The legal realists hold that the question “what is the law?” is best understood as a request for a prediction and specifically as a request for a prediction about how judges will rule.
I isolated two arguments for this view: Holmes’s claim that it follows from the bad man’s point of view and Frank’s example of the taxi case, which seems to show that the law is indeterminate until judges rule. Then I presented objections to each argument and the replies that I imagine the authors could have made on their own behalf.
These objections will motivate Hart’s theory that law is a system of rules. Since that is so, our ultimate question will not be whether the objections are fatal to the realists’ program but rather whether Hart’s explanation is superior to theirs.
The Bad Man’s Perspective
Holmes thinks we should look at the bad man’s perspective to answer our question because the bad man does not confuse law and morality. The bad man, in turn, is interested in the rulings of judges because that tells him whether he is likely to be punished for doing something.
I raised two questions about Holmes’s use of the bad man’s perspective.
Is it relevant to all areas of the law? The bad man is concerned to avoid punishment, and so he might tell us something about the criminal law. But what can his perspective show us about the private law, that is, the law concerning contracts, wills, and the like?
Does the bad man’s perspective give us a distorted picture of how the law works? Everyone agrees that the bad man is unusual. Holmes treats this as a virtue: the bad man separates the law from other social institutions, such as morality. But no legal system could work if everyone were a bad man: there aren’t enough police officers. So is it obvious that the bad man’s perspective really tells us how the law functions as a working social institution?
In response to the first question, Berto said that the realists could still say that we’re interested in predictions about how the state will use its power. It’s just that we’re interested in predicting whether the state will enforce the contract rather than predicting whether the state will punish us or not. I like the way Kyle put it: you want to be on the right side of the law. So their basic idea is correct, they just mistakenly suggested it is only relevant to the criminal law.
We did not have as crisp an answer to the second objection. This is fitting as the second objection does not raise as crisp a point to start with. I think many of us were persuaded by Holmes’s point that our thinking about the law often reflects confusion about the relationship between law and morality. That suggests that the bad man’s perspective has a kind of clarity about the law that the rest of us lack. That said, it still does not seem obvious to me that this means the bad man’s perspective on the law gives us more insight in how the law works. Again, the law works only because most people are not, in fact, thinking like bad men.
We had some discussion of the relationship between law and morality. Berto gave us the case of Jean Valjean. Chloe added that we generally want judges to make the right decision. Caroline supported Holmes’s position that law and morality are two different things. And Ross had an interesting remark to the effect that law can sometimes be less settled than morality is. When that is so, the normal reason for wanting to separate law and morality, namely, that law is settled even when moral beliefs are not, is flipped on its head. We’ll return to this when we discuss the case of the Speluncean Explorers.
Sienna gave us cases that suggest the realists exaggerate the role of judges. When sentencing guidelines limit judicial discretion, you care about the guidelines, not about what the judge will do. Caroline and Patrick said that they thought the basic realist idea would still apply: you’re interested in how the state will act and the state acts through judges, even if it does not give them much discretion.
Frank’s story about the taxi cabs is supposed to show that the “what is law?” question is a request for a prediction about how a judge will rule. In his story, the answer to the question varies depending on which court will hear the case.1
I suggested that this might be less pervasive than Frank suggests. No one goes to court when the law is just clear, after all. If the law is clear without consulting a judge, the answer to the question “what is law?” does not obviously have to refer to what a judge would say. Just look it up in the book with all the laws in it!
We did not have much time to discuss this, so we don’t really know if my point could survive objections. Let’s leave as a challenge: the realists have been charged with exaggerating the extent to which laws are really indeterminate before judicial rulings. To make their view plausible, they would have to explain why they do not exaggerate in this way.
These are the things you should know after today’s class.
What the legal realists mean when they say questions about the law are requests for predictions.
The bad man’s perspective.
Frank’s case of the taxi companies.
Frank, Jerome. 1930. Law and the Modern Mind. New York: Coward-McCann Publishers.
Holmes, Oliver Wendell. 1897. “The Path of the Law.” Harvard Law Review 10 (8): 457–78.
Strictly speaking, the law stays the same: the contract is invalid in Kentucky but valid in Federal courts. It’s the legal rights of the companies that change.↩︎