The legal realists hold that the question “what is the law?” is best understood in general 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.
I raised a couple of objections to Holmes’s use of the bad man’s perspective. I do not think that either is decisive. Nonetheless, Hart will argue that both points favor his theory: even if they do not prove that Holmes is wrong, his theory that laws are rules will accommodate them more elegantly than the alternatives do.
One objection was that you can ask the question “what is the law?” without any of the confusion between law and morality that Holmes worried about. For instance, I can ask that when I am trying to write a will. Here, as Adrian said, concern about punishment is irrelevant. I just want to know what the rules are.
I think Holmes should follow Youhan’s suggestion in answering this. His point was that people ask what the law is because they want a prediction about how the state will use its power. When they are asking about the criminal law, they want to know what behavior the state will punish. When they are asking about the private law, that is, the part of the law governing relations between private individuals, they want to know what contracts, wills, and so on, the state will enforce. So even if the bad man’s perspective is not especially revealing here, the basic point remains: the question is motivated by a desire to predict how the state will act.
The second objection I raised holds that the bad man’s perspective distorts our view of the law. This objection begins with the assumption that no society could exist if it had to rely on coercion to keep more than a small minority of its citizens in line. If that is so, then the reasons that the vast majority of the citizens have for complying with the law must be quite different from the bad man’s reasons. And if that is so, you might ask whether the bad man’s perspective really is the best one to take for understanding how the law really works.
One way Holmes could tackle this would be to deny the premise, as Porter suggested, by saying that the law really is coercively enforced. We’re all “bad men,” it’s just that most of us are kept in line with informal enforcement or threats that are unlikely to be inflicted. For instance, you don’t have to do much to keep me from shoplifting since the humiliation of being caught even once in a thousand tries would be enough to deter me.
Another thing he could do is revert to his original point. Even if most of us comply without direct threats, our ways of thinking are a very bad guide to understanding the law. That is because we comply with the law for a variety of moral and social reasons, only some of which concern the law itself. So if we want to understand the law in isolation from these other factors, we do better to stick with the bad man’s perspective.
Frank’s case of the taxi companies seems to show that there is little point to asking what the law is unless you are asking for a prediction about how judges will rule. After all, the validity of the contract changes depending on which judge is hearing the case!
In order to test this idea out, I noted that the vast majority of cases involve laws that are pretty clear. Most of us never go to court over speeding tickets, for instance, because there really is not any doubt about what the speed limit is. That seems to show that when I ask myself “what is the traffic law?,” I am not asking for a prediction about how a judge will rule.
Adrian is right to say that a realist can say that this is misleading. I still care about what would happen if I were to go to court. It’s just that the prediction is very easy to make in many cases. Matthew pressed a line of arguments that suggests he thinks that at least some laws are found in statutes rather than the pronouncements of judges. In these cases, it is not the judges’ ruling that matters. All the judge is doing is reading the statute, just as you and I do. Adrian said that the realists would say that judges still have to enforce even the clearest laws. Matthew wondered if that was peculiar to our system as opposed to legal systems in general.
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 are asking how other judges, in higher courts, will rule. (But this is not going to be a helpful answer for judges on the highest court.)
Or maybe judges are deeply mistaken about what they are doing. They think they are finding the law when really they are doing something else. That is a possibility.
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.
Social advantage
After class, Antonio asked me about Holmes’s interesting remarks about consulting the social advantage (Holmes 1897, 467–68). We did not talk about this in class. In brief, Holmes thought that judges were importing conservative social beliefs into their decisions without realizing that they were doing so. The suggestion that they take the social advantage into account was meant to replace conservative social views with a more modern understanding of economics.
Holmes did not really explain how he thought this should work, so it is a merely suggestive remark. It is much more worked out in so-called economic theories of law, such as those discussed in Prof. Marks’s class.