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. When the realists describe the question “what is the law?” as a request for predictions about how the officers of the state will behave, they are adopting what Hart calls the external point of view and not capturing what he calls the internal point of view.
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 Gabe suggested, though he did note that this would leave the highest court hanging. But maybe that’s the right thing to say. Maybe the highest court really does have to be, um, creative, in almost all of its decisions.
As Hart sees it, judges rely on taking the internal point of view on the law: their task is to interpret what the law says about a particular case rather than making predictions about what other courts will do. If so, his theory that law is the union of primary and secondary rules makes the best sense of their behavior.
It is worth adding that judges might think they are doing one thing when, in fact, they are doing something else that they are not fully aware of. I take the realists to be saying something like that.
We will spend more time on judges in our next class. In particular, we will pick up on Lane and Taylor’s idea that realism applies best to cases in which the law is ambiguous or has loopholes.
Izzy brought our attention to Holmes’s interesting remarks about consulting the social advantage. We will take these issues up in our next class.
We talked a lot about the role of precedent. It is true that judges often refer to past cases in reaching their decisions. It is a good question why the decisions of courts should play a role in determining what the law is. There are also some obvious advantages and disadvantages of the practice: consistency is an advantage and being chained to the past is a disadvantage.
In the course of our discussion, I said that the Supreme Court has been quite willing to ignore its previous decisions. One case in particular stuck out for me: Lawrence v. Texas. In this case, the Supreme Court completely reversed the decision they had made about 12 years earlier in Bowers v. Hardwick. The account of their decision in this article has had an enormous impact on the way I, for one, see the Supreme Court.