The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles


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Which earlier cases are relevant? How should the issue be cast? How should it apply in this case? The answers to those questions are seldom dictated by the existing law, says Thomas.

The upshot: judges themselves make law, and they do it all the time. And yet, part of the ethos of judging is to deny this, and pretend that the outcomes reside in the law itself. It means they are dishonest about the real reasons for the choices they make. Or it means they make bad choices, hog-tied by cases from an older age that have lost their relevance to modern society.

He has written this book to stamp it out. Thomas is certainly not alone in his criticism of formalism, and he draws on the views of other judges and theorists to make his case. Judges may not be elected, but this provides the guarantee of independence that is their great strength, he argues. They are accountable through their reasoned decisions and the appeal process. They need to reform the law occasionally — because Parliament frequently ducks that responsibility.

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Ted Thomas (judge)

Judges can still be guided by past cases — just not wedded to them. What if some of the constraints on judges Thomas applauds are rooted in the formalistic attitude he loathes? To argue that the law is a tool to serve society and, therefore, we must be subject to judicial law making contains an obvious internal inconsistancy. Lawyers and judges are just as subject as any other element in society to group capture, and the idea that an unelected expert elite of technocrats should be elevated to position of equality to, or superiority over, the people as expressed in the house representatives is to my mind little more than an absurd power play.

While Dworkin disavows the deductivist picture offered by Langdell, and allows in a moral dimension, in his attachment to traditional legal materials and practices he is clearly a proponent of the classical view.

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The legal pragmatist finds much to argue with in this picture of jurisprudence. The legal pragmatist thinks that the classical view is overly legalistic, naively rationalistic and based upon misunderstandings of legal institutions. As opposed to the self-imposed limitations entailed by the classical view of judicial decision-making, legal pragmatists emphasize the eclectic nature and the diverse aims of the law.

More specifically, legal pragmatists largely agree upon four main aspects of a pragmatist version of jurisprudence: 1 the important of context; 2 the lack of foundations; 3 the instrumental nature of law; and 4 the unavoidable presence of alternate perspectives. For the legal pragmatist all legal controversies are essentially attached to a specific and unique context.

As Posner describes it, emphasizing the unavoidable presence of a specific context "disconnects the whirring machinery of philosophical abstraction from the practical business of governing our lives and our societies Posner , p. In this case they mirror the actual practitioners. Tamanaha argues that the contrasting contextualism of legal pragmatism is best shown in Justice Holmes' strategy whereby he used historical analysis to expose such seemingly timeless abstract legal concepts as being actually derived from contingent and context-specific needs Tamanaha , p.

Through this strategy the illusion of an eternal set of essential legal concepts is exposed as actually being a contingent creation of specific conflicts. While even legal formalists expect to apply concepts to a context, the legal pragmatist differs in seeing the concepts themselves as products of context. Because of this, the assumption that the legal concepts are applicable beyond their originating controversy is questioned. The basic claim offered by the contextualist critique is that all legal decision-making, as well as any legal controversy, takes place in a specific and unique context that is so constitutive of the issues and the ultimate decision that the decision is distorted if seen from a non-contextual perspective.

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More importantly, the concepts used are questionable when applied between different controversies. Because of this, the abstractionist tendencies of the classical view of legal decision-making is thought undesirable and a view that emphasizes context, such as the legal pragmatist's, to be superior. In addition to the need to emphasize context, the legal pragmatist also argues that the lack of foundations in legal decision-making must be recognized.

Foundationalists hold that there is some core principle or principles that all legal decisions can be deduced from.


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While today very few will admit to an extreme view of such foundationalism, most legal theorizing assumes a more moderate foundationalist view. This moderate view argues that the judge has a sufficient set of tools from within the traditional materials of the classical view of legal decision-making the case method to make properly informed decisions in present cases.

In other words, the moderate view sees cases as the necessary and sufficient foundation from which to deduce sufficiently analyzed legal conclusions. A legal pragmatist sees this as descriptively wrong. First, "the idea that correct outcomes can be deduced from some overarching principle - or set of principles" is rejected Cotter , p. In place of deductive certainty is offered a picture of induction and an emphasis upon the creative problem-solving act of jurisprudence.

Second, pragmatism in general stands for a rejection of the metaphysical picture of knowledge or decision-making that sees either as needing or indeed having a foundation. Knowledge and reason in law, as in any other domain, are seen as essentially open-ended concepts in need of continual testing and revision, and therefore law is an activity that would outgrow any purported foundations. So, if cases are thought to provide a foundation to legal decisions the legal pragmatist argues that they will not be inevitably up to the challenge of the next case, and therefore the foundationalist picture is at the very least incomplete.

