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.
In the course of discussing the realists, we returned to Hart’s distinction between the ‘internal’ and ‘external’ points of view on rules.
The realists describe questions about what the law is as requests for a prediction. They think that the question “what is the law?” is asked by people who want to know whether the power of the state will be brought to bear on them if they act in one way rather than another. So, as the realists see it, they are asking for a prediction.
Hart’s contrast between what he called the internal and external aspects of rules is supposed to reply to this. As Hart sees it, the question “what is the law?” is a question about rules: what does the rule of recognition identify as the rule governing my behavior? Those who take the internal point of view on the rules that make up the law think of the law’s rules as telling them what to do. By contrast, those who take the external point of view on the law think of the law’s rules as helping them to predict what will happen.
Hart used a simple example of traffic law to illustrate the point (see pp. 92–93 of the textbook). For someone who adopts the internal perspective on the law, the stop sign means you should stop. For someone who adopts the external perspective, what it means is that you are more likely to be punished if you do not stop than you are if you do.
Speaking for myself, I find it easier to see the point by thinking about language. Saying “stop!” is different than saying “if you don’t stop, you are more likely to be punished than if you do.” Hart maintains that the former conveys what the law says more accurately than the latter does.
(Of course, as Claire and others noted, the law isn’t quite that literal. It’s not just “stop,” it’s “stop, and then go if it’s safe.” Sometimes, the injunctions of the law are more like an invitation to a party, where “we will start at 9” really means “don’t come before 9:30.”)
Among other things, Hart’s theory has a better explanation of why legal obligations do not vary with the probability of punishment. Suppose you were sure you could not be caught. The law still applies.
Judges ask “what is the law?” too. When they do so, are they asking for a prediction about how they will rule? If so, judging is very strange!
Maybe they’re asking how a higher court will rule, as Aaron suggested. Clever! That would leave the highest court hanging in mid-air, though, as Angela noted. And it’s probably not the way judges actually think of what they’re doing. They think they’re finding the law, not making predictions.
Perhaps they’re mistaken, of course. But Hart’s theory that laws are rules has an easier time explaining what they are doing. They are trying to find the right rule.
James brought our attention to Holmes’s interesting remarks about consulting the social advantage. And Josh asked whether this mean that Holmes is collapsing the distinction between the way the law is and the way it ought to be. We will take these issues up in our next class.