Legal realism Notes for February 6

Main points

Legal realists hold that the question “what is the law?” is best answered with predictions of how judges will rule. There are two main motivations for this view.

1. It is the question that people actually want to have answered when they ask about what the law is.
2. There are cases where the law is hopelessly indeterminate prior to a judicial decision.

We talked about these arguments as well as Holmes’s case for the separation of law and morality. I suggested that our authors might have overstated the extent of indeterminacy by virtue of their positions as judges.

We will return to these points in our next two sessions. Among other things, I promise that there will be Nazis.

Law and morality

Holmes argues that quite a lot of the moral-sounding vocabulary of the law is misleading. Martin responded that he hasn’t proven his point about the separation of law and morality. Parts of the law may be divorced from morality, but others may still be intimately connected, he said.

How do we settle that? A lot depends on what, exactly, is meant by saying that there is or is not a relationship between law and morality. What is the relationship in question?

If you say that the relationship is “identity”, then you’ve got a tough position to defend. As Jared pointed out, the law covers a lot of things that morality doesn’t and, as Stephanie argued, morality sometimes seems to run counter to the law.

By contrast, if you say that the relationship is “overlap”, then you would have a pretty defensible position for the reasons Martin gave.

Social advantage

We raised four points about Holmes’s contention that judges should take social advantage into account.

1. This position might be in tension with his claims about the separation of law and morality (Fowler).
2. It could be unfair if different judges draw different conclusions about what works best for the social advantage (Kevin).
3. They aren’t trained to make those sorts of decisions (me, Rob).
4. It’s undemocratic (I can’t remember who said this. Fred?).