·         1907-1953

·         philosophy Ph.D. from Harvard, 1929

·         J.D. from Columbia Law School in 1931

·         practiced law and taught jurisprudence at various schools

·         your reading by Cohen is excerpted from “Transcendental Nonsense and the Functional Approach,” which appeared in the Columbia Law Review in 1935, the year that Holmes died.

 

Cohen makes use of a dream described by the German legal philosopher Rudolf von Jhering (1818-1892; also sometimes spelled “von Ihering”) [see p.114]

 

Von Jhering imagine coming into contact with a number of disembodied spirits of legal concepts:

·         good faith

·         bad faith

·         property

·         possession

·         laches [undue delay in asserting one’s right or privilege]

·         rights in rem [rights with regard to things, e.g., a piece of real estate, rather than persons]

 

As these “spirits” are “disembodied,” they have lost all contact with “terrestrial affairs,” i.e., with actual human proceedings here on earth.

 

In bringing up von Jhering’s dream, Cohen is underscoring the tendency to hypostatize legal concepts:

 

hypostasis (df.): the process of converting an adjective (or other part of a predicate) into a substance or entity; e.g., one would do this if, from the fact that F is G, one were to infer that there is such an entity as G-ness.[1]

·         Cohen’s non-legal example: from the fact that there are angelic faces and angelic deeds, one infers that there must be angels

·         Cohen’s legal example: from the fact that there are corporate funds, corporate transactions, etc., one infers that there must be corporations.

 

Cohen compares the question, “Where is a corporation?” to the question “How many angels can stand on the point of a needle?” They both are examples of “thought without roots in reality.”

 

But corporation is not the only “legal fiction” with which Cohen has a problem. He mentions: corporate entity, property rights, fair value, due process, title, contract, conspiracy, malice, and proximate cause.

 

The problem with each of these concepts is that they get defined in terms of other legal concepts rather than in moral, economic, sociological, or other, more concrete terms.

 

Legal arguments couched in these terms are necessarily circular, since these terms are themselves creations of law, and such arguments add precisely as much to our knowledge as Moliere’s physician’s discovery that opium puts men to sleep because it contains a dormitive principle.

                Now the proposition that opium puts men to sleep because it contains a dormitive principle is scientifically useful if “dormitive principle” is defined physically or chemically. Otherwise it serves only to obstruct the path of understanding with the pretense of knowledge. So, too, the proposition that a law is unconstitutional because it deprives persons of property without due process of law would be scientifically useful if “property” and “due process” were defined in non-legal terms; otherwise such a statement simply obstructs study of the relevant facts. (116)

 

Jurisprudence, he concludes, “is a special branch of the science of transcendental nonsense.” (116)

 

Many questions involving these concepts are pseudo-questions; we cannot answer them, but only show them to be nonsensical (e.g., “Where is a corporation?”) On Cohen’s view, the only “significant questions in the field of law” are:

·         “How do courts actually decide cases of a given kind?”

·         “How ought they to decide cases of a given kind?” (117)

 

Cohen’s position echoes Holmes’ “prediction” account of the concepts of legal duty and legal right.

 

 

[3.3.4.] Skepticism, Dogmatism, and Fallibilism.

 

Simon identifies three themes that combine in the tradition of legal realism:

·         pragmatism [see previous notes section 3.3.1.1.]

·         “scientism” [by attributing scientism to the realists, Simon seems to mean that they were more concerned with facts (e.g., psychological and social facts, which contribute to a judge making one decision rather than another) than with values. I would prefer to think of this as “factualism” or “naturalism” or even “empiricism.” The word scientism” is generally used to refer to an undue deference or reverence for science.]

·          “skepticism” ... this takes a bit of explaining...

 

The word “skepticism” has referred to a number of different doctrines in philosophy. One of those doctrines is moral skepticism, according to which there is no such thing as objective moral truth. Moral skepticism is opposed to moral realism, according to which there is such a thing as objective moral truth.

 

Whether or not Simon means to attribute moral skepticism to Oliver Wendell Holmes is unclear.[2]

 

However, one indication that it is not moral skepticism that Simon is attributing to Holmes is that he describes Holmes’ skepticism as being opposed to dogmatism. By “dogmatism,” Simon means the view (rejected by Holmes) that judges and lawyers can be certain with regard to the conclusions they reach.

 

As we saw last time, Holmes does reject this view:

 

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. (Holmes, “The Path of the Law,” pp.14-15, emphasis added)

 

But I don’t think it is accurate to describe Holmes as adopting skepticism in the sense in which it is opposed to dogmatism. In that sense, skepticism is the view that knowledge is impossible. But this is not what Holmes is claiming.

 

Rather, he is claiming something more like fallibilism, according to which any belief that anyone has (including the beliefs of lawyers and judges) could turn out to be false. Fallibilism is another idea closely associated with the pragmatist Charles Peirce.

 

 

 

Stopping point for Wednesday February 28. For next time, read pp.131-36.