Two Problems for Legal Realists

-- By BrookSutton - 24 Feb 2010

I. The argument for legal realism generates its own problems

II. The legal realist challenge

a. Rule-skepticism

i. A rule of law cannot contain its applications

ii. Any set of prior applications admits an indefinite number of possible rules

b. Fact-skepticism

ii. The facts of a case are the subjective narrative output of numerous actors

c. The law is indeterminate in outcome and the constraints of the Rule of Law on judges are fictions

III. The realist approach

a. A purely logical analysis of the rule is insufficient to justify a legal decision

b. Judges should embrace the political aspect of legal decisions

IV. Two problems for legal realism

a. The epistemological problem

i. What grounds the claim that experience is primary?

ii. Two theories of meaning

b. The pragmatic problem

i. Does legal realism sell out the poor?

Two Problems For Legal Realists

The argument for legal realism generates two challenges for the realist project, one epistemological and one pragmatic. The rule-skeptical and fact-skeptical objections proposed by realist thinkers shatter the fundamental formalist belief that precedent uniquely determines the outcome of legal cases. However, these objections also give rise to the epistemological and pragmatic problems identified in this essay.

The Legal Realist Challenge to Formalism

Rule Skepticism

Rule skepticism can be summarized by the proposition that a rule of law cannot contain its applications. It presents two difficulties for legal formalists. First, no set of precedents is sufficient to produce a general rule where the set is incomplete. This resembles the problem of induction faced by scientists. However, a key difference between law and the natural sciences makes the problem of induction particularly destructive to legal formalism. Science is predictive.

Not necessarily. There are purely descriptive, historical sciences, such as paleontology. Any science that studies complex path-dependent processes is not primarily predictive.

True, although these sciences still hold their hypotheses up to experience. A paleontological theory makes implicit predictions about the possibilities for future discoveries and should be abandoned if those predictions cannot by reconciled with a new discovery. A law can be overruled or expanded, but this represents a choice on the part of the judge. Maybe her decision is motivated by new social conditions, but I'm not sure that means it's correct to say the law was irreconcilable with those conditions. It was simply not preferable.

Its hypotheses are verifiable by reference to experience. Conversely, the law is prescriptive. Experience can neither confirm nor disconfirm the truth of an application of law.

But that's not the test for prescriptive statements, which are "right" or "wrong" rather than "true" or "false." Whether experience shows the rightness or wrongness of the application of rules is an interesting question you do not consider here.

The problem for legal realists, which is the subject of this paper, is that a decision's "rightness" or "wrongness" is purely a question of values, and values cannot be experienced in the same way as a table or lamp.

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. A vicious circle results: the rule depends on its applications, which depend on the rule.

This isn't a vicious circle, just a form of partially-recursive data. Such structures of mutual recursion, where A depends on some of B that depends on some of A, are common to several types of computer applications, and are entirely tractable to operation by rules. Every chess position generates an indefinite number of possible continuations, too, but rule-based intelligence can eliminate the preponderant fraction immediately.

I don't know that I follow you here. Precedent may offer guidelines for interpretation or application, but these guidelines are not determinative. This is the thrust of the rule-skeptical argument against the formalist belief that prior decisions uniquely or completely determine legal outcomes. Moreover, I'm not sure how many people in my audience (i.e., the class) are going to bring up partially-recursive data. I thought this was an effective sentence.

Fact Skepticism

However, rule skepticism does not represent the only realist assault on formalism. The cynic, who possesses a canon of laws and is untroubled by the circular logic of their application, must still contend with fact skepticism.

I don't understand "cynic" in this context. Is that a synonym for "anti-realist"?

Sure. Is that a problem?

A court operates by applying rules to the facts of a case. The facts of a case comprise the subjective narrative output of witnesses, attorneys, juries, judges, detectives, etc. Inevitably these actors must decide between competing accounts. The very purpose of a jury is to resolve disputed issues of fact. Therefore, even when the application of a rule to a set of facts is clear, the facts that ground its application admit indeterminacy.

The Realist Approach

Both the rules of law and the facts of a legal case resist the proposition that reasoning from precedent uniquely determines legal outcomes. Once one concedes the skeptical argument that precedent cannot completely determine the outcome of legal cases, the question becomes, what does? In The Common Law, Holmes surmised that judges respond to the “felt necessities of the times,” as well as personal and social biases. He advocates a clear-eyed approach that sees the desired aims of a decision and the reasons for desiring it. This account provides a basic description of the legal realist project, which elevates policy considerations in legal decision-making and rejects deference to precedent where it does not serve specific social goals. Law becomes politics by another name.

This is not competent argument. Would law not be politics by another name if precedent were more important and policy analysis less? Respect for precedent too serves specific social goals, and is therefore also politics by another name. Nor is there one realist position on what "determines" the outcome of legal cases, because there is no agreement that the outcome of legal cases is "determined." Lawsuits are events representing the intersection in time and place of multiple social processes occurring on different scales. Realists do not expect to reduce the complexity of history to the execution of rules.

Point taken. But obviously there is some material difference in outcomes. Otherwise, why would Holmes or anyone else emphasize social policy analysis over precedent? However, if you want to argue that respect for precedent is in itself a political decision, then you are correct, but it seems you are being overly broad. Sure, a respect for precedent is a political commitment, but isn't it a political commitment in a different way than a decision, occasioned by the facts of a particular case, which aims to achieve specific social goals relative to that case?

