The legal realists hold that the question “what is the law?” is best understood as a request for a prediction, namely, 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 cases in which the law is indeterminate until judges rule, such as Frank’s case of the taxi company.
We ended with a discussion of Holmes’s claim that judges should take the social advantage into account in making their decisions.
It’s helpful to think about the realists from the perspective of Hart’s theory. Hart thinks that laws are rules and that the question “what is the law?” amounts to asking “what are the rules?”
On the face of it, this looks like a better description of how judges think about what they’re doing than the realist view does. This is implicit in Tena’s criticism of the realists. She said that judges approach their task as an interpretive one: they try to interpret something independent of their will, namely, the law. She didn’t think they could think of their jobs as making the law. It certainly would be odd for judges to approach cases by trying to predict how they will decide them! (And even more odd if they took up the bad man’s perspective in trying to say what the law is.)
On the other hand, as Sarah pointed out, judges know that laws are often in conflict or indeterminate. That was the point of Frank’s case and a number of Holmes’s illustrations. They know they make decisions even though they know that there’s no straightforward logical deduction of what the law is in every case. They may not think of themselves as acting in the ways the realists describe but that doesn’t mean that this is not in fact what they are doing.
We’ll return to the question about judges on Monday.
I think the end of the Holmes piece is extremely interesting. Among other things, he says that judges genuinely are mistaken about what they’re doing. They think they’re just applying law and logic. But their decisions only seem clear to them because their conservative social prejudices favor one side over the other, not because the law itself is genuinely clear.
Holmes thought that judges should explicitly take consideration of the social advantage into account in making their decisions. They do so badly and uncritically anyway. But, more importantly, the costs of their decisions are ultimately born by society at large. So they should make them in ways that someone acting on the society’s behalf would, favoring the social advantage.
Danielle noted a disadvantage of this approach, namely, that it runs the risk of squashing individual rights. Michael added that it seemed to him that the problem would be most pressing in the criminal law. Good points!