Overview

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.

Then I presented objections to each argument and the replies that I imagine the authors could have made on their own behalf.

These objections will motivate Hart’s theory that law is a system of rule. So we will ultimately have to ask not whether the realists can defend their view but rather whether their theory is superior to Hart’s.

The Bad Man’s Perspective

Holmes thinks we should look at the bad man’s perspective to answer our question because the bad man does not confuse law and morality. The bad man, in turn, is interested in the rulings of judges because that tells him whether he is likely to be punished for doing something.

I raised two questions about Holmes’s use of the bad man’s perspective.

1. Is it relevant to all areas of the law? The bad man is concerned to avoid punishment, and so he might tell us something about the criminal law. But what can his perspective show us about the private law, that is, the law concerning contracts, wills, and the like?

2. Does the bad man’s perspective give us a distorted picture of how the law works? Everyone agrees that the bad man is unusual. Holmes treats this as a virtue: the bad man separates the law from other social institutions, such as morality. But no legal system could work if everyone were a bad man: there aren’t enough police officers. So is it obvious that the bad man’s perspective really tells us how the law functions as a working social institution?

We talked about things that Holmes could say in response. For instance, Niyati noted that when you make a contract, you are also interested in how the state will use its power. Will it enforce the contract or not? Even a bad man could care about that.

Adam suggested that we take more seriously the idea that people comply with the law because they fear punishment. You just need a chance of punishment for crime not to be worth your while. You don’t need a cop over your shoulder. Autumn said that the possibility of immoral laws was a reason to take the bad man’s perspective seriously.

Frank’s Taxis

Frank’s story about the taxi cabs is supposed to show that the “what is law?” question is a request for a prediction about how a judge will rule. In his story, the answer to the question varies depending on which court will hear the case.¹

I suggested that this might be less pervasive than Frank suggests. No one goes to court when the law is just clear, after all. If the law is clear without consulting a judge, the answer to the question “what is law?” does not obviously have to refer to what a judge would say. Just look it up in the book with all the laws in it!

Niyati pointed out that Frank could say the law is only clear when judges have made it so. Perhaps there is an existing ruling or perhaps it is just obvious what they will say.

Daisy found the idea that we answer this question with a prediction disturbing. You never know for certain what a court will do. Even if a court has ruled one way in the past, its ruling could be overturned by another court in the future. So the realists seem to be saying that law is always unsettled, although some areas could be less settled than others. Daisy did not care for that. I feel the same way, but I’m not sure anyone has a solution. (We will see Daisy’s point come into play when Hart and Dworkin clash with one another over “retrospective law.”)

Adam suggested that the realists were wrong to stop with judges. Courts don’t enforce their own decisions. If you’re interested in the law because you want to know how the state will use its power, you are interested in the part of the state that controls the police, not judges.

What Do Judges Do All Day?

Judges often ask “what is the law relevant to the case before me?” Is that a request for a prediction about how they will decide their cases? That does not make a lot of sense and is certainly not what they think they are doing. (Though they may be wrong, of course.)

Maybe it’s a request for a prediction about how a higher court will rule.

Of course, that leaves the question of what the highest court is doing when its members ask about the law.

Social advantage

After class, Camilla 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 economic theories of law, such as those discussed in Prof. Marks’s class.

Main Points

These are the things you should know after today’s class.

1. What the legal realists mean when they say questions about the law are requests for predictions.
2. The bad man’s perspective.
3. Frank’s case of the taxi companies.