While the classical view of legal decision-making emphasizes consistency with past decisions the high value of respect for precedent , the instrumentalist advocates an investigation of the effects a decision might have and the capabilities of the legal institution. An instrumental view is therefore less interested in precedent and more based upon a "orientation towards the future Rosenfeld , p. For instance, in a contract dispute a judge following the classical model of legal reasoning would look to antecedently held rights and obligations as shown in earlier cases in order to decide.

A pragmatist judge, on the other hand, would see those issues as important but would also look at the greater implications for contract disputes in the future. This prospective attitude would bring in data as to the effects of the contract decision upon third parties, how a ruling would affect daily life, etc. This orientation towards the future, and towards the empirical, means that for the legal pragmatist judge a whole new set of reasons become applicable and legally relevant when making a decision.

While the advocate of the classical view can limit the reasons and facts to those allowed in the analogous cases, the cases accepted as precedents, the pragmatist judge must allow in other sorts of data, for instance sociological or economic data, in order to properly access the individual case at hand. Therefore, instead of emphasizing the primacy of consistency with precedent, a pragmatist of a legal bent emphasizes "the primacy of consequences in interpretation Posner , p.

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Finally, the legal pragmatist adopts a stance that embraces the problem of perspective. Perspectivalism entails a suspicion of broad generalities and an acknowledgment of eclectic manners of description. As opposed to legal formalism, which "holds that determinate meanings exist in legal texts which may be discerned by reason and that objective, immutable principles simultaneously inform and transcend the practice of applying rules," perspectivism emphasizes that all is messy, open-ended, and subject to revision in light of another perspective or further information Shutkin , p.

The acknowledgment of perspective entails that an overly deferential stance towards precedent and previously endorsed analogies could be unfairly restrictive towards new and possibly more inclusive descriptions. As can be seen from the above, legal pragmatism offers a significant alternative to more traditional views of the legal domain. In fact, Stuart Scheingold argues that this lack of awareness of conflicting perspectives is a pervasive quality of traditional legal thought. As he puts it "Law professors and lawyers do not believe that they are either encumbered or enlightened by a special view of the world.

They simply feel that their legal training has taught them to think logically. In a complex world, they have the intellectual tools to strip a problem, any problem, down to its essentials Scheingold , p. But important issues remain even if one finds such a description of legal pragmatism attractive. First, is legal pragmatism offered as a descriptive or a normative picture of jurisprudence? Second, does such a stance really offer any desirable features that the more classical picture of law cannot deliver or does it suffer from more intractable flaws?

Legal pragmatism can be characterized as a theory with descriptive pretensions.

Volume 37, Issue 1 | Faculty of Law | Victoria University of Wellington

That is, as a theory as to what really happens in law, despite the ideological prevalence of the classical model. The descriptive legal pragmatist thinks that the classical picture of jurisprudence does not fit the facts of law, and that a pragmatist picture offers a better alternative. A legal pragmatism of this type looks to the legal realists as historical precursor. The legal realists claimed that law was a much sloppier and more political, as well as less reasonable, institution than those following the Langdell model admitted.

In other words, that the reasons and data offered by the classical model of legal decision-making do not properly explain the actions of legal institutions. The legal pragmatist, therefore, looks for empirical evidence that argues against such a constrained view of decision-making. Such evidence is not too hard to come by. First, it is clear that political actors do not treat the court system as neutral and functioning only upon respect for precedent.

The full-blown fights over judicial appointments shows that actors outside of the court system view judges as politically important. Second, there is much empirical research that questions the assumption that precedent actually has the authority claimed for it.

Some studies have claimed that decisions are more influenced by the political beliefs of the judge than by precedent Goldman , p. On the other hand, the legal pragmatist model has difficulties as a descriptive theory as well. First, judges for the most part certainly act and write as if they are following precedent and the traditional legal materials.


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Second, it seems as if judges that were really pragmatic would have to be more rigorous in the following out of empirical implications of their decisions. But this possibility raises many questions. For instance, would the current fear of statistics and sociological data that lawyers have as an rule have to be overcome in order for law to be actually and accurately described as pragmatic?


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Furthermore, there is the question of institutional competence. Does the legal system really have the resources to gather and digest all the data necessary to make an informed pragmatic decision?

The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles
The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles
The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles
The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles
The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles

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