The Problems It Creates

The Epistemological Problem

While the legal realist objections to formalism are compelling, they create their own difficulties for the realist project. The epistemological problem originates in the recognition by realists that unconscious motivations shape legal decisions. In response, Holmes calls for a legal method that would unearth these hidden forces—a “science of values.” A science of values would put judges in touch with the bedrock habits, beliefs and attitudes that inform their decisions. Such a science presupposes that judges are capable of accessing their own biases and those of society as simple matters of fact. This proposition reflects the realists’ regard for the primacy of experience. But, what grounds the belief that experience is primary, particularly with regard to values?

The "ground" of such a belief is to be found outside logic, and is probably not something for which reasons should ever be given, says Wittgenstein. Why Americans of the period from the Civil War to the Great Depression should be particularly inclined to feel the primacy of experience in such matters might be a useful question for a cultural historian. To describe a belief in the primary utility of experience as an epistemological problem goes pretty far.

The epistemological problem pertains to the treatment of one's values as simple matters of fact. I think we may disagree fundamentally here about how well we are able to know ourselves, and I don't presume to persuade you. But I wonder if I have done a capable job presenting my thoughts to other members of my audience.

To lay claim to the real motivations for a legal decision, legal realists must produce a theory of meaning that underwrites unmediated access to experience. Otherwise, judges apply the law blindly.

Bushwah. If this means something sensible, you should be able to use two other sentences to render that meaning clearly.

A legal realist judge applies the law just as blindly as a formalist judge where neither grasps their underlying motivations. What supports the realists' presumption of honesty?

Realist critiques lend themselves to two interrelated theories of meaning. One theory holds that meanings are cultural artifacts. Institutions circumscribe the limits of meaning by policing its terms. While not transcendental, this theory permits its own brand of legal formalism based on the norms of interpretative communities. The other theory sees meanings revised in response to felt necessities. Within this framework, circumstances confronting societies engender new hierarchies of meaning, i.e., the impact of the Depression on American political and legal ideals. Arnold captures both theories and their interrelation in The Folklore of Capitalism. In his account, a prevailing mythology dominates the possibilities for the application of meanings, until it fails to meet the demands of an emergent crisis, at which point it gives way to a new hegemony.

No. You are treating something that Arnold believes is constantly happening to organizations under conditions of social change with something that happens all at once to a system of government or culture in crisis.

However, neither theory suffices, alone or in combination, to establish the primacy of experience. The former theory fails to dispel the possibility that existing institutions deposit the bedrock upon which legal decisions are founded. In this respect, realism differs from formalism without distinction. Neither grants jurists direct access to their underlying motivations. Likewise, nothing in the latter theory requires that the structure of meaning produced in the face of crisis did not already inhere in the preceding arrangement, or was not colored by it. Critically, values are not simple matters of fact, but lenses through which the world is viewed. 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. Therefore, realism posits the primacy of experience, upon which Holmes bases the “life of the law,” as an article of faith.

Yes, to some extent. So what?

"So what?" comes next. I thought this was a decent transition. I was hoping for more comments on the form of the paper and less on the content.

The Pragmatic Problem

The absence of an epistemological basis for legal realism leads to a pragmatic problem for its adherents. Realism rejects reasoning from principles based on precedent.

No. It says that reasoning from principles based on precedent isn't "the law."

Thus, the realist project is methodological in nature, not substantive.

The realist project isn't a project. Being lawyers and judges and making things happen in society using words is the project. Realism is a cultural mood within which people do being lawyers.

Good point above, but this feels like nit-picking. The authors we've read are advocating for a change in the way the law is done. I don't think "project" is that far off, and it has political undertones, which I thought fitting.

It holds that the ends of the court are unavoidably political matters. But by pulling back the veil of formalism enshrouding the legal process, legal realists may simply be removing another obstacle preventing the wealthy, powerful and connected from achieving desired legal outcomes.

Realists would be the last to disagree that formalism occasionally hampers power. I don't think there is any evident agreement among realists about whether power should be hampered in general, and I would expect realists to disagree as broadly as others about whether power ought to be hampered in any specific situation. This seems to me a really pointless objection.

I have always seen the courts as the institutions most capable of protecting minority or underrepresented interests. That doesn't mean I disagree that legal decisions based on precedent are political. I just don't think they are purely political, in a narrow but significant sense of the word.

The capital investment made by large firms pursuing the “science of values” may give weight to this concern, as might the erosion of due process defenses to politically popular law enforcement and national security strategies. At the very least, it seems a fair question to ask whether the law, reduced to politics by another name, will offer greater or lesser protection to minority interests.

Sure, it's a fair question. The answer is obviously "yes." Moreover, the answer is obviously "yes, sometimes." Which is why whether it's a fair question doesn't tell us whether it's a good question. Because the law isn't being "reduced to politics by another name," but was always politics by another name to start with, whether telling the truth about that offers greater or lesser protection to minority interests (how about the interests of the weak and poor, who are never the minority?) Obviously, I meant to include the weak and the poor. How about "underrepresented?" seems to depend on who benefits from honesty about that state of society. A substantive discussion on that point is always possible, but not the way you're conducting the discussion here.

These comments reflect our earlier disagreement about whether formalist decisions are political in the same way that realist decisions are. I'm simply trying to show in this paper that the poor may be victims of the success of realist objections to formalism. Where one starts from the premise that Judge X would come to the same holding via formalism or realism--with the latter approach differing only in its supposed honesty--then the issues I attempt to raise become moot. The better questions in that case concern the collateral effects of honesty versus ceremony--and this seems to be your interest. But I don't believe the decisions would be the same in either case, so I raise the issues I do in this paper.